Fair Use in Search: TVEyes

by Patricia Aufderheide

Is it legal to record all of TV and then let viewers search for topics and view relevant segments?tveyes_logo

Yes it is, under fair use. And it goes against everything Fox News argued in a lawsuit it filed against TVEyes, a video clipping service.

Why is that OK? Because fair use allows unlicensed use of others’ material, if you are taking appropriate amounts for a transformative use—a repurposing that doesn’t merely offer the same product for the same purpose as the owner is. TVEyes needed to take the entire TV news stream in order to let viewers search. Google’s search engine similarly scours entire fields of information for the same kind of purpose. And in Authors Guild v. Hathitrust, the court said again that full-text searches are a transformative use.

Fox News was trying to breathe life into an old law protecting sources of “hot news.” It’s a concept that is not only near-impossible to define in a digital era, but also disfavored in the courts, because it protects facts, which are not copyrighted. Such protection would be on a collision course with the First Amendment. It didn’t work here either.

The court resoundingly supported TVEye’s basic model, although it did reserved judgment on some of the bells and whistles.


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