XM argued that its XM + MP3 player was much like a traditional radio/cassette player
and should therefore not be viewed as an improper adjunct to broadcasts. The court rejected this
analogy, noting that, in the case of traditional radio/cassette players, the only contact between
manufacturers of the devices and users occurred at the point of sale. The court found it quite
apparent that the use of a radio/cassette player to record songs played over free radio did not
threaten the market for copyrighted works as would the use of a recorder which stores songs
from private radio broadcasts on a subscription fee basis. The court further noted that, although
XM subscribers might put XM + MP3 players to private use, several court decisions had rejected
attempts by for profit users to stand in the shoes of their customers making non-profit or
noncommercial uses.^358
The court therefore denied XM’s motion to dismiss: “The Court finds that because of the
unique circumstances of XM being both a broadcaster and a DARD distributor and its access to
the copyrighted music results from its license to broadcast only, that the alleged conduct of XM
in making that music available for consumers to record well beyond the time when broadcast, in
violation of its broadcast license, is the basis of the Complaint, and being a distributor of a
DARD is not. Thus the AHRA, on these facts, provides no protection to XM merely because
they are distributors of a DARD.”^359
- Fair Use Cases
(a) Fox News v. TVEyesIn Fox News Network, LLC v. TVEyes, Inc.,^360 the defendant TVEyes operated a media-
monitoring service that enabled its subscribers to track when keywords or phrases of interest
were uttered on the television or radio. To do this, TVEyes recorded the content of more than
1,400 television and radio stations, twenty-four hours a day, seven days a week. Using closed
captions and speech-to-text technology, TVEyes recorded the entire content of television and
radio broadcasts and created a searchable database of that content. The database allowed its
subscribers, who included the United States Army, the White House, numerous members of the
U.S. Congress, and local and state police departments, to track the news coverage of particular
events. For example, police departments used TVEyes to track television coverage of public
safety messages across different stations and locations, and to adjust outreach efforts
accordingly.^361
Upon logging into its TVEyes account, a subscriber would be taken to the Watch List
Page, which monitored all of the subscriber’s desired keywords and terms, and organized search
results by day, tabulating the total number of times the keyword was mentioned by all 1,400
television and radio stations each day over a 32-day period. While on the Watch List Page, a
user could also run a “Google News” search, comparing the mentions of the keyword or term on
(^358) Id. at 21-22.
(^359) Id. at 23-24.
(^360) 2014 U.S. Dist. LEXIS 126138 (S.D.N.Y. Sept. 9, 2014).
(^361) Id.at *2-3.