TVEyes Inc., a company located in Fairfield, Connecticut, was incorporated in 2000 and describes itself as "the search engine for broadcast." The company's focus is on making news broadcasts readily available to public information officers who may not have time to record, review, save and process the information they need to do their jobs efficiently. TVEyes monitors news broadcasts based on selected search terms and archives the resulting video clips for later review by the client. TVEyes describes this service as "broadcast media monitoring." TVEyes does all of this without the permission of any of the news stations or broadcast companies from which it pulls this information. TVEyes is a for-profit business that markets itself to both private companies and governmental agencies.
Fox News filed suit against TVEyes in 2013 alleging copyright infringement. In a 2014 decision, the U.S. District Court for the Southern District of New York denied Fox News' motion for summary judgment on the grounds that TVEyes' core function, which the court defined as "recording content, putting it into a searchable database and, upon a keyword query, allowing users to view short clips of the content[,]" constituted fair use. In a 2015 decision, the trial court refined its earlier decision, holding that TVEyes' archiving function constituted fair use but that its downloading and "Date-Time" search functions did not. Fox News subsequently filed a Notice of Appeal.
Earlier this year, the U.S. Court of Appeals for the Second Circuit rendered its opinion. After considering each of the four fair use factors separately (see our article here for a discussion of these factors), the courtreversed the district court's opinion and held that none of the TVEyes functions was protected by fair use. With respect to the purpose and character of the use, the court held that although TVEyes' use of the broadcasts was moderately transformative, it was also clearly commercial. Turning to the nature of the copyrighted work, the court made short shrift of TVEyes' argument, asserting that: "Those who report the news undoubtedly create factual works. It cannot seriously be argued that...others may freely copy and re-disseminate news reports."
As for the amount and substantiality of the portion (of the copyrighted works) used by TVEyes, the court found that this factor clearly weighed in favor of Fox News because TVEyes records virtually the entirety of Fox News' programming. In other words, there was no selective use of content by TVEyes. Lastly, the court held that TVEyes' use of the Fox News content did have an adverse economic impact on Fox News to the extent that it deprived Fox News of licensing revenues.
Although TVEyes has lost this latest legal battle, it has proven that it has a viable business model—and it has also succeeded in patenting a number of innovations pertaining to its services (for example, U.S. Patent No. 9148675 entitled "Extraction of Social Media Tags and Handles from Broadcast Television and Video" and U.S. Patent No. 9087331 entitled "Contextually Relevant Advertisements Appearing on Internet Video and Audio Players"). The Second Circuit's recent decision will make it harder for others to develop innovative uses of news content without first securing the appropriate permissions and/or licenses; however, with its budding patent portfolio, TVEyes still has some arrows remaining in its quiver.
