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Last week, a federal judge issued a broad permanent injunction to go into effect on Dec. 17 that would prevent customers of the media monitoring service TVEyes from doing things like emailing Fox News clips to more than five recipients, sharing links to Fox News clips on social media, and searching Fox News content by date and time.
Given that TVEyes is a service used by prominent politicians including those at the White House and the U.S. Congress, members of the media, investment banks and attorneys, the ramifications of the order will be significant. And yet, Fox News is hardly satisfied by what it got.
U.S. District Judge Alvin Hellerstein ordered that the parties should brief him on the remaining issues in the case, and on Monday, the parties delivered a “highly confidential” joint submission that takes this case to unchartered waters. (Read in full here.)
In the court papers, Fox News discusses some of the inadequacies it sees in how TVEyes proposes to follow through with an order to curtail sharing of clips in light of a summary judgment decision in August that not everything that TVEyes does is covered by fair use.
Take, for example, emailing.
“According to TVEyes’ counsel, TVEyes intends to implement the limitation by only including space for five email addresses in TVEyes’ user interface for the emailing feature,” says the cable news channel. “Once those emails are sent, however, the TVEyes Proposal does not include any protection against further emailing. Thus, a user easily could include herself as a recipient, and then forward the email to others telling them to use her email address when accessing the video clip.”
Fox News is unhappy that TVEyes‘ proposal doesn’t amount to preventing the “forwarding” and “re-forwarding” of clips.
But that’s not all.
Fox News is now demanding among other things that video clips be watermarked, that two users be prevented from accessing clips using the same credentials at the same time, that viewers be reminded that content is protected by copyright law and that editing or reproduction or public display is forbidden.
Fox News also wants to ensure that the emailing feature for clips will not become available for 72 hours after telecast on its cable channel. The network says that limiting emailing of clips for the first three days will help reduce the effect on the licensing market for its clips. Further, Fox News wants distributed clips to play just once for each intended recipient and only within two weeks of the initial telecast.
What’s more, Fox News proposes, “Prior to each use of the TVEyes emailing feature, TVEyes’ users will be presented with a clear and conspicuous copy of the Disclosure and will be required to agree to its terms in a click-wrap agreement.”
And yet even more, Fox News wants to be sent records each month on who is emailing what content. The auditable logs demanded by Fox News include user name, recipient name, IP address associated with the viewing and proof that the viewer accepted the click-wrap agreement.
As for TVEyes, it has come forward with its own proposals, but says that before implementation can take place, Fox News should prove that it is liable for direct copyright infringement.
Those who have been following the case might be surprised that the summary judgment didn’t address this already, but TVEyes argues that determining what’s fair use is different than Fox News’ burden in showing liability.
In fact, TVEyes appears to be mounting a new defense based upon the 2nd Circuit’s 2008 opinion involving Cablevision’s remote-DVR storage.
“The Second Circuit ruled that the services offered on Cablevision’s RS-DVR system did not render Cablevision directly liable for copyright infringement because it was Cablevision’s customers, not Cablevision itself, who engaged in the volitional act of requesting, making, and performing the copies at issue,” TVEyes argues. “The RS-DVR system at issue in Cartoon Network is legally indistinguishable from TVEyes’ Additional Features. As far as these features are concerned, TVEyes houses and maintains an automated system that allows its users to conduct a date/time search, e-mail a link to a clip, or download a clip. TVEyes itself does not engage in any volitional conduct with respect to the Additional Features; rather, these are automated systems that respond to users’ commands. Thus, as a matter of law, TVEyes cannot be liable for direct infringement as to the Additional Features.”
TVEyes also opines that the Supreme Court’s decision in Aereo left the volitional conduct element of direct copyright infringement intact. Besides using this line of argument to limit the restrictions on its system — which TVEyes worries will destroy its business — the defendant is also aiming to avoid paying damages for copyright infringement.
Fox News retorts that the argument is “untimely” given that it’s only come up now in the case, and that TVEyes is distinguishable from Cablevision’s RS-DVR for various reasons spelled out in the court papers (see above link). Fox News also says Aereo rejected the approach.
“The Court held that, despite Aereo’s passive involvement in the transmission of these over-the-air broadcasts to its subscribers, it acted volitionally,” argues Fox News. “Here, TVEyes actually goes further as it does not passively allow its subscribers to choose what telecasts are recorded, but rather records them itself, copying them to its hard drive, and then redistributing them to its subscribers.”
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