Do the TVEyes Have It?

Welcome back to another episode of Is it Fair Use?, the fast-paced, brain-teasing game that’s sweeping the nation1Really, really slowly.!
TVEyes charges $500 a month to monitor about 1400 television and radio stations, 24 hours a day, seven days a week, for certain keywords and phrases that are important to you. The service is invaluable to anybody that has to keep up-to-date on current events, such as politicians, public-relations firms, the military and law firms. It’s also useful to police and health departments for tracking how well their public messages are getting out: if the police issue an “Amber” alert, they like to know whether the report really is being reported adequately by the local media.


For a fee, TVEyes helps its important institutional customers, such as this cat, keep apprised of breaking news and how the media is portraying the client. — “Fatty watching himself on TV” by cloudzilla – Flickr. Licensed under Creative Commons Attribution 2.0 via Wikimedia Commons

When you log on to your TVEyes account, you’re given a list of all instances where TVEyes detected the keyword or key-phrase. You can drill down on each instance by clicking on it. You’re then presented with a transcript showing the immediate context for the keyword and a thumbnail (if it’s a TV show) of an image of the show. If you click on that, your browser plays a copy of the broadcast, together with a running transcript, starting 14 seconds before the keyword is mentioned. It appears that, if you really wanted to, you could rewind the clip to its beginning and watch the whole thing, but apparently, as practical matter, hardly anyone does that. The video clips are no more than ten minutes long, and most are less than two minutes long. They remain on the TVEyes website for 32 days, but subscribers can download them and keep them indefinitely.
TVEyes achieves this useful functionality (and much more) by recording the 1400 channels continuously, and grabbing transcripts where available from close-captioning and the like. The transcript is crucial because otherwise the clips wouldn’t be searchable, and, if you think about it, searchability is what TVEyes is primarily selling. Presumably, TVEyes then chops up its recording into these shorter clips2Though I’m not sure what criteria it uses to end one and start another. It stores these clips on its own servers, and prepares everything for its paying subscribers to play them back.
TVEyes pays nothing to the owners of the copyright in the TV and radio programs that are copied, stored and played back.
One of these copyright owners, Fox News, sued. In large part, it was motivated by the fact that it already streams video clips through its own service and licenses video clips through major video services like YouTube, Yahoo! and Hulu3Astoundingly, these licensees promise not to “show the clips in a way that is derogatory or critical of Fox News.”, as well through a clip-licensing agency, ITN Source.
Is TVEyes’ use of Fox’s clips a fair use? Before you answer, review the fair-use factors.

Wait, Before You Answer!

Ready? Wait, before you answer, consider a couple of decision from the same court or circuit:
Recently, in Authors Guild, Inc. v. Hathi Trust, the defendant scanned a bunch of books and created a searchable repository of them. However, unless you’re blind, the defendant’s system doesn’t provide you with any snippets, only the title and page number of any “hits” (so you can locate the context). The Second Circuit (which is the controlling circuit here) held that this use was a fair use because “creation of a full-text searchable database is a quintessentially transformative use.”
Also, in the 2010 decision, Author’s Guild, Inc. v. Google, Inc., Google did essentially the same thing with an even bigger bunch of books, but also made snippets showing the search “hits” in context (as well as the location information). The Southern District of New York (which is the same district as the TVEyes court but is not binding on that court) held that this use was a fair use, in part because: “The use of book text to facilitate search through the display of snippets is transformative…. Similarly, Google Books is also transformative in the sense that it has transformed the book text into data for purposes of substantive research, including data mining and text mining in new areas, thereby opening new fields of research.”
Wait, there’s more! In a 1998 decision, the Second Circuit held that a “dial-up” service that re-broadcast radio programs so you can listen to them on your telephone was not a fair use. The Second Circuit specifically found a “total absence of transformativeness in the defendant’s act of retransmission.”
One more! In Associated Press v. Meltwater, the defendant, Meltwater, maintained a service that monitored internet news articles for its subscribers. It also maintained a searchable database. Instead of just copying articles verbatim, it waited for a customer to issue a query, whereupon Meltwater’s webcrawler would seek out and find stories relevant to the query. It would the present to the user a digest of articles, with each article’s headline, its source information, the first 300 characters of the article, and the 140 characters surrounding the search term. Meltwater marketed the service as a kind of digest that spared its customers from having to read the entire article (how dreary) but instead allowed them to focus on what’s really important to them. The Southern District of New York held Meltwater’s use wasn’t a fair use, in part because Meltwater’s customers appeared to read nothing but the digest and didn’t use provided hyperlinks to access the full article.
Ready now? Completely confused? That’s OK! Choose! Fair use or not, and click here for the court’s ruling.

Rick Sanders

Rick is an intellectual-property litigator. He handles lawsuits, arbitrations, emergency injunctions and temporary restraining orders, opposition and cancellation proceedings, uniform dispute resolution proceedings (UDRPs), pre-litigation counseling, litigation avoidance, and other disputes, relating to copyrights, trademarks, trade secrets, domain names, technology and intellectual-property licenses, and various privacy rights. He has taught Copyright Law at Vanderbilt University Law School. He co-founded Aaron | Sanders with Tara Aaron-Stelluto in 2011.


    1 Really, really slowly.
    2 Though I’m not sure what criteria it uses to end one and start another.
    3 Astoundingly, these licensees promise not to “show the clips in a way that is derogatory or critical of Fox News.”