Once again the Electronic Frontier Foundation has taken up the cause of industry in the guise of public interest, principally with the ultimate goal of distorting fair use doctrine beyond its intended purpose. I am speaking about the case of FoxNews v TVEyes, which as Terry Hart points out in this post on Copyhype, re-treads some familiar ground regarding the copyright interests of news producing entities and the fair use claims of news monitoring services. I recommend Hart’s blog for more in-depth historical context; but suffice to say that in the early 1990s, bills proposed by Senator Orin Hatch that would have amended copyright law to add news monitoring to the list of fair use purposes never made much progress. But, as Hart writes, “…the lack of legislation did not jeopardize the broadcast news monitoring industry. Nevertheless, little has changed in the discussion of fair use and news monitoring from the early 90s to the current litigation involving Fox News and TVEyes.”
Last fall, a federal judged ruled in this case that copying “broadcast content for indexing and clipping services to its subscribers constitutes fair use.” And this July, oral arguments will be heard as to whether or not other services (like subscribers downloading, storing, and emailing clips) might also be judged fair. The EFF, along with the Technology Law & Policy Clinic at NYU School of Law, has filed an amicus brief on behalf of TVEyes, while several leading news organizations have filed a brief on behalf of Fox.
To be clear, plenty has changed technologically in the news monitoring world, but Terry Hart’s point above is that the fair use argument being made today in favor of TVEyes is fundamentally the same as the arguments that failed in Congress twenty years ago — namely that there is a public and First Amendment-serving purpose to news monitoring that should qualify the enterprise as a fair use of copyrighted material. And be it far from me to second guess a federal judge, but it seems that technological changes have only weakened this argument, not strengthened it, particularly when we look at the specific business model of TVEyes itself.
News monitoring services have been around since before television, first in the form of clipping services for print, and later as video systems monitoring broadcasts of “hard news” that was captured and stored on tape. This enabled customers to order a specific broadcast clip for educational, documentary, reporting, and other communications and investigative purposes. We used these services in the 1990s during my corporate communications days. You paid a service a small fee to do a search and then received a VHS tape with the clip(s) you needed. Today looks very different.
Presently, TVEyes copies, stores, and indexes round-the-clock broadcasts from 1,400 channels, and this includes programming that exceeds traditional models for “hard news” monitoring, capturing entertainment programs like magazine-format shows and documentaries. Moreover, TVEyes is a fairly elite, B2B service; and it seems to me that fair use exceptions in the name of the public’s right to information ought to be limited to those uses that actually serve the public. But you and I do not use TVEyes, and we never will because a subscription costs $500/month. So, as a business, TVEyes is not even a consumer-focused service, but an industry-focused service used by professionals who need to be ahead of the proverbial curve when it comes to breaking and overlapping news stories. Such professionals include news organizations like the Associated Press, major corporations, government agencies and NGOs, and of course high-level investors who are skilled in the dark arts of predicting how a traffic jam in Malaysia might affect their position in shoe laces or something.
Clearly, this $6,000/year service is not for the general citizenry that has a right to be informed. In fact, it’s interesting that one argument being made today on behalf of TVEyes — as it was twenty years ago for news monitoring in general — is that there is “so much information out there”, that these services are invaluable. And they are invaluable for the types of clients that need and can afford them. Meanwhile, the public-serving aspect of the fair use argument here seems to overlook this free technology we all have called the search engine. Yes, there is more information produced more rapidly by more sources than ever before; but the average citizen also has more free tools to search, index, and access that information than ever before. Isn’t that what Google congratulates itself for doing at every opportunity? And setting aside the chicken-and-egg quality of these phenomena, the bottom line is that you and I can search news items all day long on just about any subject we can imagine, which has nothing to do with the high-priced and specialized service provided by TVEyes. The logic being applied is akin to saying that because the public has a right to know what happens in the financial markets, Reuters should not have to honor licensing deals for any of the content it aggregates to its elite Reuters Insider service that it sells at a premium to investment professionals.
There is absolutely nothing wrong with TVEyes. It’s a sound business and clearly provides a service that many companies and institutions consider well worth the subscription fee. But as a for-profit entity providing a high-level, B2B service for institutional clients, it should not be allowed to profit from the use of assets produced by Fox or any other entity without paying reasonable licensing fees. More importantly, it is dismaying to see fair use doctrine distorted on the basis that the general public is in any way served in this case. It moves the needle of legal precedent closer to the Internet and tech industry goal of monetizing the totality of works without paying the individuals or entities who produce them. This neither serves any beneficial social practice nor any larger ideological principle. It’s just an old-fashioned land grab and a big middle finger to the evicted. Fair Use is not what we mean when we say “FU.”