USCA 2

“ 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.” ”

“ 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.” ”

“ 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. ”

“ 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. ”

“ 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.” ”

“ 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. ”

“ 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. ”

“ 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.” ”

“ 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. ”

“ 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.” ”

“ 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.” [26] No doubt Kirkwood’s service was convenient and efficiency-enhancing. ”