Page:Fox News Network v. TVEyes.pdf/13

 them, rather than at the time and place of broadcast. For these reasons, TVEyes’s Watch function is at least somewhat transformative.

The first statutory factor also implicates considerations distinct from whether the secondary use is transformative. In particular, Fox argues that the “commercial nature” of TVEyes’s copying (its sale of access to Fox’s content) weighs against a finding of fair use. 17 U.S.C. § 107(1).

The commercial nature of a secondary use weighs against a finding of fair use. , 510 U.S. at 585. And it does so especially when, as here, the transformative character of the secondary use is modest. at 579 (“[T]he [less] transformative the new work, the [more] will be the significance of other factors, like commercialism….”). The Watch function has only a modest transformative character because, notwithstanding the transformative manner in which it delivers content, it essentially republishes that content unaltered from its original form, with no “new expression, meaning or message.”, 755 F.3d at 96 (quoting , 510 U.S. at 579); , 150 F.3d at 106 (service that transmits unaltered radio broadcasts in real time over telephone lines is not transformative); , 342