Page:Fox News Network v. TVEyes.pdf/27

 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.

Nor does Google Books support the conclusion that efficiency-enhancing delivery technology is transformative in the circumstances of this case. Google Books, like this case, involved two features: a searchable database and the display of “snippets” from the books containing the search term. We held that copying the books to enable the search function had the transformative purpose of “identifying books of interest to the searcher.” That purpose was different than the purpose of the books themselves, which served to convey their content to the reader, and it constituted fair use. We held also that the snippets – “horizontal segment[s] comprising ordinarily an eighth of a page” – “add[ed] importantly to the highly transformative purpose of identifying books of interest to the searcher.” But Google Books does not resolve this case.

Google designed the snippet feature “in a manner that substantially protects against its serving as an effectively competing substitute for Plaintiffs’ books,” employing safeguards such as “blacklisting” (making permanently unavailable for snippet view one snippet per page and one complete page out of every ten) and showing no snippets at all from the sorts of books for which a short snippet would represent all the content a searcher wanted to see (such as dictionaries and cookbooks). Here, on the other hand, the Watch function shows ten minute clips, and parties can play unlimited numbers of ten minute clips. Certainly a ten minute clip in many, perhaps most, situations suffices for a user to view an entire news segment. And in situations in which that is not the case, the parties dispute the effectiveness of a preventive measure TVEyes introduced during