Copyhype

Last fall, a federal judge in the Southern District Court of New York ruled that a news monitoring service’s copying of a news channel’s “broadcast content for indexing and clipping services to its subscribers constitutes fair use.” ¹Fox News Network, LLC v. TVEyes, Inc., 43 F. Supp. 3d 379 (SDNY 2014); see also my post, Fox News v TVEyes: Fair Use Transformed. The service, TVEyes, copied wholesale every program broadcast by 1,400 channels (including plaintiff Fox News Network). It then created a searchable index of video clips and provided its clients—who pay $500 a month for the service—streaming and downloading access to that content, all without a license from the channels.

Fox News sued for copyright infringement. Currently, the court is considering whether other features offered by TVEyes also constitute fair use: saving, archiving, downloading, emailing, and sharing clips by subscribers, along with searching television clips by date and time rather then keyword or term. Fox is supported by an amicus brief from Bright House, CNN, CBS, NBC Universal, and News 12, while the EFF and the Technology Law & Policy Clinic at NYU School of Law have filed in support of TVEyes.

Though this litigation is recent, the issues involved here concerning fair use and news monitoring are not new. In fact, Congress looked at them in great detail over twenty years ago.

News monitoring and Section 107

Sen. Orrin Hatch introduced a bill October 1990 that would have amended the Copyright Act to provide that “fair use of a copyrighted work for purposes of monitoring news reporting programming is not an infringement of copyright.” ²S.3229, 101st Cong. (2nd Sess. 1990). The bill did not make it out of Committee.

During a 1991 hearing before the House IP Subcommittee, Robert Waggoner, Chairman of the Video Monitoring Services of America, testified on behalf of the International Association of Broadcast Monitors. ³Copyright Amendments Act of 1991 Hearings before the H. Subcomm. on Intellectual Property and Judicial Administration of the Comm. on the Judiciary on H.R. 2372, 101st Cong. (1991). Waggoner officially appeared in support of Title I of H.R. 2372, the bill being considered by the Subcommittee, but spoke primarily about fair use for broadcast monitoring services, an issue not on the agenda.

Waggoner positioned broadcast news monitoring services as advancing “a core First Amendment interest.”

They disseminate news to an interested public that would otherwise have no effective means of access to such information. They are the custodians of the public’s right to know what is being aired about them, and where.

However, Waggoner raised concerns over the Eleventh Circuit’s 1984 decision in Pacific Southern Co. v. Duncan, which rejected a broadcast news monitor’s fair use defense, primarily because the service was commercial in nature. ⁴744 F.2d 1490 (11th Cir. 1984), cert. denied, 471 U.S. 1004 (1985). He also cited with concern a number of lower courts that have followed Duncan. ⁵E.g., Cable News Network, Inc. v. Video Monitoring Services of America, Inc., Civ. No. 1:88-CV-2660-JOF (N.D. Ga. Jan. 9, 1990); NBC Subsidiary (KCNC-TV) v. Video Monitoring Services of America, Inc., Civ. No. 88-Z-234 (D. Colo. July 27, 1989); Georgia Television Co. v. TV News Clips of Atlanta, Inc., 9 U.S.P.Q. 2d (BNA) 2049 (N.D. Ga. 1989).

S. 1805

Senator Hatch introduced his news monitoring bill again a few months following this hearing. ⁶S. 1805, 102nd Cong. (1st Sess. 1991). Like the previous bill, it would amend §107 of Title 17 by inserting “or monitoring news reporting programming” after “news reporting”. This time, the bill was referred to the Senate Subcommittee on Patents, Copyrights and Trademarks, which held a hearing on the legislation June 16, 1992. ⁷News monitoring: Hearing before the S. Subcomm. on Patents, Copyrights, and Trademarks of the Committee on the Judiciary on S. 1805, a bill to amend Title 17, United States Code, to clarify news reporting monitoring as a fair use exception to the exclusive rights of a copyright owner, 102nd Cong. (1992), hereinafter “News monitoring hearing”.

The Senate Subcommittee heard from six witnesses, including Register of Copyrights Ralph Oman and noted copyright scholars David Nimmer (appearing on behalf of Turner Broadcasting System and the National Association of Broadcasters) and L. Ray Patterson (who had represented the news clipping service in Duncan). Arizona Senator and Subcommittee Chairman Dennis DeConcini began with a brief statement extolling the benefits of news monitoring services but skeptical that the bill was necessary:

We live in an age where the electronic media provide nonstop access to a constant flow of information and take us around the world as quickly as it takes us down the street. In a constant sea of electronic information, it’s difficult, if not impossible, to stay on top of all that the news has to offer. Therefore, I find these new monitoring services to be extremely valuable. However, I do not believe that the value of these services is the question before us today. To me the question is how these services go about getting access to the information that they monitor, package, and eventually sell.

