at this time of year fox news network versus t v eyes good morning your honor is in may it please the court my name is kathleen sullivan and i represent t v eyes t v eyes has created a comprehensive searchable database or on line research about television programming all twenty seven thousand hours per day from fourteen hundred radio and television stations and in so doing it has created the audio visual analog to the google books whose search function this court found transformative authors guild your honor there can't be any serious dispute analog is quite imperfect isn't it in the sense that your product distributes for more of the broadcast content than the snippets made available by google your honor the question about factor three the amount and substantiality of the use in relation to the transformative purpose doesn't have a fixed algorithm and my question is directed at the attempt to draw an equation between what google did and what your client was absolutely your honor i wanted to begin by drawing an equation as to the transformative purpose at factor what and i think there were on all fours but going three where you've i can follow you to the with respect to the index there you're on all fours both google books and here there's the transmission of a complete now but you get again by saying the in the i'm not putting you put in effect the whole system is analogous to google books it is your outer artist now i want to go from the index to the next step  having having having to think agreed with you the index is analogous a searchable database of the in tar copyrighted material yes you're right now as i understand oz says to its customers you can get and i want clarification here at least the news story wrong or perhaps the news story beginning fourteen seconds in which you can get the news story you want your honor that's not quite right let me go back to you i want to be clear about here's why we're analogous to google books at both steps the creation of the database no question there fox doesn't challenge that but as to the content delivery the question is do we allow our users access through the use of searched her eyes to in a manner of the broadcasting content that is reasonable in relation to the transform fifty four to fifty five and as found by judge hellerstein at spa at special appendix twenty there's the there's no question that when air subscribers which are businesses government agencies military  police corporations when they're using it they're using it for research commentary and criticism when they download it so with respect your honor i think the only question to go back to judge kaplan is is it too much or are snippets too big in relation to the transf six point one statement fox admitted to a set of facts about the way the news works so let me let me summarize that for you first of all we make clips available beginning fourteen seconds before the search term yes just like  fourteen seconds into the broadcaster and fourteen seconds before the turn of the search time you're right that's right you're it's important because that means it's the same search as in google you take your search term syria north struck the page and you some of the papers indicate that correct your honor and here's why i want you to support from the record to support for that the record is that the clips are available only for a maximum of ten minutes the clip the maximum clip that is available is available for ten minutes that's many want any new doing it's not your honor but it what what matters is what is their business model and is it a fair use and we make ten minutes available for a reason it's broadcast television it has commercials people to get their minute of access or their ten seconds of access may need to find the term in the teaser run skip through the commercials and then see the story or they may need to see basis for saying it doesn't matter what they can do it only matters what they do your honor i believe that what matters is is the is there fear use in our practices and the actual use rather permitted use your honor i believe that what the actual use by our customers is the best evidence of what fair use we are the case will come out the same you're going to google books is available to the entire world where more restrictive than google books in important ways in the now you're talking about the customer base not your honor i'm my question didn't having to do with the customer base it had to do with the distinction between actual use and permitted use and your point was we should focus on actual use and so i asked you if google books had transmitted the entire book but had data showing they only the customers only look at two snippets do you think the court case would have come out the sign you're under it would have been a much closer case of oh it would have been overwhelmingly the other way let me let me say why not just close  downloading and so forth of a third not anything remotely like google books and if the customer is interested it takes two seconds to get the whole thing and that puts a s the customer gets if it says let me see what fox news broadcast on march sixth between this hour and that hour then they get the whole thing is not true your honor i appeal to the record that the record is undisputed a let's get this out it's important you asked is our snippets too big ten minutes is available and that you cannot have more than twenty five minutes consecutively and the evidence in the record is that nobody watches for ten minutes there is zero evidence in the record that anybody watches for ten minutes three instances from two thousand and three to two thousand and fourteen did anybody play two consecutive fox news clips and what case sounds like actual use is what counts rather than permitted your honor i'm not screaming that  your honor i'm not questioning that permitted use matters i am suggesting to you that the actual use is highly probative and what you want to hear how the model works is a case that i heard that's your argument is there any law that says actual use is not only relevant but decisive and permitted use is sort of a throw around at you in other this court an author's guilt versus google for repeatedly referenced the use of snippets the use of snippets by there's an entire discussion in authors guild about trying to use if it's a totally different snippets were what were available ok your honor i sense is how does your business model justify a ten minute your honor because ten minutes no let's get the facts out first it's undisputed on this record of how people use and i'm suggesting he just doesn't actually cut very much against you if that really shows that nobody looks at more than a minute or two how can you come doesn't undermine your argument that ten minutes isn't too much what you're really saying is that they're using it as an index and you don't need ten minutes and