(CN) - Fox News cannot enjoin TVEyes from constantly distributing network programming online for a $500 monthly subscription fee, a federal judge ruled.
Fox News sued TVEyes, a Fairfield, Conn.-based Delaware corporation whose media-search engine allegedly snags and telecasts the network's "intellectual property" without consent.
To let subscribers track keywords said on the television or radio, TVEyes uses closed captions and speech-to-text technology to record content of more than 1,400 stations, 24 hours a day.
TVEyes, is available only to businesses, not the general public. As of October 2013, it had more than 2,200 subscribers including the White House and Department of Defense, 100 members of Congress, the Associated Press, MSNBC, Reuters, Goldman Sachs, and ABC and CBS.
Fox does not subscribe, however, and complains that TVEyes makes "verbatim reproductions" of Fox programming and closed captioning, then displays them on its website.
TVEyes is "well aware" that it needs a license to do this, and even contacted the network about getting a license for using the content, the complaint states.
Though "Fox News declined and demanded on multiple occasions that TVEyes cease its willful and infringing reproduction," the defendant refused, according to the complaint.
Plus, TVEyes charges a monthly $500 subscription fee per user, thus profiting at Fox's expense, the network claims. In fact, TVEyes reaped more than $8 billion in revenue in 2013.
Fox sought an injunction and damages in Manhattan for copyright violations of 19 hour-long programs aired between Oct. 16, 2012, and July 3, 2013.
Considering competing motions for summary judgment, U.S. District Judge Alvin Hellerstein sided with TVEyes on Tuesday, finding that its database and provision of TV clips and transcript snippets are transformative and thus constitute fair use under copyright law.
"Unlike the indexing and excerpting of news articles, where the printed word conveys the same meaning no matter the forum or medium in which it is viewed, the service provided by TVEyes is transformative," Hellerstein wrote. "By indexing and excerpting all content appearing in television, every hour of the day and every day of the week, month, and year, TVEyes provides a service that no content provider provides. Subscribers to TVEyes gain access, not only to the news that is presented, but to the presentations themselves, as colored, processed, and criticized by commentators, and as abridged, modified, and enlarged by news broadcasts."
Fox News failed to show that TVEyes lowers the network's viewership ratings, noting that the search engine erases content every 32 days.
"Between March 31, 2003 and Dec. 31, 2013, in only three instances did a TVEyes subscriber access 30 minutes or more of any sequential content on [Fox News Channel], and no TVEyes subscriber ever accessed any sequential content on [Fox Business Network]," Hellerstein wrote. "Not one of the works in suit was ever accessed to watch clips sequentially."
The judge later added: "TVEyes is not 'trying to scoop' Fox News' broadcasts or to 'supplant the copyright holder's commercially valuable right of first publication.' TVEyes captures and indexes broadcasts that otherwise would be largely unavailable once they aired.
"Users access the clips and snippets for an altogether different purpose - to evaluate and criticize broadcast journalism, to track and correct misinformation, to evaluate commercial advertising, to evaluate national security risks, and to track compliance with financial market regulations," Hellerstein added. "As TVEyes points out, 'monitoring television is simply not the same as watching it.'"
Hellerstein deferred ruling on the issue of fair use for the full extent of TVEyes' service, including subscribers' ability to save, archive, download, email and share clips of Fox News programming.
A Fox News spokesperson emphasized this point in a statement, noting that "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 spokesperson continued. "The court has called for another hearing on Oct. 3, 2014."
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