A federal judge has ruled that a media monitoring service’s for-profit use of clips from Fox News programming is a fair use, delivering a blow to the news channel’s effort to halt the service.
U.S. District Judge Alvin Hellerstein, in an opinion issued on Tuesday, said that TVEyes was using the clips in a “transformative” way because it was being used by its subscribers as a research tool and for comment and criticism. That is a factor that courts use in determining whether unauthorized use of copyrighted material is “fair.”
“No reasonable juror could find that people are using TVEyes as a substitute for watching Fox News broadcasts on television,” Hellerstein wrote.
TVEyes is a media monitoring service, with 2,200 subscribers including the White House, the Associated Press, MSNBC, Bloomberg and AARP. Hellerstein noted that users, paying $500 per month, were contractually limited to using the clips for internal purposes.
Even though TVEyes copies all of Fox News’ content to make its monitoring service, Hellerstein wrote that didn’t weigh for or against his finding that their use of the clips was fair use.
He also dismissed notions that Fox News was losing money because of TVEyes, saying that the $212,145 from syndication partners and $246,875 from licensing of clips, was a “small fraction of its overall revenue.”
He withheld a decision on whether other TVEyes services, which allow subscribers to download email and share clips, are a fair use. He set a court date of Oct. 3 to discuss remaining claims.
Update: A Fox News spokeswoman said, in a statement, “The Court only ruled that a specific portion of TVEyes’ service — its keyword search function — was fair use. The Court expressly said that it required more information to decide whether TVEyes’ other features — including allowing video clips to be archived, downloaded, emailed, and shared via social media — were fair use. The Court has called for another hearing on October 3, 2014.”