Case 1:13-cv-05315-AKH Document 173 Filed 08/25/15 Page 1 of 19
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`-------------------------------------------------------------- )(
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`FO)( NEWS NETWORK, LLC,
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`Plaintiff,
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`-against-
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`TVEYES, INC.
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`OPINION AND ORDER
`REGULATING ISSUES OF FAIR
`USE AND GRANTING CROSS(cid:173)
`MOTIONS FOR SUMMARY
`JUDGMENT
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`Defendant.
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`13 Civ. 5315 (AKH)
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`-------------------------------------------------------------- )(
`ALVIN K. HELLERSTEIN, U.S.D.J.:
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`TVEyes, Inc. ("TVEyes") is a media-monitoring service that records all content
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`on more than 1,400 television and radio stations and transforms the content into a searchable
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`database. Subscribers are able to track when, where, and how words of interest are used in the
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`media, and can obtain transcripts and video clips of the portions of the television programs that
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`use those words. Fox News Network, LLC ("Fox News") filed this lawsuit under the Copyright
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`Act, 17 U.S.C. § 101 et seq., claiming infringement of its copyrighted content seeking damages
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`and an injunction barring TVEyes from copying and distributing clips of Fox News programs. 1
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`TVEyes asserts the affirmative defense of fair use. In 2014, the parties cross-moved for summary
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`judgment. In an Opinion and Order dated September 9, 2014, I upheld TVEyes' affirmative
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`defense of. Fox News Network, LLC v. TVEyes, Inc., 43 F. Supp. 3d 379 (S.D.N.Y. 2014).
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`However, I reserved judgment with respect to four features of the service, finding the factual
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`record inadequately developed to grant summary judgment to either party at that time.
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`Specifically, TVEyes allows users to archive videos, download videos, share videos by e-mail,
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`1 Fox News also sought to recover under New York tort law for "hot news" misappropriation. I held that claim
`preempted by the Copyright Act, and dismissed the claim in my previous Order. Fox News Network, LLC v. TVEyes,
`Inc., 43 F. Supp. 3d 379 (S.D.N.Y. 2014).
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`1
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`Case 1:13-cv-05315-AKH Document 173 Filed 08/25/15 Page 2 of 19
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`and search for content by date and time, rather than by keyword. The parties pursued additional
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`discovery with respect to these features, limiting experts to one per side, followed by renewed
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`briefing on the open issues, focusing on the following questions:
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`1) Whether each function in question is integral to TVEyes' trans formative
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`purpose, and
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`2) Whether each function in question threatens Fox News' derivative business.
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`This Order now resolves the renewed cross-motions for summary judgment. For
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`the following reasons, I find that TVEyes' archiving function is fair use; that its e-mailing
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`function, if subjected to various protections, can be fair use; but that the downloading and date(cid:173)
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`time search functions are not fair use.
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`THE PARTIES
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`i. TVEyes
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`As I explained in my previous opinion, TVEyes, 43 F. Supp. 3d at 379, familiarity
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`with which is assumed, TVEyes creates a searchable database of virtually all television and radio
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`content by using closed-caption technology and recording broadcasts through standard cable
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`services such as Comcast and Cablevision. TVEyes allows users to track the usage of words or
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`phrases of interest, and to view the transcripts and video clips of the portions of the television
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`broadcast that use the search term. The purpose is to give subscribers "access, not only to the
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`news that is presented, but to the presentations themselves," for both are news: the subject that is
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`reported, as well as the manner in which it is reported. Id. at 393. TVEyes is a for-profit business
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`with over 22,000 subscribers. It markets itself to businesses and government agencies, and
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`counts among its subscribers the White House, Department of Defense, over 100 members of
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`Congress, and various news and non-profit organizations. It is not open to the general public.
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`2
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`Case 1:13-cv-05315-AKH Document 173 Filed 08/25/15 Page 3 of 19
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`TVEyes subscribers may set "watch lists" for terms and receive real time alerts
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`when the terms are used. Subscribers may also search past broadcasts, for which video is saved
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`for 32 days. When a matching segment is located, the user can view the matching transcript and
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`video clip up to ten minutes long, although the vast majority of clips are shorter than two
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`minutes. The video clip is also accompanied by important analytic data such as the segment's
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`Nielsen viewership rating, the frequency with which the term has been mentioned over a
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`specified time period, and the geographic markets and channels where the term is used. These
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`searching, indexing, and display features make up TVEyes' core function.
