The Internet Archive, joined by the American Library Association, the Association of College and Research Libraries, the Association of Research Libraries, and the Society of American Archivists filed an amicus brief in Fox v. TVEyes on March 23, 2016. In the brief, the Internet Archive and its partners urge the court to issue a decision that will support rather than hinder the development of comprehensive archives of television broadcasts.
The case involves a copyright dispute between Fox News and TVEyes, a service that records all content broadcast by more than 1,400 television and radio stations and transforms the content into a searchable database for its subscribers. Fox News sued TVEyes in 2013, alleging that the service violates its copyright. TVEyes asserted that its use of Fox News content is protected by fair use.
Drawing on the Internet Archive’s experience with its TV News Archive and Political TV Ad Archive, the friend-of-the-court brief highlights the public benefits that flow from archiving and making television content available for public access. “The TV News Archive allows the public to view previously aired broadcasts–as they actually went out over the air–to evaluate and understand statements made by public officials, members of the news media, advertising sponsors, and others, encouraging public discourse and political accountability,” said Roger Macdonald, Director of the TV Archive.
Moreover, creating digital databases of television content allows aggregated information about the broadcasts themselves to come to light, unlocking researchers’ ability to process, mine, and analyze media content as data. “Like library collections of books and newspapers, television archives like the TV News Archive and the Political TV Ad Archive allow anyone to thoughtfully assess content from these influential media, enhancing the work of journalists, scholars, teachers, librarians, civic organizations, and other engaged citizens,” said Tomasz Barczyk, a Berkeley Law student from the Samuelson Law, Technology & Public Policy Clinic who helped author the brief.
The brief also explains the importance of fostering a robust community of archiving organizations. Because television broadcasts are ephemeral, content is easily lost if efforts are not made to preserve it systematically. In fact, a number of historically and culturally significant broadcasts have already been lost, from BBC news coverage of 9/11 to early episodes of Doctor Who. Archiving services prevent this disappearance by collecting, indexing, and preserving broadcast content for future public access.
A decision in this case against fair use would chill these services and could result in the loss of significant cultural resources. “This is an important case for the future of digital archives,” explained William Binkley, the other student attorney who worked on the brief. “If the court rules against TVEyes, there’s a real risk it could discourage efforts by non-profits to create searchable databases of television clips. That would deprive researchers and the general public of a tremendously valuable source of knowledge.”
The Internet Archive would like to thank Tomasz Barczyk, William Binkley, and Brianna Schofield from the Samuelson Law, Technology & Public Policy Clinic at Berkeley Law for helping to introduce an important library perspective as the Second Circuit court considers this case with important cultural implications.
A ruling against TVEyes would be like removing all the old newspaper coverage of the Civil War, the assassinations of several US Presidents, and coverage of both World Wars. This would be a terrible loss to history. As George Santayana once said, “Those who cannot remember the past are condemned to repeat it.”