by Goeun Son
Fair use in copyright law is a complicated, fact-based area, and another example just joined a list of fair use cases. Fox News sued TVEyes, a media monitoring service, claiming TVEyes, which is used by journalists, scholars, and political campaigns to study and monitor the national media, infringed its copyright in its programming.
TVEyes defended itself, arguing that journalists use TVEyes to comment on and criticize broadcast news channels, often by comparing and contrasting how the major news networks cover particular news events, and different entities such as government officials and political campaigns use TVEyes for their own different purposes. It added that without TVEyes or such a service, there would be no way to effectively accomplish these objectives.
I noticed where this was going. TVEyes raised fair use defense by saying it just didn’t copy Fox News’s programs, and rather that the indexing and excerpting of cable news programming is a transformative use of copyrighted material. As we discussed earlier in the last post, there are four factors to analyze fair use on a case-by-case basis:
- The purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes:
- Nature of the copyrighted work
- Amount and substantiality of the portion used in relation to the copyrighted work as a whole
- Effect of the use upon the potential market for or value of the copyrighted work
But since no one factor is dispositive, the courts need to weigh the presence of each factor in making a determination of fair use. Here, TVEyes’ transformation use defense comes from the first factor, the purpose and character of the use. Because the reason TVEyes took part of programs from Fox News was allegedly to compare and comment on programs for some purposes, not just copy and provide materials to viewers, I think transformative use could prevail. Although its use could fall under commercial nature since it could gain profits by providing entities its services and excerpts of programs, I don’t think the court would take that as a significant factor to overturn its transformative use in that the profits may have not come from simply distributing programs to users.
However, the court didn’t overlook the function on TVEyes’ website that lets its subscribers search, download and share clips. TVEyes redistribution could make available virtually all of Fox’s copyrighted audiovisual content including all of the Fox content that TVEyes’s clients wish to see and hear, and it deprives Fox of revenue that properly belongs to the copyright holder. This concern goes to the fourth factor, effect of the use upon the potential market for or value of the copyrighted work.
Even after TVEyes showed its transformative use of the copyrighted programs, the court’s analysis to weigh those factors concluded that TVEyes has failed to show that the product it offers to its clients can be justified as a fair use. After five years of the lawsuit, at least TVEyes could avoid a huge amount of monetary damages by settling the dispute.