Copyright

On September 22, 2015, Judge George H. King granted partial summary judgement to Plaintiffs seeking a declaration that the song Happy Birthday was in the public domain.[ref]Marya v. Warner Chappell Music U.S. District Court for the Central District of California 2015. The decision may be found here: Marya v. Warner Chappell Music Page numbers cite to the page of the original opinion.[/ref] News agencies rushed out to trumpet the news that the Judge's ruling meant Happy Birthday was in the public domain.[ref]Federal judge rules 'Happy Birthday' song in public domain[/ref] Except that the Judge did not rule that Happy Birthday was in the public domain. What he in fact ruled could be far more damaging to the interests of Warner Chappell Music. Happy Birthday is based upon a previously existing song, Good Morning To All.[ref]Marya v. Warner Chappell Music at 2[/ref] It was composed by two sisters, Mildred and Patty Hill, somewhere around 1893. They assigned their interest in the song to the music publishing company Clayton F. Summy,[ref]Id.[/ref] and in 1893, he published the song in a collection titled Song Stories for the Kindergarten.[ref]Id. at 3[/ref] There is no dispute that the copyright in Good Morning To All expired in 1949, and the familiar melody is now in the public domain.[ref]Id.[/ref] The origins of the well-known lyrics to Happy Birthday are far less clear. The lyrics first appeared in 1911, in the book The Elementary Worker and His Work.[ref]Id.[/ref] They appeared without any attribution as to the author, only with a note that the lyrics were to be sung to the melody of Good Morning To All.[ref]Id.[/ref] So at least as early as 1911, someone had added the Happy Birthday lyrics to Good Morning To All. Just who that person was is a serious point of contention. Patty Hill claimed later (in fact over 40 years later), that she had written the Happy Birthday lyrics, around the time that Good Morning To All was originally composed.[ref]Id. at 4[/ref] It was not until her 1934 deposition in a lawsuit alleging that the producers of a musical had infringed the copyright in the Good Morning To All melody did she make this assertion.[ref]Id.[/ref] Mildred Hill, to co-writer of Good Morning To All a/k/a Happy Birthday died in 1916,[ref]Mildred J. Hill[/ref] and thus was not available to give corroborating testimony. This is where things start to get sticky for Warner-Chappell Music. The Happy Birthday song was published in 1922 in a book titled The Everyday Song Book.[ref]Maraya at 4[/ref] It was published as one song, Good Morning and Birthday Song with a legend that is was printed by "Special permission through The Clayton F. Summy Co."[ref]Id. at 7[/ref] If Patty was indeed the author of the Happy Birthday lyrics and had granted the right to the Summy Company, this means that Happy Birthday would have entered the public domain either by being published without copyright notice, or by having its statutory copyright expire. So Warner must contend that Happy Birthday was not part of the 1893 grant to Summy.[ref]Id. at 21[/ref] The Summy Company filed two copyright registrations for Happy Birthday. The registration on which Warner-Chappell relies is a simple piano arrangement with the lyrics to Happy Birthday printed on the sheet music. This is the registration which Warner-Chappell has asserted for years as the first registration for Happy Birthday which fixes the date of copyright for the song as commencing in 1935. The problems noted by the Judge are several. The registration is an "Application for Copyright for Republished Musical Composition with New Copyright Matter."[ref]Id. at 13[/ref] The new matter is described as being "Arrangement for easy piano, with text."[ref]Id.[/ref] According to Warner Chappell, the reference "with text" means the new lyrics are being registered for copyright for the first time.[ref]Id. at 13-14[/ref] The problem is that the author of the new material is identified as "Preston Ware Orem employed for hire by Clayton F. Summy Co."[ref]Id.[/ref] It is clear that Mr. Orem is not the author of the words to Happy Birthday since the lyrics were first published more than 24 years prior to this registration. Since Warner-Chappell contends that Patty Hill is the author of the lyrics to Happy Birthday, the failure of the Summy Co. to list her as the author of the "new material" being registered is fatal to Warner-Chappell's contention. "If, as Defendants assert, the new matter being registered included the lyrics, then contrary to the registration certificate, Mr. Orem could not be the author of the new matter. Conversely, if Mr. Orem were the author of the new matter, then the lyrics could not have been a part of the new registration."[ref]Id. at 14[/ref] Warner-Chappell's last hope is to show that somehow Patty Hill retained her common law copyright and transferred it to Summy. There were three separate agreements between the Hill parties (Jessica Hill taking over her deceased sister's share). Without rehashing the Court's findings, it is sufficient to say that the Court ruled that the lyrics to Happy Birthday were never transferred to the Summy Company.[ref]Id. 28-37[/ref] In so ruling, the Court noted that even though decades later, Patty claimed to be the author of the lyrics:

