In his 2015 Second Circuit opinion in Google Books, U.S. Circuit Judge Pierre N. Leval observed that the case “test[ed] the boundaries of fair use.” Authors Guild v. Google, 804 F.3d 202 (2d Cir. 2015). Three years later, at the outset of its decision in Fox News Network v. TVEyes, 883 F.3d 169 (2d Cir. 2018), the Second Circuit repeated that caution in holding that “defendant TVEyes has exceeded those bounds.” Although TVEyes had attempted to structure its business model in a manner that could at least arguably fall within the circumstances in Google Books, the court determined that significant differences resulted in balancing the fair use factors decisively against fair use. Notably, its finding that the use was “at least somewhat transformative” did not counterbalance the impact of the substantiality of the taking and the detrimental market effect of TVEyes’ use of Fox News Network’s news broadcasts.

TVEyes’ Business Model

TVEyes, a for-profit media company, offers a service enabling its clients “to efficiently sort through vast quantities of television content in order to find clips that discuss items of interest to them.” Id. at 174-75. For example, a public relations firm specializing in damage control might want to keep track of how often an embarrassing news item about its client has appeared in a recent news cycle, or a corporate marketing department might want to quickly gather all recent mentions of its newly introduced mobile phone.