The fair-use doctrine has evolved over years through the courts as a balancing test that I believe has served us well and one which I’m reluctant to amend in the absence of compelling evidence. I will listen with great interest to the justification for the legislation, and I’ll look for an answer as to why this conflict cannot be resolved in the marketplace.

Register Oman led off the witness slate by testifying that “the Copyright Office does not support enactment of S. 1805.” In the Office’s view, fair use and licensing arrangements would cover most current broadcast monitoring activities, the bill would not provide any additional certainty to providers, and in some cases it goes too far in departing from fair use precedent, particularly by providing commercial access beyond “hard news.” Said Oman, “Monitors would be free to reproduce segments of documentaries, of magazine format-type shows, and public affairs broadcasting.”

Oman also raised concerns about market harm, saying “Broadcast monitoring threatens copyright owners’ potential market for video clips, to some extent, whether or not they now exploit the market, and I understand that some of them already do provide a limited service in this regard.”

Robert Cohen, president of Video Monitoring Services of America, testified next on behalf of the International Association of Broadcast Monitors. He began with a dire warning. “Without this legislation, the existence of the broadcast news monitoring industry in the United States is and will remain in jeopardy. Without our industry, the ability of the public to have access to news reporting about themselves and about issues important to them will be threatened.”

Cohen reiterated that the motivation for the bill were the previously mentioned court decisions like Duncan that have held broadcast monitoring was not fair use. He emphasized the important service that monitors provide to their clients, and he supported the bill in order to “clarify to the judiciary that news monitoring is just the kind of activity that the fair-use doctrine was designed to protect.” Cohen concluded his remarks by stressing “that if we go out of business or our services are chilled, there is no alternative for obtaining information from news programming on an immediate, nationwide basis.” ⁸International Association of Broadcast Monitors President Ed Moser separately testified during this hearing, but his statement largely echoed Cohen’s points. L. Ray Patterson concurred with Cohen. In his opinion, Duncan was wrongly decided, and this bill was necessary “to clarify [the law] for the courts.” ⁹Patterson’s argument that it was wrongly decided was that the Eleventh Circuit’s permanent injunction “gave perpetual copyright protection, unlimited in nature, to protect uncopyrightable as well as abandoned material, and this is wholly contra to what the 1976 Copyright Act provides.” This appears to erroneously conflate right with remedy.

David Nimmer offered a succinct description of the broadcasters’ position in his written statement:

We recognize this subcommittee’s interest in exploring ways in which copyright laws can promote public access to information and facilitate rapidly developing communications technologies. Broadcast monitoring services… are but one means of fulfilling this valuable public service. At the same time, however, public access to news broadcasting need not be secured at the expense of copyright ownership.

Neither broadcast monitoring services, nor the public interest in public access to video monitored news, should trump the copyright claims of those who finance, produce, create and edit broadcast news. Copyright protection, not copyright violation, serves the public interest. Copyright protection is intended to encourage creation of intellectual property by allowing the creator to retain the maximum ability to profit from his or her work. The control of a work’s ancillary uses is an important part of deriving full value. For this reason, we are troubled by the rhetoric of those video monitors who refuse to enter into license with the originators of the programs that they copy and sell, but still try to justify their behavior under the cloak of the “public interest”. For example, one witness who testified before Congress on behalf of the broadcast monitoring industry equates the guarantees of free speech with an unimpeded—i.e., unlicensed—right of public access to information.

This tips the balance too far. The simple truth is that this is a business issue, not a constitutional issue. We are not disagreeing about whether the public should have access to news clips but about whether copyright holders deserve compensation for and protection of their product.

Nimmer went on to rebut some of the concerns raised by proponents of the bill.

First, he noted that Congress has already addressed the question of public access to news broadcasts in multiple areas of federal law. For example, the 1976 Act permits archival reproduction and distribution by libraries and archives of “an audiovisual work dealing with news”; outside the Copyright Act, the Library of Congress is permitted to reproduce and distribute a “regularly scheduled newscast or on-the-spot coverage of news media.”

He then considered current business practices, saying, “Far from demonstrating a breakdown in the marketplace for access to news programs, current licensing practices can accommodate the growth of the video monitoring industry through market-based incentives.” Among the benefits of voluntary licensing is that it “forces direct face-to-face negotiations between news producers and video monitors, sensitizing each group to the needs of the others.”

