Amicus Curiae Brief — TVEyes, Inc., Petitioner v. Fox News Network, LLC

Supreme Court briefOct 12, 2018

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No. 18-321

IN THE

Supreme Court of the United States

TVEYES, INC.,

Petitioner,

FOX NEWS NETWORK, LLC,

Respondent.

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Second Circuit

BRIEF OF AMICI CURIAE MEDIA CRITICS,

REBECCA TUSHNET, ELECTRONIC FRONTIER

FOUNDATION, INTERNET ARCHIVE,

ORGANIZATION FOR TRANSFORMATIVE

WORKS, AND WIKIMEDIA FOUNDATION

IN SUPPORT OF PETITIONER

Phillip R. Malone

Counsel of Record

JUELSGAARD INTELLECTUAL

PROPERTY AND

INNOVATION CLINIC

MILLS LEGAL CLINIC AT

STANFORD LAW SCHOOL

559 Nathan Abbott Way

Stanford, CA 94305

(650) 725-6369

pmalone@stanford.edu

Counsel for Amici Curiae

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................... iii

INTEREST OF AMICI CURIAE ................................. 1

SUMMARY OF ARGUMENT ...................................... 5

ARGUMENT ................................................................. 7

This Case Is Exceptionally Important Because

The Second Circuit’s Decision Jeopardizes

Essential Analysis, Research, And Criticism

Of Broadcast Programming ................................... 7

A. Today’s Media Landscape Presents

Special Challenges For News Criticism At

A Time When Such Criticism Has Never

Been More Important...................................... 8

B. Real-Time

Recording,

Screening,

Indexing, And Archiving Of Television

Broadcasts Are Essential For Media

Accountability And Public Commentary ....... 9

C. Access To Full Video And Audio Are

Critical To Meaningful Media Analysis,

Commentary, And Criticism......................... 14

D. The Second Circuit Is Particularly

Influential In The Media Industry And

Has Nationwide Influence Over Copyright

Jurisprudence ................................................ 19

E. The Ruling Below Demands Review

Because It Undermines The First

Amendment Principles Implicit In Fair

Use And Harms The Vital National

Interest In An Informed Public .................... 20

II. The Second Circuit’s Fair Use Analysis

Conflicts With This Court’s Decision In

Campbell

And

With

Other

Circuits’

Precedents ............................................................ 22

CONCLUSION ........................................................... 26

iii

TABLE OF AUTHORITIES

Cases…….. ....................................................... Page(s)

Am. Geophysical Union v. Texaco Inc., 60 F.3d

913 (2d Cir. 1994).................................................... 24

Authors Guild v. Google, Inc., 804 F.3d 202 (2d

Cir. 2015) ................................................................. 19

Authors Guild, Inc. v. HathiTrust, 755 F.3d 87

(2d Cir. 2014)....................................................... 3, 19

Bill Graham Archives v. Dorling Kindersley, 448

F.3d 605 (2d Cir. 2006) ........................................... 19

Blanch v. Koons, 467 F.3d 244 (2d Cir. 2006) ........... 19

Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569

(1994) ............................................................... passim

Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013) ........... 19

Castle Rock Entertainment, Inc. v. Carol

Publishing Group Inc., 150 F.3d 132 (2d Cir.

1998) ........................................................................ 20

Eldred v. Ashcroft, 537 U.S. 186 (2003) .................... 20

Fox Broad. Co., v. Dish Network, 747 F.3d 060

(9th Cir. 2014) ........................................................... 3

Fox News Network, LLC v. TVEyes, Inc. (TVEyes

I), 43 F. Supp. 3d 379 (S.D.N.Y. 2014) . 10, 13, 14, 25

Fox News Network, LLC v. TVEyes, Inc. (TVEyes

II), 124 F. Supp. 3d 325 (S.D.N.Y. 2015) ............... 22

Fox News v. TVEyes (TVEyes III), 883 F.3d 169

(2nd Cir. 2018) .................................................. 23, 25

Kienitz v. Sconnie Nation LLC, 766 F.3d 756

(7th Cir. 2014) ......................................................... 25

Lenz v. Universal Music Corp., 801 F.3d 1126

(9th Cir. 2015) ........................................................... 3

New York Times Co. v. United States, 403 U.S.

713 (1971) ................................................................ 21

Peter Letterese & Assocs., Inc. v. World Inst. of

Scientology Enters., 533 F.3d 1287 (11th Cir.

2008) ........................................................................ 24

Rogers v. Koons, 960 F.2d 301 (2d Cir. 1992) ............ 20

Seltzer v. Green Day, Inc., 725 F.3d 1170 (9th

Cir. 2013) ................................................................. 24

Swatch Grp. Mgmt. Servs. Ltd. v. Bloomberg

L.P., 756 F.3d 73 (2d Cir. 2014) ............................. 24

Statutes

17 U.S.C. §107 ...................................................... 20, 24

Other Authorities

Adam Epstein, Who Won the Debate Depends on

Which Network You Watched, Quartz, Sept.

