Array of Interests Backing TVEyes' Archiving Suit Appeal

Multiple filers said TVEyes can't be considered directly liable for copyright violations if its service is used in a way that constitutes copyright infringement because direct liability is attached to the party who controls the decision to copy. In their joint brief, EFF and PK also said courts consistently have said fair use protects technologies that make copyrighted works easier to analyze, pointing to unsuccessful copyright challenges aimed at everything from search engines to books. "Turning back the clock and stripping toolmakers of the legal clarity offered by the volitional conduct doctrine and settled rules for fair use would be catastrophic," EFF and PK said.

The case gives the 2nd Circuit "the opportunity to make explicit what is implicit" in its past decisions in cases such as Authors Guild v. Google and Authors Guild v. HathiTrust, that the copying used to make and operate a search database is fair use, CCIA said. The group's members include Amazon, Dish Network, Google, Facebook, Microsoft, Netflix, Samsung and Sprint, its website says.

Also seeing an opportunity for the 2nd Circuit are Google and Microsoft. Their joint brief said it's a chance for the court to "reaffirm the value of search technology in this context" and make clear that such principles as full-text copying being consistent with copyright law and the copying of material for inclusion in a search index being highly transformative "apply equally to search technology that helps users locate and analyze video content." The court also should make clear that copyright doesn't block different search queries that include date and time of publishing, Google and Microsoft said.

“This case is not about search," Fox said in a statement on the Google/Microsoft brief. "It is about a service that goes beyond helping its paying subscribers find content to actually delivering television content from 1,400 channels as high-definition video clips. Fox News is not objecting to providing search to help find content, but rather to the delivery of high-definition video clips.”

Research was the main thrust of the joint brief by the American Library Association and its Association of College and Research Libraries division, the Association of Research Libraries, the Internet Archive and the Society of American Archivists. The groups said a search database of TV content -- given its inherent ephemeral nature -- is "transformative use that serves a fundamentally different purpose than the original broadcasts." Without metadata about the broadcasts themselves, research comparing and contrasting the treatment of topics by different networks over time would be nearly impossible, the library groups said: Legal certainty "would allow a broader community of archiving services to flourish, preserving ephemeral media more effectively and unleashing the potential for applications of data we have yet to discover." Upholding fair use would encourage comprehensive TV archiving, which Congress "has recognized as a worthy enterprise," as evidenced by its directing the Librarian of Congress to establish and maintain the American Television and Radio Archives, the library groups said.

The principles in the case apply broadly to database creation, and fair use principles for databases "should not be limited to text or still images," the law professors said in their brief. They said the District Court was right to find the creation of the database itself fair use, but the court erred in rejecting some functions by wrongly conflating direct and secondary liability. Christopher Jon Sprigman of NYU School of Law and Rebecca Tushnet of Georgetown Law are among those who wrote the brief on behalf of themselves and about 10 others.