Fair Use In The Digital Age

In 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:

1. The purpose and character of use
2. The nature of the work
3. The amount and substantiality of the portion taken
4. The effect upon the potential market

As a thought experiment, analyze TVEyes’ use of Fox News’ content based on these criteria.

1. When we talk about the purpose and character of use, often we talk about “transformative” use, under which the original content is substantially changed such that it adds new meaning or expression, or that value is being added by presenting the material in a new light. While a news show that uses Fox News clips to contrast media coverage of an issue could easily be called transformative, Fox News’ legal team is focusing on TVEyes’ use. Fox News may have a strong case here, as the only change that TVEyes is effecting is to index the content.
2. Generally, copyright protections extend further to fictional works than to factual ones, as the dissemination of facts is considered to be of public benefit. Fox News has countered by invoking an old legal doctrine called “hot news misappropriation,” which protects copyrights on facts which have a short value duration, after which they move into the public domain. Whether this doctrine is valid in this case remains to be seen, but a relatively recent judgment in Barclays Capital Inc. v Theflyonthewall.com demonstrated that, in cases involving the aggregation of news on the Internet, courts are reluctant to enforce this protection.
3. Because TVEyes takes all of Fox News’ video content, there is likely no defense to be made based on the amount or substantiality of the portion of content taken.
4. Finally, the effect upon the potential market may be a source of serious debate. Fox News has put forth arguments that TVEyes’ use of its content is potentially depriving it of customers. TVEyes’ defense rests, in part, on the argument that individuals are not using its $500 per month service to enjoy the news, but simply as a tool to search clips and use them for largely analytical purposes.

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