USCA 2

“ Google’s profit motivation does not in these circumstances justify denial of fair use. Google’s program does not, at this time and on the record before us, expose Plaintiffs to an unreasonable risk of loss of copyright value through incursions of hackers. Finally, Google’s provision of digital copies to participating libraries, authorizing them to make non-infringing uses, is non-infringing, and the mere speculative possibility that the libraries might allow use of their copies in an infringing manner does not make Google a contributory infringer. ”

“ I certainly do not find within Sony the idea that efficiency-enhancing technology is transformative.
The efficiency enhancement at issue in Sony was “time-shifting” – the use by a consumer of a Betamax device to record a broadcast so that the consumer could watch that show at a later, presumably more convenient, time. [45] The Court asked whether time-shifting was a substantial noninfringing use; the answer to that question determined whether Sony could be liable for contributory infringement. ”

“ The word “transformative” cannot be taken too literally as a sufficient key to understanding the elements of fair use. It is rather a suggestive symbol for a complex thought, and does not mean that any and all changes made to an author’s original text will necessarily support a finding of fair use. The Supreme Court’s discussion in Campbell gave important guidance on assessing when a transformative use tends to support a conclusion of fair use. The defendant in that case defended on the ground that its work was a parody of the original and that parody is a time-honored category of fair use. ”

“ And technology will march on, perhaps soon eliminating altogether the efficiency the majority claims renders the Watch function transformative.
I recognize, of course, that there appears to be no discussion of these services in the record. This is at least partially attributable to the fact that the advent of some of these services post-date this litigation. But this demonstrates handily the point that technology is rapidly evolving, which is all the more reason to decline to pronounce a piece of technology transformative when it is not necessary to do so. ”

“ At the same time, when a secondary work quotes an original for the purpose of parodying it, or discrediting it by exposing its inaccuracies, illogic, or dishonesty, such an undertaking is not within the exclusive prerogatives of the rights holder; it produces a fair use. ”

“ No prior opinion of this Court says, or even suggests, that Sony stands for the proposition that time-shifting in particular, or efficiency-enhancing delivery technology in general, is transformative. In Swatch Group Management Services Ltd v. Bloomberg L.P., we described Sony as a decision “finding a non-transformative use to be a fair use.” [50] Infinity Broadcast Corp. described Sony’s discussion of time-shifting as a “determin [ation] that time-shifting of television programs by consumers in their homes was a non-commercial use.” ”

“ For substantially the same reasons, the copyright that protects Plaintiffs’ works does not include an exclusive derivative right to supply such information through query of a digitized copy.
The extension of copyright protection beyond the copying of the work in its original form to cover also the copying of a derivative reflects a clear and logical policy choice. An author’s right to control and profit from the dissemination of her work ought not to be evaded by conversion of the work into a different form. ”

“ I do not suggest that this or any appellate court should “purge dictum from [its] opinions.” [2] But there are situations in which sound prudential reasons counsel against making statements that are “superfluous to the court’s performance of its function.” [3] I submit that this is one of them.
1. “ [T] he goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works. Such works thus lie at the heart of the fair use doctrine [] .” [4] “ [T] he more transformative the new work, the less will be the significance of other factors.” ”

“ We recognize that the snippet function can cause some loss of sales. There are surely instances in which a searcher’s need for access to a text will he satisfied by the snippet view, resulting in either the loss of a sale to that searcher, or reduction of demand on libraries for that title, which might have resulted in libraries purchasing additional copies. But the possibility, or even the probability or certainty, of some loss of sales does not suffice to make the copy an effectively competing substitute that would tilt the weighty fourth factor in favor of the rights holder in the original. ”

“ 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.” [13] 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” [14] – it “enables users to isolate, from an ocean of programming, material that is responsive to their interests.” ”

“ The more critical inquiry under the first factor and in fair use analysis generally is whether the allegedly infringing work merely supersedes the original work or instead adds something new, with a further purpose or different character, altering the first with new meaning or message, in other words whether and to what extent the new work is transformative. ”

