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Does the U.S. Supreme Court want to hear more about the “feedback loop” between Fox News and President Donald Trump and the potential for copyright law to interfere with those who wish to keep tabs on this special relationship? The justices on the high court now have that opportunity. On Wednesday, media monitoring service TVEyes moved ahead by petitioning for a review of a case that it says presents an “exceptionally important” question about copyright fair use.
Fox News has been successful so far in asserting copyright claims against TVEyes, which indexes over 27,000 hours of television content every day from across over 1,000 television channels. Researchers use the service to track what’s being said about a given topic, but Fox News convinced the 2nd Circuit Court of Appeals in February that TVEyes was unlawfully profiting off of the work of others by commercially redistributing television programming without payment or license.
In August, TVEyes signaled that a petition would be coming.
On Wednesday, the company asked the Supreme Court to grant review in what would become the high court’s first copyright fair use case in more than 20 years. The petition focuses most heavily on the first and fourth factors of fair use — the purpose and character of the use and the effect of the use upon the potential market.
By providing a copious amount of searchable programming, TVEyes is making transformative use of copyrighted material, the judges reviewing this case have agreed. What has tripped up TVEyes in the eyes of lower courts is the prospect that the service could deprive Fox News of licensing income.
Fox does have a licensing business, but as the petition notes, the network has a special restriction prohibiting the use of licensed clips “in a way that is derogatory or critical.”
What that means, in TVEyes’ view, is that there is a market that Fox News is unlikely to enter or authorize.
Take, for example, MSNBC, which, on a regular basis, features how Fox News pundit Sean Hannity is putting the best light on Trump’s actions or features how Trump may be picking up cues from the Fox News morning show Fox & Friends. It’s unlikely that MSNBC would use a Fox News licensing service if it had to agree to stay away from derogatory use. (Then again, from a business perspective, MSNBC owner Comcast may support Fox News’ position about the value of retaining copyright authority.)
The petition states, “Examples abound of the feedback loop between Fox and the President,” citing numerous news articles about how Trump’s actions echo what’s being broadcast on Fox News.
“Fox is a player of outsized relevance to national political debate,” writes TVEyes’ attorneys led by Kathleen Sullivan. “If the President tweets about an issue that aired on Fox, then Fox itself has become the news and an important subject for research, analysis and criticism that is enabled by TVEyes’s comprehensive database. But under the court of appeals’ market-harm ruling, Fox may withhold meaningful access to research of its broadcast content or license it only on prohibitive terms.”
When this case was taken up by the 2nd Circuit, the watch-nearly-live and social-media-sharing components of TVEyes service disturbed the judges there — and that might feature in Fox News’ response to the petition. Under this alternative view, TVEyes is more akin to an unlicensed on-demand service.
But what TVEyes focuses on now in its bid for review is the presumption of market harm from the 2nd Circuit.
The petition states the analysis “conflicts with those of other courts of appeals by reasoning that a defendant’s profit necessarily shows market harm. Any such result would by definition resolve all fair use cases against the defendant. After all, a copyright holder can always assert some effect on its potential market by pointing out the fact that the secondary user did not pay for the particular use in question — a feature inherent of every fair use case.”
The issue of harm and what TVEyes sees as the mistaken assumption of being in the same market as a cable network that would preempt criticism is what’s being presented to the justices.
“To allow a major media company such as Fox to remove itself at will from such a significant aspect of public discourse cannot be reconciled with the underlying First Amendment values that fair use is intended to protect,” concludes the petition. “Democracy can thrive only where such discourse is examined in the sunlight. This Court should grant review to determine whether a copyright holder may assert purported harm to hypothetical licensing markets it would never reasonably enter to shield content from analysis and critique.”
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