other hand, the secondary use adds value to the original – if the quoted matters is used as raw material, transformed in the creation of new information, new aesthetics, new insights and understandings – this is the very type of activity that the fair use doctrine intends to protect for the enrichment of society.
Transformative uses may include criticizing the quoted work, exposing the character of the original author, proving a fact, or summarizing an idea argued in the original in order to defend or rebut it. They may also include parody, symbolism, aesthetic declarations, and innumerable other uses.”[1]
Even on the majority’s view that TVEyes’ Watch function substantially improves the efficiency with which TVEyes customers can access Fox copyrighted broadcasts of possible interest, it does no more than repackage and deliver the original works. It adds no new information, no new aesthetics, and no new insights or understandings. I therefore doubt that it is transformative. Indeed, I regard Infinity Broadcast Corp. v. Kirkwood as having settled the question whether a use is transformative simply because it is more efficient or convenient than what preceded it.[2]
In that case, the defendant, Kirkwood, offered a service through which a Kirkwood customer, regardless of its physical location, could dial a Kirkwood device over a phone line, tune to the radio station of its choice in any of the nation’s 10 largest radio markets, and listen to the broadcast of its chosen station. Kirkwood marketed the service to “radio stations, advertisers, talent scouts, and others” for purposes such as “auditioning on-air talent, verifying the broadcast of commercials, and listing to a station’s programming format and feel.”[3] No doubt Kirkwood’s service was convenient and efficiency-enhancing. It enabled interested clients who, by reason of distance, could not receive the radio stations of interest to them to (a) access those stations through Kirkwood, (b) listen to their broadcasts over telephone lines and (c) do so for reasons that, at least in many cases, had nothing to do with the purposes for which local listeners tuned their radios to their stations of choice. Nevertheless, this Court rejected Kirkwood’s fair use defense, stating that there was a “total absence of transformativeness” in Kirkwood’s retransmission of the broadcasts.[4] And the Watch function at issue here is essentially indistinguishable in principle.
- ↑ Pierre N. Leval, Toward a Standard of Fair Use, 103 Harv. L. Rev. 1105, 1111 (1990).
- ↑ 150 F.3d 104 (2d Cir. 1998).
- ↑ Id. at 106 (internal quotation marks omitted).
- ↑ Id. at 109.
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