mercial nature of TVEyes’ enterprise.
Fox also challenged TVEyes’ nature-of-the-work theory because its system
was copying and displaying creative expression from the Fox programs. It was
not just extracting facts or assertions
about facts from the programs.
The amount of TVEyes’ copying for
its watch-related functions was, moreover, more extensive than Google’s. To
avoid undercutting copyright markets,
Google showed no more than three
small snippets of text from books in
response to search requests. It had,
moreover, technologically restricted
access to expressive contents beyond
what was necessary to assess the relevance of information. TVEyes, by contrast, allowed customers to watch as
many video clips as they wanted and to
watch up to 10 minutes per clip.
Fox’s main harm argument was
that TVEyes was usurping a valuable
licensing market opportunity for Fox.
To show this was not just a hypothetical market, Fox offered evidence of
revenues it had derived from licensing of other video-clipping services.
TVEyes argued that its uses of Fox
news programs were “transformative”
because they were for a different purpose
than Fox’s uses. (That is, TVEyes was using Fox contents for information-locat-ing purposes, whereas Fox was providing
news for its customers to consume.) It
pointed to the Second Circuit’s Google
decision holding that copying 20 million
books for Google’s Book Search project
was transformative because it had a different purpose. Transformative uses are
more likely than non-transformative
(that is, consumptive) uses to be fair.
Moreover, TVEyes was enabling its customers to do research and news analysis,
both of which are favored uses under the
fair use provision of U.S. copyright law.
TVEyes argued that the factual nature of Fox news programs tipped the
nature-of-the-use factor in favor of fair
use. After all, numerous cases have
found that fact-intensive works enjoy a
narrower scope of copyright protection
and a broader scope of fair use.
While the amount of copying in
TVEyes was unquestionably extensive,
so was the quantity of copying in the
Google case. Yet, the Second Circuit
ruled that Google’s copying of 20 million books to index their contents was
reasonable in light of its transformative
purpose, and so TVEyes could credibly
say its use was similarly reasonable.
TVEyes argued that Fox had not suffered harm because the video clips its
customers made (85% of which lasted
less than one minute) were not substitutes for Fox programs. Second Circuit
cases have held that copyright owners
are not entitled to control all transformative use markets. Only if the challenged use would supplant demand for
the original should a use be deemed
unfair. People have not stopped watching Fox news due to TVEyes’ service.
Fox’s Arguments Against Fair Use
Fox disputed TVEyes’ assertion that
its purpose in using Fox programs was
transformative. The Fox video clips TVEyes was serving up to its customers
had exactly the same content as when
the programs were initially televised.
The non-transformative nature of the
use cut against fair use, as did the com-