Copyright protection has long been limited by the fair use doctrine, which allows unlicensed use of others’ content for certain “fair” purposes.
Many recent decisions have focused on whether a use is “transformative” to determine whether it is fair – meaning it creates something new and different. But a recent Second Circuit decision involving large quantities of video content rejected a fair use defense even though finding the use transformative. Companies considering use of others’ content would be well advised to consider the ramifications of the decision.
In the digital world, often there are often huge quantities of copyrighted information that users may wish to sift through to find content they are interested in. Secondary businesses have arisen that compile and index the content and then allow users to search and locate what they need or are interested in. Three years ago, in Authors Guild v. Google, Inc., 804 F.3d 202 (2d Cir. 2015), the Second Circuit found such a commercial indexing scheme to constitute “fair use” of the underlying content.
But recently, in Fox News Network, LLC v. TVEyes, Inc. (2d Cir. 2018), the Second Circuit found another such scheme as not being protected as fair use. The contrast between the two cases informs users of copyrighted content as to where to draw the line between fair and not fair use.
TVEyes, though not as well-known as Google, is used by many prominent organizations, including the White House, more than 100 members of Congress, the Department of Defense, and the media. It compiles all Fox News content and allows searching by indexing closed-caption text as well as some voice-recognition software.
Users can perform a search on key terms of interest, and then view 10-minute segments that include their terms. Customers can create customized search terms and access transcripts and video clips for purposes of research, evaluation, and commentary. There is no limit as to the number of clips that can be viewed, and users can view entire Fox News broadcasts if they wish.
The Second Circuit reversed a finding that this scheme constituted a fair use of Fox News’ copyrighted content in its broadcasts. In considering the four statutory “fair use” factors set out in 17 USC 107, the Second Circuit found that the indexing and search functions were transformative, albeit only mildly. These functions allow TVEyes customers to search out those segments they are interested in and only view the ten minute segments they find relevant, rather than have to review whole days’ worth of transmissions.
But the other factors weighed heavily against finding fair use.
One factor was that TVEye’s system allowed users to see ten minute segments, when they generally were only interested in much shorter subsets of those segments. “TVEyes redistributes Fox's news programming in ten-minute clips, which--given the brevity of the average news segment on a particular topic--likely provide TVEyes's users with all of the Fox programming that they seek and the entirety of the message conveyed by Fox to authorized viewers of the original.”
This was in contrast to the scheme found to be fair use in the Google case. That system allowed users to search content (digitally scanned books) for certain key words and then review up to three short snippets from each book. But these snippets were only a small part of what users would need to review – so they would be required to order the books from the authors or their publishers.
Another factor was that the TVEyes system completely displaced any commercial exploitation by Fox of this secondary market for searching its content. That subscribers were willing to pay substantial sums for the service indicates that absent TVEyes, a service would pay licensing fees to Fox News:
Since the ability to re-distribute Fox's content in the manner that TVEyes does is clearly of value to TVEyes, it (or a similar service) should be willing to pay Fox for the right to offer the content. By providing Fox's content to TVEyes clients without payment to Fox, TVEyes is in effect depriving Fox of licensing revenues from TVEyes or from similar entities. And Fox itself might wish to exploit the market for such a service rather than license it to others.
These two factors: (1) access to all of Fox’s content that the user was interested in, and (2) displacement of Fox’s interest in commercial exploitation of its own content, outweighed the transformative aspect of its system.
It often happens that copyrighted content is created for one purpose (books to sell, television transmissions for commercial television) and then someone else tries to use that content in a different secondary manner (such as the indexing and searching functions in the Google and TVEyes cases). Such secondary use may well be fair – but only if it does not allow access to large portions of the content and does not displace the commercial value of the content in the secondary market. Read together, Google and TVEyes add further guidance as to where the fair use line is to be drawn in such cases.