28, 2016, https://perma.cc/GC67-QU39,

embedded video available at

https://youtu.be/reTHOP3SOdQ ............................ 22

All In With Chris Hayes (MSNBC television

broadcast Feb. 6, 2018, 8:04PM ET),

https://bit.ly/2QKeaEb ...................................... 15, 16

Alvin Chang, Nearly 2 Years into the Trump

Presidency, Fox News Is Still Obsessed with

Hillary Clinton, Vox (July 11, 2018),

https://perma.cc/7ZGR-CY8B ................................. 14

Amy Mitchell et al., Pathways to News, Pew

Research Ctr. (July 7, 2016),

https://perma.cc/XQC8-B6US ................................... 8

Anderson Cooper 360 (CNN television broadcast

Feb. 6, 2018, 8:21 PM ET),

https://youtu.be/YKeJvgJNdhM, transcript

available at https://perma.cc/QNL9-Z8VE ............ 15

Andrew McGill, The Different Ways Fox,

MSNBC, and CNN Recapped Monday’s

Debate, The Atlantic, Sept. 29, 2016,

https://perma.cc/QL4N-W3AB ................................ 22

Howard Rosenberg & Charles S. Feldman, No

Time to Think: The Menace of Media Speed

and the 24-Hour News Cycle (2008) ......................... 8

Jason Linkins, Fox News Newspaper Ad Makes

False Claim About Tea Party Coverage,

Huffington Post (Nov. 18, 2009, 5:12 AM ET,

https://perma.cc/CY6H-BHKG ............................... 12

Jonathan McIntosh, Too Many Dicks on the

Daily Show (Sept. 9, 2011),

https://perma.cc/ZS9U-WGTJ, embedded video

available at https://youtu.be/uzU1_CsOnJA ......... 18

Ken Knelly, ‘Pittsburgh is getting pounded’ by

Ads, Columbia Journalism Review (Oct. 24,

2012), https://perma.cc/BYB3-4UJG ...................... 13

Kenneth A. Plevan, The Second Circuit and the

Development of Intellectual Property Law: The

First 125 Years, 85 Fordham L. Rev. 143

(2016) ....................................................................... 19

Kim Fridkin, Liar, Liar, Pants on Fire: How

Fact-Checking Influences Citizens’ Reactions

to Negative Advertising, 32 Pol. Comm. 127

(2015) ....................................................................... 21

Kim L. Fridkin et al., Capturing the Power of a

Campaign Event: The 2004 Presidential

Debate in Tempe, 69 J. Pol. 770 (2007) .................. 21

Loyalty and Source Attention, Pew Research Ctr.

(Jul. 7, 2016), https://perma.cc/B8XG-AYFL ........... 9

Mark Jurkowitz et al., The Changing TV News

Landscape, Pew Research Ctr. (March 17,

2013), https://perma.cc/J4ZK-6LPL ......................... 8

Michael M. Grynbaum, Matt Lauer Field Storm

of Criticism Over Clinton-Trump Forum, N.Y.

Times, Sept. 8, 2016,

https://nyti.ms/2cm8OOR ....................................... 22

Nareissa L. Smith, Consumer Protection in the

Marketplace of Ideas, 40 T. Marshall L. Rev.

223 (2015) .................................................................. 9

Natalie J. Stroud, Niche News: The Politics of

News Choice 8 (2011) ................................................ 9

Neil Weinstock Netanel, Locating Copyright

Within the First Amendment Skein, 54 Stan.

L. Rev. 1 (2001) ....................................................... 21

New York City Labor Market Information

Service, Employment in New York City

Publishing 8 (2009), https://perma.cc/4Z7EHHDB ...................................................................... 19

Partisanship and Cable News Audiences, Pew

Research Ctr. (Oct. 30, 2009),

https://perma.cc/7HUE-PTPG .................................. 8

Pierre N. Leval, Toward a Fair Use Standard,

103 Harv. L. Rev. 1105 (1990) ................................ 23

Press Accuracy Rating Hits Two Decade Low,

Pew Research Ctr. (Sept. 13, 2009),

https://perma.cc/WD29-PLTA .................................. 8

Richard Porter, Part of the Conspiracy?, BBC

News (Feb. 27, 2007), https://bbc.in/2NBYpxc ...... 11

vii

Stefano DellaVigna & Ethan Kaplan, The Fox

News Effect: Media Bias and Voting, 122 Q. J.

Econ. 1187 (2007) ...................................................... 9

Super Bowl I to Air After Long-Lost Footage

Surfaces, Fox News (Jan. 11, 2016),

https://fxn.ws/1SKuguG .......................................... 11

The Daily Show with Jon Stewart, Inauguration

Media Coverage (Jan. 21, 2009),

https://on.cc.com/2ILLrfq ........................................ 18

Timothy Karr, Free Press, Left in the Dark:

Local Election Coverage in the Age of BigMoney Politics, 18 (2012),

https://perma.cc/W327-KJ4J .................................. 12

Tucker Carlson Tonight (Fox television

broadcast Feb. 7, 2018),

https://youtu.be/T9sWsImbra0 ............................... 17

Washington Post, CNN and Fox News Hosts

React to Trump’s ‘Shithole’ Remark, YouTube

(Jan. 12, 2018), https://youtu.be/NrynNeqx48I ..... 18

INTEREST OF AMICI CURIAE

Amici curiae are nationally recognized individual

and organizational media critics and researchers, fairuse advocacy organizations, the leading non-profit

archive of internet and news content, and the host of

the largest repository of freely accessible knowledge.1

Amici all have long-standing professional interests in

ensuring that the tools necessary to conduct

meaningful analysis and commentary of news remain

protected by fair use.

Amici Eric Alterman, Brave New Films

(“BNF”), and Fairness and Accuracy in

Reporting (“FAIR”) are media critics with several

decades of experience. In their media criticism, amici

have addressed, among other topics, developments in

law, money and politics, war and propaganda, freedom

of speech, targeted killing, racial bias, police brutality,

and economic equality. Amici have consistently relied

on fair use to fulfill this vital First Amendment

function. Their interest in this case is the potential

constraints on their ability to monitor, research, and

report on the news media in a rapidly changing media

landscape.