• They never sought to protect the Happy Birthday lyrics as their own, despite numerous publications by third parties
• They never sought copyright registrations for the lyrics
• They never sued anyone for infringing the lyrics
• The Summy Company sued several times for infringements of the melody to Happy Birthday but never for the lyrics, and never asserted the 1935 registration by which Warner-Chappell now claims its rights[ref]Id. at 37[/ref]

So, even if Patty Hill wrote the lyrics to Happy Birthday (a fact which is in dispute and not resolved here), Warner never acquired her rights. Therefore, since 1988, when Warner-Chappell acquired Birch Tree Group, the successor to the Summy Company,[ref]All the 'Happy Birthday' song copyright claims are invalid, federal judge rules[/ref] they have been charging and collecting fees for a copyright that they did not own. And even prior to that time, ASCAP has been collecting performance fees for a song that was not part of their licensed repertoire. What now? As reported by the Los Angeles Times: "The plaintiff's attorneys have said that they will move to qualify the lawsuit as a class-action in an effort to recoup millions of dollars in licensing fees Warner/Chappell has collected on the tune over the years. Mark C. Rifkin, one of Nelson's attorneys, said the plaintiffs will pursue Warner for royalties paid since "at least" 1988, and could also ask the company to repay royalties that have been collected all the way back to 1935. It's not clear how much money that could entail. A third of the profits from licensing the song still go to a designated charity of the Hill family, the Association for Childhood Education International, which promotes global education efforts for children and the professional growth of educators. The association's 2012 nonprofit tax return, the most recent available, indicates it received $754,108 in royalties."[ref]Id.[/ref] That will be one big class, if certified. Imagine all the movies and television shows which have sung Happy Birthday over the past 80 years. Personally, I have a former client who would be part of that class, since Warner-Chappell insisted on taking a royalty on Happy Birthday even though the lyrics were never sung on the recording. But would the Statute of Limitations apply? Would the doctrine of laches (you waited too long to sue) apply? This is not a copyright infringement action, so the three year lookback would not apply, nor would the Supreme Court's decision in Petrella[ref]Taking the Raging Bull by the Horns: A Statute of Limitations That Never Expires?[/ref] apply. Yet, the logic of Petrella might prove a solid basis to impose liability. What we have here is a continuing tort (a wrong), e.g. demanding payment for something that you have no right to demand payment for. So each time that Warner-Chappell demanded a license fee, a new tort was committed. And what about ASACP? This one is tougher. ASACP is not a party to this lawsuit. Plus, since by the terms of the consent decrees ASCAP must license the entire catalog, there is no way to separate out the royalties for Happy Birthday as opposed to other songs in the catalog. In other words, the payment would be the same, whether Happy Birthday was part of the catalog or not. So, perhaps Warner-Chappell might be compelled to repay the "publisher's share" of the royalties back to ASCAP, but that does not mean that ASCAP would refund the money to the licenses holders. It might mean only a redistribution to the members. And what of the rest of the English speaking world? In Canada, being a life plus 50 years jurisdiction, Happy Birthday is already in the public domain. But what about England? According to this article from the BBC: "Despite the ruling, the song still remains under copyright in the UK and other countries - and caution should be exercised over its use, says intellectual property lawyer Mark Owen. "'As elements of the song are still potentially within the maximum copyright term it may be the case that someone still owns some rights to it,' said Mr. Owen, a partner at law firm Taylor Wessing."[ref]Happy Birthday ruled out of copyright[/ref] Presumably, this is because England adheres to the life plus 70 years regime, and Patty Hill, having died in 1946,[ref]Patty Hill[/ref] her rights will last until December 31, 2016. Yet, this is not the end of the analysis. The Berne Treaty in Article 7, Section 8 provides for the rule popularly described as the "rule of the shorter term." The text of which is: "In any case, the term shall be governed by the legislation of the country where protection is claimed; however, unless the legislation of that country otherwise provides, the term shall not exceed the term fixed in the country of origin of the work."[ref]Berne Convention for the Protection of Literary and Artistic Works (Paris Text 1971)[/ref] So, the copyright in the melody to Happy Birthday, having entered into the public domain at the end of 1949, would be in the public domain in England, unless it opted out of the rule of the shorter term. This points the way to some measure of salvation for Warner-Chappell. If (and it's a mighty big if) Patty Hill did write the lyrics to Happy Birthday and she did not transfer them to the Summy Company, as this ruling holds, then she, or more accurately, her heirs still own them. This is due to the savings clause of the Copyright law, found at Section 303, which states: ‘Copyright in a work created before January 1, 1978, but not theretofore in the public domain or copyrighted, subsists from January 1, 1978, and endures for the term provided by section 302." In other words, life plus 70 years after death. In Patty Hill's case, December 31, 2016. So, if Warner-Chappell has the nerve and the cash to spend, it could track down whomever the proper heirs of Patty Hill are and purchase the rights from them. They might still have slightly over one year to re-stake their claim to Happy Birthday. This would, of course, not affect the payments they have already taken in without holding the rights to demand a licensing fee. So, instead of singing Happy Birthday, it's more likely Warner-Chappell is singing the blues.