Nimmer concluded,

Information access and retrieval technology is undergoing daily, rapid change. Rather than craft legislation that [may] chill development of new technologies (e.g., interactive, on-line video retrieval), Congress should ensure that existing non-profit, non-commercial uses remain anchored within the fair use exception and that commercial businesses built around the use of materials originated by others continue to be governed by traditional copyright law norms.

Senator Hatch wrapped up the hearing with a statement supporting his bill. Like Cohen and Patterson, he believed most news monitoring should fall under fair use, but court decisions like Duncan have necessitated a legislative course correction.

There was no further action on S.1805 following the hearing. Sen. Hatch reintroduced the bill the following Congressional session but it did not go anywhere, ¹⁰S. 23, 103rd Congress, 1st Sess. (1993). and there have been no similar bills introduced since. Congress had ample opportunity to consider adding news reporting monitoring to the list of fair use purposes in 107 but declined to do so.

Then and now

Contrary to Cohen’s predictions, the lack of legislation did not jeopardize the broadcast news monitoring industry. Nevertheless, little has changed in the discussion of fair use and news monitoring from the early 90s to the current litigation involving Fox News and TVEyes. For example, like Senator DeConcini, the amicus brief from the EFF and the NYU Tech Law & Policy Clinic says, “Every day, a virtual flood of news content streams across countless front pages and home pages, broadcast-television and social-media feeds, and more. The amount of content being produced in the media environment has exploded in recent years.”

But some things have changed. Most importantly, the current litigation involving TVEyes presents several crucial facts that are fundamentally different from the context in which proponents of the news monitoring bills in the 1990s supported legislation.

First, Waggoner noted in his 1991 testimony that, at the time, broadcast monitors only recorded news programs and only provided small clips. ¹¹News monitoring hearing at 265-266. “Hard news”, being primarily informational rather than creative, arguably admits to fair use more readily. TVEyes records everything on 1,400 channels: news programs, news magazines, documentaries, and likely everything else. And users can watch at least some of these in their entirety. ¹²See Expert Report and Declaration of Beth Knobel, Ph.D. at 4-5, Fox News Network, LLC, v. TVEyes, Inc., No. 1:13-CV-05315 (SDNY 2015) (No. 100), hereinafter “Knobel declaration” (“it was easy for me to download an entire episode of NBC Nightly News with Brian Williams without commercials from TVEyes in five high definition video clips”).

Second, at the time, broadcast monitors voluntarily restricted against redistribution and rebroadcast of clips by clients. ¹³News monitoring hearing at 29. TVEyes, however, allegedly encourages customers to post, redistribute, and email content. ¹⁴See Knobel declaration at 26, “the TVEyes Content-Delivery Features are designed to encourage users to download and publicly distribute video clips. TVEyes also touts the ability to use these features for those purposes in its marketing materials and in communications with its clients.”

Finally, there has been a marked shift in technology and the television news market. In the 1990s, as Waggoner observed,

[B]roadcasters themselves do not currently service or exploit the demand for monitored, after-broadcast news programming. They have not demonstrated any interest in doing so. Most broadcasters make previously-aired programming available to the public on a casual or delayed basis, if at all. The public’s interest in having consistent, complete and immediate access to broadcast news programming is not now well served by broadcasters. ¹⁵News monitoring hearing at 264.

That is no longer the case. Viewers are increasingly watching shorter video clips online rather than linear television. ¹⁶See, e.g., Lara O’Reilly, Most Young People Say They Have Stopped Watching TV, Business Insider (Jan. 26, 2015). As Knobel points out, “the television news business has invested significant resources to make content available through digital distribution and has developed established markets to support such distribution, including website and mobile-device-based advertising, extensions of cable or satellite subscriptions (e.g., TVEverywhere), and clip licensing.” ¹⁷Knobel declaration at 4. Thus, services like TVEyes have a more direct impact on the market for broadcasters nowadays. Their reproduction and distribution of clips means they “stand[] to profit from exploitation of the copyrighted material without paying the customary price,” a factor “that tends to weigh against a finding of fair use.” ¹⁸See, Harper & Row Publishers, Inc. v. Nation Enterprises, 471 US 539, 562 (1985) (“The fact that a publication was commercial as opposed to nonprofit is a separate factor that tends to weigh against a finding of fair use… The crux of the profit/nonprofit distinction is not whether the sole motive of the use is monetary gain but whether the user stands to profit from exploitation of the copyrighted material without paying the customary price.”). Fair use was intended to be a flexible doctrine, so it should be able to account for such shifts in the market.

Oral arguments on the current motions are scheduled for July 9.