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.