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201-896-4100 info@sh-law.comIn my last post, Lovelace vs. Deepthroat: Defining fair use, I delved into an explanation of fair use statutes, discussed the four factors that judges and juries use to determine fair use and considered a recent case that provided a clear cut example of fair use. Now, I would like to discuss a more complicated case involving the same statutes that, at the time of writing, is awaiting judgment. Many in the copyright law sphere think that this ruling will set the latest precedent for the balance between copyright enforcement and fair use in the digital age.
Fox News v TVEyes
September 2, summary judgment motions from both Fox News and TVEyes became public. These motions pertain to a year-old case in which Fox News charges TVEyes with copyright claims. TVEyes is a subscription service that records, indexes and distributes television clips to customers, most of whom are in the media. Clients of the $500 per month service include the U.S. Department of Defense, the United Nations, Time Warner Cable, pro sports leagues and The New York Times.
By and large, TVEyes argues, customers of the service use it to comment and criticize broadcast news, compare and contrast coverage of events, monitor political advertising and presence, track statements about financial securities for compliance purposes and report on the media. Using its customer base, TVEyes is mounting a fair use defense by suggesting that it provides a public benefit, facilitating a level of public discourse on media coverage and the role of the media that would otherwise be impossible.
By contrast, Fox News’ argument is fairly straightforward, arguing that TVEyes’ service is devaluing the content that it produces by providing an alternate way to access that content that is not included in its ratings. Interestingly, Fox’s memorandum includes in its argument the danger that, should use of TVEyes become widespread, Fox News’ business model would be “decimated.” In light of the $500 per month fee charged by TVEyes, this seems unlikely as of yet.
Is it fair use?
For those who missed my last blog post, the four factors traditionally used to determine fair use are:
As a thought experiment, analyze TVEyes’ use of Fox News’ content based on these criteria.
Clearly, the issue is sensitive and complex. To form a judgment would be difficult, as it depends upon the court’s interpretation of a number of these factors. If TVEyes can make a compelling argument stating that their service is not used for public consumption but rather for purposes that serve a public benefit, it could very well be acquitted of copyright infringement.
Check out my last post on fair use and copyright infringement regarding the infamous pornstoar Linda Lovelace and the video that made her famous “Deepthroat”:
Lovelace vs Deep Throat: Defining Fair Use
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