A Slippery Slope: The Facilitation of Fair Use as Fair Use

In 1975, Ms. Barbara Ringer, the Register of Copyrights, warned, “The basic human rights of individual authors throughout the world are being sacrificed more and more on the altar of . . . the technological revolution.” Unfortunately, her words have proved to be truly prophetic. More often than ever, courts have stretched doctrines of copyright law to protect technological convenience over the interests of copyright owners. Fox News Network, LLC v. TVEyes, Inc., No. 13 Civ. 5315 (AKH) (S.D.N.Y. Sept. 9, 2014), is one of the latest instances of technological innovation being valued over the interests of copyright owners.

In 2013, Fox News filed a lawsuit against TVEyes, a media-monitoring service. TVEyes records the programming of over 1,400 television and radio stations, twenty-four hours a day, seven days a week. Using speech-to-text technology, TVEyes stores the content on its website and creates a searchable database of the content. TVEyes offers its service to subscribers (currently only businesses, not the general public) for a monthly fee.

TVEyes’ subscribers can search the database for terms or phrases, view clips, read transcripts of the programs, and also save, archive, edit, and download an unlimited number of clips. When accessing the clips, subscribers are directed to TVEyes’ website, not the site where the content originated from (if available online). The clips are limited to ten minutes in duration, but most clips are shorter than two minutes. Subscribers may share clips with anyone, even non-subscribers, through email or social media. TVEyes does, however, require subscribers to agree to its terms of service, which includes a provision that states downloads only be used for internal purposes.

Fox News argued, inter alia, that TVEyes copied and distributed clips of Fox News programs in violation of the Copyright Act. TVEyes acknowledged its service copied Fox News’ copyrighted works, but asserted that its activities were protected under the doctrine of fair use.

The Copyright Act provides copyright owners with several exclusive rights with respect to their works. However, those rights are subject to one very important limitation – the right of others to make fair use of the works. 17 U.S.C. Section 107. Section 107 provides that “the fair use of a copyrighted work . . . for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.” To determine whether a use is fair use, courts consider the following (non-exhaustive) factors:

(1) The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) The nature of the copyrighted work;
(3) The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) The effect of the use upon the potential market for or value of the copyrighted work.

Id.

The district court in TVEyes discussed each of the four fair use factors set forth in Section 107. The bulk of the court’s analysis, however, focused on the first factor – whether the purpose and character of TVEyes’ use of the copyrighted works transformed Fox News’ works. In discussing that factor, the court compared TVEyes’ service to two recent decisions on digitization projects by electronic libraries – Authors Guild, Inc. v. HathiTrust, 755 F.3d 87 (2d Cir. 2014) and Authors Guild, Inc. v. Google, Inc., 954 F. Supp. 2d 282 (S.D.N.Y. 2013) (No. 13 Civ. 4829, app. pending).

In HathiTrust, the Second Circuit ruled that digitization project of the Hathi Trust Digital Library (“HDL”), a non-profit electronic library, was protected against claims of infringement under fair use. HathiTrust, 755 F.3d at *34. There, the HDL created a repository of scanned copyrighted works – books and other written materials – without seeking authorization or providing compensation to the copyright owners. The HDL permitted its users to conduct full-text searches for terms and view search results that would furnish users with the page numbers on which the search term appeared and the number of times the term appeared in the work. The HDL did not, however, display snippets of the text with the terms.

In Authors Guild v. Google, the district court of the Southern District of New York reviewed a digitization project similar to the one at issue in HathiTrust with two notable differences. First, Google itself is a for-profit entity and its Google Books service a commercial product. Second, the Google Books service provided users with snippets of the copyrighted content (although Google did incorporate certain measures to prevent users from utilizing the service to obtain full access to the entirety of the copyrighted work). Despite those differences, the district court found that Google’s service had become an important tool for librarians and fact-checkers so it too constituted fair use. Google, 954 F. Supp. 2d at 291. (The case is now before the Second Circuit on appeal.)

The TVEyes court found TVEyes’ service was analogous to Hathi Trust and Google’s digitization projects and, therefore, ruled that its searchable database and provision of clips to subscribers qualified as fair use. In the court’s view, TVEyes’ search results transformed the original work by showing subscribers “this is what [Fox News] said” as opposed to how Fox News presented the content as “this is what you should [know or] believe.” Id. at *20. Furthermore, subscribers could utilize the content for the public good, such as police departments monitoring stations’ compliance with situation reports. Id. at *2. Accordingly, TVEyes did not commit copyright infringement because “subscribers [could] use the service for research, criticism, and comment . . . fair use[s] as explicitly identified in the [Copyright Act].” Id. at *20.

Consider that progression again. The HDL merely created a searchable reference guide. Google took it a step further by providing content snippets in a fashion that would largely reflect how the content was communicated in the original work. To justify that step forward though, the court emphasized how the service was convenient for librarians and fact-checkers – not whether the service would lead consumers to substitute the Google Books service for the original work. Now, we have TVEyes, a service that captures and relays not only written expressions but also the oral presentation and expression of the content. Again, the court justifies that wholesale repackaging as a technological convenience that facilitates fair use activities by third parties.

Even with the limited nature of the decision, it continues a worrisome trend – permitting a for-profit entity to commit direct copyright infringement because of potential downstream fair uses by third parties. While the fair use doctrine has long been nebulous, it should concern copyright owners that that downstream fair use could justify upstream infringement. Under the court’s reasoning, one could assert that it is not copyright infringement for a street vendor to pirate a copyrighted film and sell it to a film critic so that she may review it because criticism and comment are permissible fair uses.

