Page:Fox News Network v. TVEyes.pdf/17

 effect depriving Fox of licensing revenues from TVEyes or from similar entities. And Fox itself might wish to exploit the market for such a service rather than license it to others. TVEyes has thus “usurp[ed] a market that properly belongs to the copyright‐holder.”, 150 F.3d at 110. It is of no moment that TVEyes allegedly approached Fox for a license but was rebuffed: the failure to strike a deal satisfactory to both parties does not give TVEyes the right to copy Fox’s copyrighted material without payment.

In short, by selling access to Fox’s audiovisual content without a license, TVEyes deprives Fox of revenues to which Fox is entitled as the copyright holder. Therefore, the fourth factor favors Fox.

To ascertain whether TVEyes’s service is protected as a fair use, the final step is to weigh the four statutory factors together, along with any other relevant considerations. The factors should not be “treated in isolation, one from another”; rather, “[a]ll are to be explored, and the results [are to be] weighed together, in light of the purposes of copyright.”, 510 U.S. at 577–78. While the factors are not exclusive, in this case they provide sufficient guidance. , 150 F.3d at 111.

We conclude that TVEyes’s service is not justifiable as a fair use. As to the first factor, TVEyes’s Watch function is at least somewhat transformative in that it renders convenient and efficient access to a subset of content; however, because the function does little if anything to change the content itself or the purpose for which the content is used, its transformative character is modest at best. Accordingly‐‐and because the service at issue is commercial‐‐the first factor favors TVEyes only slightly. The second factor is neutral in this case. The third factor strongly favors Fox because the Watch function allows TVEyes’s clients to see and hear virtually all of the Fox programming that they wish. And the fourth factor favors Fox as well because TVEyes has usurped a function for which Fox is entitled to demand compensation under a licensing agreement.

At bottom, TVEyes is unlawfully profiting off the work of others by commercially re‐distributing all of that work that a viewer wishes to use, without