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Fox News doesn’t want the U.S. Supreme Court to review its copyright win against the media monitoring service TVEyes. On Wednesday, the cable news giant submitted its opposition to a cert petition and downplayed the stakes other than implying that a reversal of earlier decisions in the case would undercut the hundreds of millions of dollars invested in training journalists and gathering news.
TVEyes, which allows its subscribers to find and share television clips, suffered a huge blow in February when the Second Circuit Court of Appeals ruled that it had gone too far in redistributing content without a license. TVEyes failed in its efforts to justify its service as a fair use of copyrighted material.
Now, looking to get the high court interested, TVEyes says it is presenting an “exceptionally important question” on how to balance copyright with the First Amendment right to criticize and comment about what is said in the media. In its petition, TVEyes stresses the importance of critiquing Fox News during the presidency of Donald Trump, who seemingly makes statements and decisions based on what he sees on the channel.
Fox News responds that TVEyes is mischaracterizing what this case is all about.
“TVEyes’ insistence that this case is important to the continued ability to criticize the media is sorely misplaced,” states the opposition. “The Second Circuit’s holding does not concern political dialogue, commentary, criticism, or the First Amendment; it concerns the unauthorized distribution of copyrighted content. As the Second Circuit recognized, criticism of the media is alive and well, and is in no way dependent on TVEyes’ efforts to profit from copying and distributing the media’s copyrighted content. Indeed, it is TVEyes that poses the real threat to First Amendment values, as depriving the media of its entitled copyright protection will serve to dampen public discourse by hindering the viability of media services that depend on receiving fees for their content.”
Fox News also puts forward that there is a difference between someone who criticizes and a service enabling its subscribers to provide such commentary, but then adds that the factual record in the case establishes that TVEyes is really designed for PR and communications professionals including those at the White House. TVEyes has many prominent subscribers — more than 100 members of Congress, the Department of Defense, the American Red Cross, investment banks, trial lawyers and members of the media — and Fox News attempts to deflate TVEyes’ perception of self-importance by suggesting that the key purpose for which many use the service isn’t criticism.
The different emphasis matters because TVEyes is most concerned in its petition with the Second Circuit’s presumption of harm. TVEyes is essentially making the case that it is in a different market than Fox News. It points out that under Fox’s licensing terms, licensees are prohibited from using clips “in a way that is derogatory or critical.” Fox News is unlikely to enter that type of market, TVEyes suggests, and so when analyzing the four factors that govern a fair use, it must be credited with doing no harm on top of making a transformative use of copyrighted material.
Fox News retorts that “TVEyes tries to change the topic” from copyright law to criticism of Fox and offers up everything from DVRs to the TV News Archive as illustrating how there are numerous other ways to obtain television content. Fox News asserts that there is no circuit split here and that the lower ruling is entirely consistent with precedent. Fox News adds, “The question is whether TVEyes’ undiluted distribution of Fox’s content occupies a ‘market that properly belongs to’ Fox.”
Here’s the full opposition authored by Dale Cendali, Joshua Simmons and Jordan Romanoff at Kirkland & Ellis.
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