to the extent you make ten minutes  there's not really very strong argument that it's a fair use your honor there is an argument it's a fair use fifty one percent listen to these one thousand works which are all hour long programs for only ten seconds more than half listen for watch for only ten seconds fifty three seconds is the average length of a view and only in the entire platform from tooth the entire platform over the length of the record point zero eight percent that's one in twelve hundred fifty views were ten minutes long  true but the owner had given me a case that says that matter authors guild looked to the use of snippets as probative of whether there was a fair use it look to the experiment the plaintiffs conducted in reconstructing didn't permit more than the sn snippets which are audio visual snippets need to be allowed for ten or it's pretty fair use to allow them for ten minutes and it's probative of fair use that they're actually only viewed by the subscribers half the time for ten seconds or less and viewing is important not just the index function and on average they're viewed for fifty three seconds or less and here's why part of what t v is is about and at this moment in history i think it's important to think about this part of what t v this is about is not just it's not about watching television it's about researching what happens on television who's covering what what topics for how long it enables comparison between programs it becomes important for example to know that one station had a lead seven minutes on a story and another station had a lead half a half a minute on a story because that shows you what kind of focus the two stations might have so length of story matters which story appears after a commercial or which commercial appears after a story is relevant and you need a larger segment than just the index to find out that purpose when you give the statistic that most of viewing are ten seconds or less why not why wouldn't we simply assume those are instances in which people are your users decided this this is not responsive to my needs what your honor and that's why it's a it's a fair use to make the ten and when it is responsive to the needs you can watch for ten minutes or you can watch for two three four minutes correct you're out and when you do with with news articles i mean we're dealing with fox news i mean most news items don't last for more than three minutes it's like it's like searching if i have a database of a haiku and you're only going to get three lines had the same thought you're under that google step it's cover haikus but of course they they take the artery collections out of it know if you're only ten minutes is not there to be consumed it's there to enable the search to be meaningful when you're looking for temporal facts like how long were the different stories covered on different stations out which was which which story was put after which commercial before which commercial these are all parts of the research use so i think it's highly probative your honor that if we set it up that you can get ten minutes but you never do that's probative of it being used for research purposes and these  everybody if it's commercial television nobody would watch for ten minutes because they be jumping all over the commercials so your honor here here's here's the key point the question you need to ask under your under authors guild is is the amount of substantial excessive in relation to the transformative purpose if you accept the transformative purpose is different here from google google it's to find the book with the term here it is to analyze research criticize comment on in a comparative way the way that television covers store is the question is you get something we were asking whether it's excessive in relation to the transformative purpose of t v eyes were you looking at it in terms of whether it's formative use is from the user's perspective i'm saying from t v as perspective air business model is to enable users to perform the transformative functions a research commentary and criticism and again i'd ever afraid of appendix two fifty forty fifty five and judge hellerstein looked at that he said i accept and it's undisputed that the users are making transformative use they're not just clipping they're using it to analyze research we had all kinds of statistical functions and heat that are now the disarray doesn't challenge it is about doing more than that the dispute is about saying you also get to look at the video content of the story that's  i have no doubt that the customer wants to see that for all the reasons you're briefed use what's transformative about seeing the whole story when he's already learned the facts about where it is your honor as this court said in the swatch vs bloomberg case the tone of voice the facial expression the demeanor of the person giving in that case the analyst pool is as relevant and this is the same thing that the district court found here that the presentation visual cues and auditory cues about the programming can be as important to the public use here the understand that research criticism commentary is that tensions go public i don't doubt that it's that it's useful to to the viewer just as if the person who got the snippet in google books what to like to see the whole page that would have been useful reading the whole book one of the useful why would it have been transformative if they didn't tell him anything that's transformative beyond knowing where it was your honor you can't possibly limit google books to that dead letter on the page without overruling swatch swatch took the step of saying that hearing the analyst hearing the tone of voice seeing the inflection on the screen understanding demeanor tone of voice arched eyebrow and so forth that that's part of the content that is relevant to the user's transformative art why this isn't commentary and analysis your view is the user needs to see and is entitled to see can't possibly be debating whether the entirety of the story could possibly be a fair use and not after google books and not after the happy trust and not after swaps what was the entire analyst cokie to see the  story to get the nuance the face that all the rest your honor surely that's correct and in this case where you run away from it it is the whole story so your honor here's i think it was a perfectly straightforward commentary defense and he set up a system whereby advertisers in new york could use the service to tune in to a broadcast in kansas city or wichita or seattle and the argument was that his business model permitted people buying advertising on those stations to verify whether their ends were running when the stations were claiming the s were running total huge unfocused and i bought into the idea in the district court that that was transformative this guy was offering a service that had nothing to do with