Page:Fox News Network v. TVEyes.pdf/14

 F.3d 191, 199–200 (3d Cir. 2003) (service that streams short previews of movies without commentary is not transformative). The clients of TVEyes use Fox’s news broadcasts for the same purpose that authorized Fox viewers use those broadcasts‐‐the purpose of learning the information reported.

The first statutory factor therefore favors TVEyes, albeit slightly.

The second statutory factor is “the nature of the copyrighted work.” 17 U.S.C. § 107(2). This factor “has rarely played a significant role in the determination of a fair use dispute,” and it plays no significant role here. , 804 F.3d at 220.

TVEyes presses the argument that, since facts are not copyrightable, the factual nature of Fox’s content militates in favor of a finding of fair use. We have rejected this argument: “Those who report the news undoubtedly create factual works. It cannot seriously be argued that, for that reason, others may freely copy and re‐disseminate news reports.” at 220.

The third statutory factor is “the amount and substantiality of the portion used in relation to the copyrighted work as a whole.” 17 U.S.C. § 107(3). The relevant consideration is the amount of copyrighted material made available to the public rather than the amount of material used by the copier. , 804 F.3d at 222.

This factor clearly favors Fox because TVEyes makes available virtually the entirety of the Fox programming that TVEyes users want to see and hear. While “courts have rejected any categorical rule that a copying of the entirety cannot be a fair use,” “a finding of fair use is [less] likely … when the copying is extensive, or encompasses the most important parts of the original.” at 221. In this respect, the TVEyes Watch function is radically dissimilar to the service at issue in.