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`TVEyes also provides a suite of functions that complement its core service. The
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`first of these functions is "archiving." TVEyes users are able to "archive" video clips that appear
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`in response to their search queries to a personal digital library on TVEyes' server. Archiving a
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`video keeps the video available indefinitely to that subscriber.2 A second complementary
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`function is "e-mailing." Subscribers can share links to the video clips with others by e-mail,
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`allowing the recipients of the link to view the video clip on TVEyes' server through their web
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`browsers.3 TVEyes does not utilize an authentication process to limit viewing to authorized
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`users. A third complementary function is "downloading." Subscribers are able to download
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`copies of identified digital video clips to their computers for offline use and permanent storage.
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`TVEyes places no technological restriction on its subscribers' use or distribution of downloaded
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`video clips, nor does it utilize any method of identifying the clip as sourced from TVEyes. And a
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`fourth complementary function is "date-time search," by which users can retrieve video clips of
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`2 Videos are otherwise purged from TVEyes' servers after 32 days.
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`3 The links to videos can also be posted to social media services, such as Facebook or Twitter. TVEyes concedes
`that such posting is not fair use and is not integral to its service, and it claims to have implemented a series of
`measures that prevent the videos from being accessed through social media. The efficacy of those measures is
`disputed, however. TVEyes will have to demonstrate that its measures will be reasonably effective.
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`3
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`chosen networks according to the date and time slots of the broadcasts. The issue in the instant
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`motions is whether each of these four functions constitutes fair use. TVEyes has the burden to
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`prove its affirmative defense, as I later discuss.
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`ii. Fox News
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`Again, as I discussed in my previous decision, 43 F. Supp. 3d at 379, Fox News is
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`an international television news organization that owns and operates Fox News Channel ("FNC")
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`and its financial news counterpart, Fox Business Network ("FBN"). FNC is in the business of
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`reporting news worldwide on a twenty-four hour news cycle, and has been the most watched
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`cable news network for the past 11 years. Its primary competitors are cable television channels
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`MSNBC and CNN.
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`Viewers generally watch Fox News on television through their cable TV
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`subscriptions, but Fox has a growing online presence as well. For example, live online streams of
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`FNC and FBN are available to viewers with cable or satellite subscriptions through Fox's
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`TV Anywhere platform for authenticated streaming. In addition, Fox makes a limited number of
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`video clips available on its websites, FoxNews.com and FoxBusiness.com, although the amount
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`of content is sharply limited by Fox's contracts with the cable companies. Currently, only about
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`16% of broadcast content is available on Fox's website. Fox receives advertising revenue when
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`viewers watch videos on its websites, including revenue from banner advertisements on the page
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`itself, and from "pre-reel" advertisements that play before a video clip begins. Fox also has
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`agreements with syndication partners, including Yahoo!, Hulu, and YouTube, "to store and show
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`video clips of segments of its program[ s] on their websites, thereby generating another stream of
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`income." TVEyes, 43 F.Supp.3d at 387. And Fox licenses its video clips to clients, including
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`companies, journalists, and politicians, through its agents, ITN Source and Executive Interviews.
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`However, licensees must "covenant that they will not show the clips in a way that is derogatory
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`or critical of Fox News." Id. Together, Fox News' online distribution and licensing services
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`make up its "derivative business."
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`Fox invests significant resources in creating content and covering news stories. It
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`alleges that, by making Fox News' content available to TVEyes subscribers, TVEyes is diverting
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`potential licensees, website visitors, and therefore revenue, from Fox.
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`LEGAL STANDARD
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`i. Summary Judgment
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`Under the well-established summary judgment standard, a "court shall grant
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`summary judgment if the movant shows that there is no genuine dispute as to any material fact
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`and that the movant is entitled to judgment as a matter oflaw." Fed. R. Civ. P. 56(a). In deciding
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`the motion, the court must "resolve all ambiguities, and credit all factual inferences that could
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`rationally be drawn, in favor of the party opposing summary judgment." Roe v. City of
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`Waterbury, 542 F.3d 31, 35 (2d Cir. 2008). The court should also "eschew credibility
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`assessments." Amnesty Am. v. Town of West Hartford, 361 F.3d. 113, 122 (2d. Cir. 2004).