the content really and was useful and you know what this court had to say about it or i found considerable merit in the district court opinion and that point of view and i also want to say we were perfectly consistent with what the circuit did with that case and the reason is the following in kirkwood infinity broadcasting there was no creation of a comprehensive automated database that's the step that we take a search term searchable comprehensive database that's the st records twenty seven hours a thousand hours a day of t v broadcasting now you're entering two transformative about that i'm sorry honor but with all respect this is different from kirkwood because we add a function that did not exist with that  telephonic access to radio programming and the function we had and this is the transformative function according to authors guild against google is automated search term search ability functionality that's what we've added that wasn't present there we've created a new use that enables research doesn't your order to be transformative have to do something with respect to the content of the underlying work absolutely not or swatch would have come out the wrong way we were didn't transform the earnings call it broadcast on watch it simply put it in verbiage him and it said that because there was a transformative purpose it had a different meaning and message because of the was wrong to decide well the transformative purpose is is extremely important but where transformative purpose plus transformative function and what's transformative here is that we enable research criticism and commentary the preamble quintessential fair uses through the search term capability and all i think your honor what this really comes down to is we're in agreement about transfer i think we should be in agreement about transformation here where we're in disagreement is about whether the snippets are too large we have audio visual snippets that could run as long as ten minutes for perfectly good fair use reasons in order to check commercial lengths and and check which lead story ran which length of time perfect perfectly legitimate fair uses for the ten minutes the fact that the users actually never watch for ten minutes shows that our research function is working it's probative of the fact that we really are a research service and not a substitute it i actually think transformative purpose is enough that swatch maybe infinity could have come out differently if it followed the swatch reasoning but we're not just transformative purpose for transformative purpose plus function at both steps the texting and the content is you want to come back yours if you can because i'm not sure i got your answer is he right in saying the entire news story can be downloaded if you define new story as something of less than ten minutes then the answer is yes seconds before the term you cannot look up news story x you look up term syria and it will run back fourteen seconds before that so you may get the news story starting in the middle he says the entire yours so you're  transformative too it didn't just say the index it's a this because you need the context you need the context in which the term appears in our case we try to supply audio visual context and i think it's beyond dispute that the audio visual aspects the tone of voice the said it was essential to the ruling in google at the first step that copying the entirety of a copyrighted work may be relevant to transformative purpose so i think the entirety issue with respect is there is a red herring the real question is even assuming that an entire story might be downloaded and that still be a fair use when the amount and substantiality is why doesn't the mood of the entire story a news event  isn't that a fair analog to a dictionary entry which is not available on onto google so if you were searching a dictionary for given word the odds are that a couple of making of funk and wagnalls around it so your honor i think the news story is quite different because what you're looking at the news story for is not you're not just viewing it for news and entertainment the purpose is to make available to the twenty two hundred subscribers who are businesses the opportunity to watch the news story to see inflection demeanor coverage all the things that come from the audio visual cues duration your honor i'm not sure all that helps because if i remember th opinion in the in the who's on first case yes it was a very fact that the that the who's on first routine was being rendered with the same rhythms with the same tonalities with the same words that first skit was preserved here we have and undisputedly different purpose research and analysis criticism commentary as opposed to news and entertainment so your honor i think it's different in that respect let me say why i come back to the daytime search for yes your honor  i don't have it in front of me but i have a note of it that you are fifty six point one statement at paragraph thirty nine said this feature allows users to begin watching a video clip at a specific time on a specific television station rather than entering a search term is that true it does your honor ok so if i enter c b s news six thirty pm march how much of that program do i get on the daytime service and minutes max and with no capacity to go to a consecutive consecutive clip the thirty minute delay a thirty second delay and then when you get to the look at the first ten minutes of it today and i come back a year from now i want to see the second ten minutes i can't get that's right your honor and yours cut your shutdown in any event at twenty five minutes it's undisputed that nobody can go more than  mishear you cannot look at the date time search past thirty two days haven't you or marketed that service as life t v streaming you know your honor there is are some stray   mails from one employee that stopped in two thousand and eleven that referred to a fact sheet that were against company policy the employee was shut down we actually have circuit breakers that prevent links from being accessed more than x number of times per hour per day per thirty day period was after this litigation well it did begin but your honor what's before you is an injunction were an injunction appeal and so the only issues for us really are forward looking and to the extent that we have its for business use i do not believe we interrogate them about their cable subscription but let me say why fox news online streaming service for its cable subscribers is not a substitute not a remotely a substitute for our service it's not the on line streaming service you can get as a cable customer lets you watch continuous cable but it doesn't have an automated term search function and it doesn't archive video clips it's undisputed in this case that fox keeps previous video clips on its website only up to sixteen percent of its content so it