United States: Does The Courts' Expansion Of Fair Use Copyright Protection Promote The "Progress Of Science And Useful Arts" When It Requires Increasing Judicial Oversight Over Activities That Otherwise Would Be Regulated By The Marketplace?

Last Updated: November 25 2015
Article by Robert C. Welsh

In 2014, when District Court Judge Alvin Hellerstein of the Southern District of New York upheld TVEyes, Inc.'s ("TVEyes") monitoring service as "fair use" in the face of a copyright infringement claim brought by Fox New Network LLC ("Fox News"),1 the decision was seen as yet another step in the federal courts' limitations of the rights of copyright owners under the "transformative use" approach to fair use developed by the Supreme Court in Campbell v. Acuff Rose.2 TVEyes is a media-monitoring subscription service that "records the entire content of television and radio broadcasts and creates a searchable database of that content." The service allows subscribers to search keywords or phrases to determine and review an aggregation of instances of the search term appearing in the media. Subscribers include businesses and governmental agencies such as the White House, United States Army, and local and state police departments; the service is not available to members of the general public. Clips are limited to 10 minutes in length, and a majority of the clips are two minutes or less; users are required to agree to use the clips for internal purposes only. 

Fox News sued for copyright infringement, contending, among other things, that TVEyes' commercialization of Fox News's copyrighted works could not be considered fair use because it interfered with Fox News's efforts to commercialize its broadcasts through its own competing clip service. Critical to Judge Hellerstein's fair use decision was his determination that TVEyes' monitoring service was not infringing because it did not duplicate or usurp the value of Fox News's original broadcasts.  As the District Court explained:

"While Fox aims to report the news, TVEyes aims to monitor what the media reports as news, the latter having qualities of news in its own right. For example, the 2012 attack on the U.S. Embassy in Benghazi was important news, but so was Fox News's intense focus on the story. TVEyes was unique in providing such a reliable 'database of everything that television channels broadcast, twenty-four hours a day, seven days a week.'"3

In short, TVEyes' monitoring core service was transformative because it was a service "that no other content provider provides."4

However, having found that the core of the service was "transformative," the court left open the question whether certain of the features that TVEyes offered subscribers were equally transformative. The court identified the following features for which it required further development of the evidentiary record before determining whether they qualified for fair use protection: the feature that allows TVEyes' customers to search by date and time, and the features that allow clips to be archived, downloaded, emailed, and shared via social media, which TVEyes claimed were integral to the services it provided to its customers.

Last week, Judge Hellerstein issued the court's Permanent Injunction and Final Order, thus bringing to a close this part of the proceedings. Consistent with the initial opinion the court issued in August 2015,5 the court ruled that the feature allowing subscribers to "archive" particular clips on the subscriber's "Media Center" (an interface residing on TVEyes' servers) was fair use because subscribers needed some ability to archive the clips, which were replaced every 32 days, and the Media Center resided on TVEyes' servers. By contrast, the court ruled that the features allowing subscribers to download clips to their own computers or search the TVEyes database by date and time were not fair use because those features were not transformative and competed directly with Fox News's competing service.

Finally, the court imposed a detailed set of restrictions and limitations on subscribers' ability to share their clips with recipients outside the subscriber's organization: Subscribers can only share clips with no more than five recipients outside the subscriber's organization and provided that TVEyes include (1) a feature requiring the recipient of the email containing the clip to authenticate the recipient's email address; (2) a screen showing that the subscriber received clear notification that the material the subscriber is sending is copyrighted by Fox and TVEyes does not have a license from Fox; (3) a screen showing that the recipient received clear notification from the sender that the material being sent is copyrighted by Fox and TVEyes does not have a license from Fox; and (4) a feature that will block the email from being shared through social media.

A number of questions arise from Judge Hellerstein's Order and Permanent Injunction. Of course, there is the question regarding whether the line drawn by Judge Hellerstein was correct in terms of segregating transformative from "non-transformative" features that TVEyes can offer its subscribers. But also, why does fair use permit a TVEyes subscriber to share his or her clips with five recipients outside the subscriber's organization? Why not more or fewer? Will TVEyes have to bring each new feature before the court for approval or risk being held in contempt? Will each new change in technology require an adjustment of the court's injunction? The only thing that appears clear is that each side got some of what they wanted but by no means everything.

More fundamentally, the question arises whether courts or the marketplace should determine the types of features that services like TVEyes can offer. As the court acknowledged, the features that it found not to be fair use were ones that subscribers would find "convenient," but "convenience alone is not a ground for finding fair use."6 But will subscribers still want to pay for a TVEyes service limited to its purely transformative features with other convenient features removed? Indeed, by allowing TVEyes to compete with Fox News's clip service while limiting the features TVEyes can offer, has the court made it more or less difficult for consumers to get what they may really want, namely, a single service that collects all radio and television content and that offers both transformative and non-transformative features? Would the Progress of Science and useful Arts instead be better served had the Court not found TVEyes service to be protected by the fair use doctrine and thus allowed this space to be developed by the copyright owners of the underlying works? As they say in television, "stay tuned," as these and other questions will undoubtedly be addressed, if not answered, as the federal courts' fair use decisions regarding transformative services and products appear to require ever-greater judicial control and oversight.


1 Fox News Network LLC v. TVEyes, Inc., 43 F.Supp. 3d 379 (S.D.N.Y. 2014).

2 See L. Grossberg & R. Welsh, "Another Step in the Long March from Campbell v. Acuff Rose toward Fair Use Free-for-All? (October 21, 2014), found at www.ipintellegencereport.com.

3 Fox News Network, LLC v. TVEyes, Inc., 2015 WL 5025274 (August 25, 2015) at *4.

4 43 F.Supp. 3d at 392.

5 See footnote 3, supra.

6 See Fox News Network, LLC v. TVEyes, Inc., 2015 WL 5025274 at *9

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions