In a fantastic victory for fair use and common sense, a federal court has rejected Fox’s effort to use copyright and the largely moribund “hot news” doctrine to shut down a video “clipping” service, TVEyes. TVeyes creates a searchable database of TV and radio station broadcasts. Subscribers can search the database and view a portion of the original broadcast in which their search terms appear. The database enables research, commentary, and criticism that would otherwise be impossible for many of its users.
In July of 2013, Fox News sued TVEyes for copyright infringement and “hot news misappropriation.” Despite ample evidence that customers were using TVEyes’ service for protected purposes such as analysis and criticism, and that it did not substitute for any real Fox content, Fox insisted that customers might abuse TVeyes to view Fox News without authorization, in ten minute increments.
Fortunately, the law is on TVEyes’ side, thanks in part to the Second Circuit’s decision in Authors Guild v. HathiTrust. In that case, as in this one, courts have recognized the importance of enabling fair uses by downstream users. TVEyes’ copying and making available of all of Fox News’ broadcast content was integral to its purpose of creating a complete and useful database of such information.
The court also declined Fox’s invitation to resuscitate and enlarge the doctrine of “hot news misappropriation,” a theory of liability that has long been out of favor with most courts because it creates a quasi-property right over newsworthy facts, something that is obviously in tension with the First Amendment. The court correctly found that the hot news doctrine could not apply here because TVEyes was not passing off Fox’s content as its own. Without that element of free-riding, TVEyes’ copying of information was governed exclusively by copyright law, rather than state law of misappropriation.
The court did not throw the case out altogether. The court decided it needed more evidence regarding whether certain additional features on TVEyes’ service for saving, sharing, and searching the content undermine its fair use claim. In the one troubling part of an otherwise sterling decision, the court concludes that:
“While the evidence shows that this feature [search by date and time] does not pose any threat of market harm to Fox News, the record fails to show that it is crucial or integral to TVEyes’ transformative purpose.”
This sets the bar too high. A defendant doesn’t have to establish that every element of its use is “crucial” to its appropriate purpose, especially if there is no threat of harm. Offering a different mode of search seems clearly relevant to legitimate purposes such as research, and courts should provide breathing room to exercise First Amendment rights like fair use, rather than second-guessing whether every element was “crucial” to the user’s purpose or message.
On balance, however, this is a great decision. Once again, fair use helps shelter free speech and access to knowledge in the face of maximalist copyright claims.