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How important is the bottom line for TV broadcasters? Apparently significant enough that at least two media companies are willing to imply that they themselves have used a copyright-infringing service.
On Friday, five media companies, including CBS Studios, NBCUniversal and CNN, asked permission to file a friend-of-the-court brief in support of Fox News’ summary judgment motion against TVEyes, a media monitoring company that lets its subscribers download, archive, email and share clips of news shows.
Fox News’ lawsuit against TVEyes is an important dispute for the future of journalism — one that examines “free-riding” in an age when digital bots monitor and deliver factual information. Fox News is attempting to hold TVEyes liable for infringing its content, which has led the defendant to warn against allowing a broadcaster to establish exclusive control over its news content and silence its critics.
Last September, a New York federal judge handed down a big ruling that a portion of TVEyes’ service constituted fair use.
The lawsuit has proceeded, and both sides have presented experts to talk about the economic harm, or lack thereof, caused by a media monitoring service. And now Fox News has brought a new motion for summary judgment.
Here’s where the other media companies step in.
What makes the appearance of CBS and NBCU particularly noteworthy is that according to the judge’s September opinion, both have been subscribers to the TVEyes service. (Among the defendant’s other customers are the White House, the Department of Defense, The New York Times, the Associated Press and professional sports leagues.)
Using the service is no guarantee that those with an interest in also protecting their copyrights are willing to side with TVEyes‘ fair use arguments.
“It is no secret that the media industry has come under enormous financial pressure in the digital age,” states the opening to the amicus brief. “As people consume more and more news via mobile devices or on the Internet, the market for streaming audio and video has become a key source of revenue for media companies – one that is actively exploited by amici as well as Fox News. Indeed, today’s consumers are increasingly drawn to shorter, topical video clips on their computers and mobile devices rather than full-length news programming.”
The brief then attacks the very service that some of the amici have been using.
“TVEyes unlawfully misappropriates that market for itself,” it says. “It systematically records content from over a thousand television channels, and charges subscription fees to its customers in exchange for distributing to them massive amounts of content it has neither created nor licensed.”
CBS, NBCU, CNN, Bright House Networks and News 12 Networks say they disagree with U.S. District Judge Alvin Hellerstein‘s September 2014 opinion that the indexing of news articles represents a transformative use of copyright. The judge came to this conclusion after finding that TVEyes “provides a service that no content provider provides” and that subscribers “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.”
The judge’s determination, unlike what happened in the Associated Press’ lawsuit against Norway-based news monitoring service Meltwater, is one, according to the other broadcasters, that “undermines the value of television news” and “encourages the mass appropriation of news that was created at great cost, and sometimes risk, while at the same time eviscerates copyright owners’ greatest commodity: control over content.”
But the judge isn’t being asked this time to address the legality of indexing. Fox News’ new summary judgment motion has to do with some of the other features in the TVEyes system, including downloading, archiving, emailing, saving and sharing of clips. The amicus brief, authored by Elizabeth McNamara at Davis Wright Tremaine, says these “functions are completely unnecessary to the indexing and ‘search’ capabilities that this Court considered fair use, and usurp the media’s ability to monetize its own content.”
The brief, seen below, uses CNN’s live-streaming service as an example of a service that TVEyes is undercutting.
Regarding the fact that CBS and NBCU use TVEyes, neither company has responded to a request for comment. The brief itself only mentions this obliquely with a suggestion that some things are OK, but not this.
“To be clear, amici do not argue that there is no social utility to markets for redistributed broadcast content,” the brief says. “Such markets exist, and amici are active participants in them. But what TVEyes does is different: its business model consists of delivering other parties’ copyrighted news and entertainment content to its paying corporate customers, while avoiding both the costs of creating that content and the costs of licensing it from those who do.”
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