Fox News, TVEyes Dispute Each Other's Fair-Use Arguments to 2nd Circuit
TVEyes acknowledges the public benefit of TV news, but is asking the court "to distort copyright law and ... reach a result that is anything but fair," Fox News said in a reply brief (in Pacer) entered Wednesday in the…
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2nd U.S. Circuit Court of Appeals. TVEyes failed to establish fair use because mass digitization that delivers unauthorized copies isn't fair use, Fox said. It said TVEyes' subscribers' uses of the service and their convenience doesn't equal transformative use, and the substantiveness of TVEyes' taking comes from what the Content Delivery Features make available and not what the company's customers actually accessed. It's TVEyes' burden to prove fair use, but it can't do so, Fox said: "Its response is merely smoke and mirrors, obscuring a simple case with legal and factual mumbo-jumbo." Fox said TVEyes argues subscribers use the service for research, which falls under fair use, but TVEyes itself doesn't do that research, it just provides content. The programmer said TVEyes users are predominantly PR professionals, that being a market the company targeted. Fox doesn't challenge the idea TVEyes engages in fair use capturing the text of its broadcasts for inclusion in a database or providing text to users for research, but somehow sees the same use of audiovisual components as infringing, TVEyes said in its reply brief (in Pacer) last month. Since research is a paradigmic fair-use purpose under copyright statute, letting users do meaningful research on Fox broadcasts requires audiovisual as well as text content, TVEyes said. The broadcaster raises red flags about potential misuse of the service that could hurt Fox's market for its content, but it hasn't shown any evidence of TVEyes users' misuse. Even if TVEyes uses weren't fair use, there's no justification for an injunction since Fox didn't show TVEyes had a volitional role in its users' conduct as would be needed for direct liability. Fox is appealing a U.S. District Court decision that TVEyes' archiving function is fair use, but emailing, downloading and date/time searches aren't, and TVEyes is appealing a subsequent injunction (see 1603180007).