Another Nail In The Coffin For Fair Use: TVEyes Agrees Not To Carry Fox News

The saga of TVEyes and its battles for fair use is over, and unfortunately fair use has lost. Following the news that the Supreme Court had refused to hear its appeal of a weird and troubling ruling by the 2nd Circuit, the company has now ended its ongoing lawsuit with Fox by agreeing to no longer carry Fox News content on its service.

If you don't recall, TVEyes was a very useful media monitoring service used by tons of journalists and politicians to effectively search and find content that was airing on TV. Fox had sued, claiming that this was both infringement and a violation of the obsolete "hot news" doctrine. The court easily rejected the hot news claim, and the district court originally (and correctly) found in favor of TVEyes, saying that its service was clearly fair use (even as it was being used for profitable purposes). The key point: TVEyes was transformative. It wasn't offering a competing service, but rather (similar to Google books) helping people search and find content that they might not otherwise find.

A later ruling, however, found that only parts of TVEyes service was truly fair use. It could archive content -- but allowing downloading and sharing of clips failed the fair use test. Eventually, that resulted in an incredibly restrictive permanent injunction against the company, and an appeal that favored Fox News, again focusing on the feature that allowed users to download and share clips.

That's what was petitioned to the Supreme Court, and having lost that, TVEyes faced an expensive lower court process to determine how much it would need to pay in damages. This settlement, and an agreement to drop Fox News from its service entirely, avoids that.

From a "public good" perspective, however, this is a horrific result. It means that copyright will make it that much more difficult for the media and politicians to follow and report on what Fox News is doing. While anyone can watch and record Fox News itself, losing the useful features of TVEyes will surely make it that much more difficult for there to be effective media monitoring of the cable news network. That's not a good public policy result. Indeed, this case really has little to do with copyright at all. Again, TVEyes was not competing with Fox News in anyway, but copyright has now been used to make it that much more difficult for anyone to hold Fox News accountable.

And at a time when there is growing evidence of the role that Fox News in particular has played in today's societal mess, that seems like a huge loss for society.

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