By Eriq Gardner, The Hollywood Reporter
Fox News’ lawsuit against TVEyes is an important dispute for the future of journalism — one that examines“free-riding” in an age when digital bots monitor and deliver factual information. Fox News is attempting to hold TVEyes liable for infringing its content, which has led the defendant to warn against allowing a broadcaster to establish exclusive control over its news content and silence its critics.
Last September, a New York federal judge handed down a big ruling that a portion of TVEyes’ service constituted fair use.
The lawsuit has proceeded, and both sides have presented experts to talk about the economic harm or lack thereof of a media monitoring service. Fox News has brought a new motion for summary judgment.
Here’s where the other media companies step in.
What makes the appearance of CBS and NBCU particularly noteworthy is that according to the judge’s September opinion, both have been subscribers to the TVEyes’ service. (Among the defendant’s other customers is the White House, the Department of Defense, The New York Times, the Associated Press and professional sports leagues.)
Using the service is no guarantee that those with an interest in also protecting their copyrights are willing to side with TVEyes’ fair use arguments.
“It is no secret that the media industry has come under enormous financial pressure in the digital age,” states the opening to the amicus brief. “As people consume more and more news via mobile devices or on the internet, the market for streaming audio and video has become a key source of revenue for media companies – one that is actively exploited by amici as well as Fox News. Indeed, today’s consumers are increasingly drawn to shorter, topical video clips on their computers and mobile devices rather than full-length news programming.”
The brief then attacks the very service that some of the amici have been using.
“TVEyes unlawfully misappropriates that market for itself,” they say. “It systematically records content from over a thousand television channels, and charges subscription fees to its customers in exchange for distributing to them massive amounts of content it has neither created nor licensed.”
CBS, NBCU, CNN, Bright House Networks and News 12 Networks say they disagree with U.S. District JudgeAlvin Hellerstein‘s opinion last September that the indexing of news articles represented a transformative use of copyright. The judge came to this conclusion after finding that TVEyes “provides a service that no content provider provides” and that subscribers “gain access, not only to the news that is presented, but to the presentations themselves, as colored, processed, and criticized by commentators, and as abridged, modified, and enlarged by news broadcasts.”
The judge’s determination, unlike what happened in the Associated Press’ lawsuit against Norway-based news monitoring service Meltwater, is one, according to the other broadcasters, that “undermines the value of television news” and “encourages the mass appropriation of news that was created at great cost, and sometimes risk, while at the same time eviscerates copyright owners’ greatest commodity: control over content.”
But the judge isn’t being asked this time to address the legality of indexing. Fox News’ new summary judgment has to do with some of the other features in the TVEyes’ system including downloading, archiving, emailing, saving, and sharing of clips. The amicus brief authored by Elizabeth McNamara at Davis Wright Tremaine says these “functions are completely unnecessary to the indexing and ‘search’ capabilities that this Court considered fair use, and usurp the media’s ability to monetize its own content.”
The brief, seen below, uses CNN’s live-streaming service as an example of a service that TVEyes is undercutting.
As for the fact that CBS and NBCU use TVEyes, both companies haven’t responded to a request for comment. The brief itself only mentions this obliquely with a suggestion that some things are ok, but not this.
“To be clear, amici do not argue that there is no social utility to markets for redistributed broadcast content,” they say. “Such markets exist, and amici are active participants in them. But what TVEyes does is different: its business model consists of delivering other parties’ copyrighted news and entertainment content to its paying corporate customers, while avoiding both the costs of creating that content and the costs of licensing it from those who do.”