• by Wendy Davis  @wendyndavis, August 25, 2015

Handing television monitoring company TVEyes a partial defeat, a federal judge ruled on Tuesday that the service infringes copyright by letting its subscribers download clips.

But U.S. District Court Judge Alvin Hellerstein in Manhattan also said in Tuesday's ruing that other components of the company's service are protected by fair use principles. 

The ruling stemmed from a 2013 lawsuit filed by Fox News Network against TVEyes, a $500-a-month television monitoring service that enables subscribers to search for television programs by keywords, view snippets and download and share clips.

Hellerstein previously decided that TVEyes makes fair use of Fox News Network's material by indexing news clips and providing snippets of them to subscribers. He said in that earlier ruling that the indexing and clipping service was “transformative,” and therefore a fair use, because it serves a different function from the original broadcasts.

“The White House uses TVEyes to evaluate news stories and give feedback to the press corps,” Hellerstein wrote at the time. “The United States Army uses TVEyes to track media coverage of military operations in remote locations, to ensure national security and the safety of American troops.”

But that decision left open whether TVEyes also can let users download and share clips.

Hellerstein said on Tuesday that the company's downloading feature "goes well beyond TVEyes' transformative services of searching and indexing." He added: "TVEyes claims that downloading is 'absolutely critical' because it allows for offline use, but very few remaining locations in the United States lack internet connectivity by modem, broadband, or wireless access."

The judge issued a more mixed ruling about TVEyes' emailing functions, which enable users to send other people links to clips. He generally endorsed the concept that subscribers should be able to send clips, but also said there was "substantial potential for abuse."

"Congressional staffers share video clips among themselves; Congressmen share with members of Committees and caucuses; lawyers share with clients, etc. To prohibit e-mailing of videos would prevent relevant information from reaching the critical party," he wrote.

But, he added: "In its current incarnation, TVEyes' e-mailing feature cannot discriminate between sharing with a boss and sharing with a friend, nor between sharing for inclusion in a study and sharing a clip for inclusion in a client sales pitch. Fair use cannot be found unless TVEyes develops necessary protections."