May 4, 2016
TVEyes is a media monitoring service, claiming, “to organize the world’s TV and radio broadcasts and make them universally searchable by the spoken word.”
Founded in 1999, the service uses innovative “audio mining” speech analytics technology to record and transcribe various forms of media, including television and radio broadcasts. TVEyes has a worldwide network of fully automated monitoring servers, running around the clock, which record and process all content broadcast by more than 1,400 channels around the world. Subscribers are then able to search the recorded content for keywords, and can play video clips of the broadcasts that contain the queried keywords alongside a transcript of the broadcast and other information, such as the broadcasting channel name and viewership ratings. Subscribers include major television networks, the Associated Press, police departments, the Department of Defense, and even the White House. One testimonial published on the company’s website, by a New York Times reporter, describes the service as “a virtual DVR for every channel, every city, at every hour of the day.”
Fox News Network, LLC filed suit against TVEyes in 2013, claiming copyright infringement of Fox News’s television programming. In response, TVEyes asserted the affirmative defense of Fair Use. Under the fair use defense, the use of a copyrighted work for purposes such as criticism, comment, news reporting, teaching, scholarship, or research, is not an infringement of copyright. Fox News did not argue that TVEyes’ use of Fox News’ broadcasts for the purpose of creating an analytical database is a fair use, but instead, Fox News took issue with the features of TVEyes’ database that provide subscribers with video clips of Fox News’ content.
In a 2014 ruling on summary judgment, the Southern District of New York found that TVEyes’ copying of Fox News’ broadcast content for its core indexing and clipping services to its subscribers constitutes fair use, while deferring judgment on whether the full extent of TVEyes’ services constitutes fair use. On renewed motions for summary judgment in 2015, however, the court found that TVEyes’ complementary services of e-mailing, downloading, and date-time search of recorded broadcast content did not qualify as fair use.
Both TVEyes and Fox News agreed to stay the litigation while appealing these district court orders to the Second Circuit. TVEyes recently filed its opening brief, in which it asserted to the appellate court that the district court inexplicably carved up TVEyes’ business model, and that the features which the district court found not to be fair use are just as much fair uses as the three permitted functions. In the two weeks after filing this brief, no fewer than six amicus briefs have been filed in the case, demonstrating its significance by organizations such as the Electronic Frontier Foundation, Google and Microsoft. Similar to the recent Google Books litigation regarding copyright fair use, the ultimate outcome of this TVEyes litigation will have lasting ramifications for the preservation and research of media in the information age.
TVEyes raises important questions on appeal. The district court’s findings draw an arbitrary line between what is allowable and what is prohibited fair use, even though it held TVEyes’ service to be transformative and therefore fair use, based on a unilateral evaluation of whether certain aspects are integral to the core fair use service. This rule suggests that specific uses of copyrighted material that are otherwise transformative (and thus protected under the fair use doctrine) may still be improper.
For example, although Google’s book transcription and search features were adjudicated to be fair use under the traditional four-factor test, the TVEyes rule, if allowed to stand, could potentially subject Google to additional liability concerns based on whether these features are integral to Google’s core services.
Although the district court did not go so far as to replace the traditional four-factor test for fair use, it did suggest adding an integrality factor to impose an additional hurdle on otherwise transformative functions to be considered fair use. If taken to its logical extreme, this new integrality factor propounded by the Southern District of New York could potentially require Google to shift its business focus away from Internet searches to book searches in order to ensure that its book searching features remain fair use, despite the Southern District’s previous finding that Google’s book searches were transformative. Alternatively, this factor could force Google to focus its conduct on making its book searching features somehow more integral to its core functionality to ensure fair use, instead of relying on the transformative purpose of such features.
Given the interest surrounding recent decisions on the fair use doctrine, providers may want audit their services in order to ensure that they fall squarely within the fair use doctrine.
 See Fox News Network, LLC v. TVEyes, Inc., 43 F. Supp. 3d 379 (S.D.N.Y. 2014). See also TVEyes: Global Media Monitoring Services Company, supra note 1.
 Fox News v. TVEyes, 43 F. Supp. at 384.
 Complaint, Fox News v. TVEyes, 124 F. Supp. 3d 325 (S.D.N.Y. 2015) (No. 13 Civ. 5315), ECF No. 1.
 Fox News v. TVEyes, 43 F. Supp. 3d at 388.
 17 U.S.C. § 107.
 Fox News v. TVEyes, 43 F. Supp. 3d at 388.
 Id. at 398.
 Fox News Network, LLC v. TVEyes, Inc., 124 F. Supp. 3d 325, 337 (S.D.N.Y. 2015).
 Joint Letter, Fox News Network, LLC v. TVEyes, Inc., 124 F. Supp. 3d 325 (S.D.N.Y. 2015) (No. 13 Civ. 5315), ECF No. 189.
 Brief for Defendant-Appellant-Cross-Appellee, Fox News v. TVEyes, No. 15-3885 (2d Cir. Mar. 17, 2016), ECF No. 63.
 See Fox News v. TVEyes, No. 15-3885 (S.D.N.Y.), ECF Nos. 116, 122, 123.
 See Authors Guild, Inc. v. Google, Inc., 954 F. Supp. 2d 282, 287-88 (S.D.N.Y. 2013) (“Google Books permits humanities scholars to analyze massive amounts of data—the literary record created by a collection of tens of millions of books. Researchers can examine word frequencies, syntactic patterns, and thematic markers to consider how literary style has changed over time. . . . The ability to determine how often different words or phrases appear in books at different times can provide insights about fields as diverse as lexicography, the evolution of grammar, collective memory, the adoption of technology, the pursuit of fame, censorship, and historical epidemiology. . . . [And] traditionally underserved populations will benefit as they gain knowledge of and access to far more books.”) (citations omitted).
 Brief for Defendant-Appellant-Cross-Appellee, Fox News v. TVEyes, No. 15-3886 (2d Cir. Mar. 17, 2016), ECF No. 63 at 25.
 Authors Guild v. Google, 954 F. Supp. 2d at 291.