ICYMI: Joseph A. Tomain, Indiana University Maurer School of Law, has published Big Data and the Fourth Estate: Protecting the Development of News Media Monitoring at 12 J. Bus. and Tech L. 53 (2016). Here is the abstract.
“Big data” is revolutionizing our lives and society. While big data fuels our information economy, it also raises privacy concerns in a variety of contexts including, but not limited to, political, consumer, student, law enforcement and national security. Big data proponents commonly state that privacy concerns should not warrant legal restrictions that prohibit the development of new tools and uses of big data because regulation could stunt the growth of technology and the information economy itself, especially when actual privacy harms have not been established. Some big data developments, however, do not involve privacy concerns, such as news media monitoring databases that collect and make available previously published and widely-disseminated news programming through a searchable database. Even though news media monitoring databases do not raise privacy concerns, there is significant opposition to such databases, as the ongoing case of Fox News Network, LLC v. TVEyes, Inc. illustrates. In TVEyes, several amici filed briefs in support of Fox’s copyright infringement claims against TVEyes, a news media monitoring database, including CNN, the National Association of Broadcasters, the National Cable and Telecommunications Association, and the National Press Photographers Association. On the other hand, several organizations have filed briefs in support of TVEyes’ news media monitoring services, such as the Computer and Communications Industry Association, the American Library Association, the Electronic Frontier Foundation, and Brave New Films. This Essay does not seek to resolve all of the specific disputes in TVEyes. Instead, this Essay has two purposes. One purpose is to emphasize that courts should be hesitant to deny the fair use rights of news media database creators because of the public benefits that these databases provide by making transformative uses of news content. Courts should be even more hesitant to deny the fair use rights of news media database creators when allegations of substitution market harm by copyright holders is speculative. Indeed, big data advocates urge caution against regulation when confronted with unproven privacy harms because such regulation could unnecessarily hinder technological development and the information economy. Such caution should be exercised when courts are confronted with unproven economic harm to news media outlets that seek to stunt the development of news media monitoring databases through the use of copyright infringement claims. The other purpose of this Essay is to provide preliminary thoughts on the role that the First Amendment should play when courts analyze the competing interests of copyright holders on the one hand, and creators and users of news media monitoring databases on the other. Thus, after providing background on the TVEyes case, two legal considerations are explored.