can't substitute for looking at a clip that happened thirty today within the past thirty two days and b it doesn't have automated search term capability so the market where we're not i think is indisputably correct when he says they put on no evidence of market harm to their t v watching or cable subscription function he said their arguments on that score purely for if what is going on here is not fair use then i would think that the next step for your client would be either ascertain that you or that the with the providers that are the copyright holders that you'll pay them a dime every time somebody says downloads a ten minute segment your honor there's no question that there's really no me we're now on i think this case does come down to factor three and factor four we've we've we've come to factor we talk about factor three we at you're now trying to market harm and there's no evidence that we harmed their cable subscription business that's really the question the question is that we are not providing a substitute for watching t v it was our burden your honor but they came for a week we said you there's no evidence of our market harm and they didn't rebut it in any way there's zero evidence let's talk about the three kinds of market harm they claim television watching twenty two hundred subscribers watching half the time for less than ten seconds it's there's no evidence of market harm there's no conceivable evidence of market harm from that and there is no evidence by the way that any there was ever to a consecutive download of two ten minute segments in any but three instances for fox content over twelve years so this is not being used as a substitute for t v the overwhelming undisputed in the evidence overwhelming undisputed evidence in the record says it's not being used as a substitute for watching t v and so then the question is are we hurting their derivative licensing market and weird there is no derivative they have no derivative licensing market for clips for research purposes they have a teeny tiny two hundred thousand dollars a year licensing market for broadcast quality clips all of which in the record were prior to thirty two days previous licensing market ones once a customer finds his company has been mentioned in the broadcast and the news can't and he wants to see all the other things you tell us about nuance the subtlety he can the cost of that tape what they're not getting because of t v there's no evidence that anybody any any license would never have been issued by fox through its agents but for t v s no it's there's three instances in the record your honor there it there in the record it went eighty seven in one ninety three there's three instances the record where self serving executive emails say oh we think we lost somebody because of t v eyes two of them were in england which doesn't have fair use it doesn't have a first amendment either i would have t v i was customer now do it when they've already paid you five hundred a month to get that the question i think is not is not what the record shows they've done it but whether you got somebody who went to fox news and said we want to buy that clip either on a per program license or i can license and box and we don't do that so you're not worth our time we don't we just don't do that  evidence none in the record none that funks licenses for research purposes if it licenses for public performance in rebroadcast i agree with you they don't do it because your customers now have your service your honor there's no evidence that our customers use our service for clips that are substitutes for foxes market to go back to american geophysical against texaco in which there are excellent opinions by both the majority and the dissent in that case the majority of dissent agreed that what matters is not a speculative potential license licensing market what matters is is there reasonable in traditional licensing market or one in which there's been a proof that somebody is trying to to one of your customers even if we reverse who says i still want that and they go to fox and they've asked for it and they offer money you think you doubt that they'd sell it to them that fox would sell it your honor fox does sell news could they wouldn't go to fox fox would not get it there's no proof that any of our customers would go to fox i understand there's no proof of it because it hasn't happened yet do you doubt that fox would s hundred fifty seven they say by the way you can't use this to criticize fox and that takes us right to campbell versus a cafe where the court said in fair use we don't say that you need to prove that you tried to get a license because why should anyone why should roy agree to license a parody of pretty woman to two live crew the reason we have fair use is so that you don't have to go seek a license from someone who wants to stop you from getting it and the fair use here what arrogant is simply yes your honor we did we do bear the burden and we did show that there was a complete absence of market harm because we are not a substitute for high quality polished broadcast quality clips for five thousand dollars a pop we use ten to fifty second clips for subscribers to analyze the news to decide who he is is telling what to the american people on broadcast to compare fox news to other stations that's the end users are are doing what it is you say constitutes research i mean i could see that's a useful function but you were you also allowed them to to store it not just to watch it and report also the story and to send it on to others and the reason for that is is is connected to the the research use and let me say what e mailing is important so that you can run something up the military chain of command if you find out something important to military security so that you can run something up the chain of command in the police station to make sure the people know that perth thing about it an amber alert it so that you can a journalist can share something with the editor the emailing function is part and parcel of the collaborative activity research analysis criticism and commentary that we enable can't be any doubt about that only question is whether it would be abused and there's no evidence not no habitants in the record that there's market harm from emailing if something it's if a link gets posted a link we don't send the copy we send a link and fox doesn't even own exclusive rights to a link and if a link goes up on social media it's undisputed we shut it down if it we should and we terminate people if they've acted against our terms of service we terminated the national review for posting things on the internet so e mail is clearly connected to the research using your storing it after thirty two days is the district court so pointedly put it if t v disappears into the abyss from the face of the earth we can't perform the function of analyzing t v news programming