In an opinion dated yesterday, Judge Hellerstein ruled that a service called “TVEyes,” which “monitors and records all content broadcast by more than 1,400 television and radio stations twenty-four hours per day, seven days per week, and transforms the content into a searchable database for its subscribers,” was “fair use” under the copyright laws, and thus largely granted summary judgment against the plaintiff, Fox News. The decision was based on the fact that the service is “transformative”:
TVEyes’ service copies television broadcasts but for an entirely different purpose and function. TVEyes is not “trying to scoop” Fox News’ broadcasts or to “supplant the copyright holder’s commercially valuable right of first publication” Swatch, 2014 WL 2219162, at *7. TVEyes captures and indexes broadcasts that otherwise would be largely unavailable once they aired. Users access the clips and snippets for an altogether different purpose – to evaluate and criticize broadcast journalism, to track and correct misinformation, to evaluate commercial advertising, to evaluate national security risks, and to track compliance with financial market regulations. As TVEyes points out, “monitoring television is simply not the same as watching it.”
Judge Hellerstein distinguished a decision by Judge Cote (see our post here) finding that an internet news clipping service was not fair use:
Unlike the indexing and excerpting of news articles, where the printed word conveys the same meaning no matter the forum or medium in which it is viewed, the service provided by TVEyes is transformative. By indexing and excerpting all content appearing in television, every hour of the day and every day of the week, month, and year, TVEyes provides a service that no content provider provides. Subscribers to TVEyes gain access, not only to the news that is presented, but to the presentations themselves, as colored, processed, and criticized by commentators, and as abridged, modified, and enlarged by news broadcasts.