forum or medium in which it is viewed, the TVEyes service was transformative because it
enabled its subscribers to gain access not only to the news that was presented, but to the
presentations themselves, as colored, processed, and criticized by commentators, and as
abridged, modified, and enlarged by news broadcasts. TVEyes had created a database of
otherwise unavailable content – it was the only service that created a database of everything that
television channels broadcast, twenty-four hours a day, seven days a week – and made that
content searchable.^365
The court found the second factor (nature of the copyrighted work) weighed neither for
nor against fair use because, where (as here) the creative aspect of the works copied is
transformed, the second factor has limited value. The third factor (amount and substantiality of
the portion used in relation to the whole) also weighed neither for nor against fair use. The court
noted that, where copying the entire work is necessary to accomplish the transformative function
or purpose, as was the case here, the third factor must bow to the importance and priority of the
first factor’s finding of transformative use. Finally, the court found that the fourth factor
(economic harm to the value of the work) did not weigh against a finding of fair use in view of
the de minimis nature of any possible competition to Fox News when compared to the
substantial public service that TVEyes provided. The court found that the facts did not support
Fox News’ speculation that TVEyes’ users actually used TVEyes as a substitute for Fox News’
channels in view of the fact that TVEyes erased content every 32 days and in a typical month,
fewer than 1% of TVEyes’ users played a video clip that resulted from a keyword search of its
watch terms and the average play time for a video clip was 41 seconds. The court also rejected
Fox News’ argument that TVEyes impaired the derivative market for video clips of copyrighted
content with syndication partners like YouTube and with Fox News’ exclusive licensing agents.
Fox News was unable to provide the identity of any customers lost by its partners or licensing
agents. The court also noted that Fox News’ entire revenue from the derivative sources, between
July 1, 2012 and June 30, 2012, was $459,290, a very small fraction of its overall revenue. Thus,
any small market harm to Fox News that might occur was outweighed by the public benefit
arising from the TVEyes service.^366
Accordingly, the court found that TVEyes’ copying of Fox News’ broadcast content for
indexing and clipping services to its subscribers constituted fair use. However, the court noted
that it was not deciding the issue of fair use for the full extent of TVEyes’ service. In particular,
the parties had not provided sufficient evidence showing that the service’s capability to allow
subscribers to save, archive, download, email and share clips of Fox News’ television programs
was integral to the transformative purpose of indexing and providing clips and snippets of
transcript to subscribers. Similarly, neither party was entitled to summary judgment on the issue
of whether the date and time search function, allowing subscribes to search for television clips by
date and time instead of by keyword or term, was integral to the transformative purpose of
(^365) Id. at 27-28.
(^366) Id. at 31-40.