## Facts

- Fox News Network owned copyrights in its televised news programming.
- TVEyes operated a for-profit media-monitoring service that continuously recorded content from over 1,400 television and radio channels, copied broadcasts into its database, and copied closed-caption text to make broadcasts keyword-searchable.
- TVEyes sold subscriptions (about $500/month) primarily to institutional clients (e.g., journalists and law enforcement), not individual consumers.
- Subscribers could search by keyword and other filters, then watch up to ten-minute audiovisual clips of matched broadcasts, and use additional functions including archiving clips to a workspace, downloading clips, and emailing/sharing clips.
- Fox sued, alleging TVEyes infringed Fox’s exclusive rights by copying, storing, and redistributing Fox programming without authorization and by displacing Fox’s clip-licensing and monitoring markets.
- The district court held the text-search function and related clip “watch” function were fair use, but enjoined other functions (including certain downloading/emailing uses).
- On appeal, Fox challenged the fair-use ruling as to the watch function; TVEyes sought broader fair-use protection. The text-search database ruling was not at issue on appeal.

## Issues

1. Whether TVEyes’s subscription service that enables users to watch, archive, download, and share up to ten-minute clips of copyrighted news broadcasts qualifies as fair use under 17 U.S.C. § 107.

## Decision

- The Second Circuit reversed the fair-use ruling as to TVEyes’s watch function and related clip redistribution features.
- The court affirmed the denial of TVEyes’s request for broader relief on its cross-appeal.
- The case was remanded for entry of a revised injunction consistent with the appellate decision.
- Certiorari was denied, leaving the appellate judgment in place.

## Legal Principles

- Fair use is assessed under the four factors in 17 U.S.C. § 107: (1) purpose and character (including commerciality and transformativeness), (2) nature of the work, (3) amount and substantiality used, and (4) market effect.
- A use may be partly transformative if it improves access to relevant material (e.g., by enabling targeted retrieval from a large corpus), but commercial distribution of expressive audiovisual content in a conventional viewing format diminishes the weight of transformativeness.
- For news programming, the “nature of the work” factor may be neutral where the work contains factual elements but is presented as copyrighted audiovisual expression.
- Copying and providing up to ten minutes of continuous audiovisual content can be quantitatively and qualitatively substantial, especially where users can obtain multiple clips sufficient for their purposes.
- Market substitution and harm to actual or likely licensing markets—such as clip licensing and professional monitoring services—can be decisive; the market-effect factor was treated as the most important element in this analysis.

## Conclusion

The Second Circuit held that TVEyes’s commercial service crossed the fair-use line when it redistributed substantial, viewable segments of Fox’s broadcasts in a way that served as a substitute for Fox’s own clip-licensing and monitoring markets, even though TVEyes’s search-and-locate capability had some transformative characteristics.


Fox News Network, LLC v. TVEyes, Inc., 883 F.3d 169 (2d Cir. 2018)