Id.
In fair use litigation, courts undertake a “case‐by‐case analysis” in which each factor is considered, “and the results [are] weighed together, in light of the purposes of copyright.” Campbell v. Acuff‐Rose Music, Inc., 510 U.S. 569, 577–78 (1994). The factors are non‐exclusive, but consideration of each is mandatory.[1] Swatch Grp. Mgmt. Servs. Ltd. v. Bloomberg L.P., 756 F.3d 73, 81 (2d Cir. 2014). Some of the factors are more important than others, with the fourth (market impact) being “the single most important element.” Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 566 (1985). Fair use is an affirmative defense, so TVEyes bears the burden of proving it. Am. Geophysical Union v. Texaco, Inc., 60 F.3d 913, 918 (2d Cir. 1994).
It is useful to analyze separately distinct functions of the secondary use (i.e., the use by TVEyes of Fox’s copyrighted material), considering whether each independent function is a fair use. See Google Books, 804 F.3d at 216–18. TVEyes has two core offerings: the “Search function” and the “Watch function.” The Search function allows clients to identify videos that contain keywords of interest. The Watch function allows TVEyes clients to view up to ten‐minute, unaltered video clips of copyrighted content. Fox does not challenge the Search function on appeal. Fox’s challenge is to the Watch function, and we determine that its inclusion renders TVEyes’s package of services unprotected by the fair use doctrine. That conclusion subsumes and obviates consideration of certain functions that are subsidiary to the Watch function, such as archiving, downloading, and emailing the video clips.
Turning to the Watch function, we next consider each of the four factors listed in § 107.
- ↑ Pace Judge Kaplan’s argument that our discussion of transformative use (which is integral to the first statutory factor) should be omitted from the fair‐use analysis‐‐or be deemed dicta. Whether the majority opinion’s discussion “may contribute to confusion and uncertainty” (Concurring Op. at 3) is not for me to say.
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