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`However, "[t]he mere existence of a scintilla of evidence in support of the [non-moving] party's
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`position will be insufficient; there must be evidence on which the jury could reasonably find for
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`the [non-moving party]." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
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`ii. Copyright Infringement
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`The Copyright Act grants authors "a limited monopoly over (and thus the
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`opportunity to profit from) the dissemination of their original works." Authors Guild, Inc. v.
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`HathiTrust, 755 F.3d 87 (2d Cir. 2014). Aprimafacie case of infringement requires an author to
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`show only ( 1) ownership of a valid copyright, and (2) unauthorized copying of the copyrighted
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`work. Tufenkian Imp./Exp. Ventures, Inc. v. Einstein Moomjy, Inc., 338 F.3d 127, 131 (2d Cir.
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`2003).
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`iii. Fair Use
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`Fair use is an affirmative defense to copyright infringement. Am. Geophysical Un.
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`v. Texaco, Inc., 60 F.3d 913, 918 (2d Cir. 1994). It allows for a user to use copyrighted materials
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`without permission of the author when "necessary to fulfill copyright's very purpose, '[t]o
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`promote the Progress of Science and useful arts.' Campbell v. Acuff-Rose Music, Inc., 510 U.S.
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`569, 575 (1994) (quoting U.S. Const., Art. I,§ 8, cl. 8). The Copyright Act itself provides
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`illustrative examples of fair use, including such "purposes [] as criticism, comment, news
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`reporting, teaching, ... scholarship, or research." 17 U.S.C. § 107. The statutory list is not
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`exhaustive. Fair use requires a fact-intensive and context-specific evaluation, Blanch v. Koons,
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`467 F.3d 244, 251 (2d Cir. 2006), whether "the copyright law's goal of promoting the Progress
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`of Science and useful Arts would be better served by allowing the use than by preventing it." Bill
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`Graham Archives v. Darling Kindersley Ltd., 448 F.3d 605, 608 (2d Cir. 2006) (internal
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`quotations omitted). See also Pierre N. Leval, Toward a Fair Use Standard, 103 HARV. L. REv.
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`1105, 1110 (1990).
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`The Copyright Act, 17 U .S.C. § 1707, provides four guiding factors for evaluating
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`a fair use defense. First, the Court must examine the purpose and character of the use, including
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`whether such use is of commercial nature or is for nonprofit educational purposes. The "central
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`purpose of this investigation" requires evaluating whether the new work "merely supersedes the
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`objects of the original creation," or "instead adds something new, with a further purpose or
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`different character, altering the first with new expression, meaning or message; it asks, in other
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`words, whether and to what extent the new work is transformative." Campbell, 510 U.S. at 578-
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`79. Second, the Court should look at the nature of the copyrighted work. The fair use defense is
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`stronger when the nature of the copyrighted work is factual rather than fictional. See Harper &
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`Row Publishers, Inc. v. Nation Enters. 471 U.S. 539, 563 (1985). Third, the Court should weigh
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`the amount and substantiality of the portion used in relation to the copyrighted work as a whole.
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`This step requires the Court to ask "whether the secondary use employs more of the copyrighted
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`work than is necessary, and whether the copying was excessive in relation to any valid purposes
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`asserted under the first factor." Authors Guild, Inc. v. HathiTrust, 755 F.3d 87 (2d Cir. 2014).
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`Finally, the Court must examine the effect of the use upon the potential market for or value of
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`the copyrighted work. The key inquiry at this stage is whether economic injury results from the
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`secondary use serving as a substitute for the primary work. Id. at 99. Courts may consider
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`"whether unrestricted and widespread conduct of the sort engaged in by the defendant ... would
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`result in substantially adverse impact on the potential market ... [including] the market for
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`derivative works." Campbell, 510 U.S. at 590 (internal quotations omitted). Courts must balance
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`"the benefit the public will derive if the use is permitted [against] the personal gain the copyright
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`owner will receive if the use is denied." Bill Graham, 448 F.3d at 610.