Amicus Eric Alterman is a Distinguished

Professor of English and Journalism at Brooklyn

1 Pursuant to Rule 37.2(a), counsel for both parties received notice

of intent to file this brief at least 10 days before its due date. The

parties have consented to the filing of this brief; their written

consents are on file with the Clerk. No counsel for a party

authored this brief in whole or in part, and no party or counsel

for a party made a monetary contribution intended to fund its

preparation or submission. No person other than the amici or

their counsel made a monetary contribution to the preparation or

submission of this brief.

College, City University of New York (“CUNY”), and a

Professor of Journalism at the CUNY Graduate School

of Journalism. He is also the “Liberal Media”

columnist for The Nation. He has served as a senior

fellow at the Center for American Progress in

Washington, D.C. and at the Nation Institute and the

World Policy Institute in New York. He is the author

of ten books, including the national bestseller What

Liberal Media? The Truth About Bias and the News.

Amicus BNF is a media company, established by

filmmaker Robert Greenwald, that produces

progressive feature-length documentaries and

investigative videos to educate, influence, and

empower viewers to take action on prominent publicpolicy issues. BNF recently launched Brave New

Educators, a program that will provide free films and

educational resources to teachers.

Amicus FAIR is a national media watchdog group

that has been producing criticism of media bias and

censorship since 1986. FAIR works to invigorate the

First Amendment by advocating for greater diversity

in the press and by scrutinizing media practices that

marginalize public interest, minority, and dissenting

viewpoints. FAIR also publishes Extra!, a monthly

newsletter featuring analysis of current media bias,

censorship, and the effects of media consolidation, and

produces the weekly radio program CounterSpin,

which broadcasts nationally on more than 150 radio

stations.

Amicus Rebecca Tushnet is the Frank Stanton

Professor of the First Amendment at Harvard Law

School. Her research focuses on the intersection

between intellectual property and free speech, and she

has an interest in preserving fair use that prevents

censorship by copyright owners who would otherwise

only consent to being quoted in ways they deem

favorable.

Amicus Electronic Frontier Foundation

(“EFF”) is a member-supported, non-profit public

interest organization dedicated to protecting civil

liberties and free expression in the digital world.

Founded in 1990, EFF represents more than 37,000

contributing members. On behalf of its members, EFF

promotes the sound development of copyright law as a

balanced legal regime that fosters creativity and

innovation while respecting individual rights and

liberties. EFF has contributed its expertise to many

cases applying copyright law to new technologies, as

amicus curiae, as party counsel, and as courtappointed attorneys ad litem. See, e.g., Fox Broad. Co.,

v. Dish Network, 747 F.3d 060 (9th Cir. 2014); Authors

Guild, Inc. v. HathiTrust, 755 F.3d 87 (2d Cir. 2014);

Lenz v. Universal Music Corp., 801 F.3d 1126 (9th Cir.

2015).

Amicus Internet Archive is a public nonprofit

organization that was founded in 1996 to build an

“[i]nternet library,” with the purpose of offering

researchers, historians, scholars, artists, and the

general public permanent access to historical

collections in digital format. Located in San Francisco,

California, the Internet Archive receives data

donations and collects, records, and digitizes material

from a multitude of sources, including libraries,

educational institutions, government agencies, and

private companies. The Internet Archive then

provides free public access to its data—which include

text, audio, video, software, and archived web pages.

Among other ephemeral media, the Internet Archive

collects and preserves television news and political

ads, respectively through its Television News Archive

and Political Television Ad Archive.

Amicus Organization for Transformative

Works (“OTW”) is a 501(c)(3) nonprofit organization

dedicated to protecting and preserving noncommercial

fanworks: works created by fans based on existing

works, including television shows, books, and movies.

OTW’s nonprofit website hosting transformative

noncommercial works, the Archive of Our Own

(“AO3”), has over 1.5 million registered users and

receives roughly 26 million daily page views. OTW’s

fan members rely on fair use to promote free

expression, commentary, critique, community, and

creative progress by creating expressive works that

Amicus Wikimedia Foundation is the nonprofit

that hosts Wikipedia and other free knowledge

projects. Wikipedia is a free online encyclopedia,

offering the world’s largest repository of freely

accessible knowledge, which is collaboratively written

and edited by volunteers around the world. Articles

often include images or illustrations, and sometimes

include short sound or video clips where appropriate.

In limited circumstances, English Wikipedia allows

copyrighted content to illustrate its articles (using fair

use). This allows for commentary and encyclopedic

discussion of notable copyrighted works or related

topics such as articles about current events or the

organizations that report on them.

SUMMARY OF ARGUMENT

The Court should grant certiorari in this case

because the Second Circuit’s decision conflicts with

this Court’s ruling in Campbell v. Acuff-Rose Music,

Inc., 510 U.S. 569 (1994), and with decisions from

other circuits. This case is exceptionally important for

review because the decision below permits copyright

owners to stifle criticism and undermines established

fair use principles that are vital for media

commentary.

Media criticism is essential to our democracy,

especially in today’s divided and politicized news

landscape. Criticism reveals bias, inaccuracies, and

conflicts of interest. It makes news outlets more

accountable for their programming. And it helps

viewers become more discerning consumers of

information. Ultimately, effective media criticism

promotes democratic engagement and accountability

by making voters better informed.

Researchers need services like TVEyes. Media

critics

cannot

properly

analyze

television

programming without the ability to locate, review and

compare broadcasts from thousands of programs aired

on hundreds of stations twenty-four hours per day,

seven days per week. With TVEyes, researchers can

compare simultaneous broadcasts, review political

advertising, and analyze editorial decisions like which

topics programs choose not to cover. But creating and

maintaining comprehensive databases is prohibitively

expensive for most non-commercial entities.

