Sharing of television news clips hangs in the fair-use balance

Fox News is winning more than just the news network ratings wars. It's also winning the battle against copyright's fair use doctrine.

In August, a federal judge sided (PDF) with the news station's copyright-infringement lawsuit against a television and radio clipping service known as TVEyes, which charges as much as $500 a month for its service. A New York federal judge ruled that wanton sharing, time searching, and downloading of Fox News' news segments is not fair use. Then in November, US District Judge Alvin Hellerstein ruled TVEyes could not allow its clients—like the White House, American Red Cross, members of Congress, and others—to download Fox News clips. The judge also ordered TVEyes to block users from searching Fox News clips and from allowing them to share them on social media.

TVEyes shall implement a blocking feature that will prevent links to FNC or FBN clips stored on any servers owned or leased by TVEyes from playing when they are accessed from links posted to the major social sharing services on the internet. TVEyes will also block plays linked from domain names associated with the blocked sites (such as "url shorteners") to ensure that its list of blocked domains remains comprehensive. Examples of such social media sites include: twitter.com; t.co (Twitter's URL shortener); facebook.com; fb.me (Facebook's URL shortener); linkedin.com; pinterest.com; plus.google.com; tumblr.com; vine.co; snapchat.com; hubs.ly (Hubspot, a social media posting system); bit.ly (Bitly, a social media posting system); buff.ly (Buffer, a social media posting system); and reddit.com."

Fox News is seeking unspecified damages in the case, too, at a trial. But on Monday, TVEyes and Fox News temporarily set aside their differences and agreed to allow the appellate courts to review Hellerstein's decisions. The judge's orders were to take effect on December 14, but the agreement indefinitely delays implementation pending the outcome of the case before the New York-based 2nd US Circuit Court of Appeals. That's the same appeals court that ruled in October that it's legal to scan books even if you don't own the copyright.

"The parties agree that now is the appropriate time to address these issues on appeal. The appropriate filings associated with the parties' respective appeals will be filed timely in the coming weeks. In light of the foregoing, the parties jointly request that all proceedings in this case be stayed, including the submission of a delineation on any issues of damages that may remain, pending final resolution of their forthcoming appeals," both sides told the judge, who agreed (PDF) with their plan.

All of this begs the question of what is fair use. It's complicated, and there is no bright-line rule. "In its most general sense, a fair use is any copying of copyrighted material done for a limited and 'transformative' purpose, such as to comment upon, criticize, or parody a copyrighted work, according to Stanford University. "Such uses can be done without permission from the copyright owner. In other words, fair use is a defense against a claim of copyright infringement. If your use qualifies as a fair use, then it would not be considered an illegal infringement."

Fair use is also decided on a case-by-case basis.

"The distinction between what is fair use and what is infringement in a particular case will not always be clear or easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission," according to the US Copyright Office.