This week is Fair Use Week, so at first blush, the Second Circuit’s decision that TVEyes’s service was not a fair use might appear ironic. However, a closer read reveals that the decision does not in any way undermine the Second Circuit’s recent fair use jurisprudence.
As DisCo has previously covered, TVEyes continuously records the audiovisual content of more than 1,400 television and radio channels, imports that content into a database, and enables its clients to view, archive, download, and email to others ten‐minute clips. Fox News sued TVEyes for copyright infringement. In 2014, the district court granted summary judgment to TVEyes. Fox appealed, and now the Second Circuit has reversed the decision below.
The Second Circuit stated that distinct functions should be analyzed separately to determine whether each function is a fair use. The Second Circuit noted that TVEyes had two core offerings: the “Search function,” which allows clients to identify videos that contain keywords of interest; and the “Watch function,” which allows TVEyes clients to view up to ten‐minute, unaltered video clips of copyrighted content. The district court had found the Search function and most aspects of the Watch function to be a fair use. The Second Circuit stressed that Fox did not challenge the Search function finding; “Fox’s challenge is to the Watch function.”
In other words, Fox’s appeal did not question the Second Circuit’s findings in Authors Guild v. HathiTrust and Authors Guild v. Google that the copying necessary to create a search database is a fair use. Rather, this appeal concerned the amount of Fox content TVEyes displayed to its customers in its search results. And the Second Circuit concluded that the ten-minute clips TVEyes displayed exceeded fair use.