Tuesday’s decision in Fox News Network v. TVEyes suggests an interesting and illuminating similarity between the concept of transformative use under the fair use doctrine and the hearsay rule. TVEyes monitors and records all content broadcast by over 1,400 television and radio stations on a 24/7 basis, and transforms the content into a searchable database for its subscribers. Employing search terms, subscribers can determine when, where, and how those search terms have been used, and obtain transcripts and video clips of the portions of the shows that used the search term.
Fox News Network sued for copyright infringement. TVEyes asserted an affirmative defense of fair use. Judge Alvin Hellerstein, a federal district court judge in New York, granted summary judgment in favor of TVEyes. In finding for TVEyes, Judge Hellerstein relied on recent fair use decisions in the Second Circuit, including Authors Guild v. HathiTrust, Swatch v. Bloomberg, and Authors Guild v. Google.
Of particular interest was Judge Hellerstein’s finding that TVEyes’ use was transformative. He observed that TVEyes’ search engine and its display of result clips “serves a new and different function from the original work and is not a substitute for it.” In making this finding, he was guided by Second Circuit precedent that databases that convert copyrighted works into a research tool to further learning are transformative. He noted that “TVEyes’ message, ‘this is what they said’—is a very different message from Fox News’—‘this is what you should know or believe.’”
Distinguishing between documenting what someone said and repeating the statement for the purpose of conveying the statement’s message bears a striking similarity to the hearsay rule. Under the Federal Rules of Evidence (FRE), hearsay is an out of court statement offered in evidence to prove the truth of the matter asserted. As a general matter, hearsay is not admissible. The theory behind the hearsay rule is that human assertions are often unreliable, and it would be unfair for out-of-court statements to be admitted as evidence.
For example, if Jack was on trial for burglarizing Jill’s house, and Tom testified at trial that Jerry told him that he saw Jack breaking into Jill’s house, Tom’s statement would be inadmissible hearsay. The statement was being offered to prove the truth of the matter asserted, i.e., that Jack broke into Jill’s house.
On the other hand, if Tom testified that he told Jack that Jill kept cash in her house, that wouldn’t be hearsay because the statement was not being offered to prove the truth of the matter asserted, i.e., that Jill had cash in her house. Rather, it was being offered to establish motive: to show that Jack was told that Jill kept cash in her house. Additionally, an out-of-court statement isn’t hearsay if it is used to impeach, or rehabilitate, a witness’s credibility.
When Tom makes a statement to Jack, his purpose is for Jack to believe the truth of the matter he is asserting. The hearsay rule prohibits the statement from being used in court for that same purpose. But it allows the statement to be used for a different purpose: to establish motive or to impeach or rehabilitate a witness. Employing the vocabulary of fair use jurisprudence, a transformative use of an out-of-court statement is not hearsay and thus is admissible in evidence.
Why is the analogy between transformative use and the hearsay rule significant? Notwithstanding a growing mountain of precedent, some copyright lawyers continue to insist that a use is transformative only if the work itself is changed in some manner, and that using the work for a different purpose is an illegitimate form of transformative use. The analogy to the 500 year-old hearsay rule shows that it is not alien to our legal tradition to permit the use of a work when the work is being used for a different purpose from that of the author’s.