Court Rules Against Fox News and In Favor of Media Monitoring Service TVEyes, Clarifying That Fair Use Law Allows Users to Archive and Provide Keyword Searches of Video Clips Created by Big Media Companies

What sort of unpermissioned copying and sampling is OK under US Copyright law?

On Sept. 9th, 2014, a New York federal judge issued a "fair use" decision that seems to clarify what US law permits in the way of archiving and keyword searches - a decision that may not please some big content owners (like Rupert Murdoch who - when it suited him - called for the elimination of fair use) - handing "Fox News a major legal loss in its attempts to protect its news shows from exploitation."

In a ruling that will likely be much-debated, U.S. District Judge Alvin Hellerstein said that Fox News can't stop a media monitoring service from indexing its content.

The full effect of the Fox v. TVEyes decision cannot yet be measured - but this case could have far-reaching implications for content owners and for the people who want to copy and sample existing works to create new transformative works.

The case in NY pitted Fox News against TVEyes, a service used by approximately 2,200 subscribers including the White House, the Associated Press, MSNBC, Bloomberg, the US Department of Defense, the United Nations, several members of Congress, The New York Times, Time Warner Cable and AARP to monitor what is being said on Fox News.

Fox News Network had argued that TVEyes, by monitoring, indexing and recording television content and allowing subscribers to obtain video clips of content using keywords, violated Fox's copyright and New York's unfair competition and misappropriation laws.

in his Sept. 9th, 2014 ruling, U.S. District Judge Alvin Hellerstein didn't see things Fox's way, deciding "that TVEyes' database and provision of television clips and snippets of transcript are transformative and thus constitute fair use, protecting it from claims of copyright infringement."

The crux of the judge's copyright ruling seems to be that TVEyes use was uniquely "transformative:"

"By indexing and excerpting all content appearing in television, every hour of the day and every day of the week, month, and year, TVEyes provides a service that no content provider provides. Subscribers to TVEyes gain access, not only to the news that is presented, but to the presentations themselves."

Fox was beaten back pretty resolutely. For example, the judge completely dismissed the assertion by Fox that their business was being harmed by people supplanting Fox News with TVEyes: "No reasonable juror could find that people are using TVEyes as a substitute for watching Fox News broadcasts on television."

Is this the end?

While this was clearly a big setback for Fox News, Judge Hellerstein has yet to decide on whether features that allow allow clips to be downloaded, emailed or otherwise shared are "protected by a fair use defense."

So this clearly isn't the end.

And Fox News isn't throwing in the towel.

Shortly after the decision was rendered, Fox News issued a press release that, instead of really addressing the defeat of their misappropriation and lost revenue claims, argued (somewhat quixotically in my view) that Judge Hellerstein's ruling was very limited and that a key portion of their copyright lawsuit remained alive:

"The Court only rules that a specific portion of TVEyes’ service--its keyword search function--was fair use. The Court expressly said that it required more information to decide whether TVEyes’ other features--including allowing video clips to be archived, downloaded, emailed, and shared via social media--were fair use. To find those features to be fair use would be unprecedented as TVEyes copies and distributes content, as opposed to helping its users find it. Such a ruling would be inconsistent with the Second Circuit’s decision in HathiTrust and Judge Chin’s district court decision in Google Books, as well as the long line of media clipping service cases in the Second Circuit and other circuits that found similar features not to constitute fair use."

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