(Originally published in the Entertainment Law column in the New York Law Journal on October 9, 2014)
Extending database decisions from books to broadcasts, a decision by Southern District judge Alvin K. Hellerstein in Fox News Network, LLC v. TVEyes, Inc.[i] recently allowed a searchable database to incorporate copyrighted works in their entirety and provide users with excerpts as a fair use. The defendant, TVEyes, gives subscribers, among other features, online access to search tools and program clips from round-the-clock monitoring of hundreds of television and radio sources, including Fox News, without asking permission from owners of copyright. In approving these key features, the court’s decision follows the trail blazed by Authors Guild, Inc. v. Hathi Trust[ii] and Authors Guild, Inc. v. Google, Inc.[iii] which held that electronic libraries of books created to allow users to search for keywords or terms were protected by fair use.
In each of these cases, courts were unmoved by the plaintiffs’ protests that they lost income as well as control over their copyrighted works. Rather, each court concluded that the benefits afforded to researchers in particular and society in general by online access to vast amounts of searchable data simply outweighed the interests of copyright owners, consistent with the fundamental purpose of copyright law and of the fair use exception to owners’ rights. Nevertheless, the limits placed by the defendants themselves or by the courts on the scope of permitted uses are as important as the courts’ embrace of fair use.
In reviewing fair use decisions, which tend to be fact intensive, it’s particularly helpful to have a detailed understanding of who the parties are and what they do.
TVEyes monitors more than 1,400 radio and television sources 24 hours per day, seven days per week. It creates not only recordings of each source’s output, but also makes transcripts by using closed captions and speech-to-text technology. It turns the transcripts into a searchable database with which its 2,200 subscribers can track keywords and phrases of interest. Subscribers also can obtain transcript excerpts and clips from the recorded programs that show where a search term appeared.
Those subscribers comprise a diverse group. They include the White House, the Department of Defense, 100 current members of Congress, local and state police, AARP, Goldman Sachs, the Association of Trial Lawyers, and news organizations such as CBS, ABC, MSNBC and the Associated Press. Each pays a monthly fee of $500 for which it gets access to the database search feature, snippets of transcripts and clips, as well as other features that were not as well received by the court. (More on them later.) A for-profit venture, TVEyes saw its revenue exceed $8 million in 2013.
After logging in to TVEyes, a subscriber goes to a Watch List Page that monitors desired keywords and presents sortable data about where they’ve been mentioned. On the Results List Page, a subscriber sees each mention of the keyword as well as a portion of a transcript highlighting the search term, and a thumbnail image from the show it appeared in. By clicking on the thumbnail, the subscriber moves to the Transcript Page where a clip that begins 14 seconds before the search term is mentioned plays beside the transcript. Other information also is made available there such as the market viewership of the clip and publicity value, according to the television research company, SQAD. Additional pages organize and present the data geographically, by frequency, and with reference to other variables.
Subscribers also can “save, archive, edit and download to their personal computers” an unlimited number of clips generated by searches, but not more than 10 minutes per clip. (A majority of clips are shorter than 2 minutes.) Clips are available at TVEyes for 32 days after initial broadcast and become unavailable to subcribers unless saved or downloaded within that period.
The Fox News Channels
Fox News, an international news organization, owns and operates Fox News Channel (“FNC”) and Fox Business Network (“FBN”). Both channels provide real-time worldwide news and information 24 hours per day with a “a growing online and digital presence on the Internet.”
Fox News offers live streams through its TVEverywhere service to viewers with a cable or satellite subscription. It also makes available on websites only about 16% of its television broadcast content to the general public out of concern that greater availability would substitute for cable and satellite viewing. Fox News provides clips at its websites of program segments that are sometimes corrected or updated versions and don’t include the news ticker shown at the bottom of the screen when broadcast. The clips are preceded by a “pre-reel” advertisement that generates revenue.
Fox News lets website visitors search video clip content found there and copy and paste URLs for sharing on social media platforms. Use of the video clips are expressly limited to “personal use”; “commercial purposes” are precluded and downloading of video clips is not permitted. But Yahoo!, Hulu and YouTube are licensed to store and show video clips of some segments if they agree not to show the clips in a way that is derogatory or critical of Fox News. This generates another $1 million annually for Fox News.
Fox News also distributes clips to companies and governmental organizations through a clip-licensing agent for them to post on a website or social media platform, or create a digital archive among other purposes. Over 80,000 video clips are available through the agent, with licenses generating approximately $2 million for Fox News. The “vast majority” of the revenues Fox News generates, however, comes from per-subscriber carriage fees paid by cable systems distributing FNC and FBN. Those fees vary directly with the number of viewers.
On cross-motions for summary judgment, Fox News asserted that the features of TVEyes’ database that provide subscribers with video clips violated its copyrights[iv], and sought injunctive relief to avoid diversion of viewers who otherwise would watch FBN and FNC on cable television or on its websites. Fox News did not dispute that use of its broadcasts by TVEyes in order to create an “analytical database” was a fair use.
The court began its analysis quoting the Supreme Court’s observation that fair use “has been thought necessary to fulfill copyright’s very purpose, ‘[t]o promote the Progress of Science and useful Arts’” as dictated by Article I of the United States Constitution.[v] The court then reviewed the four non-exclusive factors in Section 107 of the Copyright Act (17 U.S.C. Sec. 107) that help determine when fair use applies.
The court found that the statute’s second and third factors (the nature of the copyrighted work and the amount and substantiality of the portion used in relation to the copyrighted work as a whole) weighed neither for nor against fair use. The statute’s fourth factor (the effect of the use on the potential market for or value of the copyrighted work) favored TVEyes because any “small possible market harm” to Fox News was “substantially outweighed” by its benefit to the public. Much of the court’s attention, however, was focused on the first factor – the nature of the purpose and character of TVEyes’s provision of program clips and particularly whether it was “transformative” or not. The court found it to be quite transformative.