On September 14, 2015, the Ninth Circuit Court of Appeals issued its opinion in the closely watched case of Lenz v. Universal Music Group,[ref]2015 WL 5315388[/ref] but more widely known as "the dancing baby case." As with many opinions from the Ninth Circuit, what we got was a head scratching, confusing opinion that in the final analysis changes almost nothing. The facts are simple and undisputed. The nominal Plaintiff Stephanie Lenz, posted to YouTube a 29 second video of her baby dancing to Prince's song "Let's Go Crazy." Screeners for Universal Music Group flagged the video, and after watching the entire video, concluded that it used a substantial portion of the Prince song, and issued a takedown notice.[ref]Id. at 2[/ref] Lenz sent a defective counter-notice to YouTube,[ref]She failed to swear it was executed under penalties of perjury.[/ref] and later, egged on by the Electronic Frontier Foundation filed a compliant counter-notice.[ref]Id. at 2[/ref] YouTube then reinstated the video.[ref]Id.[/ref] A complaint was filed in Lenz's name, which claimed tortious interference and sought declaratory relief, which was promptly dismissed.[ref]Id.[/ref] The amended complaint alleged only a claim for misrepresentation under section 512(f) of the Copyright Act. The relevant portion of Section 512(f) states: "Misrepresentations.—Any person who knowingly materially misrepresents under this section—

• that material or activity is infringing…shall be liable for any damages, including costs and attorneys' fees, incurred by the alleged infringer…"