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`PROCEDURAL BACKGROUND
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`Fox News brought this action for infringement under the Copyright Act, 17
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`U.S.C. § 101 et seq., alleging that TVEyes copied and infringed 19 hour-long programs that aired
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`on Fox News Channel and Fox Business Network between October 16, 2012 and July 3, 2013
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`(the "Works-in-Suit"). The 19 Works-in-Suit are: two episodes of On the Record with Greta Van
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`Susteren; three episodes of Special Report with Bret Baier; three episodes of The Five; four
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`episodes of The 0 'Reilly Factor; two episodes of The Fox Report with Shepard Smith; four
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`episodes of Hannity; and one episode of Special Report Investigates: Death & Deceit in
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`Benghazi. In 2014, the parties cross-moved for summary judgment. I denied Fox's motion and
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`granted TVEyes' motion in part, finding that TVEyes' core function- recording content, putting
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`it into a searchable database and, upon a keyword query, allowing users to view short clips of the
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`content up to 32 days from the date of airing- constitutes fair use. Fox News Network, LLC v.
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`TVEyes, Inc., 43 F.Supp.3d 379 (S.D.N.Y. 2014)
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`In reaching that conclusion, I looked first at the purpose and character of TVEyes'
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`use and found it transformative because it serves a different purpose than the original. While Fox
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`aims to report the news, TVEyes aims to monitor what the media reports as news, the latter
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`having qualities of news in its own right. For example, the 2012 attack on the U.S. Embassy in
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`Benghazi was important news, but so was Fox News' intense focus on the story. TVEyes was
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`unique in providing such a reliable "database of everything that television channels broadcast,
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`twenty-four hours a day, seven days a week." Id. at 392.4 I found that the character of the service
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`was unlike the news clipping service in Associated Press v. Meltwater US. Holdings, 931
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`F.Supp.2d 537 (S.D.N.Y. 2013), which simply "crawled" the internet for news and indexed it.
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`Instead, "TVEyes' search results show the combination of visual images and text in a medium
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`that raises the commentator to have the qualities of news itself." Fox News Network, LLC v.
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`4 Fox notes that since the previous set of briefs, a public, non-profit entity called the Internet Archive TV News
`Archive has emerged to perform the same function as TVEyes. The TV News Archive is expressly permitted by
`Congress to "reproduce[ e] and distribut[ e] by lending of a limited number of copies and excerpts ... of an
`audiovisual news program." 17 U.S.C. §§ 108(a) 108(t)(3). Fox argues that the allowance for TV News Archive
`necessarily indicates that Congress did not intend to allow a commercial library like TVEyes to provide the very
`same service, under the expressio unius canon of construction. However, TVEyes rightly points out that the
`allowance for TV News Archive is not dispositive. The authorizing statute, 17 U .S.C. § 108(t)( 4), expressly
`provides that "[n]othing in this section ... in any way affects the right of fair use as provided in section 107." And
`even if it did intend to preempt co-extensive services, TVEyes goes far beyond what the TV News Archive offers.
`For example, the record shows that TV News Archive records content only in San Francisco, Washington DC, and
`Philadelphia; it has a 24-hour delay; it does not allow automatic monitoring; it lacks Nielsen viewership and
`publicity information; and the search function fails to capture some matching results. See 2d Karle Deel. ~ 48-50.
`For a service whose value rests in universal monitoring, these shortcomings are important. I decline to change my
`prior fair use ruling because of arguments based on TV News Archive.
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`TVEyes, Inc., 43 F.Supp.3d 379, 392 (S.D.N.Y. 2014). I found that a better analogy was
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`Google's library digitization project in Authors Guild, Inc. v. Google, Inc., 954 F.Supp.2d 282
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`(S.D.N.Y. 2013), which allowed users to search a particular book to see how many times a word
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`or phrase appears, and provided a "snippet" view of the page. In order to provide its
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`transformative service, I found that TVEyes must be allowed to show clips of the matching video
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`segments because "[t]he actual images and sounds depicted on television are as important as the
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`news information itself-the tone of voice, arch of an eyebrow, or upturn of a lip can color the
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`entire story, powerfully modifying the content." TVEyes, 43 F.Supp.3d at 392.
