Fox News Network, LLC v. TVEyes, Inc.
883 F.3d 169
2d Cir.2018Background
- TVEyes is a for-profit service that continuously records TV broadcasts, copies closed captions (and speech-to-text when needed), and builds a text-searchable database of recordings from ~1,400 channels retained for ~32 days.
- Subscribers (professional/business only) search by keyword and can play up to ten-minute unaltered clips beginning 14 seconds before the keyword; clips can be played unlimited times and users may archive, download, or email clips (subject to contractual limits).
- Fox News sued TVEyes for copyright infringement over redistribution of Fox audiovisual content; Fox did not challenge TVEyes’s searchable-transcript (Search) function on appeal but attacked the Watch function (streaming clips) and related features.
- The district court treated some TVEyes functions as fair use (including watching clips and archiving on servers) but found certain features non-fair (downloading, some sharing, date/time search viewing) and issued a permanent injunction with mixed scope.
- The Second Circuit majority held the Watch function (and subsidiary features) is not a fair use, reversed the district court to that extent, affirmed denial of additional relief, and remanded for revision of the injunction.
Issues
| Issue | Fox's Argument (Plaintiff) | TVEyes' Argument (Defendant) | Held |
|---|---|---|---|
| Whether TVEyes’ Watch function is fair use under 17 U.S.C. § 107 | Watch function repackages and redistributes Fox’s copyrighted audiovisual works without license and therefore infringes; harms Fox’s licensing market | Watch is transformative because it enables efficient research/monitoring (isolates relevant material); modestly transformative and commercial nature should not defeat fair use | Watch function is not fair use: modest transformative character, but third and fourth factors (extent of copying; market harm) strongly favor Fox; overall balance defeats fair use |
| Whether copying for the Watch function is transformative | Not transformative — merely repackages original broadcasts and serves same informational purpose | Transformative: creates a new, efficiency-enhancing way to access targeted excerpts (analogous to Google Books/snippets; akin to time‑shifting) | Court: Watch is at best somewhat transformative but that modestity, combined with commercial exploitation, does not overcome other factors |
| Effect of the amount/substantiality of use (factor 3) | Extensive: TVEyes makes available virtually all of the Fox content users want; ten-minute clips often convey the whole news segment | TVEyes contends clips are limited and bounded (ten-minute cap), serving search verification and research needs | Factor 3 strongly favors Fox: redistribution is extensive and often conveys the heart of the original broadcasts |
| Market effect (factor 4) — does TVEyes usurp licensing market? | TVEyes displaces a plausibly exploitable market for licensed searchable/viewable access to TV content; deprives Fox of licensing revenues | TVEyes argued limited market harm and pro-competition benefits; attempted license negotiation unsuccessful so fair use should apply | Factor 4 favors Fox: TVEyes’ commercial access service competes with/licensing market that Fox could exploit; deprives Fox of revenue |
Key Cases Cited
- Authors Guild v. Google, Inc., 804 F.3d 202 (2d Cir. 2015) (searchable database and limited "snippet" display were transformative and mitigated market harm)
- Sony Corp. v. Universal City Studios, 464 U.S. 417 (U.S. 1984) (time-shifting by consumers held noninfringing in contributory-liability context; court treated home recording as a substantial noninfringing use)
- Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (U.S. 1994) (fair use framework; transformative use central to purpose-and-character factor)
- Harper & Row Publishers v. Nation Enters., 471 U.S. 539 (U.S. 1985) (market harm is the single most important fair-use element)
- Authors Guild v. HathiTrust, 755 F.3d 87 (2d Cir. 2014) (transformative purpose of digitized access and search)
- Infinity Broad. Corp. v. Kirkwood, 150 F.3d 104 (2d Cir. 1998) (unauthorized retransmission of broadcasts not transformative; market and transformativeness analysis)
- American Geophysical Union v. Texaco, 60 F.3d 913 (2d Cir. 1994) (convenience/efficiency of copying does not alone make a use transformative)
- Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605 (2d Cir. 2006) (licensing market impacts are cognizable in fair-use market-harm analysis)
- Cartoon Network LP v. CSC Holdings, Inc., 536 F.3d 121 (2d Cir. 2008) ("volitional conduct" required for direct infringement analysis)