The U.S. Supreme Court won’t be reviewing a big copyright lawsuit brought by Fox News against TVEyes, a media monitoring services that stores a massive amount of television news programming for use by researchers. The decision to deny review leaves in place an opinion from a lower appellate circuit that affirmed TVEyes’ copyright liability for making verbatim reproduction of Fox News’ content.
The development is a blow for TVEyes, which has become a critical tool for journalists to keep tabs on what is said on the air by Fox News commentators. That features has become especially important during the administration of President Donald Trump, who is often influenced by Fox News. TVEyes is also used by PR folks to track when their clients are mentioned in the news.
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In February, the Second Circuit Court of Appeals agreed with Fox News that a service that provided its video and audio to customers — almost in real time — and then allowed clips to be shared through email and social media violates its copyrights.
“[B]ecause [TVEyes] deprives Fox of revenue that properly belongs to the copyright holder, TVEyes has failed to show that the product it offers to its clients can be justified as a fair use,” wrote Circuit Judge Dennis Jacobs.
In a cert petition, TVEyes presented the case as a critical one of exceptional importance that would balance copyright law with the First Amendment right to criticize and comment about the copyright holders. The appellant pointed out that the Supreme Court hadn’t taken up a fair use case in two decades and noted how when Fox News licenses its works, it has a special restriction prohibiting the use of licensed clips “in a way that is derogatory or critical.”
TVEyes wanted the high court to address the presumption of market harm for Fox News and put emphasis on the cable news channel’s “outsized relevance to national political debate,” explicitly noting the feedback loop between Trump and Fox News commentators.
In opposition, Fox News downplayed the stakes except for copyright holders in the news business.
“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,” wrote Fox News’ attorney. “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.”
On Monday, the justices announced a bunch of cases that wouldn’t be reviewed. The TVEyes petition was among those denied cert without further comment. The case now goes back to the trial court, which will further consider the scope of the injunction and potentially set up a trial to examine damages.
