payment or license. Having weighed the required factors, we conclude that the balance strongly favors Fox and defeats the defense of fair use.
III
TVEyes challenges the district court’s conclusion that it is liable to Fox under a theory of direct copyright infringement.[1] A direct infringer exercises “volitional conduct” to make the infringing copy. Cartoon Network LP, LLLP v. CSC Holdings, Inc. (“Cablevision”), 536 F.3d 121, 131 (2d Cir. 2008). The conduct at issue in Cablevision was non‐volitional; however, it bears no resemblance to what TVEyes does. The Cablevision defendant provided a remote DVR service similar to the recording capability of a DVR in a television viewer’s home. Unless the subscriber chose to record a program, it remained on the defendant’s server for no more than .1 second. See id. at 124–25. By contrast, TVEyes decides what audiovisual content to record, copies that content, and retains it for thirty‐two days. And this copying, at least to the extent that it is done to enable the Watch function, is an infringement. Volitional conduct that infringes is clear.
IV
The district court issued a permanent injunction prohibiting TVEyes from enabling its clients to download clips of Fox’s programming or to search for such clips by date and time; the court also imposed restrictions on TVEyes’s enabling of its clients to email clips or to post them to social media sites. We review the issuance of a permanent injunction “for abuse of discretion, which may be found where the Court, in issuing the injunction, relied on … an error of law.” S.C. Johnson & Son, Inc. v. Clorox Co., 241 F.3d 232, 237 (2d Cir. 2001) (quoting Knox v. Salinas, 193 F.3d 123, 128–29 (2d Cir. 1999) (per curiam)).
- ↑ A party that has not committed direct copyright infringement may still be liable under the doctrine of contributory infringement, which allows a defendant to be held liable for infringing acts of third parties. See Sony, 464 U.S. at 435; Arista Records, LLC v. Doe 3, 604 F.3d 110, 117–18 (2d Cir. 2010). Fox asserted liability only on the ground of direct infringement, so we do not consider contributory infringement.
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