that this was meant to perform so by being able to archive or i would suggest download to your own computer the district court distinguish them we think they're the same you have to download so that you can access it if you're on a flight with no why fire so the military which doesn't allow its service members to be connected to the internet at all times can or can access it question your your customers packages on this record do we have approximation i don't know that your honor if you can look in you can look in the record at that at the record at two fifty three fifty four and see the list of our subscribers it's the white house its political parties its journalistic enterprises its military branches it's a fair inference to believe as a big packages of t v stations i do i do your honor i think i'm saying i don't have that i don't have that statistic no reason not to but fair use doesn't require it because the question is have we made our it might it might it might in the judgement some people affect whether it is fair use because if they subscribe then they're paying indirectly to fox to be right owner where is without the subscription so your honor let me that you've been very indulgent with the time with respect i don't think that the requirement that the customer paid his important to the analysis unless we think we're siphoning off business from fox and there's no proof if you agree if you agree with me that the record has no evidence that we're substituting for television watching then we can't be s to me essentially self evident that the availability of your service in its present form is likely to have a meaningful or significant effect quote according the statute upon the potential market for or value of the copyrighted work close quote now maybe if we had a different business model maybe if true newman's suggestion were a part of it maybe if it wasn't thirty seconds excuse me ten minutes or whatever the number is maybe if it was a smaller snippet maybe a lot of fix the case for fair use would that the inquiry is not into a potential market in a speculative sense it has to be a traditional market or a market for which there's some empirical evidence that it would otherwise exist and there's no evidence on this record none that there was a market that fox would have profited from for the kind of clips that we make available there just as a second it seems self evident that no one is going to pay five hundred dollars a month for t v eyes access as a substitute for their tivo at home or they're watching television at home because even at the exorbitant prices we have to pay the cable companies a cable subscription is a lot lower than lacked surely the one point is that if if you user subscribes to the package that includes say fourteen hundred stations i think that then they were to have paid for access to all these stations and all you're doing is manipulating what it is they have a right to look at and fair use would allow you to to provide them the whole thing or i couldn't disagree more we are not a giant clipping service for fourteen hundred stations we are not infinity broadcasting and the reason is we through our labor and ingenuity have created as did google books an automated searchable comprehensive database and it can't be disputed as the district court found that we saw the market failure problem nobody could individual a contract with all fourteen hundred stations find me the show on syria that ran at the top of the hour it couldn't happen it c v i solves a market failure problem and that's the fair use we 're not similar to a giant audiovisual form of unfit the broadcasting because we add the search function you have passed that point in had the trust in google we can't go back that's transformative and i think the only question is  snippets too big and i've tried to explain to you and i want to be very clear i'm not saying that we are off the hook on having to prove that we are making only a fair use what i'm saying is that the fact that our customers actually watch only for ten seconds half the time and they will and watch for an average of fifty two point three seconds that's undisputed your honor it's admitted in the fifty six point one statement at appendix sixteen twenty nine to thirty three so fox can't get up and dispute that that's the best evidence that it is a research function that is working you are using it through you several times referred how expensive the service is but i i mean it's hard to see conceptual why it gets to be fair use if you charge a lot of money and the same thing is not fair use if you cut the price understood your honor and i recognize it's another difference from google they made it available for free but they made it available to the entire world and the world would shut copyright of the world might have shut down now we are tiny the idea that we're creating market harm as it let me just put it this way the idea that twenty two hundred business of scriber zz who provably use the service only for ten to fifty seconds of targeted research for undisputedly fair use purposes analysis research criticism comment or the idea that with this clunky mechanism where you can only watch for ten minutes and it's going to start fourteen seconds before the term and you can't watch two consecutive views with that then a thirty second gap and the idea that this is a substitute for television watching it at least twice the cost of your cable subscription not remotely plausible so this is not the case to say this is not a representative they couldn't come forth with any evidence of market harm to their subscription base to their website traffic or to their licensing market if you answered is it true your customer gets to see the entirety of what it monstrous that our customer can see the following one clip beginning fourteen seconds before searched or  it can see one clip of up to ten minutes from fourteen seconds before its search term and it can see another consecutive clip that takes you past twenty five minutes so if you  multiple instances in which d v r is users access to more consecutive ten minute clips of fox news content that's incorrect there are three instances between two thousand and three and two thousand and fourteen three instances  of of anyone watching any fox program house and the entirety of the news as well your honor what i think what we agreed before is that as judge jacobs pointed out a news story might be less than ten minutes what i'm saying is that there is no evidence in the record as to fox for the searched or the search and the clip automatically begins fourteen seconds before the term that may or may not get you the whole story you may have to try to create another way to create another search using another term for it to get the beginning of the story that you missed because you only had fourteen seconds prior in other words where snippet like in as in as