On February 27, 2018, in Fox News Network, LLC v. TVEyes, Inc., Case No. 15-3886 (2nd Cir. 2018), the U.S. Court of Appeals for the Second Circuit held that certain functions of TVEyes, a TV database service, do not qualify as fair uses under the Copyright Act. According to the panel, TVEyes' service impermissibly exceeded the boundaries laid down for fair use in the Second Circuit's prior decision in Authors Guild v. Google, Inc., 804 F.3d 202 (2nd Cir. 2015) ("Google Books"). The court's opinion contains important statements about the scope of fair use that may be relevant to WSGR clients.
What TVEyes Does
TVEyes records more than 1,400 channels of television programming, 24 hours a day, and copies the closed captioning text that accompanies that content. The content and text are consolidated into a database, which clients can query with keyword searches. When a client finds and selects a result, they can view a segment of broadcast programming that is up to 10 minutes long and contains the specific result.
District Court Opinion
In the course of two significant rulings in the district court, Judge Alvin Hellerstein of the U.S. District Court for the Southern District of New York drew a distinction between the various functions of the TVEyes service. The core search and display functions, which allow users to locate and watch broadcast content via keyword search, were held to be fair use. However, the district court found that certain other auxiliary features of TVEyes' service were not fair use, such as those "enabling clients to download videos to their computers, to freely e-mail videos to others, or to watch videos after searching for them by date, time, and channel (rather than keyword)."
The Second Circuit's Fair Use Analysis
The Second Circuit approached the case somewhat differently. It divided the inquiry between the "Search" functionality of the service and the "Watch" functionality. The court noted that TVEyes' "Search" functions—considered to be fair use by the district court—were not challenged on appeal, but held that TVEyes' "Watch" functions did not qualify as a fair use. That holding subsumed and obviated consideration on appeal of the various subsidiary functions, including viewing, archiving, downloading, and emailing video clips. The court's analysis centered around the familiar statutory fair use factors of 17 U.S.C. § 107.
First, the panel determined that TVEyes' service was only "somewhat transformative." The...
