the Internet with the mentions of the keyword or term on the TVEyes database. A subscriber
could also create a custom time range to tabulate the number of times a term had been used in a
certain time period, and the relative frequency of such use compared to other terms. Subscribers
could set up email alerts for specific keywords or terms, and receive responses one to five
minutes after the keyword or term was mentioned on any of the 1,400 television and radio
stations TVEyes monitored. TVEyes’ responses to subscribers provided a thumbnail image of
the show, a snippet of transcript, and a short video clip beginning 14 seconds before the word
was used.^362
When a subscriber on the Watch List Page clicked on the hyperlink showing the number
of times the term was mentioned on a particular day, the subscriber was brought to the Results
List Page, which displayed each mention of the keyword or term in reverse chronological order.
Each individual result included a portion of transcript highlighting the keyword and a thumbnail
image of the particular show that used the term. When the user clicked the thumbnail image of
the show, the video clip began to play automatically alongside the transcript on the Transcript
Page, beginning 14 seconds before the keyword was mentioned. TVEyes also features a Power
Search tool that allowed users to run ad-hoc keyword search queries,; clicking the thumbnail
image would bring the user to the clip’s corresponding Transcript Page. Subscribers could save,
archive, edit, and download to their personal computers an unlimited number of clips generated
by their searches. The clips were limited to ten minutes, and a majority of the clips were shorter
than two minutes. All subscribers were required to sign a contractual limitation in a User
Agreement, limiting use of downloaded cliups to internal purposes. TVEyes had recenty added a
feature that would block a user from trying to play more than 25 minutes of sequential content
from a single station. TVEyes enabled subscribes to email a clip from its web site to anyone,
whether or not a TVEyes subscriber. When a recipient clicked on the hyperlink, the viewer was
directed to TVEyes’ web site, not to the content owner’s web site, and could watch the video
content in high definition.^363
Fox News brought an action for copyright infringement to enjoin TVEyes from copying
and distributing clips of Fox News programs and for damages. TVEyes asserted that its use of
Fox News material constituted fair use, and both parties moved for summary judgment. The
court ruled that TVEyes’ use of Fox News’ content was fair use, with exceptions noted with
respect to certain questions of fact, and denied Fox News’ request for an injunction.^364
The court found that the first fair use factor (purpose and character of the use) favored
TVEyes because its service was transformative. The indexing and collecting of visual and audio
images provided by the service allowed subscriber to categorize, not only content in response to
key search words, but also information that might be just as valuable to subscribers as the
content, since a speaker’s demeanor, tone, and cadence could often elucidate his or her true
beliefs far beyond what a stale transcript or summary could show. Unlike the indexing and
excerpting of news articles, where the printed word conveys the same meaning no matter the
(^362) Id. at 4.
(^363) Id. at 5-9.
(^364) Id. at *1-2.