21 March, 2018

Eyes Wide Shut - Sharing of TV Clips Online by TVEyes not Fair Use, Says US Court of Appeals

Fair use is a tricky issue, and often a thorn on the side of copyright owners. Overall one can appreciate the opportunities it creates, but also the headaches faced by those wishing to pursue someone hiding behind that particular shield. Rightsholders have been holding out for a life-line to narrow down the reach of fair use, and might've just been rewarded a win in the wider balancing act of fair use versus infringement. The matter was faced by the Court of Appeals recently, who issued their decision on the appeal in late February.

The case of Fox News Network LLC v TVEyes Inc. concerned the sharing of segments from TV programming by TVEyes. This is done through the continuous recording of TV shows, and compiling them into a searchable database. Users of TVEyes could then search for clips from various programmes, and watch up to 10 minutes of the content that interests them (and has been used by journalists and TV producers for some time). Clips can also be archived onto TVEyes' servers, or downloaded onto the user's computer. Fox ultimately took TVEyes to court for copyright infringement through the redistribution of their audiovisual content.

The case turned on whether the use by TVEyes could be classed as 'fair use' under 17 USC section 107. This looks at the usual four factors: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. The factors are assessed weighted together in the light of the purpose of copyright.

Under the first factors, the Court focussed on the precedent set by the Google Books case (discussed more here). In the matter, Google's book search service added something new to the rights attached to the written works, and therefore "…communicated something new and different from the original". Similarly to TVEyes' offering, the showing of snippets from each book "…added important value to the basic transformative search function" by allowing for the user to verify the information as being what was looked for.

Some TV clips are simply captivating
The Court concluded that, in the light of the first factor, TVEyes' service "…is similarly transformative insofar as it enables users to isolate, from an ocean of programming, material that is responsive to their interests and needs, and to access that material with targeted precision". The service saves on costs and time spent looking for materials should they be done without a quick search function. Even though the service was for commercial gain, it still was not enough to counter its transformative nature entirely. Ultimately this means that the first factor slightly weighs in favor of fair use.

In terms of the second factor, the Court swiftly concluded that it is inconsequential to this case, even if the subject matter of the works is reporting on factual events.

They then moved onto the third factor, which looks at the amount of the work copied, and whether it was substantial. The Court quickly concluded that, due to the sheer volume of material copied by TVEyes, which amounted to virtually the entirety of Fox's TV programming. When compared to Google Books, TVEyes often created copies of entire segments of programming that might cover all of the relevant material being sought, whereas Google actively blacklisted certain parts of text within search results to prevent this. This amounted to copying all that is important from the protected works, and weighed against fair use.

Finally, the Court looked at the service's effect on the potential market for or value of the works, particularly whether it competes with the original service. Due to the popularity of the service, there clearly was a marketplace for such services that was exploitable by Fox. This would have impacted any hypothetical monies made by Fox should they have offered the service, particularly in the light of unauthorized, unlicensed copying by TVEyes. This means that "…by selling access to Fox's audiovisual content without a license, TVEyes deprives Fox of revenues to which Fox is entitled as the copyright holder", which meant that the fourth factor also favored Fox.

Having considered the above, the Court had to determine whether, all factors considered, the use was fair use or not. The conclusion of this was that TVEyes' service was not justifiable under fair use, due to the sheer amount of works copied and the usurping of a function for which Fox was entitled to demand compensation for, even though the service was slightly transformative.

TVEyes was deemed to be liable for direct infringement of Fox's rights, and the Court imposed a permanent injunction on their services on allowing the viewing, downloading and sharing of clips from the site. The search function, however, was allowed to continue.

The case is a very interesting one, and sets clear boundaries for services similar to the one offered by TVEyes. Should the clips have been restricted to much shorter segments, and not allowed to be downloaded or shared, the company might have escaped liability. Other video service providers will undoubtedly heed this as a warning against any significant sharing of content.

Source: JDSupra

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