In a recent decision, the Second Circuit further clarified the confines of permissible fair use, reversing the district court’s ruling that functionality that enabled customers to search for videos by term, and to view and archive such videos, was protected fair use. In doing so, the court relied on its “Google Books” fair use decision but here concluded that TVEyes had “exceeded those bounds.”
BackgroundDefendant TVEyes is a for-profit media company that, for $500 per month, provides a service that allows subscribers to search through vast amounts of television content to find clips that are of interest. The service works as follows:
TVEyes records essentially all television broadcasts as they happen, drawing from more than 1,400 channels, recording 24 hours a day, every day. By copying the closed‐captioned text that accompanies the content it records (and utilizing speech‐to‐text software when necessary), TVEyes creates a text‐searchable transcript of the words spoken in each video. The videos and transcripts are consolidated into a database. A client inputs a search term and gets a list of video clips that mention the term. A click on a thumbnail image of a clip plays the video, beginning fourteen seconds before the search term was spoken, and displays a segment of the transcript with the search term highlighted. . . . The clips can be played for no more than ten minutes, but a user can play an unlimited number of clips. To prevent clients from watching entire programs, TVEyes . . . implemented a device that is claimed to prevent clients from viewing consecutive segments. . . .
TVEyes would delete captured content after 32 days.
TVEyes’s service comprises two core offerings, namely, a “Search function” and a “Watch function.” “The Search function allows clients to identify videos that contain keywords of interest.” “The Watch function allows TVEyes clients to view up to ten‐minute, unaltered video clips of copyrighted content.”
TVEyes’s service also has other functions. Subscribers can archive videos to TVEyes servers and can download videos to their computer. Subscribers can email the clips to others to view and can “search for videos by date, time, and channel (rather than by keyword).” However, TVEyes’s service is “available for business and professional use, and is not offered to private consumers for personal use.”
TVEyes asserted that it restricts subscribers’ use of recorded content in various ways, including requiring them to sign contracts restricting such use to “internal purposes only” and by warning that downloading clips should be limited to “internal review, analysis or research.”
Fox News Network sued TVEyes in the United States District Court for the Southern District of New York for, among other things, copyright infringement. The district court held that the functions “enabling clients of TVEyes to search for videos by term, to watch the resulting videos, and to archive the videos” were fair use. However, the district court held that other features were not fair use, “such as those enabling TVEyes’s 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 by keyword).”
On appeal, Fox did not challenge the Search function but did challenge the Watch function. The issue on appeal was...
