The Second Circuit is set to consider Fox News v TVEyes, with both parties having submitted their briefs (see Fox News brief and TVEyes brief). The appeal represents the latest evolution of the “transformative use” standard that Judge Pierre Leval first wrote about in his seminal 1990 Harvard Law Review article, Toward a Fair Use Standard.
When Judge Leval articulated his idea of “transformative use” as the key to understanding fair use, his goal was to provide “a better understanding of fair use and greater consistency and predictability of court decisions.” He perhaps could not foresee just how expansively this idea would broaden fair use.
In fact, when the Supreme Court embraced Leval’s “transformative use” in Campbell v. Acuff-Rose just a few years after his article was published, it took care to limit any future expansion. While the Court noted that the fair use doctrine should recognize that a parody of a copyrighted work “must be able to ‘conjure up’ at least enough of that original to make the object of its critical wit recognizable”, it followed up by remarking, “This is not, of course, to say that anyone who calls himself a parodist can skim the cream and get away scot free.” And the Court, though finding the work at issue to be a transformative parody, stopped short of declaring it fair use. It remanded to the lower court on the issue of the amount and substantiality of the original work used, saying, “we express no opinion whether repetition of the bass riff is excessive copying, and we remand to permit evaluation of the amount taken, in light of the song’s parodic purpose and character, its transformative elements, and considerations of the potential for market substitution sketched more fully below.”
Justice Kennedy was even more cautious in a concurring opinion that he wrote. While he agreed with the majority’s conclusion, he wrote separately to reiterate “the importance of keeping the definition of parody within proper limits.” He concluded by saying, “If we allow any weak transformation to qualify as parody, … we weaken the protection of copyright.”
Over 20 years later, Judge Leval would revisit the doctrine he invented in the Google Books case, Authors Guild v Google. And if he didn’t contemplate the limits of transformative use in his original article, he recognized them here, beginning his opinion by writing, “This copyright dispute tests the boundaries of fair use.”
Although Leval’s ultimate holding that Google’s copying was fair use can seem astonishing in its breadth, his opinion at least recognizes potential outer limits of the doctrine. He took care to confirm that a “would-be fair user of another’s work must have justification for the taking” (emphasis added). He observed that Google’s copying is done to provide “dissemination of information about the original works”, not “the re-transmission, or re-dissemination, of their expressive content.” He noted that while Google makes copies of entire works, it does not “reveal” those copies to the public—the copying is done to create a searchable index, and Google provides snippets of the copies, but only enough to provide context to help a searcher “evaluate whether the book falls within the scope of her interest.” And finally, he held that a secondary user like Google, who makes copies for an internal, transformative purpose, must employ security measures to ensure it does not unreasonably expose copyrighted works to the public.
If Google Books tested the outer bounds of fair use, TVEyes threatens to break them.
TVEyes is a video news clipping service 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.” For $500 a month, subscribers can play unlimited high definition clips from TVEyes’ database, archive them online, download them to their own devices, and email and share them with unlimited numbers of nonsubscribers. And TVEyes offers all of this without having permission from any copyright owner or broadcaster. In July 2013, Fox News Network sued TVEyes for copyright infringement. TVEyes claimed fair use.
What’s astonishing is not the sheer breadth of what TVEyes sought. What’s astonishing is that the District Court agreed. In a September 2014 decision on cross motions for summary judgment, the Southern District Court of New York held that “TVEyes’ copying of Fox News’ broadcast content for indexing and clipping services to its subscribers constitutes fair use.” The court called for further development of the record regarding other functions provided by TVEyes. On renewed motions for summary judgment, the court held that TVEyes’ archiving function—which enabled subscribers to save an unlimited number of clips indefinitely—was fair use, and its emailing feature could be fair use provided it “develops and implements adequate protective measures.” However, it did hold that its downloading feature and date/time search functions were not a fair use.
There would seem to be a clear cut case against fair use on all counts. TVEyes’ purpose for copying 1,400 stations 24/7 is to deliver portions of them wholesale to its subscribers. It is a for-profit entity financially benefiting from providing access to the works. It does not transform the works in any way save to index them. The nature of the works being copied runs across the entire spectrum, from factual to fictional, from news to entertainment and more. Entire works are being copied. While TVEyes doesn’t deliver entire works, only clips up to 10 minutes, there is no limit on the clips, and subscribers can easily piece together entire programs (in high resolution). And the market harm was clearly established by the record—there is not only harm to existing, “traditional” television revenue sources but also to existing clip licensing markets and emerging online revenue sources.
But the court read the record in an idiosyncratic way and applied a number of novel concepts unsupported by case law. It primarily fixated on potential fair uses of the works by TVEyes’ subscribers such as media criticism—and that, in enabling such uses, TVEyes’ own copying and delivery of copyrighted works becomes fair use.
On appeal, TVEyes argues that the court didn’t go far enough. It is asking the Second Circuit to hold that all of its functions, including email, download, and date/time search, are “protected fair use.” TVEyes focuses almost entirely on what it enables its subscribers to do, asserting that its services allow them to engage with the copyrighted works in putative transformative purposes—essentially arguing that it should be allowed to stand in the shoes of its customers when it comes to fair use.
If the Second Circuit were to accept these arguments, it would undermine the principles that fair use is based on and, consequently, the principles of copyright law itself.
Fair use has historically been seen as a corollary to copyright law, available in those circumstances when unauthorized use of an existing work furthers rather than impedes the aims of copyright. It is necessarily limited—in ordinary cases, securing authors’ exclusive rights furthers the aims of copyright, and the market promotes “the progress of science and the useful arts.” Fair use serves as a complement by either privileging certain justified uses like news reporting and criticism, or excusing uses that by custom are considered reasonable or outside an author’s control. Some, including Leval, have described fair use as a mechanism for drawing a boundary line between protected and unprotected uses.
But however fair use is conceptualized, it should be self-evident that too broad of an application would undermine the goals of copyright instead of promoting them. As Justice Kennedy said in his Campbell concurrence, “[U]nder-protection of copyright disserves the goals of copyright just as much as overprotection, by reducing the financial incentive to create.” Unless one does not see any value in copyright, and views fair use as merely a mechanism for nullifying the protections authors currently see under the law, one should recognize that fair use has its proper limits. We’ll see if the Second Circuit finds that TVEyes goes beyond those limits.