Services like TVEyes capture, index, and screen

audio and video exactly as it aired with accompanying

advertising intact. Original video and audio, in

particular, are crucial for effective commentary. The

tone of a speaker’s voice, his facial expressions and

body language, and his general affect cannot be

captured in a transcript. Similarly, on-screen text,

graphics, background images, and accompanying

video can influence viewers in powerful ways.

The Second Circuit’s decision undermines

effective media analysis. It allows content owners to

prevent commentary and criticism of their work in

instances where a theoretical licensing market exists,

even where the copyright owner is unlikely to

authorize that market. The decision below ignores this

Court’s holding in Campbell that “there is no

protectible derivative market for criticism.” 510 U.S.

at 592. But, in this case, many uses of TVEyes services

are for criticism. And Fox News Network’s (“Fox’s”)

licenses expressly prevent uses of clips in ways that

are derogatory or critical of Fox. The Second Circuit’s

focus on TVEyes’ commercial success in a

transformative market led the court below to ignore

Campbell’s holding that commercial use by a

defendant without a licensing fee does not preclude a

fair use defense. Id. at 570.

This Court should thus grant the petition for

certiorari to resolve the Second Circuit’s decision’s

conflict with Campbell and to ensure that essential

First Amendment activities, such as media criticism

and commentary, are not hampered by an overly

narrow interpretation of fair use.

ARGUMENT

This Case Is Exceptionally Important

Because The Second Circuit’s Decision

Jeopardizes Essential Analysis, Research,

And Criticism Of Broadcast Programming

Ensuring the proper scope of transformative fair

use is critical for effective media criticism and a wellfunctioning democracy. The Second Circuit’s decision

below undermines established fair use principles that

are vital for criticism and commentary. In today’s fastpaced and increasingly polarized media landscape,

researchers, commentators, and critics must be able to

record, search, watch, and compare the original visual

recordings

relevant

broadcasts.

Such

comprehensive tools can only be maintained by

commercial services like TVEyes.

The

Second

Circuit’s

overly

restrictive

interpretation of fair use in this case threatens the

availability of these essential tools. As this Court has

recognized, content owners are not likely to license

critical uses. Narrowing fair use rights in this context

will permit broadcasters and other copyright owners

to stifle criticism by refusing to license uses that

enable negative commentary. But media criticism is

essential for informing voters and holding

broadcasters accountable—activities fundamental to

First Amendment interests. The Court should

therefore grant certiorari.

A. Today’s Media Landscape Presents

Special Challenges For News Criticism

At A Time When Such Criticism Has

Never Been More Important

Media critics and researchers serve a crucial role

today in holding broadcasters accountable for errors,

bias, and the failure to cover crucial political issues.

This criticism is vital because television remains the

primary source of news for millions of Americans. Amy

Mitchell et al., Pathways to News, Pew Research Ctr.

(July 7, 2016), https://perma.cc/XQC8-B6US.

Faced with a grueling twenty-four-hour news

cycle and numerous competing outlets, producers are

pressured to create scintillating coverage on tight

deadlines. This pressure forces media outlets to

quickly report provocative, incomplete, speculative, or

biased stories. Howard Rosenberg & Charles S.

Feldman, No Time to Think: The Menace of Media

Speed and the 24-Hour News Cycle (2008). To keep

viewers tuned in—despite thousands of news channels

and websites competing for their attention—

broadcasters have become increasingly polarized.

Partisanship and Cable News Audiences, Pew

Research Ctr. (Oct. 30, 2009), https://perma.cc/7HUEPTPG; Mark Jurkowitz et al., The Changing TV News

Landscape, Pew Research Ctr. (March 17, 2013),

https://perma.cc/J4ZK-6LPL.

Sharp divisions between networks along

ideological lines can result in reduced fairness,

accuracy, and credibility of their reporting and

commentary. See, e.g., Press Accuracy Rating Hits

Two Decade Low, Pew Research Ctr. (Sept. 13, 2009),

https://perma.cc/WD29-PLTA

(reporting

low

perception of accuracy in the press, with 60% of survey

respondents expressing the belief that news

organizations are politically biased); Nareissa L.

Smith, Consumer Protection in the Marketplace of

Ideas, 40 T. Marshall L. Rev. 223, 238-55 (2015)

(documenting numerous instances of misquoting for

political effect by Fox, CNN, and MSNBC between

2007 and 2011).

These effects are particularly meaningful because

television news disproportionately attracts news

consumers who are less likely to turn to other sources.

See Loyalty and Source Attention, Pew Research Ctr.

(Jul. 7, 2016), https://perma.cc/B8XG-AYFL (reporting

that the majority of very loyal news consumers turn to

television for their news); see also Natalie J. Stroud,

Niche News: The Politics of News Choice 8 (2011)

(noting viewers fall into the trap of selecting news

sources that match their own views).

Differences in media coverage result in a

measurable impact on our democracy as evidenced by

voting behavior. For instance, one 2007 study showed

that the entry of Fox into the news market in 19962000 led to gains in vote share for Republicans in

towns that broadcast Fox compared to similar towns

where Fox was not available. Stefano DellaVigna &

Ethan Kaplan, The Fox News Effect: Media Bias and

Voting, 122 Q. J. Econ. 1187 (2007). For these reasons,

rigorous study, analysis, and criticism of media are

more vital now than ever.

B. Real-Time

Recording,

Screening,

Indexing, And Archiving Of Television

Broadcasts Are Essential For Media

Accountability And Public Commentary

The Second Circuit’s decision will significantly

curtail media researchers’ abilities to analyze and

report on news programming. Without services like

TVEyes, media critics cannot comprehensively locate,

review and critique television broadcasts.2 TVEyes

“monitors and records all content broadcast”—exactly

as it was originally aired—“by more than 1,400

television and radio stations twenty-four hours per

day, seven days per week,” compiling it into a

complete, searchable, and reviewable database. Fox

News Network, LLC v. TVEyes, Inc. (TVEyes I), 43 F.