in google that we start in the middle we don't sweep don't start at the beginning that's why we were not a substitute for fox there that were to decide this case not on what the end of the company said entirety of the news story the issue is whether seeing the entirety of the news story even if you could do it is and put aside all my qualifications and lawyer talk put it aside even if you could clever user could get the whole story because you'd figure i'll say syria and i'll get fourteen seconds before syria and i'll say benghazi and i'll get i'll get the rest of the story and i'll figure out a way to piece it together by the way that's pretty cumbersome might be of easier for you to do it another way but even assuming you can do that even if you got the entirety of the news story that's not too much in relation to the fair use purpose which is to research analyze criticize and comment on the news and his life and what i tried to do your honor in saying what the customers actually do they actually watch for half the time for ten seconds or less on average for fifty two seconds that's probative that they're using it for research i know you could have said to me yeah they say they're watching for research but the fact of the undisputed statistical evidence here is probative of the fact that it really is for research because they get in and out for the purpose as a researcher what not they're not using it as a as a very expensive and extremely conky and cumbersome tiva you are if i perceive some chance i want to just remind you there's an alternative ground which is cablevision this is really an easy case under cablevision the volitional conduct we engage in this is a direct infringement case there's no secondary liability claim copying is clearly protected under google unhappy trust and it's not challenged by fox and their use analysis the volitional conduct that they object to is done by the users the users are the one that enter the search term and pull down the clips that's clearly not ara volitional conduct under cablevision so although judge hellerstein dealt with it only in one paragraph in the final opinion we actually think that cablevision provides an alternative ground for dismissing this entire case as failing to meet any plausible threshold for direct liability and i'm happy to discuss that i remodel you have three minutes left thank you your honor very much for giving me the extra time very much appreciate morning good morning you may it please the court i'm dancing dally from kirkland and ellis counsel for fox news this case can be decided by recognizing the fundamental difference between services that find copyrighted works and those that deliver copies of such works well this court has held in other contexts that search can be a quintessential transformative use well so too should delivery of content be quintessential infringement i agree with my opponent that the analog here is google books and google books is devastating to the other side because here t v eyes takes far more content and makes it available to people than google books and goes even further than that to let people download email archived forever and keep that content i want to talk about the technology i want to talk about the different f use factors and then we start with this piece of the technology your adversary least until she confronted with her c e o his testimony was adamant that no way no how could anybody get more than one consecutive ten second clip your brief says there are multiple instances in which their users acce eyes as you can watch absolutely all of your content completely one hundred percent you can watch it all i think missile and was was incorrect about it a few points first and now can you can you do that before you g interest i'm trying to say ok there's the watching feature which isn't just in some little disc allegedly discredited report but in there usually manual that you can watch life streams but beyond that you can watch anything there's that there's no limitation you can watch syria adam ten minute clips as often as you want you just click next next next there's nothing stopping you from watching anything which she was referring to you don't read and start the search term you just say next yes that's right one month you put in the search term series and you get to the ten minute mark there isn't a button or a key or something or a code you say next television programs and without all that was that i was paid time wasn't no no this is the game came out of whenever it is eight thirty and she said show me what they're showing at eight thirty on monday night and she got money night football that would happen to there's nothing if you're just talking about viewing there's nothing in t v eyes there's no circuit breaker there's no technical prohibition to let you watch as much as you want it's the only see if i understand is it possible to put in the search term syria get a list of every clip or every broadcast in which syria was mentioned skin down the list  fox news broadcast from last night in which syria was mentioned and then go to the time and say let me see the fox news program from last night and you are saying doesn't matter how long it is you get it up there and you just keep hitting next and you see the whole thing correct one hundred percent correct it's a combination search term plus take that that's right the point is they make it all accessible now the other thing that's relevant though because you heard mention about after every twenty five minutes what all of that is in the midst of this case they put in something that says when it comes to downloading you can download ten minutes you can download ten minutes when you get to that next ten minutes five minutes in they'll stop you briefly so if there's a commercial you just don't record the commercial you can still download whatever you want so the point is you can download anything you just can't download it hour long programs movies whatever it is you want you just can't download it after the midst of the case in twenty five minute increments you may have to stop for commercial and then resume so that person at a company or an agency that has legitimate important research interest in finding out when how mufon and in work and how a certain news story is reported  if they were all they could see was something analogous in in time to a google snippet how would they ever satisfy their research interest or their legitimate research needs because you see with google what it tells you this book is referring to how to make yogurt you can always get the book and yogurt but if you if if you if you're on but but with television if you identify a snippet you can't you can't go to to each source and  ask them for the for the it it's no longer available well it's been broadcast and it's off into into what's been called the a business that's may come from the abyss but it