It is worth noting at the outset that Lenz is not the real Plaintiff here. As reported by cnet.com, she stated "'I don't care that YouTube doesn't want to host it [my video],' Lenz wrote to one associate, according to court documents. ‘Not like I'm paying them.'"[ref]Strange turn in dancing baby vs. Prince case[/ref] She suffered no real monetary loss and is being represented pro bono by the Electronic Frontier Foundation. So the real Plaintiff here is the Electronic Frontier Foundation. Lenz herself is just a straw person. Again, as reported by cnet.com: "[A]nother [Lenz] missive included this passage ‘EFF is pretty well salivating over getting their teeth into UMG yet again.'"[ref]Strange turn in dancing baby vs. Prince case[/ref] The American Bar Association also reported that Lenz stated that the EFF was planning a "publicity blitz and/or a lawsuit against Universal."[ref]Federal Court Finds Waiver of Attorney-Client Privilege Stemming from Social Media Use[/ref] So extensive were her careless comments that trial judge ruled that she had waived her attorney-client privilege with the EFF, and ordered them to turn over their correspondence with Lenz to UMG.[ref]Federal Court Finds Waiver of Attorney-Client Privilege Stemming from Social Media Use[/ref] The EFF turned over so few documents that UMG filed a motion for contempt of court.[ref]Strange turn in dancing baby vs. Prince case[/ref] The current status of that motion is unknown. The case on appeal has a very unusual posture. The District Court denied both sides' motions for summary judgment, but instead of proceeding to trial, the District Court stayed the proceedings and allowed both sides to appeal,[ref]Lenz at 2-3[/ref] to consider the question: In issuing a DMCA takedown notice, does the complaining party have to consider fair use? The Ninth Circuit has concluded that fair use must be considered in the takedown process. Yet how they got there is incredibly convoluted, and the end result is that it changes next to nothing. Faithful readers of this blog know that fair use is an affirmative defense, for which the defending party bears the burden of proof.[ref]Campbell v. Acuff-Rose Music Inc. 510 U.S. 569 (1994) at page 590[/ref] Here, the Court admits as much, but then tries to twist fair use from an affirmative defense to a protected "right." "Universal's sole textual argument is that fair use is not "authorized by the law" because it is an affirmative defense that excuses otherwise infringing conduct. Universal's interpretation is incorrect as it conflates two different concepts: an affirmative defense that is labeled as such due to the procedural posture of the case, and an affirmative defense that excuses impermissible conduct. Supreme Court precedent squarely supports the conclusion that fair use does not fall into the latter camp: "[A]nyone who ... makes a fair use of the work is not an infringer of the copyright with respect to such use." Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 433, 104 S.Ct. 774, 78 L.Ed.2d 574 (1984)." The problem here is the Supreme Court quote does not really support the point for which it is being cited. In fact, ten years later, the Supreme Court plainly stated just the opposite. "It is uncontested here that 2 Live Crew's song would be an infringement of Acuff–Rose's rights in "Oh, Pretty Woman," under the Copyright Act of 1976, 17 U.S.C. § 106 (1988 ed. and Supp. IV), but for a finding of fair use through parody."[ref]Id. at 574[/ref] Succinctly put, fair use is a classic affirmative defense, a "yes, but." Yes, I copied, but I did it for a good reason which did not really harm you. So, the entire underpinning of the Ninth Circuit's reasoning is just flat out wrong. I don't know how they missed it. The Court cites to the Acuff-Rose in the body of their opinion, but fail to read that rather important passage. I was able to find that quote rather quickly and without the luxury of a law clerk. Now, having wrongly decided that fair use is a "right" and not an affirmative defense, the Court whips out its magic wand and creates out of thin air a brand new "right" that appears nowhere within the text of Section 512(f). "Even if, as Universal urges, fair use is classified as an "affirmative defense," we hold—for the purposes of the DMCA—fair use is uniquely situated in copyright law so as to be treated differently than traditional affirmative defenses. We conclude that because 17 U.S.C. § 107 created a type of non-infringing use, fair use is "authorized by the law" and a copyright holder must consider the existence of fair use before sending a takedown notification under § 512(c)." This is madness. Fair use is a murky concept at best, which defies quick fixes and bright line rules. How is a copyright holder supposed to decide whether any particular use is fair use or not, where there are no guidelines, no bright line rules and every case is different? Secondly, how can the Court properly charge a copyright holder with the responsibility of making a defending party's affirmative defense for them? Perhaps realizing this, the Court quickly backs away from the precipice, and burdens the "consideration of fair use" rule with so many loopholes that it immediately becomes nearly meaningless. First, the Court holds consideration of fair use that the copyright holder must engage in is "subjective," and that the Courts should not second guess it. "If, however, a copyright holder forms a subjective good faith belief the allegedly infringing material does not constitute fair use, we are in no position to dispute the copyright holder's belief even if we would have reached the opposite conclusion."[ref]Lenz at 6[/ref] "In order to comply with the strictures of § 512(c)(3)(A)(v), a copyright holder's consideration of fair use need not be searching or intensive. We follow Rossi's guidance that formation of a subjective good faith belief does not require investigation of the allegedly infringing content."[ref]Id.[/ref] Next, the Court rules that the fair use consideration can be done by automated means, and does not require human review. "We note, without passing judgment, that the implementation of computer algorithms appears to be a valid and good faith middle ground for processing a plethora of content while still meeting the DMCA's requirements to somehow consider fair use. (Citation omitted) (‘The Court ... is unaware of any decision to date that actually addressed the need for human review, and the statute does not specify how belief of infringement may be formed or what knowledge may be chargeable to the notifying entity.')"[ref]Id.[/ref] So, as long as the copyright holder has any basis for determining that the work is infringing and not fair use, that view is subjective and not subject to judicial second guessing. This is not what the EFF wanted. What they wanted was a hard objective standard with respect to legal determinations.[ref]Id. at 5[/ref] In other words, that if someone felt that a use was not fair but was later over-ruled by a Court, that an erroneous or mistaken belief by a copyright owner would create legal liability. The Court called that position "untenable,"[ref]Id.[/ref] and quoted a previous Ninth Circuit decision in the case of Rossi v. Motion Picture Association of America.[ref]391 F.3d 1000 Ninth Circuit Court of Appeal 2004[/ref] "In §512(f), Congress included an expressly limited cause of action for improper infringement notifications, imposing liability only if the copyright owner's notification is a knowing misrepresentation. A copyright owner cannot be liable simply because an unknowing mistake is made, even if the copyright owner acted unreasonably in making the mistake. Rather, there must be a demonstration of some actual knowledge of misrepresentation on the part of the copyright owner."[ref]Id. citing Rossi v. Motion Picture Association of America. 391 F.3d 1000 Ninth Circuit Court of Appeal 2004 at 1004-1005[/ref] The Court did hold that if Lenz ultimately proved to be the prevailing party, that she could seek "nominal damages."[ref]Id. at 7[/ref] As recounted above, Lenz has stated she doesn't care whether her video stays up on YouTube or not, and the EFF is representing her pro bono. The trial court has already ruled that she is eligible to recover only $1,275.00, the value of pre-suit legal advice given by the EFF, and such other items of a minimal amount, such as the cost of electricity for running her computer and her phone bills.[ref]17 USC 512(f) Is Dead-Lenz v. Universal Music[/ref] A drop in the bucket for a case that took eight years to litigate, and is not over yet. The effect of the ruling going forward is likely to be negligible. Jonathan Bailey, who runs the website Plagiarism Today, also runs a service that sends out takedown notices. He states "…relatively small filers such as myself aren't drastically likely to feel any impact. The reason is because we already weigh fair use when filing DMCA notices. Either we're dealing with clear non-fair uses, such as outright piracy, revenge porn or widespread verbatim plagiarism, or cases that can be trivially shown to not be a fair use."[ref]The DMCA, Fair Use and Dancing Babies[/ref] This blog has already recounted that the amount of so called "abusive takedowns," the kind most likely to be affected by this ruling, is miniscule in the face of the hundreds of millions of valid takedowns served annually on Google alone.[ref]Two More Copyright Myths Bite the Dust: The $150,000 Statutory Damages Award and the DMCA as the Enemy of Free Speech[/ref] The Court in Lenz acknowledged this when it stated "[w]e are mindful of the pressing crush of voluminous infringing content that copyright holders face in a digital age," and then expressly approved automated review using computer algorithms.[ref]Lenz at 6[/ref] Again, not much changes. What the case may change are other issues within the DMCA notice and takedown process. This blog has previously criticized Google for denying a takedown request under their belief that the targeted material was fair use.[ref]Google Is As Google Does: How Google Cheats Both Sides of the DMCA Takedown Process[/ref] There is nothing within section 512 that gives them that right. Now it should be clear that since a fair use analysis has already been performed, Google has no right to second guess that analysis, because a reviewing Court cannot second guess the reasoning under the clear terms of this decision. And finally, the need for automated review is due precisely to the "pressing crush of voluminous infringing content" on the internet, a problem made exponentially worse by the "whack-a-mole" problem of continuously having to re-serve takedown notices on the same infringing content. If section 512 were amended to provide for "takedown and stay down" as I have repeatedly advocated on this blog,[ref]DMCA "Takedown" Notices: Why "Takedown" Should Become "Take Down and Stay Down" and Why It's Good for Everyone[/ref] the number of faulty takedown notices would be greatly reduced. So let's NOT go crazy here. Very little has changed.