Supp. 3d 379, 392 (S.D.N.Y. 2014).

Absent the mass digitization facilitated by

TVEyes’ technology, media critics could not capture

and study the thousands of hours of content broadcast

to the public each day. In the past, it may have been

feasible—though already time-consuming and

resource-intensive—for organizations, like amici

FAIR or BNF, to physically record, log, watch, and

analyze daily news broadcasts on ABC, CBS, and

NBC. Today, the sheer volume of ephemeral content

from many different sources makes comprehensive,

after-the-fact research, analysis, and criticism

impossible.

Most broadcasts also disappear after they air:

they are often no longer available in their original

form anywhere. Only 16% of Fox’s broadcasts are

made available online. TVEyes I, 43 F. Supp. 3d at 386.

TVEyes creates its own searchable transcript by combining

closed-captioning and speech-to-text technology. J.A. A-231.

Critics can search “select words or phrases that they wish to

monitor on an ongoing basis,” such as “IBM,” “Starbucks,”

“Guantanamo,” and “Crimea.” J.A. A-233. Critics can also use

advanced searches to filter out words they might not want to

see, or to combine multiple words that they want to see in the

same clip. J.A. A-234.

And the occasional clips that Fox licenses “do not show

the exact content or images that were aired on

television.” Id. This is a longstanding problem:

broadcasters do not typically preserve their footage

well and need help from third parties. See e.g. Super

Bowl I to Air After Long-Lost Footage Surfaces, Fox

News (Jan. 11, 2016), https://fxn.ws/1SKuguG

(recognizing that video footage of the first Super Bowl

was lost for nearly 50 years); Richard Porter, Part of

the Conspiracy?, BBC News (Feb. 27, 2007),

https://bbc.in/2NBYpxc (noting the BBC World News

no longer has any of its original coverage of 9/11).

Despite some ongoing preservation efforts, nonprofit entities like public libraries, research

institutions, and organizations, such as amicus

Internet Archive, simply do not have the resources to

create and maintain a comprehensive database that

tracks thousands of channels and millions of hours of

video. And, maintaining the necessary infrastructure

for indexing, searching, and storing enormous

amounts of television recordings is likely to be

prohibitively expensive for individual critics and most

public interest organizations.

Through services like TVEyes, however,

nonprofits and researchers who wish to search, watch,

analyze, and comment on broadcast television after it

airs can effectively do so. They can locate far-flung

clips and compare coverage across sources or time. For

example, critics can search for keywords, such as

“Crimea,” or date-and-time periods, such as the hours

after an important speech, to see relevant segments of

transcripts and view critical video of the relevant

broadcasts. J.A. A-231, A-232, A-233, A-243.

Critics can also compare how issues are covered

on certain days or in certain geographic areas. J.A. A234, A-235, A-236. A media critic at the Huffington

Post, for example, used TVEyes to fact-check Fox’s

claim that other media outlets, such as ABC, CBS,

NBC, MSNBC, and CNN, failed to cover a Tea Party

rally in Washington, D.C., on September 12, 2009.

Jason Linkins, Fox News Newspaper Ad Makes False

Claim About Tea Party Coverage, Huffington Post

(Nov. 18, 2009, 5:12 AM ET, https://perma.cc/CY6HBHKG. The critic found the claim was false: “No one

missed the story.” Id.

Media critics also use services like TVEyes to factcheck political advertising and analyze the

relationship between advertisers and broadcasters.

Video segments posted on Fox’s website do not include

the ads aired during live broadcasts. J.A. A-249. But

some researchers analyze who advertises on a

particular program to glean how much an advertiser

spends and how advertising airing between news

segments might create conflicts of interest. Watchdog

group Free Press, for example, used TVEyes to “scour

local newscasts for any mention of groups that

purchased political ads on local [television] stations”

to review the stations’ subsequent coverage of the

groups. Timothy Karr, Free Press, Left in the Dark:

Local Election Coverage in the Age of Big-Money

Politics, 18 (2012), https://perma.cc/W327-KJ4J.

Absent a complete video database like TVEyes,

media critics also could not say with authority how, or

how widely, an issue has been covered—or not covered

at all. As the District Court recognized, “TVEyes is the

only service that creates a database of everything that

television channels broadcast, twenty-four hours a

day, seven days a week.” TVEyes I, 43 Supp. 3d at 393

(emphasis in original). A research project based on a

non-comprehensive database—particularly, one that

omits video of the nation’s most popular cable news

channel, Fox—will always be less credible and less

reliable than an alternative. By reviewing TVEyes’

database, press criticism publication Columbia

Journalism Review (CJR) found “staggeringly slight

coverage” in local broadcasts of candidates in a

contentious House of Representatives race in the

month leading up to the 2012 election. Ken Knelly,

‘Pittsburgh is getting pounded’ by Ads, Columbia

Journalism

Review

(Oct.

24,

2012),

https://perma.cc/BYB3-4UJG.

CJR

found

that

reporters failed to explain candidates’ policy positions

or provide counterbalances to political ads that aired

on the shows. Id.

Services like TVEyes also can be especially useful

for improving the quality of an encyclopedia like that

supported by amicus Wikimedia Foundation.

Wikipedia allows editors to verify statements made by

notable figures on television and provide the public

with access to the references themselves. Televised

news is a major source of information about current

events for many Americans, and being able to verify

references is a crucial component of Wikipedia’s

reliability and trustworthiness.

