Fox News often finds itself the brunt of criticism by competitive networks and cable favorites, like the Daily Show. Clips from Fox shows are To discover material needed, these shows use online services like TVEyes, which provides a searchable database of clips from major TV and Radio stations, including programming from Fox News, CNN and MSNBC. Fox news claims that TVEyes has been using Fox network’s copyrighted material without authorization. By allowing people to watch Fox news clips, commercial free, TVEyes has caused Fox financial harm, which necessitated a lawsuit for copyright infringement against the clipping service. This week, a Judge ruled that TVEyes clip aggregation service fell under the fair use exception and was, therefore, not an infringing activity.
In copyright law, news and commentary are both considered a fair use, an exception that stems from the first amendment’s Freedom of Speech and Press clauses. A free press is critical to a democratic government so actions that attempt to limit the press are extremely difficult. The same laws that allow Fox News to provide unfettered opinion and commentary, also ensures that people can criticize that commentary. As Samuel Adams wrote in the Boston Gazette in 1776, “there is nothing so fretting and vexatious, nothing so justly terrible to tyrants, and their tools and abettors, as a free press.” Fox, on the other hand, claims the case has little to do with limiting access but rather focuses on the right to exclusive ownership and control of its content.
In fact, that argument played a prominent role in a 2003 case Fox took in which Jane Akre sued Fox for terminating her over her refusal to lie about bovine growth hormone (BGH), a product manufactured by Monsanto Corporation. Fox executives wanted Akre to use statements from Monsanto representatives that she knew to be false. When she refused, Fox fired her, an action for which Akre brought a wrongful termination suit against the news network. Fox attorneys did not dispute the facts. They admitted to asking Akre to lie. However, Fox argued that under the First Amendment, broadcasters have the right to lie or deliberately distort news reports on public airwaves. The Appeals Court unanimously agreed.
In this case, Fox took a different approach, using copyright law as a means to overcome the free speech argument After all, The Constitution speaks directly on the importance of protecting our intellectual property, making it a good vehicle to support their argument.
Article I, Section 8, Clause 8 declares: “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
In his ruling, U.S. District Judge Alvin Hellerstein disagreed, stating that the TVEyes’ database and its searchable function for television clips and snippets of the transcript were fair uses of broadcast content and thus were protected from claims of copyright infringement. Hellerstein said the company had created a database that was transformative; an important criteria when analyzing whether a work fits the fair use exception. Hellerman further noted that TVEyes was not showing full shows to compete with Fox. Eighty-two percent of video clips accessed on TVEyes are a minute long or less, and less than 1 percent of clips are played for the maximum allowable time of 10 minutes.
“No reasonable juror could find that people are using TVEyes as a substitute for watching Fox News broadcasts on television,” Hellerstein wrote. “TVEyes is not a valuable service because its subscribers credit it as a reliable news outlet; it is valuable because it reports what the news outlets and commentators are saying and therefore does not ‘scoop’ or free-ride on the news services.”
Whether Fox News targeted TVEyes as a means to reduce the criticisms fomented relentlessly by other media organizations or it is truly worried about the economic harm free clips has on the organization’s profitability, is almost immaterial. Both lead to the same place, limiting access to information. Congress, to its credit, saw this potential argument and codified a solution; making news and commentary a fair use. So for those who are entertained by attacks on Fox, you can rest easy.