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`I next looked at the nature of the copyrighted work and explained that, although
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`"news itself is not subject to copyright protection, [] the creative expression and artistic license
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`necessarily exercised in deciding how to portray, film, direct, stage, sequence, and communicate
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`this information [can be protected]." Id. Still, I found that the factual nature of the content
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`weighs in TVEyes' favor.
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`Third, I looked at the amount and substantiality of the portion used. I explained
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`that while it was true that TVEyes copied all of Fox News' content, no one else did that,
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`including Fox News itself, and that providing a reliable, 2417, all-inclusive service was
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`transformative. "The value of TVEyes' database depends on its all-inclusive nature." Id. If
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`TVEyes did not provide a comprehensive database, its transformative value would be
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`compromised. Indeed, reproducing only some of Fox's content might more likely be considered
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`unjustified infringement.
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`Finally, I weighed the effect on the potential market for the copyrighted work
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`against the benefit to the public from a service like TVEyes. I found that the notion that people
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`will watch FNC's content on TVEyes rather than FNC, thereby depressing FNC's viewership
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`ratings and, in tum, its carriage fee, was pure speculation. There was no evidence of market
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`substitution, and I found support for the proposition that such copying would be unlikely from
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`Authors Guild, Inc. v. Google, Inc., 954 F.Supp.2d 282 (S.D.N.Y. 2013). In that case, the Court
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`considered that it was unlikely that users would go through the trouble of "input[ting] countless
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`searches [into Google] to try and get enough snippets to comprise an entire book." Similarly, I
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`thought it unlikely that TVEyes users would go through the trouble of running countless searches
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`to reconstruct a full TV broadcast. Meanwhile, the service provides a substantial benefit to the
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`public. No other service allows subscribers to comment on and criticize broadcast news
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`channels, governments to monitor the accuracy of media reports and make timely corrections,
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`political campaigns to monitor political advertising and candidate appearances, financial firms to
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`archive public statements by employees for regulatory compliance, the Army to track media
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`coverage of military operations in remote locations, and journalists to research, report on, and
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`compare news coverage. TVEyes, 43 F.Supp.3d at 392.
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`On balance, I found that the factors supported a finding of fair use for TVEyes'
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`core business. However, I found that the four complementary features at issue in the motions
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`now before me - archiving, e-mailing, downloading, and date-time search- raised concerns and
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`were not adequately explained. Therefore, I reserved judgment with respect to these features, and
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`requested supplemental discovery and briefing. After such discovery, including depositions of
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`one expert witness each, the parties filed renewed cross-motions for summary judgment on May
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`21, 2015. I heard argument on July 28, 2015, and now issue this decision.
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`DISCUSSION
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`At the outset, I note that Fox News' submission devotes substantial effort to re(cid:173)
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`litigating my previous finding of fair use. That was not the purpose of the supplemental
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`discovery and motion practice. None of the arguments persuades me to change the rulings I made
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`in my Opinion of September 9, 2014.
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`I now turn to the four complementary features at issue in the instant cross-
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`motions.
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`i. Archiving
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`Once a user locates a video clip through a TVEyes search, he can press a button to
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`"archive" the clip, which causes the clip to be listed in the subscriber's "Media Center." The
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`Media Center is the interface through which a user plays content on the TVEyes website.
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`Archived clips are not stored on a subscriber's own computer; they are stored on TVEyes'
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`servers. The act of archiving achieves two benefits for a user. First, it allows users to revisit clips
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`they have already found at later dates. Without the archiving function, a subscriber would have
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`to conduct a search from scratch every single time he wanted to view a particular clip. Second,
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`an archived clip will remain available to a user indefinitely. Ordinarily, content remains
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`searchable and viewable on TVEyes' servers for 32 days, after which content will no longer
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`appear in search results and will no longer be viewable. However, when a user archives a clip
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`within the 32-day window, it will remain saved on TVEyes' server. Only the user who archives a
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`particular clip is able to access it after 32 days; the clip will not appear in search results by other
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`users.
