STEPHEN L. CARTER: The Easy Way to Avoid Copyright Infringement: Pay.

It pains me to disagree with my friends who fight for free speech online, but I think the U.S. Court of Appeals for the 2nd Circuit was correct in holding that a part of TVEyes Inc.’s business model violates copyright law. TVEyes has developed a text-searchable database of all television programming. Its clients can quickly and easily find out when and how often particular words or phrases have been used in broadcasts, and then watch short clips to show the context. This week, in Fox News Network v. TVEyes Inc., the 2nd Circuit banned the part of the service that involves the clips.

Back when I taught copyright law, I would tell my students that every accused infringer claims fair use — and as long as the infringement doesn’t cost the owner significant potential profits, the defendant has a good chance to prevail. Attending to that bit of wisdom, common to intellectual property teachers everywhere, would have helped TVEyes with avoiding copyright liability for its innovative project.

If you haven’t heard of TVEyes, you’re probably not in the news, entertainment or public relations businesses. The service isn’t available to individual consumers, and those who don’t need it are unlikely to know of its existence. But if you’ve ever read a sentence like “MSNBC discussed the issue 116 times last week while Fox News didn’t mention it at all,” the chances are somebody’s been browsing TVEyes.

He’s right. But it’s also true that copyright law protects too much, and for too long. The entire statute needs a reboot. Here’s a related piece that Rob Merges and I wrote a while back.