Thursday, March 1, 2018

Quick Look: Fair Use Does Not Allow News Clipping Services to Send Ten Minute Long Videos to Customers

This is a Second Circuit opinion, so it does not directly cover California.  However, it will be persuasive when the Ninth Circuit, which covers California, addresses similar issues.  In short, the case is titled Fox News v. TVEyes, Inc., and holds that while it is fair use to allow searching of copyrighted material, actually providing a significant amount of that material (in this case, 10 minute long clips) is copyright infringement.

From the text of the case:
This appeal shares features with our decision in Authors Guild v. Google,
Inc., 804 F.3d 202 (2d Cir. 2015) (“Google Books”).    That case held that Google’s
creation of a text‐searchable database of millions of books (including books under
copyright) was a fair use because Google’s service was “transformative” and
because integral features protected the rights of copyright holders.    However, we
cautioned that the case “test[ed] the boundaries of fair use.”    Google Books, 804
F.3d at 206.    
We conclude that defendant TVEyes has exceeded those bounds. 
TVEyes’s re‐distribution of Fox’s audiovisual content serves a
transformative purpose in that it enables TVEyes’s clients to isolate from the vast
corpus of Fox’s content the material that is responsive to their interests, and to
access that material in a convenient manner.    But because that re‐distribution
makes available virtually all of Fox’s copyrighted audiovisual content‐‐including
all of the Fox content that TVEyes’s clients wish to see and hear‐‐and because it
deprives Fox of revenue that properly belongs to the copyright holder, TVEyes has
failed to show that the product it offers to its clients can be justified as a fair use

The bottom line is that fair use is complicated, and simply hoping you're ok or that you won't be noticed is no substitute for a proper review and analysis by skilled copyright counsel.

It also raises the question of whether a service that has been around for decades -- namely newspaper clipping  -- is copyright infringement.  Those typically function by searching major newspapers for specific terms, such as a name.  When articles are found, they are copied and sent to the client.  It strikes me that an astute copyright holding newspaper could make good money bringing such suits, taking advantage of the large statutory damages available for infringement.

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