goes to the abyss and that's wrong your honor it's not true in the record for a couple of reasons first stuff we're not challenging the index so anybody who wants to know how many times word was mentioned or who broke what story or what was say in google the index is is very useful because you can identify the places need you want to go to right you can screen the content for your for your request and then go to those books but with television it's a f gone if you view you say oh my my my product was was referenced that's all you'll know you'll never be able to go and and get the the animal mom of the book  that's not true your honor there's his there's lots of ways to get that content that's more protective of of fair use them with t v eyes is doing one thing anybody can d v r anything if you have a cable subscription you can go on fox news you can even use your t v everywhere feature you can even go back in time an hour in order to get that content we offer not sixteen percent of our clips but when you take into account of our content but when you take into account commercials and reruns during the day we offer to the public for free roughly fifty percent of our clips on our website and that's a searchable website you can use keywords to find those clips and it's an archive you can go back in time and get them and if that's not good enough you could use the outcome system which more like what your honor was alluding to requires you to have a cable subscription in order to access that box which lets you do all the same things that t v eyes does but you have to have a cable subscription and if that's not good enough you could go to the internet archive we're with the internet archive which congress is authorized as an alternative as a way of making news clips available but there you only get one minute clips that cannot be downloaded and that's free and that's open to the public and that's what you're saying is that the kind of research that is facilitated by t v arms could not be conducted without t v you know i mean if i extent you are saying positing that t v is is necessary because television is somehow ephemeral the it's not a federal it's available separate the two when you say t v eyes is an essential there are two things going on here one is the creation of the index which enables the customer to know when the term in what program the term was used the other is the downloading of the program so when you say well they're not essential they're pretty essential about first function aren't but yes and that's head that's how to start when you say they're not essential it sounds like you're washing out the forms for no no and i and i didn't mean to do that when i was trying to say your honor is that there's two kinds of copying issue in this case that are very different kinds of copy one is t v ises copying the text files that fox news creates its own expense all that close captioning the t v thoughts news creates that they run is a key word on it that creates the index that creates all the transcripts that tell you what everybody said we're not challenging that and all of the so called transformative research purposes that they're talking about we believe can be dealt with through that but they want to go more than that and they separately copy all of our audio visual files that's a separate act of copying by them and then they make that available in full to their subscribers argument is saying the audio visual content of what they have ascertained is is we show that's a transformative purpose because it aids research and you disagree all right that that's right i think i disagree because there are only support for that argument is the swatch case but the swatch case dealt with very different facts where it was almost a copyright misuse case where people were using features to give and all that sort of expressive content that was deemed infiniti to be expressive in the news context but you're right but but whatever it was that's what it that's what it involved in there's already been at least one district court e and that's what their main orders watches your use case and on inference that could be another way of looking at it but the point is their main argument is that oh well you know i might need to look at somebod you know upturned lip or something like that well that that's a pretty narrow reason to justify massive copying and that's why i go to some of the cases that we've talked about where in texaco this court said maybe that copying could be convenient and useful but it doesn't justify it is fair use or infinity maybe letting people dial into all those phone things was useful that doesn't make it fair use and i think this court's  chorley is particularly helpful here because the court there held that there is no authority for the proposition that fair use is protected by the copyright act much less the constitution guarantees copying by the optimum method fair use has never been held to be a guarantee of access to copyrighted material in order to copy it by the fear users preferred to the technique or in the format of the original and that's what they're trying to do they're trying to say we have this index that does some search and because of this we want this giant loophole in copyright law to say that we get to show everybody all hundred percent of our content make it available and go undo that let them download it let case what i'm saying is factually the issues in that case were about a very different situation there's nothing secret about what fox news does anybody with cable license can get that content but significantly under fox is  available to in the in the eight or you have to have a cable license and why because as mr kerry decoupled in his declaration regular advertising supported television was not enough to support the expense of twenty four with regard to swatch and trans formative i would distinguish it because and i think this is a it's factual but it's legal b because that was a situation where the work was not otherwise available thus there t it would be fair use if someone privately held some great monet painting which was not on public display to somehow gain access to the person's collection facts and then you know to round out the discussion i don't mean to i do want to start with go back to factor one go the chick to go to three go to four because i feel like we've had a lot of discussion and it's helpful to go through the separate factors but it is also true  that there's absolutely nothing supporting any notion of market harm to fox i would like to hear your answer that's wrong  to prove the absence of you search and harm they can't meet that burden why because nowhere in my opponent's argument or in their brief did they address the  fact widespread use the issue here isn't just what t v eyes is doing but if everybody were to do it so everybody googles one of their miki if everybody were