New York Law Journal "Fairly Unpredictable: Second Circuit Reverses District Court’s Finding of Fair Use in ‘Fox News Network v. TVEyes’" by Steve Kramarsky

April 18, 2018

          Every day, around the world and across the wide spectrum of media, more content is created than could be consumed in several lifetimes. That creative output is only increasing, as more and more people have access to powerful creative tools and new methods of distribution. But while the depth of content available has rapidly expanded, our innate ability to process and comprehend that information has not. We increasingly rely on technological aids to separate the wheat from the chaff—sorting, identifying and providing the content we want, and excluding the vast bulk of information that we consider uninteresting, irrelevant or (perhaps) untrustworthy or inaccurate. Without such aids, we would often be left to drown in the ocean of available information.

          Technology-assisted searching is particularly important to individuals and corporations whose livelihood depends on accurate and up-to-date information. It may be nice to have Google around to resolving your barroom dispute about the baseball team with the most World Series victories, but for many professionals the stakes are much higher. Business analysts, investigative journalists, reputation management professionals, and a host of other professional services providers must keep close track of the constantly changing landscape of information from a huge variety of data sources. For such professionals, merely running searches may be inefficient or even impossible, and services have arisen that constantly filter, repackage and deliver information based on the parameters their users supply.

          While such technological aids have been welcomed by consumers, content creators are often less than thrilled to lose control over the use and consumption of their material. In general, copyright law strikes a balance—permitting the owner of a work to control how it is used, distributed, and reproduced, but placing limits on that control. One such limit is the statutory “fair use” exception, which provides that, in certain circumstances, the use of a copyrighted work (even without authorization) does not constitute infringement. But fair use is not a “bright line” rule. Instead, courts must examine the specific facts of each use case to determine whether the it applies.

          And the outcome of a fair use inquiry can be difficult to predict. Courts often find that a service—like a search engine—that fundamentally repurposes content in some innovative or useful way has “transformed” that content and so is protected by fair use. But a recent Second Circuit decision serves as a reminder that “transformative” use is just one element of the fair use analysis—and it may not be enough. In Fox News Network v. TVEyes, 833 F.3d 169 (2d Cir. 2018), a copyright infringement action brought by Fox News against content aggregator TVEyes, the Second Circuit reversed a district court opinion that held TVEyes’s services constituted fair use because they were transformative. The Circuit’s analysis is worth a close look.

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