Page:Fox News Network v. TVEyes.pdf/20

, , concurring:

I concur in the result as well as part I, the preamble to part II, and parts II.B, III and IV of the majority opinion. With great respect for my learned and distinguished colleagues, however, I do not join in their characterization of TVEyes’ Watch function as “somewhat transformative.” I decline for two reasons.

First, although the majority writes that it “is at least somewhat transformative,” it holds that the Watch function nevertheless is not a fair use of Fox’s copyrighted material. Stated differently, it holds that the other factors relevant to the fair use determination carry the day in favor of Fox regardless of whether the Watch function is or is not transformative. The “somewhat transformative” characterization therefore is entirely immaterial to the resolution of this case – in a familiar phrase, it is obitur dictum. I would avoid any such characterization even if I agreed with it.

Second, while I prefer not to state a view as to whether the Watch function is transformative, I would be remiss, given the majority’s opinion, if I did not express my doubt that the majority’s view is correct. To the contrary, were we compelled to reach the point, I would be inclined to conclude that it is not.

I do not suggest that this or any appellate court should “purge dictum from [its] opinions.” But there are situations in which sound prudential reasons counsel against making statements that are “superfluous to the court’s performance of its function.” 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 