A great decision on the fair use of radio and TV excerpts has been followed up by a troubling one that walks back some of the protections for new and innovative uses of media. Two years ago, Fox News sued a company called TVEyes, which creates a text-searchable database of broadcast content from thousands of television and radio stations in the United States and worldwide. It’s used by journalists, scholars, and political campaigns to study and monitor the national media. Last September, the court ruled that the service was for the most part engaging in fair use, but wanted to know more about certain features. Yesterday, the decision on those features came out. And it’s not good.

The court had asked for briefing on TVEyes customers’ ability to archive video clips; the ability to share links to video clips via email; the ability to download clips; and the ability to search for clips by date and time (as opposed to keywords). Although the court found the archiving feature to be a fair use, it found the other features to be “infringing.”  

The Ability to Archive

First, the court recognized that people couldn’t effectively comment on the media without the ability to archive video clips and store them over a long period of time. This is surely true. It would be impossible, for example, to comment on the evolution of a newscaster’s reporting on a topic without the ability to return to comments potentially made many years earlier.

The Ability to Share Links

The court then considered the ability for users to share links to TVEyes videos. The court found that although sharing links in some circumstances was okay (for example, a Congressional staffer showing the clip to their boss), it found that there was “potential for abuse” in that the link could also be shared with a friend. Therefore, the court concluded that the link-sharing feature was not fair use.

But this doesn’t make sense under current copyright law. That a TVEyes user might use a link in a way that the court thinks would lead to infringement doesn’t eliminate TVEyes’ own claim to fair use.

Sharing a link, in and of itself, is not an infringement, because it’s not a reproduction, distribution, or performance of any work. If anything, the ability to share a link might be seen as either (1) contributory infringement or (2) inducement of infringement, if someone later used that link to make a non-fair, unlicensed use of the video. Fox didn’t even raise a claim for contributory infringement or inducement, much less prove one.

It is clear why, as there are obvious “substantial non-infringing uses” of the link—the court itself recognized that—so linking falls squarely into the Supreme Court’s Sony Betamax doctrine, making any claim for contributory infringement a non-starter. The rule that creating a tool with substantial non-infringing uses doesn’t give rise to contributory infringement has been a bedrock of innovation. Besides the videocassette recorder that was the subject of the Sony Betamax case, it’s quite likely that the iPod, the digital video recorder, and many vital Internet applications would not have been brought to market without it. That’s why ignoring the Sony Betamax rule in this case is very concerning.

As to inducement, the court pointed to nothing that would meet the high standard of MGM Studios v. Grokster. In Grokster, the Supreme Court held that in order to be liable for inducing infringement, there has to be intent to infringe, shown through purposeful conduct such as affirmatively encouraging others to engage in infringing, non-fair uses. Nothing in the TVEyes decision comes close to a finding of intent to infringe.

Alarmingly, the court seemed to think that if TVEyes could stop certain uses the court viewed as infringing, the court would view the ability to share links as a permissible feature. This is a dangerous ruling, and it’s not what the law says. TVEyes should not be forced to become copyright cop solely because someone else may use a link in a way the court doesn’t like. Moreover, technology cannot discriminate between fair and infringing uses, so the court’s prescription would require TVEyes to do the impossible.

The Ability to Download

Continuing, the court looked at the ability for users to download clips. It found this functionality was impermissible, because even though TVEyes’ use of copyrighted content was transformative in allowing users to search and monitor news, and even archive that news, downloading was not essential to carrying out those fair uses. Specifically, the court held that because the Internet exists, there is no need to download (the user can always return to the site). This doesn’t make sense. There are many instances where the Internet is not available (one only needs to travel to see that’s true) or where services hosting content go out of business.

Regardless of whether the Internet is in fact truly ubiquitous, archiving on TVEyes’ servers isn’t materially different from archiving on users’ own machines if the purposes for which TVEyes (and its users) engage in viewing is fair. Of course, a new copy is being made when a user downloads that work. But if TVEyes’ original capture and storage of the video is fair use (as the court already found), and the downloaded copy is being used for exactly what the court considered to be fair, namely reporting and commenting on the news, the fact that some users may use that function to engage in acts that would infringe copyright cannot change TVEyes’ fair use into an infringement.

To illustrate the absurdity of this, under the court’s reasoning, it would seem that any webpage that relies on fair use is potentially nonetheless liable for infringement, given that web browsers allow for pages to be saved for offline reading and cannot technologically restrict users from using copyrighted portions of a page in infringing ways.

Again, this determination seems contrary to the Supreme Court’s decision in Sony Betamax. The district court viewed downloading by users as potentially violating copyright because those users might “distribute freely.” Not only did the court ignore the substantial non-infringing uses of the downloading features, it ignored a central factual determination in Sony Betamax. In that case, the Supreme Court found that the ability of users to record shows on a videocassette recorder to watch later was a fair use, even though some users may be recording shows in a way that could violate copyright law.

The Ability to Search by Date and Time

Finally, the court considered the ability for users to search clips by date and time, rather than keywords, to be impermissible. The court found that because date and time search is a “content delivery tool for users who already know what they seek,” the use is not “transformational” as the user can merely “procure the desired clip from Fox News.” In reality, we doubt Fox News is in the habit of selling clips to those who intend to criticize it. In fact, the court itself noted that licensees of Fox clips must promise not to cast Fox in a negative light.

More importantly, it is immaterial that date and time searching allows users to find what they already know exists. Knowing something exists and using a tool like TVEyes to access it does not change the underlying purpose of criticizing and analyzing the media. The court’s decision is akin to outlawing a card catalog at the library organized by author and title because the patron could just go to the rightsholder and buy a copy of the work.

Furthermore, searching by date and time can be extremely important. News stories evolve over time, and the ability to analyze that evolvement is critical to being able to analyze the media. Historical events happen at particular times. A search for the news reports about the attacks of September 11, 2001 on that date is much different than news reports from 10 years later.

Overall, the court’s opinion misses the mark in its analysis. EFF, along with New York University’s Technology Law and Policy Clinic, filed a fried-of-the-court brief relating to this decision on behalf of the Nation’s Eric Alterman, Columbia University’s Victor Navasky, the media watchdog Fairness and Accuracy in Reporting (FAIR), and the production company Brave New Films. We’re disappointed that the court ruled the way it did, and we hope the court’s analysis is reversed by the appeals court.