Fox News' Legal War Over Sharing of TV Clips Headed to Appeals Court

Chris Wallace Fox News Sunday - H 2014
Courtesy of FOX

Chris Wallace Fox News Sunday - H 2014

Since Fox News sued the media monitoring service TVEyes in 2013, we've highlighted this particular copyright dispute as potentially impacting the future of news. The case is on the verge of living up to the hype with a summary judgment ruling this summer that held that the indiscriminate sharing of TV clips wasn't a fair use and a startling injunction last month that imposes severe restrictions on the sharing of Fox News clips via email and social media. 

Now, the stakes are going up.

On Monday, a federal judge signed off on allowing the case to move to a federal appeals court. Fox News could have opposed TVEyes' wish to move there, but has instead agreed to let a higher authority review U.S. District Judge Alvin Hellerstein's conclusions about a service that allows users to watch live streams, view past television programs, download unlimited high-definition video clips and then edit them and share them with others. 

TVEyes is used by media organizations, government officials, lawyers and corporations.

Fox News has argued that the service is damaging its investment in news reporting and interfering with its own licensing of clips while TVEyes contends — somewhat successfully, but not completely — that its technology provides a public service and makes transformative use of copyright by allowing subscribers to better understand how newscasters are treating a given topic.

On Dec. 14, an injunction was scheduled to kick in, but instead both parties have decided to stay much of the injunction in favor of letting the controversy be heard at the 2nd Circuit Court of Appeals.

It will be a spectacle that will surely gather friend-of-the-court briefs from across the entertainment, media and technology spheres. 

TVEyes will likely base its arguments around an Oct. 16 decision by the same appellate court concerning Google's efforts to scan tens of millions of books. The media monitoring company has also presented the argument that the 2nd Circuit's opinion involving Cablevision's remote-DVR storage also gives it protection from copyright liability.

Meanwhile, Fox News is arguing that Hellerstein should have gone much further in his injunction order. Two weeks ago, the cable news network argued among other things that there should be no emailing of clips through the TVEyes service for up to 72 hours after initial broadcast. In a letter to the judge, Fox News writes that it "intends to cross-appeal to address the Court's refusal to enter an injunction with a broader scope."

Here's Fox News' memo, stamped as approved by the judge.

In short, the coming appeal will probably address unresolved issues involving fair-use boundaries, volitional conduct by a service provider and the power of judges to remedy copyright wrongs.