In a significant ruling on the boundaries of fair use, on August 25, 2015, District Court Judge Alvin K. Hellerstein in the Southern District of New York has ruled against three affirmative defenses raised in a suit brought by Fox News Network against TVEyes, Inc.[ref]Fox News Network, LLC, v. TVEyes, Inc. United States District Court for the Southern District of New York 2015 WL 5025274[/ref] This blog has written about the TVEyes case before.[ref]Copyright Blog Update: Court of Appeals Rejects "Transformative Use" Test & Malibu Media Marches Along[/ref] TVEyes is a video indexer. It offers, for a fee, searchable segments of television shows. It uses the closed-captioning function to create a searchable database where one can search for how many times, and in what context, certain words and phrases occur in television shows. To this end, it records all of the content on more than 1,400 television and radio stations.[ref]Fox News Network, LLC, v. TVEyes, Inc. at 1[/ref] One of these stations is the Fox News Network. A subscriber can not only obtain a transcript of the segment of the show selected, he/she can also see a copy of the original video in which the usage occurred. TVEyes is definitely a "for profit" enterprise and has 22,000 subscribers.[ref]Id.[/ref] It is not available to the general public.[ref]Id.[/ref] Fox felt that TVEyes was unfairly using its copyrighted content in a way which harmed the market for clips shown on Fox News' own website.[ref]Id.[/ref] "[L]ive online streams of FNC and FBN are available to viewers with cable or satellite subscriptions through Fox's TVAnywhere platform for authenticated streaming. In addition, Fox makes a limited number of video clips available on its websites, FoxNews.com and FoxBusiness.com, although the amount of content is sharply limited by Fox's contracts with the cable companies. Currently, only about 16% of broadcast content is available on Fox's website. Fox receives advertising revenue when viewers watch videos on its websites, including revenue from banner advertisements on the page itself, and from "pre-reel" advertisements that play before a video clip begins. Fox also has agreements with syndication partners, including Yahoo!, Hulu, and YouTube… [a]nd Fox licenses its video clips to clients, including companies, journalists, and politicians, through its agents, ITN Source and Executive Interviews."[ref]Id. at 2[/ref] The Court had initially ruled in favor of TVEyes on whether the indexing was fair use.[ref]Fox News Network, LLC, v. TVEyes, Inc. 43 F.Supp 3d 379 Southern District of New York 2014[/ref] It concluded that, like the Hathi Trust case, where Google created searchable databases of books, that the use by TVEyes in performing a similar function was "transformative" and thus fair use.[ref]Id.[/ref] The Court did however, reserve ruling on four points of TVEyes operations:[ref]Fox News Network, LLC, v. TVEyes, Inc. (2015) at 1[/ref]

