It’s FOX News, But Is It Hot News?
Fox News has a new enemy in its sights, and this one is not named Barack Obama. It’s TVEyes, an online subscription service that allows subscribers to search keywords to determine if they have been mentioned on any of more than 1600 television and radio stations around the country. TVEyes archives and indexes content from all of those outlets, and subscribers can watch excerpts to see what’s been said about them (or shouted depending on the Fox News host in question).
Fox filed suit in a New York federal court to stop TVEyes from using any Fox News content. According to Fox, TVEyes adds no commentary or other content to the excerpts, and “free rides” on the efforts of Fox, who are the ones who gather and produce the information. This conduct violates the “hot news” doctrine – a nearly century old concept that protects a news organization’s content from being used by another organization.
The “hot news” doctrine originated in a case where a competitor of the Associate Press was able to obtain AP stories and get them to parts of the country faster than the AP. The court ruled that the competitor could not steal AP’s product (which was essentially breaking news) and distribute it as its own.
But TVEyes says it provides its own proprietary spin to the content – through its indexing and archiving technology. According to its motion to dismiss, Fox can’t satisfy the “hot” part of “hot news” because in many cases, the content is not “breaking news” at all – it’s after the fact commentary. According to TVEyes, its service merely alerts its subscribers to “the fact” that they’ve been mentioned in a particular news segment – whether that’s Fox or some other channel. The use of the term “the fact” is not an accident. “Facts” can’t be copyrighted. I can freely report, with great sadness, the fact that the Reds lost Sunday 4-2 to the Pirates. No one “owns” the copyright to that fact.
Fox of course, contends that TVEyes is not merely reporting a fact, it is displaying excerpts of content created by Fox. And according to Fox that is quite different from merely compiling a directory of occasions where a subscriber is mentioned. And Fox disputes the argument that TVEyes offers a different product than Fox, because, like TVEyes, Fox archives and licenses its own content. So TVEyes subscribers can avoid paying Fox for its content.
In some respects, this case has a “bet the company” feel for both sides. We’ll see soon enough how the court rules. That will be “hot news” indeed.