In addition, limitations on the existence of

comprehensive news databases of television content

may have serious implications for advanced research

methods. For example, machine learning algorithms

will enable researchers to examine vast volumes of

television content in the future. But algorithmic

approaches to media criticism require far more data

and storage than individual researchers, nonprofits, or

public institutions can hope to maintain. See, e.g.,

Alvin Chang, Nearly 2 Years into the Trump

Presidency, Fox News Is Still Obsessed with Hillary

Clinton, Vox (July 11, 2018), https://perma.cc/7ZGRCY8B (finding Fox covered Clinton more than MSNBC

or CNN by using algorithmic facial recognition

software).

C. Access To Full Video And Audio Are

Critical To Meaningful Media Analysis,

Commentary, And Criticism

Services like TVEyes are critical for research,

analysis, and criticism because of the dramatic

differences between audio-visual content and text

transcripts alone. Television broadcasters across the

ideological spectrum employ powerful visuals to

attract viewers and convey their messages in subtle,

non-verbal ways. As the District Court explained, “the

actual images and sounds depicted on television are as

important as the news information itself” because they

can “powerfully modify[] the content.” TVEyes I, 43 F.

Supp. 3d at 392.

Images, video, and sound carry far more

information than text. The tone of a person’s voice,

their expressions, and their general affect all require

significant textual description and interpretation.

Such information is conveyed seamlessly through

video. Similarly, on-screen text, graphics, and video

can convey messages and influence viewers in

powerful ways. Critics must have access to complete,

original video and audio content for meaningful

analysis.

A few simple examples illustrate why access to the

“actual images and sound” is imperative for criticism

and commentary.

First, consider three 8:00 PM primetime

programs—Anderson Cooper 360 (CNN), All In With

Chris Hayes (MSNBC), and Tucker Carlson Tonight

(Fox)—that aired on February 6-7, 2018. As shown in

the images below, each program provided starkly

different visual coverage of a single event, namely,

White House Chief of Staff, General John Kelly’s

comment that:

There are 690,000 official DACA

registrants. And the President sent over

what amounts to be two and a half times

that number - to 1.8 million. The

difference between 690 [thousand] and

1.8 million were the people that some

would say were too afraid to sign up,

others would say were too lazy to get off

their asses, but they didn't sign up.

All In With Chris Hayes (MSNBC television broadcast

Feb. 6, 2018, 8:04PM ET), https://bit.ly/2QKeaEb

(emphasis added).

The ensuing breaking news headlines displayed

on the screen by CNN and MSNBC both attribute

parts of the statement directly to Kelly: “KELLY:

SOME DREAMERS ‘TOO LAZY TO GET OFF THEIR

ASSES’” (CNN) and “JOHN KELLY: SOME

DREAMERS ‘TOO LAZY’ FOR DACA” (MSNBC).

Anderson Cooper 360 (CNN television broadcast Feb.

6, 2018, 8:21 PM ET), https://youtu.be/YKeJvgJNdhM,

transcript available at https://perma.cc/QNL9-Z8VE

(see image below); All In With Chris Hayes (MSNBC

television broadcast Feb. 6, 2018, 8:09PM ET),

https://bit.ly/2QKeaEb.

On MSNBC, Chris Hayes and his guest discuss

the statement and the video shows them both

laughing, “You have Kelly saying that Dreamers are –

Dreamer's aren't lazy. Trump is lazy. We'll do a

shutdown? He hasn't even bothered to learn what

happens when that happens or why one might go

ahead and do that.” All In With Chris Hayes (MSNBC

television broadcast Feb. 6, 2018, 8:13PM ET) (see

image below).

Meanwhile, Fox’s coverage focuses on how

General Kelly was unfairly “attacked” by the “left that

was howling, of course, and jumping up and down like

the hyenas they are.” The video displays the powerful

headlines, “GEN KELLY UNDER FIRE FOR DACA

COMMENTS” and “TAKEN OUT OF CONTEXT.”

Tucker Carlson Tonight (Fox television broadcast Feb.

7, 2018), https://youtu.be/T9sWsImbra0 (see images

below).

Carlson’s voice and facial expressions appear

indignant and are combined with patriotic references

and provocative imagery. An American flag billows in

the background behind footage of what appears to be

pro-immigration protestors. Carlson sports a suit in

front of an image of the Capitol next to an informally

dressed guest “immigration activist.” The result is a

bundle of information that is more elaborate and

layered than the text of General Kelly’s statement. To

offer proper analysis and commentary of this bundle,

a researcher needs access to the complete video and

audio.

The above example is merely one of countless

examples representative of television programming,

where producers use visuals to tell their particular

stories. See, e.g., Washington Post, CNN and Fox News

Hosts React to Trump’s ‘Shithole’ Remark, YouTube

(Jan. 12, 2018), https://youtu.be/NrynNeqx48I

(contrasting CNN’s and Fox’s coverage of President

Trump’s comment about Haiti and African nations);

The Daily Show with Jon Stewart, Inauguration

Media

Coverage

(Jan.

21,

2009),

https://on.cc.com/2ILLrfq (comparing CNN, MSNBC,

and Fox coverage of President Obama’s 2009

inauguration); Jonathan McIntosh, Too Many Dicks

the

Daily

Show

(Sept.

2011),

https://perma.cc/ZS9U-WGTJ,

embedded

video

available

https://youtu.be/uzU1_CsOnJA

(discussing gender imbalance on the Daily Show by

juxtaposing video clips from more than 100 episodes).

These examples demonstrate why researchers

need complete original broadcasts—video and audio

included—to understand and critique inaccuracies,

bias, and slanted coverage.