Fair use highly favors “transformative” uses that do not “merely supersede the objects of the original creation” but instead “add something new, with a further purpose or different character, altering the first with new expression, meaning or message.” Although a transformative use need not alter or add to an original work, transformation “almost always occurs when the new work ‘does something more than repackage or republish the original copyrighted work.’” The more transformative the new work, “the less significant will be “other factors, like commercialism, that may weigh against a finding of fair use.”
The court favorably compared Hathi Trust and Google in which defendants successfully defended their unlicensed electronic libraries of scanned books as transformative fair use. In both those instances, the defendants allowed the general public to search databases containing millions of scanned books for key words and to find page numbers on which the search term appeared and the number of times the term appeared. (Google also provided up to three “snippet views” per page of the terms in context, but Hathi Trust did not.) In both instances, it was either impractical or impossible for a user to read the entire book in the archive.
The court distinguished TVEyes’s service from those in three other cases that were not protected by fair use: one offering rough translations and abstracts of Japanese content;[vi] one that made radio broadcasts available by phone;[vii] and one that offered a searchable database of news articles available on the internet.[viii] The last of these bore substantial resemblance to TVEyes except that the defendant only offered text and offered no evidence that users “improve[d] their access to the underlying news stories” by using the service; they could obtain them instead on the internet.
TVEyes, in contrast, was used by subscribers to comment on and criticize broadcast news channels, and particular attention was focused on its monitoring of Fox News commentators. The court found that TVEyes afforded its subscribers “access, not only to the news that is presented, but to the presentations themselves, as colored, processed, and criticized by commentators, and as abridged, modified, and enlarged by news broadcasts.” Clips furnished by TVEyes conveyed “subtext body language, tone of voice, and facial expression – all crucial aspects of the presentation of, and commentary on, the news.” This allowed subscribers to engage in “research, criticism, and comment” – all expressly favored by Section 107 of the Copyright Act. As in the instance of Google’s “snippets,” subscribers were unlikely to use sequential clips to watch and hear Fox News’s programs in their entirety.
Further, like the databases in the other two cases, the content in the TVEyes database could not be gathered and searched practically in its absence. The court drew attention to the use of TVEyes by police departments to track television coverage of public safety messages like amber alerts “and to adjust outreach efforts accordingly.” Further, various subscribers used TVEyes to “evaluate and criticize broadcast journalism, to track and correct misinformation, to evaluate commercial advertising, to evaluate national security risks, and to track compliance with financial market regulations.” In sum, the court found that the “service provides social and public benefit and thus serves an important public interest.”
Limits of Fair Use?
The court concluded that copying by TVEyes of Fox News broadcast content for its searchable database and its provision of television clips and “snippets of transcript” were all “transformative and thus constitute fair use, protecting it from claims of copyright infringement.” Other features of TVEyes, however, did not fare as well at first look; the court deferred determining whether or not they would be similarly protected until more evidence entered the record.
Those features included a Date and Time Search that enables subscribers to play a video clip starting at a specific date and time on a specific television station without entering a search term. Also in limbo is the TVEyes feature that lets subscribers “email the clip from its website to anyone, whether or not a TVEyes subscriber.” The Media Snapshot feature, which also must await further review, allows subscribers to watch live-streams even as TVEyes makes its recording. Fox News drew particular attention to that activity and argued that TVEyes was diverting viewers from authorized exhibitors.
That subscribers were required by TVEyes to limit their use of clips in certain ways did not produce a different result. For example, subscribers had to agree to use downloaded clips only for “internal purposes” and the TVEyes website accompanied each download with a notice that “such material may be used only for internal, review, analysis, or research” – expressly prohibiting “[a]ny reproduction, publication, rebroadcasting, public showing or public display.” Eventually its subscribers also were blocked from “trying to play more than 25 minutes of sequential content from a single station.”
Summing up, the court said that it would not decide yet the issue of fair use for features that “allow subscribers to save, archive, download, email, and share clips of Fox News’ television programs” or to search by date and time, because there was insufficient evidence showing that these features were “integral to the transformative purpose” of indexing and providing clips and snippets of transcript to subscribers. Also, only the date and time search in this group of features had been shown to pose no market threat to Fox News’s businesses, preserving for Fox News the opportunity to demonstrate economic harm from the other features.
If Judge Hellerstein’s holding of “transformative” effect and fair use in TVEyes remains confined in further proceedings to copying programs, indexing and providing clips and transcript snippets, it would conform most closely to Google and Hathi Trust. And in light of all three decisions, broadcasters and other content owners might have considerable reservations about challenging those core features of searchable databases.
[i] Opinion by Judge Alvin K. Hellerstein, 13 Civ. 5315 (AKH), Southern District of New York; filed September 9, 2014.
[ii] 755 F.3d 87 (2d Cir. 2014).
[iii] 954 F. Supp. 2d 282 (S.D.N.Y. 2013).
[iv] Fox also alleged that TV Eyes was guilty of misappropriation, but this theory was rejected because of pre-emption by the Copyright Act.
[v] Citations are omitted here.
[vi] Nihon Keizai Shimbun, Inc. v. Comline Business Data, Inc., 166 F. 3d 65 (2d Cir. 1999).
[vii] Infinity Broadcast Corp. v. Kirkwood, 150 F.3d 104 (2d Cir. 1998).
[viii] Associated Press v. Meltwater U.S. Holdings, Inc., 931 F.Supp. 2d 537 (S.D.N.Y. 2013).