II
In view of the majority’s expression of its opinion that the Watch function is “somewhat transformative,” I feel compelled to express my own doubts regarding that conclusion.
1. The majority’s opinion begins its analysis by observing, correctly in my view, that “[i]t 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.”[1] It then turns to the distinction between the Search function and the Watch function. The Search function “allows clients to identify videos that contain keywords of interest”[2] – it “enables users to isolate, from an ocean of programming, material that is responsive to their interests.”[3] The Watch function, in contrast, “allows TVEyes clients to view up to ten-minute, unaltered video clips of copyrighted content.”[4] In short, the Search function, which is not challenged here, is simply a vehicle that locates Fox’s copyrighted works among other works of interest – it finds the desired species of fish in the majority’s metaphorical sea. But the Watch function then catches those fish and delivers them to the fishmonger’s stall where TVEyes lays them unchanged (one might say untransformed) on cracked ice for the inspection of its patrons.
Metaphor aside, the majority then proceeds to “test the Watch function, considering each of the four [fair use] factors.”[5] It describes our decision in Google Books,[6] noting that we there “held that the ‘snippet view’ of unaltered, copyrighted text ‘add[ed] important value to the basic transformative search function’ by allowing users to verify that the list of books returned by the database was
- ↑ Op. at 13:9-11. See also Craft v. Kobler, 667 F. Supp. 120, 128 (S.D.N.Y. 1987) (Leval, J.) (“In assessing claims of fair use, we must consider the number, size and importance of appropriated passages, as well as their individual justifications.” (emphasis added)); 4 William N. Patry, Patry on Copyright § 10.13, at 10-47 to 10-49 (2012).
- ↑ Op. at 13:13-14 (emphasis in original).
- ↑ Id. at 16:7-9.
- ↑ Id. at 13:14-15 (emphasis in original).
- ↑ Id. at 14:4-5.
- ↑ Authors Guild v. Google, Inc., 804 F.3d 202 (2d Cir. 2015) (hereinafter “Google Books”).
