Federal Appeals Court Restates Copyright Fair Use Standard

March 12, 2018

By: Toby Butterfield

The federal appeals court in New York has overturned a lower court decision that had permitted a digital “clippings service” to use recordings of all of Fox News’ broadcast programing to create digital transcripts of the accompanying audio, and to then offer search, analysis and viewing of the resulting transcripts and video excerpts.

TVEyes, the clipping service, had successfully argued in the lower court that many aspects of its service were permitted under the doctrine of fair use, citing prior court rulings permitting Google Books, Google’s searchable database of book snippets.  The appeals court agreed that TVEyes was “somewhat transformative” in enabling clients to find and pick out particular content from Fox’s broadcasts, but rejected fair use because TVEyes redistributed virtually all of Fox’s copyrighted audiovisual content and deprived Fox of revenue that properly belonged to the copyright holder.

Many industries have been watching for this ruling on the scope of legal fair use.  Content owners will be relieved that the appeal court has put limits on its prior Google Books decisions.  Controversial questions of copyright remain, however, because this ruling permits TVEyes’ search features, but without explaining how its searchable database can be legally created if fair use does not permit recording and processing of the video from which the database was derived.

The court’s opinion in Fox News Network v. TVEyes is available  here.  Contact Moses & Singer’s IP Department to understand better the ruling’s impact on the legality of content distribution and processing of data.

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