Fox News anchor Shepard Smith in 2017. (Richard Drew/AP)
Media critic

Scroll back to Sept. 28, 2012. On that slow Friday afternoon, Fox News host Shepard Smith was keeping tabs on a car chase playing out on the highways of Arizona. The network’s coverage dipped in and out of the spectacle. Then the driver pulled on to an isolated and unpaved road in the desert and got out of the car. He appeared disoriented. “Get off it, get off it,” said Smith, instructing his producers to show something else.

They stayed on it, and televised the suicide of an Arizona motorist.

The Erik Wemple Blog watched live as this unfortunate event unfolded. Once it became clear that Fox News had quite unwittingly made cable-news history, we dove into our television tracking service, ShadowTV, to fetch details about how it had all transpired. “I personally apologize to you that that happened,” Smith told viewers in a moment of on-air accountability. “It’s not time-appropriate, it’s insensitive, it was just wrong and that won’t happen again on my watch.”

This happens routinely — no, not Smith televising car chases, but rather using a TV archiving service to examine what just happened on television. And there is now cause to wonder about the future of this monitoring tool. On Tuesday, the U.S. Court of Appeals for the 2nd Circuit ruled in favor of Fox News in a nearly five-year-old suit against TVEyes, a popular tracking service that monitors more than 1,400 channels, and charges clients $500 per month. It never stops recording. Citing the use of TVEyes to “re-distribute” Fox News programming to its customers, the ruling found that the service “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.”

“Fair use” is a staple of media law and governs the circumstances when it’s cool to use and tweak other people’s copyrighted material without first seeking permission. There’s a four-pronged test deployed by the courts to determine when fair use applies. TVEyes flunked this test in the appeals court’s quite-definitive ruling.

One of the “fair use” tests centers on whether the use is “transformative” of the copyrighted material — which is to say: Does it add something of value or vest the material with “new expression, meaning, or message“? Somewhat, ruled the court. The element of transformation in TVEyes’s offerings, noted the ruling, lies in enabling “users to isolate, from an ocean of programming, material that is responsive to their interests and needs, and to access that material with targeted precision.” In that respect, at least, the service bears some resemblance to Google Books, the massive search function that allows users to wade through millions of published works. In a landmark 2015 ruling, the 2nd Circuit determined that Google Books qualifies under fair use.

On other key prongs of the fair-use test, Fox News prevailed in a Super Bowl XX-style blowout. “TVEyes makes available virtually the entirety of the Fox programming that TVEyes users want to see and hear,” notes the ruling, siding with Fox News on the critical test relating to the “amount and substantiality” of the used material. And the impact on Fox News’s revenue is demonstrable. “The success of the
TVEyes business model demonstrates that deep‐pocketed consumers are willing to pay well for a service that allows them to search for and view selected television clips, and that this market is worth millions of dollars in the aggregate,” notes the ruling. Why can’t Fox News collect that cash? And Fox News wasn’t alone in its TVEyes fight. Other big-name broadcasters stood behind the No. 1 cable network in this litigation.

The appeals court ruling — written by Judge Dennis Jacobs — didn’t frown upon all the services offered by TVEyes and its ilk. It is okay, for example, for the service to allow users to search through transcript databases by using keywords. Those activities don’t replace or substitute for Fox News’s video offerings. Yet the ruling did hammer the TVEyes service that gives customers the ability to watch Fox News archives for 10 minutes at a time, without limitations on the number of segments. “The Second Circuit was very clear that TVEyes cannot offer any of Fox’s audio visual content whether by viewing, downloading, sharing, or archiving,” said Fox News outside lead counsel Dale Cendali of Kirkland & Ellis LLP in a news release.

The business part of the ruling says this:

Because the product TVEyes currently offers includes the infringing Watch function and its subsidiary features (i.e., clients’ ability to archive, download, and email clips, as well as to view clips after conducting a date/time search), the court should enjoin TVEyes from offering that product. However, because Fox does not dispute TVEyes’s right to offer its Search function, the court’s injunction shall not bar TVEyes from offering a product that includes that function without making impermissible use of any protected audiovisual content.

(Bolding was added to highlight the directive to turn the lights out.)

The Erik Wemple Blog has several questions for TVEyes, though we received only this canned statement: “While we are disappointed by the decision, we continue to believe that TVEyes offers an irreplaceable public service to its customers, including elected officials and government agencies, the military, law enforcement and the news media itself, within the bounds of the law. We are in the process of evaluating the decision and considering our options.” ShadowTV declined to comment on the ruling. We also asked for comment from the TV News Archive, a free service that archives broadcasts back to 2009. No comment just yet.

In its 2013 complaint, Fox News cited a number of sources that folks could use to find its archival material, including its websites (FoxNews.com and FoxBusiness.com), licensed sites such as Hulu and YouTube, and also “the ITN Source archival footage library,” a resource that the Erik Wemple Blog had never tested. Even so, the filing conceded that not all Fox News content is available on the Internet, and that “much of its content remains exclusive to the Fox News Networks.”

And that’s really the point. Whether it’s Fox News or a competitor, no broadcaster is going to facilitate access to a humiliating moment on television. And they may not provide web access to ho-hum moments that interest few people, except for media critics. “Technology enables and empowers an understanding of media that you pretty much can’t do any other way,” says Jason Schultz, a clinical-law professor at the New York University School of Law. “If you really want to know everything that Fox News has said about gun control and shootings, you can’t get at it through the [Fox News web] site.”

Regardless of what happens to video monitoring services, text-transcript searches appear set to survive the ruling. That’s a good thing, though the limitations here are wide-ranging. Transcripts consist of closed‐captioned text, and that stuff is a hit-or-miss-miss-miss proposition. Sometimes important text is missing, sometimes key words are misspelled or mangled. So it’s critical to have the video to fact-check the transcript. Here, a bona fide monitoring service, with access to all hours of content, is essential. Says Schultz: “There are additional things that we might be interested in that for an historical record that aren’t captured by a text transcript.” Those might include a TV host’s facial expressions and body language.

Keith Kupferschmid, the chief executive of the Copyright Alliance, applauded the decision and cautioned that it wouldn’t prevent archival accountability for broadcasters. “What this case is saying not not that you can’t create the service, it’s just that you have to have a license for it,” he said.

An important caveat: This decision aims specifically at a paid monitoring service, not at people out there who feel like posting an interesting TV clip to their Twitter or Facebook accounts. “The ruling itself doesn’t say anything about personal, non-commercial sharing,” says Schultz. That said, he worries about its potential to “suppress activities that weren’t in the case.”

Read more by Erik Wemple:

Tucker Carlson, Sean Hannity issue corrections on CNN smear

Report: Father of Parkland survivor admits to altering email in correspondence with CNN

Michael Wolff should just apologize

‘Scripted’ controversy: CNN releases emails of correspondence with Florida student

The ‘scripted’ town-hall question: A CNN non-scandal