The Fox News studio in New York last year. (Drew Angerer/Getty Images)
The Supreme Court has delivered a setback to folks whose job it is to hold accountable Fox News and other broadcasters whose efforts sometimes fall short of journalistic standards. It has decided not to hear the appeal of TVEyes, a monitoring service that received an adverse ruling from a lower court in a copyright case with high stakes for media criticism.
TVEyes tapes the product of Fox News and other outlets and makes it all available to its subscribers for a fee. If those subscribers heard something amiss on the Fox News airwaves, they can hop on TVEyes to re-watch the possibly offending segment to see what happened. Researchers, media critics and others pay good money for access to this easy-to-use archive, though perhaps not for much longer: The Supreme Court’s no-thanks decision leaves in place a February decision from the U.S. Court of Appeals for the 2nd Circuit that supported Fox News in a 2013 suit against the tracking service. The problem with TVEyes, held the ruling, was that it “makes available to TVEyes’s clients virtually all of Fox’s copyrighted content that the clients wish to see and hear, and because it deprives Fox of revenue that properly belongs to the copyright holder, TVEyes has failed to show that the product it offers to its clients can be justified as a fair use.” According to filings, TVEyes charges $500 for access to some 1,400 channels. The Erik Wemple Blog uses a similar service, ShadowTV, for our cable-news accountability reporting.
Now the case heads back to the trial court, which will consider damages and an injunction. The immediate impact of the ruling, according to experts consulted by this blog, is that TVEyes — and likely other archiving services — will have to drop Fox News from its menu of broadcasters, unless it manages to work out a licensing agreement with the network. Other broadcasters, too, could get their product removed from these services, perhaps with a simple letter to the archiving services asserting their rights under the ruling.
Jason Bloom, a partner and head of the copyright practice group at Haynes and Boone, credits the appeals court’s reasoning and notes, “I think networks are generally protective of their copyright — it’s their lifeblood and every time you see a new technology, the networks are going to be all over it. There’s always a lead plaintiff that’s going to assert their rights.”
In its unsuccessful petition for Supreme Court review, the company argued: “TVEyes allows journalists to serve as a watchdog on how Fox covers particular subjects, compare Fox’s coverage with those of other channels, research the accuracy of the raw information, and critique the graphics used and the tone of the coverage — information that cannot be conveyed through a raw transcript and that Fox may not want to make available for criticism.” The archiving service’s filings have made much of a requirement imposed by the network on licensees prohibiting use of clips “in a way that is derogatory or critical.” Now that’s Fox News.
And the company tried to convince the high court that there are civic merits to its business. “If the President tweets about an issue that aired on Fox, then Fox itself has become the news and an important subject for research, analysis and criticism that is enabled by TVEyes’s comprehensive database. But under the court of appeals’ market harm ruling, Fox may withhold meaningful access to research of its broadcast content or license it only on prohibitive terms,” notes the failing petition.
The Supreme Court’s decision not to hear the case could leave media critics scrambling. How to fact-check the latest gaffe on “Hannity”? Did Brian Kilmeade really say that? To be sure, cable-news watchers commonly post the most extravagant cable-news moments on Twitter and other social media — a democratic activity that lies outside of the TVEyes ruling, because it’s not a money-making thing. Yet Fox News watchdogs use TVEyes and other services to soak in the full context surrounding those widely circulated clips, and that task is due to get more complicated. That said, services may still provide transcripts without infringing the Fox News copyright.