THE ECHO OF AMERICAN FAIR USE AND ITS BOUNDARIES IN THE EUROPEAN UNION AND ITALY: A COMPARATIVE ANALYSIS IN THE WAKE OF THE FOX NEWS VICTORY OVER TVEYES

Alessandra Tarissi De Jacobis*

After a long copyright lawsuit that began in 2013, on January 18, 2019, Fox News informed the Second Circuit that it had reached a settlement agreement with TVEyes, pursuant to which TVEyes is no longer permitted to transmit copyrighted material from Fox News. TVEyes is a media monitoring service that records programming from over 1,400 television and radio stations and compiles the recorded programs into text-searchable databases. For a fee, TVEyes subscribers could not only search the database by keyword or date and time, but also watch, archive, download, and email the up to ten-minute-long clips.

In 2013, Fox News sued TVEyes for copyright infringement. While the District Court seemed to favor TVEyes’ defense—holding that most of TVEyes’ functions were protected by fair use—the Second Circuit reversed this decision and held that TVEyes’ services did not constitute fair use because, even if the use was somewhat "transformative," the impact on Fox News’s potential revenues was significant.¹ The Second Circuit held in Fox News Network, LLC v. TVEyes, Inc. that TVEyes’ news monitoring functions, other than the archiving of video clips, do not constitute fair use of Fox News’s broadcasts and thus infringe Fox News’ copyright.² TVEyes sought to appeal this decision to the U.S. Supreme Court, but the Supreme Court denied TVEyes’ petition for a writ of certiorari,³ leading the parties to settle. The settlement was reached almost one year after the Second Circuit’s decision.

This case provides an opportunity to explore the boundaries of fair use and to compare the fair use doctrine, as developed in the U.S., with certain exceptions to and limitations on an author’s exclusive rights under the laws of the European Union (EU) and Italy.