The History of Ius Praedae And Its Decline

In 2013, Fox News Network (“Fox News”) filed suit against TVEyes, Inc (“TVEyes”). TVEyes is a “media monitoring service” that records the content of more than 1,400 television and radio stations. For $500 a month, TVEyes subscribers have access to a searchable database containing such content. Subscribers can view transcripts, create keyword alerts, view and download high-definition video clips, and “live stream” television content.

Fox News sought to enjoin TVEyes from copying and distributing clips of its programs and sought damages for copyright infringement. In response, TVEyes asserted a fair use affirmative defense. Past cases have denied a fair use defense for intermediaries like TVEyes to defend their end users. Given such legal precedent, the case seemed clear cut. However, recent cases, such as Cariou v. Prince, 714 F. 3d 694 (2d Cir. 2013), The Authors Guild Inc., et al. v. Google, Inc., No. 12-3200 (2d Cir. 2013), and Authors Guild v. HathiTrust, 755 F.3d 87 (2d Cir. 2014), have impacted the way transformative use under fair use doctrine is approached and TVEyes emerged victorious in the first round. “[G]uided by the Second Circuit’s determination that databases that convert copyrighted works into a research tool to further learning are transformative,” Judge Hellerstein identified the transformative purpose of TVEyes as “indexing and providing clips and snippets of transcript to subscribers.” [1]

Oral argument on the remaining issues took place in July. The parties debated whether the capabilities allowing users to “save, archive, download, email, and share clips of Fox News’ television programs” are integral to the transformative purpose; whether these features cause market harm to Fox News’ derivative businesses; and whether the “date and time search function” is integral to the transformative purpose.Ultimately, Judge Hellerstein deemed TVEyes’ archiving function to fall within the gambit of fair use, the emailing function to potentially be fair use, and the downloading and date-time search functions to fall outside of fair use. [2] This proverbial “splitting of the baby” will not surprise anyone who was present at the oral argument. Judge Hellerstein had expressed his discomfort at the prospect of dealing with such complex issues in the context of a summary judgment motion, stating that judges are not good at making perimeter decisions. Interrupting counsel at one point, he sanguinely remarked that, “Neither of you is going to win . . . [w]isdom will not lie only on your side or the other side, but somewhere in between.” Both parties will appeal this ruling and the future of fair use may very well be impacted by the upcoming decisions.

[1] Fox News Network, LLC v. TVEyes, Inc. 43 F.Supp.3d 379, 393-98 (2014).

[2] Fox News Network, LLC v. TVEyes Inc., Docket No. 1:13-cv-05315 (S.D.N.Y. Jul 30, 2013).