TVEyes Is Taking Its Fight Against Fox News to the Supreme Court

By A.J. Katz Comment

Fox News Channel is being taken to court—the U.S. Supreme Court.

The television monitoring and transcription service TVEyes Inc., has asked the SCOTUS to overturn a Feb. 27 ruling saying the company violated U.S. copyright law by offering a search engine of TV clips.

In a petition for a writ of certiorari filed today, TVEyes is warning the justices that February’s ruling in favor of Fox News gave the court an “ideal vehicle” to answer questions of “exceptional importance” about copyright law’s fair use doctrine.

Fox News has declined to comment.

The case is “TVEyes, Inc., Petitioner v. Fox News Network, LLC, Respondent,” case number 18A117, at the Supreme Court of the United States. TVEyes had previously requested a re-hearing for the February ruling, which was denied on May 14, 2018.

TVEyes records and transcribes U.S. and international broadcast and cable television networks/stations, not limited to Fox News, 24/7, 365, and turns it into a word-searchable database. The company indexes over 27,000 hours of television content every day, from across over 1,000 television channels.

Its customers include government agencies and officials, such as the White House and over 100 members of Congress; the military; and multiple news organizations. TVNewser occasionally uses TVEyes as well.
“The harnessing of technological advances to allow analysts and critics to quickly locate and research televised information is crucial to the public good and consistent with longstanding First Amendment principles,” TVEyes wrote in the petition. “To allow a news organization to prevent meaningful research on its content under the guise of nonexistent licensing markets extinguishes this beneficial, and necessary, opportunity for discourse that analyzes and critiques the Nation’s news coverage…Proper application of the fair use doctrine is the key First Amendment safeguard to protect the public from such abuses.”

In its petition, TVEyes made not so thinly veiled reference to Fox News, America’s most-watched basic cable network, which also happens to be the president’s news and information outlet of choice.

“Televised news media—and Fox in particular—have out-sized importance in today’s media landscape,” TVEyes continued. The filing also noted that television is “ephemeral,” and therefore more difficult to research and analyze than printed media.

TVEyes believed it was protected by the fair use doctrine. But in February’s Fox News Network LLC v. TVEyes Inc. decision, the Second Circuit Court sided with the most-watched basic cable network, and ruled it was “not justifiable as a fair use” because it “deprives Fox of revenue that properly belongs to the copyright holder.”

“At bottom, TVEyes is unlawfully profiting off the work of others by commercially redistributing all of that work that a viewer wishes to use, without payment or license,” U.S. Circuit Judge Dennis G. Jacobs wrote back in February.

“This is a significant win in the field of fair use law,” Fox News outside counsel Dale Cendali said after the February ruling. “In evaluating the remaining fair use factors, the Second Circuit held that TVEyes’ distribution of Fox’s audio visual content would ultimately be harmful to the media company’s business because it is being deprived of various forms of licensing revenue.”

Because TVEyes made money from its service, the petition said, the appeals court effectively presumed that would hurt Fox News. That approach conflicts with the Supreme Court’s last ruling on fair use, TVEyes said, which held that courts cannot just assume market harm for commercially successful uses.

At the Second Circuit, Fox News was represented by Dale M. Cendali, Joshua L. Simmons and Johanna Schmitt, of the New York-based law firm Kirkland & Ellis LLP.

TVEyes is represented by Kathleen Sullivan, Andrew H. Schapiro, Todd Anten, Jessica Rose and Thomas C. Rubin, of the Seattle-based law firm Quinn Emanuel Urquhart & Sullivan LLP.

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