Second Circuit: Searchable Database of TV Clips Is Not “Fair Use”

In an opinion today, the Second Circuit held that the “fair use” defense under copyright law did not apply to a service called “TVEyes” that allows users to search transcripts of cable news and other TV shows, and then watch clips up to 10 minutes long (called the “Watch” function).  The decision was a reversal of an earlier ruling by Judge Hellerstein (see our prior coverage here). The Second Circuit first concluded that TVEyes' Watch service was "transformative," a key component of a fair use defense, insofar as it allows users to isolate clips based on their searches:

TVEyes’s copying of Fox’s content for use in the Watch function is . . . transformative insofar as it enables users to isolate, from an ocean of programming, material that is responsive to their interests and needs, and to access that material with targeted precision.  It enables nearly instant access to a subset of material‐‐and to information about the material‐‐that would otherwise be irretrievable, or else retrievable only through prohibitively inconvenient or inefficient means.

But, the Court concluded, the transformative character was only "modest" because the clips themselves consisted of the unaltered, copyrighted content:

The Watch function has only a modest transformative character because, notwithstanding the transformative manner in which it delivers content, [TVEyes] essentially republishes that content unaltered from its original form, with no “new expression, meaning or message" . . . . [B]ecause the function does little if anything to change the content itself or the purpose for which the content is used, its transformative character is modest at best.

Other fair use factors weighed against fair use because “the Watch function allows TVEyes’s clients to see and hear virtually all of the . . . programming that they wish” and because TVEyes "has usurped a function for which [the plaintiff] is entitled to demand compensation under a licensing agreement.” Balancing the factors together, the Court held: “At bottom, TVEyes is unlawfully profiting off the work of others by commercially re‐distributing all of that work that a viewer wishes to use, without payment or license."