“ Defendants in those cases argued that their technologies should be considered fair use because they permitted “space-shifting”– they allowed users to store music in different, more convenient forms that allowed them to listen to it in venues more desirable to them. [31] In other words, the technology enhanced efficiency and convenience. But courts presented with this argument either rejected the idea that space-shifting is a transformative purpose or considered the space-shifting argument relevant only to the question of the commercial nature of the use. ”

“ In other words, transformative uses tend to favor a fair use finding because a transformative use is one that communicates something new and different from the original or expands its utility, thus serving copyright’s overall objective of contributing to public knowledge. ”

“ Nation Enterprises that the fourth factor, which assesses the harm the secondary use can cause to the market for, or the value of, the copyright for the original, “is undoubtedly the single most important element of fair use.” ”

“ Indeed, the efficiency enhancement that the Watch function allegedly provides appears to be, or to have become at least partly, available from Internet-based television subscription services to which Fox News presumably licenses its content. [12] Given (a) the rapid pace of technological change, (b) the importance of the concept of transformative purpose in fair use jurisprudence, and (c) the fact that it is unnecessary to address the question in this case, I respectfully disagree with the majority’s decision to express a view as to whether the Watch function is transformative. ”

“ Parody needs to mimic an original to make its point, and so has some claim to use the creation of its victim’s ... imagination, whereas satire can stand on its own two feet and so requires justification for the very act of borrowing. ”

“ Sony considered a claim that the manufacturer of Betamax video recorders was liable for contributory copyright infringement because its sale of the recorders facilitated copyright infringement by consumers by virtue of the consumers’ recording of copyrighted broadcasts to enable them to view the programs at times more convenient to them. ”

“ 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.” ”

“ Plaintiffs seek to support their derivative claim by a showing that there exist, or would have existed, paid licensing markets in digitized works, such as those provided by the Copyright Clearance Center or the previous, revenue-generating version of the Google Partners Program. Plaintiffs also point to the proposed settlement agreement rejected by the district court in this case, according to which Google would have paid authors for its use of digitized copies of their works. The existence or potential existence of such paid licensing schemes does not support Plaintiffs’ derivative argument. ”

“ Because copyright is a commercial doctrine whose objective is to stimulate creativity among potential authors by enabling them to earn money from their creations, the fourth factor is of great importance in making a fair use assessment. ”

“ These cases support my inclination to conclude that a technological means that delivers copies of copyrighted material to a secondary user more quickly, efficiently or conveniently does not render the distribution of those copies transformative, at least standing alone. ”

“ Google’s commercial motivation distinguishes this case from HathiTrust, as the defendant in that case was a non-profit entity founded by, and acting as the representative of, libraries. Although Google has no revenues flowing directly from its operation of the Google Books functions, Plaintiffs stress that Google is profit-motivated and seeks to use its dominance of book search to fortify its overall dominance of the Internet search market, and that thereby Google indirectly reaps profits from the Google Books functions. ”

“ Since 2004, Google has scanned, rendered machine-readable, and indexed more than 20 million books, including both copyrighted works and works in the public domain. The vast majority of the books are non-fiction, and most are out of print. All of the digital information created by Google in the process is stored on servers protected by the same security systems Google uses to shield its own confidential information. ”

“ The Court rejected the contributory infringement claim, essentially on the bases that (a) substantial numbers of copyright holders would not object to the consumers’ use of the Sony equipment for “time shifting,” and (b) the plaintiffs had failed to prove any likelihood of consequent economic harm. [42]
The majority here reads Sony as reasoning “that a secondary use may be a fair use if it utilizes transformative technology to improve the efficiency of delivering content.” ”

“ To the extent that the “nature” of the original copyrighted work necessarily combines with the “purpose and character” of the secondary work to permit assessment of whether the secondary work uses the original in a “transformative” manner, as the term is used in Campbell, the second factor favors fair use not because Plaintiffs’ works are factual, but because the secondary use transformatively provides valuable information about the original, rather than replicating protected expression in a manner that provides a meaningful substitute for the original. ”

“ 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. ”

“ Thus, while authors are undoubtedly important intended beneficiaries of copyright, the ultimate, primary intended beneficiary is the public, whose access to knowledge copyright seeks to advance by providing rewards for authorship. ”