Although, there may be valid reasons for applying fair use broadly, such as promoting free speech, there is no basis in case law to support the district court’s current application of the doctrine. As the Second Circuit observed in HathiTrust,

Under the fair-use doctrine, a book reviewer may, for example, quote from an original work in order to illustrate a point and substantiate criticisms, and a biographer may quote from unpublished journals and letters for similar purposes. An artist may employ copyrighted photographs in a new work that uses a fundamentally different artistic approach, aesthetic, and character from the original. An internet search engine can display low-resolution versions of copyrighted images in order to direct the user to the website where the original could be found. A newspaper can publish a copyrighted photograph (taken for a modeling portfolio) in order to inform and entertain the newspaper’s readership about a news story. A viewer can create a recording of a broadcast television show in order to view it at a later time. And a competitor may create copies of copyrighted software for the purpose of analyzing that software and discovering how it functions (a process called “reverse engineering”).

HathiTrust, 755 F.3d at *15. Those examples all share a common feature – the fair use at issue is the action of the alleged infringer, not a third party entity or downstream user.

There are two notable areas where courts may consider whether a third party’s actions qualify as fair use: (1) claims of secondary (or contributory) liability and (2) preservation projects.

In claims of secondary liability, courts have (and should) consider whether a third party’s actions qualify as fair use. See e.g., Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984). In Sony Corp., Sony was sued for creating and selling the Betamax, the precursor to the VCR. The theory in the case was not that Sony itself committed any acts of infringement, but rather it contributed to acts of infringement by Betamax users by furnishing the technology. Thus, the cause of action was one of secondary liability. The Supreme Court held that Betamax users used the device for substantial non-infringing activities, namely time-shifting – the recording of a program to permit a user to consume the program at a later, more convenient time. According to the Court, time-shifting was fair use, so Sony was not liable for potential infringement by Betamax users. Id. at 442-43.

In this context, it is reasonable for the court to evaluate third party conduct as the entire cause of action is predicated upon third party conduct. If the entity itself is not committing any act of direct infringement, then its actions presumably comply with the Copyright Act. As fair use is an affirmative defense to infringement, none of its actions would technically qualify as fair use as there is no infringement. Thus, the only potential fair use would be that of the third party infringer.

Fox News Network, LLC v. TVEyes, Inc. is not a case of secondary liability. While there is certainly concern over subscribers’ unrestricted ability to download and share the copyrighted content, Fox News’ claim is that TVEyes, not its subscribers, has merely repackaged and republished its copyrighted programs. TVEyes provides no original comment or commentary itself. Instead, its defense relies entirely on how it helps facilitate fair uses of the copyrighted works by its subscribers.

With respect to direct liability, the only fair use defense that touches on third party uses is that of preservation (or archival). Many acknowledge that copying in these instances is socially beneficial as “preservation of printed knowledge is necessary for the progress of science and the useful arts.” Robert Oakley, Copyright and Preservation: A Serious Problem in Need of a Thoughtful Solution (Washington, D.C.: Council on Library and Information Resources, September 1990) <http://www.clir.org/pubs/abstract/pub11.html>.

Section 108 of the Copyright Act explicitly permits libraries and archives to make reproductions for the purpose of preservation. But that provision also narrowly defines what qualifies as an eligible library or archive (such as being open to the public) and when a copy may be permissibly made. Still, Congress noted that “[n]o provision of Section 108 is intended to take away any rights existing under the fair use doctrine [Section 107]. To the contrary, section 108 authorizes certain photocopying practices which may not qualify as a fair use.” Senate Report No. 94-473 (1975).

A close examination of the legislative history behind the right of preservation shows that Congress’s goal was to permit reproductions of published works where the library’s copy was damaged, deteriorating, or a replacement was not otherwise commercially available in the United States. Senate Report No. 91-1219 (1970). To protect against works from collectively disappearing, Congress permitted libraries – non-profit entities – to make limited copies. While Congress did not intend to replace the rights of libraries to make copies under Section 107 with Section 108, it seems perverse that TVEyes, an entity that would not meet the stringent requirements of Section 108, could avail itself to the same rights.

TVEyes, however, does not defend its actions as that of a preservation service. In fact, the copyrighted works it loads onto its database are removed after about a month. As noted above, TVEyes defends its service on alternative ground – that it service facilitates uses that serve the public good. This, however, brings us back to my earlier concern. If copyright infringement can be justified because of some downstream fair use(s), the limitation threatens to swallow the rule.

Fair use is only supposed to allow individuals to utilize the amount and substantiality of the work needed to achieve the transformative goal of the use. Thus, the permissible amount of copying and use will depend on the use at issue. For example, the police department may use TVEyes to monitor station compliance with broadcast alerts. To verify compliance and achieve that goal, only a simple confirmation of the alert terms’ usage would be needed – not a transcript of the broadcast and certainly not the audio or video. However, if a industry watch group wants to use the footage to comment on how news organizations are reporting a story, a copy of the audio or video may be needed. TVEyes provides all of the content regardless of the subscribers’ use. In the district court’s eyes, this is permissible and the latter’s fair use now justifies the former’s overuse. A very slippery slope indeed.

Like much of copyright law, fair use is a particularly tricky doctrine. It requires courts to closely review the facts of each case and balance the (oftentimes, conflicting) benefits of technological convenience with the interests of copyright owners. Admittedly, in today’s politically-charged media, The Daily Show and others have proven that there may be value in TVEyes service where “[t]he actual images and sounds depicted on television are as important as the news information itself[.]” TVEyes, 13 Civ. 5315 at *18. But it is dangerous path to tread where otherwise infringing activities can be justified on the grounds of third party fair uses. In this case, while it may have been easy for the district court to downplay Fox News’ claim in light of its significant revenue opportunities elsewhere, it may have paved a path where it will become easier to fashion reasons to set aside the rights and interests of individual authors and smaller creators for the sake of technological convenience.

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