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Fox News has fully prevailed in a copyright lawsuit against TVEyes, a media monitoring service that allows its users to find and share clips of broadcast news. On Friday, Fox News informed a New York federal judge that it had reached a settlement with TVEyes, putting an end to the five-year-old case. As part of the deal, TVEyes has agreed to a permanent injunction and will no longer be permitted to carry copyrighted content from Fox News.
The resolution comes weeks after the U.S. Supreme Court declined to review a lower appellate court’s opinion that TVEyes’ service couldn’t be justified as a fair use.
TVEyes, which has been used by prominent journalists, politicians and public relations professionals to keep tabs on certain topics, was taken to court with the allegation that it was “willful[ly] free-riding on Fox News’s programming,” something the cable newscaster asserted would jeopardize “both the quality and the quantity of premium news reporting available to consumers.”
The court case soon shifted attention to fair use.
The defendant told the judge, “Journalists use TVEyes to comment on and criticize broadcast news channels (including Fox), often by comparing and contrasting how the major news networks cover particular news events. Government officials and corporations use TVEyes to monitor the accuracy of facts reported by the media so they can make timely corrections when necessary. Political campaigns use TVEyes to monitor political advertising and appearances of candidates in election years. Financial firms use TVEyes to track and archive public statements made about securities by their employees for regulatory compliance. The White House uses TVEyes to evaluate news stories and give feedback to the press corps, including Fox News. Without TVEyes or a service akin to it, there would be no way to effectively accomplish these objectives.”
At first, TVEyes appeared headed to success with the defense. U.S. District Judge Alvin Hellerstein agreed with TVEyes that the indexing and excerpting of cable news programming is a transformative use of copyrighted material.
But in a later decision, Hellerstein ruled that TVEyes had overstepped by letting its subscribers search, download and share clips and issued an injunction restricting the assisted dissemination of Fox News clips on social media.
The case then went on appeal where the two sides argued whether TVEyes was more like Google Books or Aereo. The former was a project to digitize millions of books into a text-searchable archive that a court had found transformative and ultimately a fair use since only snippets were provided to the public. The latter was a business allowing users to watch or record live broadcast TV using a PC or cellphone. The Supreme Court likened Aereo to an unlicensed cable service that publicly performed copyrighted work. At the 2nd Circuit, judges were bothered by the lack of limitations for TVEyes’ users and edged toward seeing the service in the Aereo lens.
Ultimately, 2nd Circuit Judge Dennis Jacobs concluded that because TVEyes redistribution “makes available virtually all of Fox’s copyrighted audiovisual content — including all of the Fox content that TVEyes’s clients wish to see and hear — and because it 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.”
The Supreme Court’s subsequent refusal to hear the case was the final nail in the coffin.
TVEyes attempted to get the high court’s interest by discussing its service’s value in the Donald Trump era, one where the president and Fox News seemingly had a symbiotic relationship requiring monitoring. TVEyes wanted the justices to tackle whether there could really be marketplace harm from something that Fox News would never license as the cable newscaster is restrictive about any derogatory uses of its content.
Without comment, the high court turned down the case in December.
The settlement avoids any need for a trial to determine monetary damages for copyright infringement. According to the consent judgment, both sides are bearing their own fees and costs. The dispute simply ends with an enforceable pledge by TVEyes that it will no longer distribute or perform Fox News content.
Fox News was represented in the case by a Kirkland & Ellis team led by Dale Cendali. TVEyes was handled by lawyers at Quinn Emanuel.
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