Amicus Brief in Fox News v. TVEyes

Abstract

The district court’s holdings dramatically expanded the fair use doctrine contrary to the express intent of Congress and inconsistent with existing precedent. TVEyes copies thousands of hours of entertainment, news, sports and other television programming twenty-four hours a day, seven days a week without permission or payment to authors and sells it to business subscribers for further copying and distribution at a fee of $500 per month. TVEyes and its amici attempt to excuse this copyright infringement by falsely characterizing the service as “media monitoring.” (Id.) That characterization is wrong and does not justify the holdings below.

Congress thrice rejected requests to add media monitoring to the preamble of Section 107 of the Copyright Act. Instead, Congress enacted a limited alternative in Section 108, allowing libraries and nonprofit archives to engage in certain copying and archiving of works. By choosing not to include media monitoring among the enumerated examples in section 107, Congress struck the important balance between copyright holders’ interests and the general public’s interests in section 107. It is not the courts’ role to legislate or bypass Congressional intent. For this reason alone, the district court’s holdings that considered content-delivery features of TVEyes’ service fair use must be reversed.

Moreover, any definition of TVEyes as a “media monitor” is a misnomer. TVEyes goes far beyond the media monitoring that was contemplated and rejected by Congress as potentially eligible for the fair use defense. At that time, a media monitoring service would give a client a short analog VHS tape that was hard to reproduce. Now, TVEyes provides subscribers unlimited digital content and encourages further distribution of works by its clients.

TVEyes likewise does not qualify for the more limited non-profit archival protections in Section 108 of the Copyright Act. TVEyes is an expensive, for profit, business-to-business service that copies and digitally distributes copyrighted content from every cable channel around the clock and therefore does not meet the either the threshold requirements of Section 108 or the specific requirements of the exceptions contained therein.

In addition, TVEyes’ wholesale copying of thousands of hours of television programming does not fall within the contours of the fair use doctrine as consistently applied by this Court and others to media monitoring services. Nor do this Court’s decisions in Author’s Guild v. Google, Inc. (Google Books) and Author’s Guild v. HathiTrust (Hathitrust) support the result reached below. Setting aside amici’s views on those cases, TVEyes’ service is wholly different from the services at issue in those cases. The service at issue in Google Books was a free service provided to the public for research purposes that incorporated measures intended to ensure that users could not obtain the full value from a work (whether that be the entire work or a key portion of a work like a travel guide or recipe book) via the search function. Likewise, Hathitrust involved a service displaying mere word search term results of copyrighted works. By contrast, TVEyes’ service is designed to replace the original source of the work or licensed distributors of the work. The district court erred in determining otherwise and should be reversed.

Keywords: fair use, media monitoring, intellectual property, copyright, Copyright Act

JEL Classification: K19