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`TVEyes argues that the ability to archive video clips is integral to its service, and
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`I agree. Requiring users to go through repeated searches every time they want to view previously
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`identified clips would place needless obstacles in the path of prospective researchers, critics, and
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`commentators, and would sharply curtail the value of TVEyes' service. And without the ability
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`to revisit content older than 32 days, longer-term, longitudinal studies of the media's treatment of
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`particular subjects would be impossible. Such subjects as the media's changing treatment of a
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`particular story over time, and disparities between two networks' treatment of a given topic, are
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`themselves newsworthy. See, e.g., 3d Rose Deel.~ 16 & Ex. TTTTT ("According to TVEyes,
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`Fox News has mentioned Benghazi 1,886 times in the past 3 months, or an average of about 21
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`times a day. That's compared to 721 mentions on MSNBC (along with 718 instances of
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`'Schmengazi') and only 687 for CNN"). The ability to detect these patterns and trends is an
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`essential feature of the transformative service that TVEyes provides. TVEyes is trans formative
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`because it "convert[s] copyrighted works into a research tool to further learning," allowing its
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`subscribers to "research, critici[ze], and comment." TVEyes 43 F. Supp. 3d at 394. Content does
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`not suddenly become unfit for fair uses on the 33rct day after its creation.
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`Justice Holmes, in his dissenting opinion in Abrams v. United States, 250 U.S.
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`616, 630 (1919), explained that "the best test of truth is the power of the thought to get itself
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`accepted in the competition of the market .... " The quote came in the context of a First
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`Amendment challenge to the convictions of five men for circulating literature intended to
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`undermine the WWI war effort, but it has application here, too. Justice Holmes was expressing
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`the Constitution's support for a free and open "marketplace of ideas." Consolidated Edison Co.
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`v. Pub. Serv. Comm 'n, 447 U.S. 530, 537-38 (1980). Democracy works best when public
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`discourse is vibrant and debate thriving. But debate cannot thrive when the message itself (in this
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`case, the broadcast) disappears after airing into an abyss. TVEyes' service allows researchers to
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`study Fox News' coverage of an issue and compare it to other news stations; it allows targets of
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`Fox News commentators to learn what is said about them on the network and respond; it allows
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`other media networks to monitor Fox's coverage in order to criticize it. TVEyes helps promote
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`the free exchange of ideas, and its archiving feature aids that purpose.
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`Archiving video clips to remain stored beyond 32 days and to facilitate successive
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`reference is integral to TVEyes' service and its transformational purpose of media monitoring.
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`And Fox has not identified any actual or potential market harm arising from archiving. 5 I hold
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`that the archiving function is fair use, complementing TVEyes' searching and indexing
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`functions.
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`ii. E-mailing and Sharing
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`TVEyes' permits its subscribers to share identified video clips with others by
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`sending them a URL link to the video on the TVEyes' server. The recipient, by clicking the link,
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`can play the video clip through his web browser, alongside the transcript of the clip. Unless
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`downloaded- a feature that will be discussed shortly- the video clip remains on TVEyes' server
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`only; it does not reside on the user's computer. The link is public, meaning the recipient does not
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`need to possess TVEyes login credentials in order to access the video. Technically, the video can
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`be shared through any medium that allows transmission of text (e.g. e-mail, social media, instant
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`messaging), but TVEyes concedes that social media sharing is not integral to its service. It
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`expressly allows subscribers to share links via e-mail, however, and maintains that the e-mailing
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`feature is fair use on the ground that "email is the primary tool used to communicate and
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`collaborate with co-workers, supervisors, and decision-makers." TVEyes Mem. Law 23 (citing
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`4th Ives Deel. iii! 10, 20 & Ex. AAAAA). For example, Congressional staffers share video clips
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`among themselves; Congressmen share with members of Committees and caucuses; lawyers
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`share with clients, etc. To prohibit e-mailing of videos would prevent relevant information from
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`reaching the critical party.
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`5 Fox argues that TVEyes threatens harm in derivative markets generally - chiefly licensing - but it has not isolated
`any harm resulting from archiving in particular.