D. The Second Circuit Is Particularly

Influential In The Media Industry And

Has

Nationwide

Influence

Over

The decision below requires review because the

Second Circuit has an outsized impact on the media

industry and its critics. Many media companies and

organizations are located in New York. For example,

the traditional broadcast networks—ABC CBS, and

NBC—and the three largest cable news networks—

CNN, Fox, and MSNBC—all broadcast from New York

City. All are headquartered in New York except CNN.

New York is also a center for both the publishing

industry and journalism as a whole. “Employment in

newspaper, periodical, and book publishing is almost

six times more concentrated in New York City than

the rest of the nation.” New York City Labor Market

Information Service, Employment in New York City

Publishing 8 (2009), https://perma.cc/4Z7E-HHDB.

The Second Circuit, moreover, has an outsized

impact in copyright jurisprudence. “There is no

question that the Second Circuit has had a significant

influence on the development of U.S. intellectual

property law, especially copyright law.” Kenneth A.

Plevan, The Second Circuit and the Development of

Intellectual Property Law: The First 125 Years, 85

Fordham L. Rev. 143, 143 (2016). Numerous landmark

issued by the Second Circuit. See, e.g., Authors Guild

v. Google, Inc., 804 F.3d 202 (2d Cir. 2015); Authors

Guild v. Hathitrust, 755 F.3d 87 (2d Cir. 2014); Cariou

v. Prince, 714 F.3d 694 (2d Cir. 2013); Blanch v. Koons,

467 F.3d 244 (2d Cir. 2006); Bill Graham Archives v.

Dorling Kindersley, 448 F.3d 605 (2d Cir. 2006); Castle

Rock Entertainment, Inc. v. Carol Publishing Group

Inc., 150 F.3d 132 (2d Cir. 1998); Rogers v. Koons, 960

F.2d 301 (2d Cir. 1992).

Therefore, an erroneous decision by the Second

Circuit on the appropriate test for fair use not only

affects those industries which are shaped by copyright

and fair use, but will likely also influence

interpretations of copyright law elsewhere in the

country. Because the Second Circuit’s decision

conflicts with this Court’s decision in Campbell and

with subsequent decisions by other circuits following

Campbell, it is crucial that this Court review the

decision below.

E. The Ruling Below Demands Review

Because It Undermines The First

Amendment Principles Implicit In Fair

Use And Harms The Vital National

Interest In An Informed Public

This case implicates core First Amendment

interests underlying fair use and copyright law as a

whole. Copyright is a restriction on speech that must

be balanced against the First Amendment. This

balancing is operationalized through codified

limitations on copyright protection, such as fair use,

that serve as “built-in free speech safeguards.” Eldred

v. Ashcroft, 537 U.S. 186, 221 (2003).

Fair use is critical to ensure that copyright does

not unduly impede free speech. It serves explicitly to

encourage core First Amendment “purposes such as

criticism, comment, news reporting, . . . scholarship, or

research.” 17 U.S.C. § 107. In other words, fair use is

an “internal safety valve[]” that ensures copyright

protections do not interfere with First Amendment

protections. Neil Weinstock Netanel, Locating

L. Rev. 1, 4 & n.11 (2001). Fair use also protects robust

public debate, which is one of the primary functions of

the First Amendment. See New York Times Co. v.

United States, 403 U.S. 713, 717 (1971) (Black, J.

concurring).

Media criticism, commentary, and analysis are

essential expression necessary for a well-functioning

democracy. They enable viewers to become more

discerning and make informed choices about news

sources. For instance, researchers have found that

voters become more skeptical of political ads when

informed about the falsehoods in them. Kim Fridkin,

Liar, Liar, Pants on Fire: How Fact-Checking

Influences Citizens’ Reactions to Negative Advertising,

32 Pol. Comm. 127 (2015). Even when viewers do not

directly respond to differences in coverage, networks

are frequently sensitive to outside criticism and will

issue retractions or modify their future coverage.

Volunteer editors can also fact-check current events

and media coverage on projects like Wikipedia.

Media critics are themselves members of the

press: coverage of the news is news too. They need

services like TVEyes to fully analyze and report on

how the news is covered, not just what is covered. How

news outlets cover current events can significantly

impact viewers’ reactions and political opinions.

Viewers of political debates often determine who ‘wins’

based largely on news analysis of the debate. Kim L.

Fridkin et al., Capturing the Power of a Campaign

Event: The 2004 Presidential Debate in Tempe, 69 J.

Pol. 770 (2007). And, coverage of political debates

varies widely among news channels. See, e.g., Andrew

McGill, The Different Ways Fox, MSNBC, and CNN

Recapped Monday’s Debate, The Atlantic, Sept. 29,

2016, https://perma.cc/QL4N-W3AB; Adam Epstein,

Who Won the Debate Depends on Which Network You

Watched,

Quartz,

Sept.

28,

2016,

https://perma.cc/GC67-QU39,

embedded

video

available

https://youtu.be/reTHOP3SOdQ.

Accordingly, when reporting on presidential debates,

media outlets not only evaluate candidates, but also

scrutinize moderators’ questions for bias and accuracy

in post-debate analysis. Michael M. Grynbaum, Matt

Lauer Field Storm of Criticism Over Clinton-Trump

Forum,

N.Y.

Times,

Sept.

2016,

https://nyti.ms/2cm8OOR.

As the District Court noted, “[d]emocracy works

best when public discourse is vibrant and debate

thriving. But robust debate cannot thrive when the

message itself (in this case, the broadcast) disappears

after airing into an abyss.” Fox News Network, LLC v.

TVEyes, Inc. (TVEyes II), 124 F. Supp. 3d 325, 334

(S.D.N.Y. 2015). Because media criticism is speech

that fosters democratic engagement and governance,

such criticism implicates important First Amendment

concerns and deserves exacting fair use review.

