Is it fair use to record live TV and make it searchable? FOX NEWS v. TV EYES

A copyright is a set of exclusive rights granted to the creator of an original work of expression. Copyright law protects original works of expression like books, music, movies, and photographs. A copyright owner is granted the exclusive right to reproduce, distribute, display, perform, transmit and make derivative works based on the original. If someone exercises one of these exclusive rights, without authorization, that can constitute copyright infringement.

The rights granted by copyright law in the United States have some limitations. One of the limitations of copyright law in the United States is known as fair use. A defendant in a copyright infringement lawsuit can claim that its use of a copyrighted work is protected by fair use and not be held liable for copyright infringement. When a court is presented with a fair use defense to a copyright infringement claim, the court analyzes four factors. Those four factors are: (1) the purpose and character of the use, (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion taken, and (4) the effect of the use upon the potential market.

The law, in general, is in a constant game of catch up with technology. Copyright law was written a long time before computers were handheld appliances. The people who drafted the copyright law could not have foreseen the great technological advances that have been made in the past few decades. When new technology falls into a grey area it is up to the courts to fill in the blanks.

FOX NEWS NETWORK, LLC v. TVEYES, INC., 15-3885 (2d Cir. Feb. 27, 2018) is an example of a court applying the old fair use factors to a new technology.

Defendant in this case is a media company that records the content of more than 1,400 TV and radio channels, imports that content into a database, and permits its clients, to view, archive, download, and share with others TV clips of up to ten minutes in length. Defendant charges its customers a monthly fee and does not pay a fee to the creators of the content it records.

Plaintiff owns content that Defendant recorded and redistributed. Plaintiff sued for copyright infringement. The district court held that some Defendant’s activities constituted a fair use, including the functions that enabled clients to search videos by term, to watch the resulting videos, and to archive the videos on the Defendant’s servers. However, the district court held that other functions were not a fair use, including those enabling clients to download videos to their computers, to e-mail the videos to others, or to watch videos after searching for them by date, time, and channel, rather than by keyword. Plaintiff then appealed to the Court of Appeals for the Second Circuit.

The Second Circuit found that the purpose and character of Defendant’s use, slightly favored the Defendant because the “Watch function” is somewhat transformative. The use was found to be transformative because it permits clients to view the content they want at a time and place that is convenient to them. The fact that the use is commercial did not entirely outweigh its transformativeness. The nature of the copyrighted work, was found to favor neither party. The amount and substantiality was found to weigh against fair use because the entire copyrighted work was being reproduced. The effect of the use upon the market for the copyrighted work was found to weigh against fair use because the success of defendant’s service proved there was a market for redistributing the Plaintiff’s content. Defendant’s redistributing Plaintiff’s content without paying a licensing fee was depriving Plaintiff of revenue. Considering the fair use factors as a whole the Second Circuit concluded that Defendant’s use did not qualify as a fair use.

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