Page:Fox News Network v. TVEyes.pdf/28

 the course of this litigation to stop users from watching consecutive clips. Given the posture of this case – review of a summary judgment decision adverse to Fox on this point – we must view the facts presented by Fox as true and therefore base our decision on the premise that users may access all of Fox’s content by stringing clips together.

The facts here thus differ from Google Books quite substantially. The snippet function considered there delivered much less copyrighted content than the Watch function at issue here. Nevertheless, we there concluded that the snippet function only “adds” to the transformative purpose of the Search function. Our conclusion with respect to the Google Books snippet feature therefore does not control the proper characterization of the Watch function at issue here. Moreover, we cautioned in Google Books that the case “test[ed] the boundaries of fair use.”

3.Nor am I persuaded by the majority’s reliance on Sony Corporation of America v. Universal City Studios, Inc.