• Allowing subscribers to "archive" segments on TVEyes' servers indefinitely
• Allowing subscribers to provide links to video content to non-subscribers of TVEyes
• Allowing searches by date and time, rather than keywords
• Allowing subscribers to download to their own computers' video segments free of restrictions

  Archiving Under normal practice, TVEyes deletes video segments from its servers after 32 days, obviously to free up server space. If a subscriber so elects, a video segment may be "archived" so that it can be viewable again, and this archive can be stored indefinitely.[ref]Id. at 2[/ref] The archived segments are stored on TVEyes' servers and are not downloaded to subscriber servers.[ref]Id. at 5[/ref] This is an important distinction we will discuss later. The Court ruled that this was fair use. It found that the archiving function was an "integral" part of TVEyes service, allowing a subscriber to analyze, for example, whether a news outlet's coverage of a story changed over time.[ref]Id. at 5[/ref] If the video segment was deleted after 32 days, then this comparison would be impossible. It also found that Fox News has failed to identify "any actual or potential market harm arising from archiving."[ref]Id. at 5[/ref] Live Linking The Court was not so accepting of the live linking aspect of TVEyes' service. Any video segment, archived or not, enabled subscribers to provide a link to that material to virtually anyone, a link which totally bypassed TVEyes' log-in requirements. In other words, it was a public link that anyone could use. And since the link was "live" to the subscriber, and not stored on TVEyes' servers, the link could be passed around indefinitely. While TVEyes argued that there were advantageous uses to the live link function, it admitted that the function was not "integral" to its service in the same manner as the achieving function. The Court ruled against TVEyes and found that this function was not fair use. It ruled: "If TVEyes cannot prevent indiscriminate sharing, it risks becoming a substitute for Fox's own website, thereby depriving Fox of advertising revenue."[ref]Id. at 6[/ref] "TVEyes has the burden to show fair use. (citation omitted) It must develop protocols to reasonably assure that, when subscribers share video clips, they do so consistent with § 107. Until the development of reasonable and adequate protections and a satisfactory showing thereof, TVEyes' e-mailing function cannot be considered fair use."[ref]Id. at 6[/ref] Date and Time Search Function TVEyes argued that the search by date and time function provided a "necessary compliment" to its search function, since the closed captioning is frequently bedeviled by homophones and misspellings (e.g. "Ted Crews" instead of "Ted Cruz").[ref]Id. at 7[/ref] The Court was not swayed by this argument, noting that a date and time search function would correct for misspellings if and only if the subscriber knew exactly what they were looking for, in which case they could easily get the clip from Fox.[ref]Id. at 7[/ref] "In such cases, TVEyes is not so transformational, since users should be able to procure the desired clip from Fox News or its licensing agents, albeit for a fee."[ref]Id.[/ref] "Unlike TVEyes' core business, its "Date–Time search" function duplicates Fox's existing functionality. Fox's contention that TVEyes' Date–Time search is likely to cannibalize Fox News website traffic and sales by its licensing agents is persuasive. TVEyes ‘bears the burden of showing an absence of usurpation harm' to Fox News. (citation omitted) I cannot say that it has carried its burden."[ref]Id.[/ref] Downloading TVEyes contended that the downloading function was "absolutely critical in these respects:"[ref]Id.[/ref]

