Fox News has barred a TV monitoring service from recording its broadcasts and allowing customers to search for and play back relevant segments. According to The Hollywood Reporter, the monitoring service TVEyes reached a settlement with Fox after a five-year-long legal battle requiring it to permanently stop distributing the network’s shows. TVEyes hasn’t been distributing Fox since March, after receiving an injunction.
TVEyes may not be well known, but it and similar companies perform an important service: allowing journalists to keep tabs on the dozens of hours of content broadcast on news channels each day. That’s particularly important when it comes to Fox News — a channel known for scare tactics, slanted coverage, and being watched by President Donald Trump.
In addition to journalists, the service is used by the White House, members of Congress, and the Department of Defense, according to the Reporter, which has been tracking the lawsuit for the past five years.
TVEyes argued that it made fair use of Fox News’ broadcasts, since its subscribers used the clips for commentary, criticism, and evaluating and tracking coverage. Initially, a federal court agreed, saying in 2014 that some of TVEyes’ service was transformative, according to the Reporter. But last year, an appeals court found that there was no fair use at all, because the service provided “virtually all of Fox’s copyrighted audiovisual content” and deprived Fox of revenue. The Supreme Court declined to hear an appeal last month, leading to the settlement.
The ruling “undermines effective media analysis,” the Electronic Frontier Foundation and other tech advocacy groups wrote in an October filing with the Supreme Court. Not considering TVEyes’ work to be fair use allows Fox News and other content owners to “prevent commentary and criticism of their work” simply because they could license their content for redistribution, even if they choose not to.
While the settlement is a blow to journalists using TVEyes, TVEyes isn’t the only company offering TV monitoring services. In 2014, The Wrap reported that The Daily Show and Last Week Tonight both used a service called SnapStream, which allows subscribers to record TV shows and search through them based on closed captioning transcripts. Similar services are provided by Critical Mention, Volicon, and Digital Nirvana, according to the report, although those services seem to be targeted more toward monitoring brand mentions for public relations purposes.
Fox News seems to have singled out TVEyes because the service recorded broadcast streams directly and then allowed subscribers to download and share as many clips as they want, cut up into 10 minute segments. At Bloomberg, Yale Law professor Stephen Carter pointed out in March that the ruling against TVEyes only stopped it from allowing subscribers to view clips; it would still be able to create a searchable catalog of everything that happened on air.
Carter argues that TVEyes could go ahead and pay licensing fees, if it wants to continue offering the service. But the EFF points out that Fox’s licensing terms might prevent that, by barring the use of clips in any manner critical of the network.
“It’s not in the interest of anyone to license out clips of their material for the purpose of it being debunked,” writes EFF policy analyst Katharine Trendacosta, “which is why the service provided by TVEyes is so valuable.”
Correction, January 22nd, 12:10AM ET: This story initially misstated how SnapStream works. The service uses a server to catalog TV recordings, but those recordings must be made locally by each subscriber; it does not directly record broadcast TV.