responsive to the user’s search.”[1] And it then goes on to say:
“TVEyes’s copying of Fox’s content for use in the Watch function is similarly transformative insofar as it enables users to isolate, from an ocean of programming, material that is responsive to their interests and needs, and to access that material with targeted precision. It enables nearly instant access to a subset of material–and to information about the material–that would otherwise be irretrievable, or else retrievable only through prohibitively inconvenient or inefficient means.”[2]
But, as the majority itself wrote earlier, it is the Search function that enables users to identify the desired fish in the ocean, not the Watch function. What the Watch function does is to enable instant access to digital recordings of Fox’s content that have been identified by the Search function. And the majority’s justification for concluding that the Watch function is “somewhat transformative” is that it “improve[s] the efficiency of delivering content.”[3]
2. I am inclined to reject the idea that enhancing the efficiency with which copies of copyrighted material are delivered to secondary issuers, in the context in which the Watch function does so, is transformative.
The concept of transformation is a relatively recent addition to copyright jurisprudence, but its antecedents have been around for a long time.
In 1841, Justice Story said that “no one can doubt that a reviewer may fairly cite largely from the original work, if his design be really and truly to use the passages for the purposes of fair and reasonable criticism,” but use that “supersede[s] the original work” is not fair.[4] Building on that idea, Judge Leval’s landmark article, which later was adopted substantially by the Supreme Court in the Pretty Woman case,[5] said:
“I believe the answer to the question of justification turns primarily on whether, and to what extent, the challenged use is transformative. The use must be productive and must employ the quoted matter in a different manner or for a different purpose from the original. A quotation of copyrighted material that merely repackages or republishes the original is unlikely to pass the test; in Justice Story’s words, it would merely ‘supersede the objects’ of the original. If on the