• Allowed for access where the internet is not available
• Easily transfer clips between devices
• Improves efficiency by allowing files to be grouped in to folders, which existing TVEyes platform cannot

To which the Court responded:[ref]Id.[/ref]

• You're kidding, right? The internet is everywhere.
• Different devices can easily access the material on TVEyes servers either by internet or wireless data networks
• Improve your software and platform instead of making infringing copies

To quote the Court: "I believe that TVEyes' downloading function goes well beyond TVEyes' transformative services of searching and indexing… TVEyes is transformative because it allows users to search and monitor television news. Allowing them also to download unlimited clips to keep forever and distribute freely may be an attractive feature but it is not essential. Downloading also is not sufficiently related to the functions that make TVEyes valuable to the public, and poses undue danger to content-owners' copyrights."[ref]Id.[/ref] "Convenience alone is not ground for finding fair use."[ref]Id.[/ref] The Electronic Frontier Foundation blasted the ruling in a three page diatribe on its website.[ref]TVEyes Wide Shut: Ruling on Broadcast Archiving Service Undermines Fair Use[/ref] Most likely the EFF felt a tad bruised by the ruling since they had filed a friend of the Court brief in this case. The Judge obviously found the EFF legal theories non-persuasive or just plain wrong, since the Judge never once mentioned the amicus curiae brief in his opinion. An analysis of their blog post will demonstrate why the Judge was correct to ignore the position of the EFF, which relies on material omissions of law and fact, loopy logic and of course, since this is the EFF, fear mongering. Fair Use is an Affirmative Defense The Court on several occasions reminds the reader that fair use is an affirmative defense.[ref]Fox News Network, LLC, v. TVEyes, Inc. (2015) at 2[/ref] As an affirmative defense, TVEyes bears the burden of proof, not Fox News. This is the most important legal principle in this case, but it is never mentioned, not even once, in the EFF Blog post. Fair Use is a Balancing Test in Which No One Factor Trumps the Other Just in case you are new to this blog, any fair use analysis requires the consideration of four factors (the rest of you can skip the bullet points). They are:

• The purpose and character of the use, including whether the use is "transformative," or "why is this being used"
• The nature of the work used, or "what is being used"
• The amount and substantiality of the taking or "how much and how important is the portion used"
• Negative impact on the market for the work or "has money been lost"

