Second Circuit Holds News Video Clip Search Engine Is Not Fair Use

By Justin K. Powley and David G. Barker

The Second Circuit held yesterday in Fox News Network, LLC v. TVEyes, Inc., that a media service offering a search engine of video clips from news networks violates copyright law. On appeal, the Second Circuit held that such use is not protected by the fair use doctrine.

TVEyes records content, including closed-captioning text, of television and radio channels in real time, and indexes and stores the content in a text-searchable database. Clients search the database using words or phrases to retrieve a list of relevant video clips. Each video clip can be played for no more than ten minutes, but a client can play an unlimited number of clips. Fox News Network sued TVEyes for copyright infringement. The principal question on appeal to the Second Circuit was “whether TVEyes’s enabling of its clients to watch Fox’s programming is protected by the fair use doctrine.”

A fair use analysis involves four factors: (1) the purpose and character of the use, (2) the nature of the copyrighted work, (3) the amount of the copyrighted work used, and (4) the effect of the use on the copyrighted work’s potential market. 17 U.S.C. § 107. The court dismissed the second factor as playing no significant role, but continued to analyze the three remaining factors.

The first factor includes an analysis of whether the work is “transformative”: whether the use “adds something new, with a further purpose or different character, altering the first with new expression, meaning or message.” Here, the court held that TVEyes’s use was transformative “insofar as it enables users to isolate, from an ocean of programing, material that is responsive to their interests and needs, and to access that material with targeted precision.” But the court noted that this factor only weighed slightly in favor of TVEyes, because its clients use the video clips for the same purpose that authorized Fox viewers would: “the purpose of learning the information reported.”  (This contrasts with the Ninth Circuit’s 2007 decision in Perfect 10, Inc. v., Inc., which held that Google’s display of Perfect 10’s thumbnail images in search results was a “fundamentally different” use that “provided a significant benefit to the public.”)

Regarding the third factor, the relevant consideration is the amount of copyrighted material made available to the public, rather than the amount of material used by the copier. Here, the Second Circuit distinguished TVEyes’s use from Google Library Project’s use in Authors Guild, Inc. v. Google, Inc., holding that the third factor weighed in favor of Fox. “Google’s snippet function was designed to ensure that users could see only a very small piece of a book’s content.” In contrast, given the brevity of the average news segment on a particular topic presented by Fox, the court held that TVEyes’s use (ten minute video clips) was both extensive and inclusive of Fox’s copyrighted work.

Considering the fourth factor, the court held 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.” After weighing the factors, the Second Circuit held that TVEyes’s use is not justifiable as a fair use: “TVEyes is unlawfully profiting off the work of others by commercially re-distributing all of that work that a viewer wishes to use, without payment or license.”

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