the course of this litigation to stop users from watching consecutive clips.[1] Given the posture of this case – review of a summary judgment decision adverse to Fox on this point – we must view the facts presented by Fox as true and therefore base our decision on the premise that users may access all of Fox’s content by stringing clips together.[2]
The facts here thus differ from Google Books quite substantially. The snippet function considered there delivered much less copyrighted content than the Watch function at issue here. Nevertheless, we there concluded that the snippet function only “adds” to the transformative purpose of the Search function. Our conclusion with respect to the Google Books snippet feature therefore does not control the proper characterization of the Watch function at issue here. Moreover, we cautioned in Google Books that the case “test[ed] the boundaries of fair use.”[3]
3. Nor am I persuaded by the majority’s reliance on Sony Corporation of America v. Universal City Studios, Inc.[4]
- ↑ Op. at 10:13-16.
- ↑ Fair use is an affirmative defense to Fox’s infringement claim and thus a matter as to which TVEyes bears the burden of proof. Accordingly, in resisting a determination that TVEyes is entitled to judgment on the basis of fair use, Fox is entitled to the view of the evidence most favorable to it with respect TVEyes’ contention that the Watch function is transformative, as it is on all other aspects of that defense. FDIC v. Giammettei, 34 F.3d 51, 54 (2d Cir. 1994) (“whatever evidence there is to support an essential element of an affirmative defense will be construed in a light most favorable to the non-moving defendant”) (emphasis in original); Frankel v. ICD Holdings, S.A., 930 F. Supp. 54, 64-65 (S.D.N.Y. 1996) (“one who relies upon an affirmative defense to defeat an otherwise meritorious motion for summary judgment must adduce evidence which, viewed in the light most favorable to and drawing all reasonable inferences in favor of the non-moving party, would permit judgment for the non-moving party on the basis of that defense”).
- ↑ Google Books, 804 F.3d at 206.
- ↑ 464 U.S. 417 (1984).
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