The purpose and character of the use is to index Fox News reporting so that it can be analyzed by third parties. The Judge found that the search function resulted in a "transformative use" and that this factor weighed in favor of TVEyes. This is the only factor discussed in detail by the EFF, and yet they act as if "transformative use" trumps all other considerations, which is not an accurate statement of the law. The EFF states: "[I]f TVEyes' original capture and storage of the video is fair use (as the court already found), and the downloaded copy is being used for exactly what the court considered to be fair…"[ref]TVEyes Wide Shut: Ruling on Broadcast Archiving Service Undermines Fair Use[/ref] "[U]sing a tool like TVEyes to access it does not change the underlying purpose of criticizing and analyzing the media."[ref]Id.[/ref] Again, Courts have ruled time and time again that a useful purpose is not a trump card.[ref]Cambridge University Press v. Patton, 2014 WL 5303007[/ref] Fair use is a balancing test. One must consider all the factors, not just the purpose of the use,[ref]Cambridge University Press v. Patton, 2014 WL 5303007[/ref] an analysis the EFF never mentions nor performs. If the downloading has the potential to harm the market for Fox News licensing the work itself, the market harm may outweigh the benefit of the supposed "transformative" use. Which is precisely what the Judge ruled and the EFF virtually ignores. The EFF never discuss the nature of the work used, the fact that TVEyes captures all of Fox News broadcasts, or the fact that on several points, TVEyes failed to carry its burden of proof as to negative market effect. TVEyes is a Direct Infringer, not a Contributory Infringer, Part I Time for loopy logic. The EFF states: "Sharing a link, in and of itself, is not an infringement, because it's not a reproduction, distribution, or performance of any work. If anything, the ability to share a link might be seen as either (1) contributory infringement or (2) inducement of infringement, if someone later used that link to make a non-fair, unlicensed use of the video. Fox didn't even raise a claim for contributory infringement or inducement, much less prove one."[ref]Id.[/ref] The EFF once against ignores the point that fair use is an affirmative defense, for which TVEyes, not Fox bears the burden of proof.[ref]Fox News Network, LLC, v. TVEyes, Inc. (2015) at 2[/ref] Fox did not plead contributory infringement because TVEyes is a direct infringer, not a contributory infringer. Sharing a link with another person is not an act of infringement unless the person has reason to know that the link goes to infringing material.[ref]17 USC 512(d)(1)[/ref] It is not the act of TVEyes allowing the link to be publicly distributed that is an act infringement , it's that TVEyes streams the clip to anyone of the general public that has the link which is the infringing act. In short, TVEyes is now Grooveshark.[ref]Grooveshark Is Now Deadshark: How an Illegal Streaming Service Hid Behind the DMCA for Nearly 10 Years[/ref] They are streaming to the public, on demand, copyrighted material for which they have no permission to copy or license to perform. This is direct infringement. TVEyes competes with and acts as a market replacement for Fox's own news clip service on their website and other platforms. Just as the Judge ruled: "If TVEyes cannot prevent indiscriminate sharing, it risks becoming a substitute for Fox's own website, thereby depriving Fox of advertising revenue."[ref]Id. at 6[/ref] The solution is rather simple, and not as the EFF suggests that the Judge demands that TVEyes become a "copyright cop" and "do the impossible."[ref]TVEyes Wide Shut: Ruling on Broadcast Archiving Service Undermines Fair Use[/ref] Simply disable the download function and make all streaming links go to a login wall. For example, I recently tried to trace a link to my blog back to the referring website, only to land on a login wall that asked for my username and password. Seems simple enough. TVEyes is a Direct Infringer, not a Contributory Infringer, Part II Time for more loopy logic with a little fear-mongering thrown in for good measure. The EFF argues: "[A]s there are obvious "substantial non-infringing uses" of the link—the court itself recognized that—so linking falls squarely into the Supreme Court's Sony Betamax doctrine, making any claim for contributory infringement a non-starter. The rule that creating a tool with substantial non-infringing uses doesn't give rise to contributory infringement has been a bedrock of innovation. Besides the videocassette recorder that was the subject of the Sony Betamax case, it's quite likely that the iPod, the digital video recorder, and many vital Internet applications would not have been brought to market without it. That's why ignoring the Sony Betamax rule in this case is very concerning."[ref]TVEyes Wide Shut: Ruling on Broadcast Archiving Service Undermines Fair Use[/ref] Ah, yes, the tried and true barrier to "innovation" that would prevent "the iPod, the digital video recorder, and many vital Internet applications" which is "concerning" and later "alarming" and even later "dangerous." This of course ignores the fact that the iPod was a success precisely because it was launched with the iTunes service, which ahead of time properly and legally licensed millions of musical compositions and sound recordings for use on the iPod. It also ignores the fact that TVEyes is not "innovative." It is no more innovative than any other searchable database is "innovative," like my email inbox. But I digress. The TVEyes case does not "fall squarely" into the Betamax case, nor is it as the EFF suggests later, akin to the Grokster case, because this is a case of direct infringement, not contributory infringement nor inducing infringement. Sony was not making the infringing copies, third parties who used the Betamax machine were. Grokster was not making the infringing copies, third parties using their P2P software were. So, theories of liability for third party actions raise the issue of contributory and inducing infringement, and have nothing to do with direct infringement. TVEyes is the one making the copies here, all without permission or license from Fox News. TVEyes is making the clips available via streaming and downloading to the general public, provided one has the link, and the resulting copy can be freely redistributed.[ref]Fox News Network, LLC, v. TVEyes, Inc. (2015) at 6[/ref] In other words, they are now the Pirate Bay. TYEyes avoids direct liability by raising the affirmative defense of fair use, for which again, (all together now) TVEyes bears the burden of proof. They failed to do so. The Court ruled: "Downloading … is not sufficiently related to the functions that make TVEyes valuable to the public, and poses undue danger to content-owners' copyrights."[ref]Id. at 7[/ref] Sorry, TVEyes, but the "eyes" do not have it.