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`Case 1:13-cv-05315-AKH Document 173 Filed 08/25/15 Page 14 of 19
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`I agree that to prohibit e-mail sharing would prevent TVEyes users from realizing
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`much of the benefit of its transformative service. For example, members of Congress rely on
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`TVEyes to be made aware of what the media has to say about the issues of the day and about
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`them. But their interns and staffers, not they, sit at computers querying keywords of interest
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`through the TVEyes portal, and then e-mail the results up the chain of command. Without e-mail,
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`the Congressman would be limited to either sharing a computer with his staffer or else having the
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`staffer describe the contents of the clip to the Congressman without showing him the clip. In
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`practice, the former is unrealistic and the latter fails to deliver "the full spectrum of information .
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`. . [including] what was said, [and] how it was said with subtext body language, tone of voice,
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`and facial expression-all crucial aspects of the presentation of, and commentary on, the news."
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`Fox News Network, LLC v. TVEyes, Inc., 43 F.Supp.3d 379 (2014).
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`There are many players in the marketplace of ideas, each with supporting staffs of
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`employees, interns, and independent consultants. And once information is located, parties must
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`be able to transmit that information as part of comment, criticism, and debate. E-mailing of URL
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`links allows information to reach the individuals who need to know what is being said in order to
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`engage in news reporting, commentary, criticism, teaching, scholarship, research, and other fair
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`uses permitted by the Copyright Act. See 17 U.S.C. § 107.
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`However, there is also substantial potential for abuse. In its current incarnation,
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`TVEyes' e-mailing feature cannot discriminate between sharing with a boss and sharing with a
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`friend, nor between sharing for inclusion in a study and sharing a clip for inclusion in a client
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`sales pitch. Fair use cannot be found unless TVEyes develops necessary protections. What limits
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`Case 1:13-cv-05315-AKH Document 173 Filed 08/25/15 Page 15 of 19
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`should be placed on subscribers who share links through social media? 6 What can prevent
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`subscribers from sharing for purposes not protected by § 107? If TVEyes cannot prevent
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`indiscriminate sharing, it risks becoming a substitute for Fox's own website, thereby depriving
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`Fox of advertising revenue. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 590 (1994)
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`(Courts may consider "whether unrestricted and widespread conduct of the sort engaged in by
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`the defendant ... would result in substantially adverse impact on the potential market ...
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`[including] the market for derivative works.").
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`TVEyes has the burden to show fair use. Am. Geophysical Un. v. Texaco, Inc.,
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`600 F.3d 913, 918 (2d Cir. 1994). It must develop protocols to reasonably assure that, when
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`subscribers share video clips, they do so consistent with§ 107. Until the development of
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`reasonable and adequate protections and a satisfactory showing thereof, TVEyes' e-mailing
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`function cannot be considered fair use.
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`iii. Downloading
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`When a subscriber identifies a clip, he can click a button on the page that
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`downloads the clip to his computer as a local media file. The clip can then be viewed offline,
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`without requiring access to TVEyes' server, and can be stored permanently in the subscriber's
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`own computer memory. Downloaded clips contain no identifiers, such as watermarks, and can be
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`shared with and accessed by anyone. There is also no "digital rights management" software that
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`limits access rights, as with some other forms of multimedia.
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`6 TVEyes claims to block users from viewing videos that are accessed through social media sites such as Facebook
`and Twitter, but Fox argues that the blocks are ineffective. Fox is correct. TVEyes has not shown how it limits the
`publication of shared information beyond subscribers. Indeed, TVEyes' own representatives and marketing
`materials have emphasized subscribers' ability to share information through social media .. See Knobel Deel. Ex. 21
`at TVEYES-037904 ("You can then use the clips in your Public Awareness campaigns! ... Post clips on Facebook,
`YouTube, and Twitter on an unlimited basis!").
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`Case 1:13-cv-05315-AKH Document 173 Filed 08/25/15 Page 16 of 19
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`I believe that TVEyes' downloading function goes well beyond TVEyes'
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`transformative services of searching and indexing. See New York Times Co., Inc. v. Tasini, 533
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`U.S. 483, 498 (2001) (online news database violated authors' distribution rights by selling
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`electronic copies of their articles for download); Capitol Records, LLC v. Re