NAB, NCTA Among Those Backing Fox in TVEyes Copyright Fight
Opposition to TVEyes' appeal and cross appeal of a U.S. District Court decision in a lawsuit by Fox News Network has such bedfellows as NAB, NCTA and a variety of copyright, cable, content and broadcast interests. Multiple amici curiae briefs were filed Wednesday with the 2nd U.S. Circuit Court of Appeals on the Manhattan lower court's decision that the company's archiving function is fair use, but emailing, downloading and date/time searches aren't, and a subsequent injunction (see 1603180007). TVEyes is scheduled to file a response and reply brief by Aug. 15.
An unlicensed entity distributing content without any compensation to copyright holders, networks or their licensed distributors “would increasingly undermine the ecosystem that has supported the vast and ever-growing amount of content available,” NCTA said in its amicus brief (in Pacer). It argued TVEyes’ format -- video clips -- is hardly unique, with clips being easily searchable online or via cable operators’ search functions. Even if some aspects of the TVEyes service are fair use, not all are, with its delivery of broadcasters' video segments not qualifying as transformative, NAB said in its amicus brief (in Pacer), saying distributing those clips stifles the ability to get revenue from them.
The District Court decision shows “eagerness to rewrite copyright law to provide a statutory fair use defense for ‘media monitoring’ where Congress has three times refused to act” and goes against the separation of powers, some intellectual property scholars said in their brief (in Pacer). By explicitly not including media monitoring in the examples in the preamble of Section 107 of the Copyright Act, Congress was setting a deliberate balance between the interests of the public and of copyright holders, the scholars said. The filing included George Mason University School of Law's Sandra Aistars.
TVEyes is "a clipping service aimed at businesses” and legal precedent has held clipping services are neither transformative nor fair use and must instead license the content they distribute, said CNN, Gray Television, Hearst Television and ITV America in their amicus brief (in Pacer). They said TVEyes’ defense is to cast itself “in the mantle of Google and other online search engines,” but they cited the court’s 2013 Associated Press vs. Meltwater Holdings decision that held that merely using search engine technology “does not by itself make one a search engine.” Unlike services found to be fair use by the 2nd Circuit such as Google Books and HathiTrust Digital Library, TVEyes doesn't direct users to the original work or put significant limits on the amount of copyright content served in response to a query, the group said. The Copyright Alliance said in a separate filing (in Pacer) that TVEyes goes beyond fair use, and allowing widespread commercial exploitation of copyrighted works "will stifle the very creativity that the Copyright Act is intended to foster."
Any media and public benefits from TVEyes’ service are outweighed by the unintended consequences, and affirming the District Court decision “would have a dire impact” on the audiovisual content licensing industry, said American Photographic Artists (APA), American Society of Media Photographers, Digital Media Licensing Association, National Press Photographers Association and Professional Photographers of America. In their filing (in Pacer), APA et al. said such an affirmation would help TVEyes supplant the market for licensed content, including content coming from content aggregators who share licensing revenue with content creators.
Backing TVEyes are such parties as Computer & Communications Industry Association, the Electronic Frontier Foundation, Google, Microsoft and Public Knowledge (see 1603250016). TVEyes didn't comment Thursday.