II. The Second Circuit’s Fair Use Analysis

Conflicts With This Court’s Decision In

Campbell And With Other Circuits’

Precedents

This Court should grant certiorari because the

Second Circuit decision below conflicts with this

Court’s precedent and those of other circuits. This

Court’s analysis of the fourth fair use factor—market

harm—is clear: the factor does not favor the copyright

owner merely because the defendant used the work for

commercial gain. See Campbell v. Acuff-Rose Music,

Inc., 510 U.S. 569, 570 (1994) (holding that 2 Live

Crew’s commercial use of Roy Orbison’s “Oh, Pretty

Woman” without a license was fair use). The Second

Circuit ignored this crucial holding by concluding that

Fox suffered harm simply because TVEyes is a

commercial product. Fox News v. TVEyes (TVEyes III),

883 F.3d 169, 180 (2nd Cir. 2018).

The fact that the defendant made money can only

be a part, not the end, of the analysis. Similarly, it is

not enough that the defendant might have paid a

licensing fee. “By definition, every fair use involves

some loss of revenue because the secondary user has

not paid royalties.” Pierre N. Leval, Toward a Fair Use

Standard, 103 Harv. L. Rev. 1105, 1124 (1990). If this

loss of licensing revenue automatically showed market

harm, the fourth factor would favor the copyright

owner in all cases. See id.

The Second Circuit ignores Campbell and

subsequent cases in its analysis of the fourth factor. In

its brief discussion of market harm, the Second Circuit

wrote:

Since the ability to re-distribute Fox’s

content in the manner that TVEyes does

is clearly of value to TVEyes, it (or a

similar service) should be willing to pay

Fox for the right to offer the content. By

providing Fox's content to TVEyes clients

without payment to Fox, TVEyes is in

effect depriving Fox of licensing revenues

from TVEyes or from similar entities.

TVEyes III, 883 F.3d at 180. The panel opinion wholly

embraces an improper logic—that commercial use

together with failure to pay a license entails market

harm—rejected by this Court.

But, as this Court has made clear, to leap directly

from commercial use (or failure to pay licensing fees)

to market harm would not provide adequate protection

for core fair uses, including those listed in the

preamble of § 107 such as news reporting,

commentary, and criticism. See 17 U.S.C. §107;

Campbell, 510 U.S. at 584. It is now well-established

that market harm cannot be established solely on the

basis of either (1) commercial use by the defendant or

(2) the defendant’s failure to pay a licensing fee. See,

e.g., Peter Letterese & Assocs., Inc. v. World Inst. of

Scientology Enters., 533 F.3d 1287, 1319 n.37 (11th

Cir. 2008); Am. Geophysical Union v. Texaco Inc., 60

F.3d 913 (2d Cir. 1994).

Since courts cannot simply assume market harm

from commercial use or revenue, they must look

deeper at the challenged use and at the market that is

claimed to be harmed. As part of this inquiry, courts

consider whether the market is one that the copyright

owner is likely to develop. See Swatch Grp. Mgmt.

Servs. Ltd. v. Bloomberg L.P., 756 F.3d 73, 91 (2d Cir.

2014); Am. Geophysical Union, 60 F.3d at 930 (2nd Cir.

1994) (holding that courts need only consider

“traditional, reasonable, or likely to be developed

markets when examining and assessing a secondary

use’s ‘effect upon the potential market for or value for

the copyrighted work’” (emphasis added)); Seltzer v.

Green Day, Inc., 725 F.3d 1170, 1179 (9th Cir. 2013).

In order to conduct this analysis, courts must

consider not only whether there is some market for the

material at issue, but also whether there is a viable

market for the use at issue. If a copyright holder would

not be willing to grant a license for the accused use,

there is no practical licensing market that the use

could harm.

This inquiry is essential to protect the kinds of

criticism, parody, and analysis that copyright owners

would prefer to silence and are unlikely ever to license.

See Campbell, 510 U.S. at 592 (explaining that “there

is no protectable derivative market for criticism”).

Indeed, in this case, Fox’s licenses expressly condition

access to clips of its content upon a “covenant that they

will not show the clips in a way that is derogatory or

critical of Fox News.” TVEyes I, 43 F. Supp. 3d at 387

(emphasis added). There simply is no market that is

being harmed by the use in this case. Instead, TVEyes

participates in a different market than original

broadcasts.

The Second Circuit further failed to consider the

critical difference in market functions between

TVEyes’ research services and the viewer-informing

purposes of the original broadcasts. It did so despite

acknowledging that TVEyes is a “transformative”

service. Fox News III, 883 F.3d at 178. As this Court

stated in Campbell, when a use is transformative it

generally “serve[s] different market functions” than

the original. 510 U.S. at 591. Since this Court has not

reviewed fair use in more than twenty years, circuits

differ about the role of “transformative use” in

applying the four-factor statutory test. See Kienitz v.

Sconnie Nation LLC, 766 F.3d 756, 758 (7th Cir. 2014)

(expressing “skepticism” towards the Second Circuit’s

fair use jurisprudence).

By adopting the flawed analysis that this Court

explicitly rejected in Campbell, the Second Circuit

effectively overwrites current fair use law and leaves

a wide range of criticism, analysis, and parody

vulnerable to suppression by content owners who

refuse to license broadcast clips in order to avoid

negative news coverage and critique.

CONCLUSION

This Court should grant the petition for certiorari

to resolve the Second Circuit’s decision’s conflict with

Campbell and ensure that essential First Amendment

activities, such as media criticism and commentary,

are not hampered by an overly narrow interpretation

of fair use.

Respectfully submitted,