to offer service yeah we have this little part of it that's the index but then we'd that w going to give you all the content that you could possibly want and download it in email and all the rest of it what would be the effect on the market we know they've rejected this so i can't mention the figures in public court but if they're on their lot of fox clips that have been downloaded via t v is just through two thousand and thirteen i suspect the numbers have gone up exponentially since then fox has a business of monetizing its content in myriad ways and again this is just potential market harm fox doesn't have to show this in the damages kate part of the case about specific calculations although mr has sent to him one of his declarations did provide a calculation of what the  actual economic cost would be if he had been able to monetize that that cut content but we we license our clips through our content through our our cable licenses which they do not require the burden is on them to show that all their realistically what is the market for your new that's i will talk about things that were broadcast yesterday under the present new cycles what was broadcast an hour ago could be passe well it's useless except your honor that while they try very hard to characterize their service as as being for research and high fact block discovery as to the conduct of the users because the judge hellerstein properly found that under those cases what the users were doing wasn't relevant what's relevant as to what t v eyes does so it's doubly wrong for them to try to now cherry pick and make arguments about their users as a sword versus a shield but going beyond that if you were look at dr noble i was talking about the the capacity of th service to displace profit making opportunities and i said what is the market for old news there enough and i forgive me for digraphs ing if you were to look at dr beth nobles expert report at c n eight ninety three to nineteen zero three and see a twenty eight thirty nine to twenty eight forty four you would see monday in ordinary use of clips the one product was featured on fox business hey my content and they're putting themselves in so that you don't even need to go to us to get our own content it's just like infinity they put themselves in isn't a substitute as a source for our own content and for them to say that oh there's no proof that that we that we lost anything first of you don't need to even show that from fair use that the issue is if if if and especially if the use became widespread is that is there a potential for or to executive injuries i thought that elizabeth ashton put in a very poignant declaration at ca one seventy nine they talked about hey it's right on losing business she says i used to have x amount of business from a big company and now i have amount of business or no business at all because these big companies they selling well you know we have t v s now and they offer all you can eat clips for one low price and you are trying to sell on a per clip basis and you can't do that in that devalues the value of our clips it undermines the business and there's no real mystery about that they advertise in there at the in their own marketing things unlike traditional clipping services we offer you know all you can eat at one off first we in the record there's evidence that we have in fact the noble declaration license for research purposes without a limitation on producing the ashton declaration says that that clause is not the the the non disparagement which is typical in a lot of entertainment comics has she's not as i know of an instance where it's ever been put in play and i know it is in there but it's the key thing your honor because they try to make that like the giant the little teeny tail wagging a very big dog is that it's not in there for the clips on our website that we let people freely use website of the available and so many different ways other than that one thing that they're seizing on which has never been been used it's an interesting comparison because they want us to focus on what the customer because i do recognize i mean i am saying factually what had been the case there but but i think i've even if you were to take as a given that that one contract had that prohibition that was actually in force it doesn't matter because unlike swatch or other situations we make ourselves that content available in numerous other ways without any such restriction and for the that to be the tail wagging the dog is not right i also want to use that five thousand dollar figure that was mentioned i'm not sure what that was it that is wrong and it varies and i there's both figures in the ashton and in the declaration that can be as much as eight hundred dollars for a clip and i know people may say or more else they may say well that sounds like a lot but if you're thinking about getting to have your c e o who is on fox business you know tout to your company and to all your clients look how great i did being interviewed that's not an unreasonable amount the point is people are clear without you i would end up but but that's the point that mean that's the the there's no compulsory license here it's not a music case you know we're allowed to try to our market our clips or whatever we can and maybe we'll get them and maybe we won't but that's that's capitalism and that's what they are devaluing it is because the price that they would find acceptable for that you don't want to pay a penny for what we cost you millions and that's the key thing that people that needs to be understood is that we still make most of our money from cable license we can't put all of our clips one hundred percent on on the internet because then we lose our our primaries just on the internet i'm just wondering would you sell them a license to download long sleeve news stories that use the particular search term the issue would be at what price because we already that would displace ten million dollars they might have a kit that might help their you do this case or maybe the next case that says well if we can get it from them but it's prohibitive and so it's not realistic with the help whereas if you came back and said oh a lot because what they're trying to do let's be really clear about this is give their customers unlimited access to download e mail archived forever are clips clips that they did nothing to create and you're selling high quality clips that can be used for such things were as i understand it would t v hardy's is making available is really a different product it's it's it's a grainy  perfect ten or kelly versus rebus all cases is that they supply and they market you have their market which they market their clips as being high quality clips and they don't say anything about low resolution it's not it's not limited to them as we said in our brief that we pointed this out you can fully fill the frame and end perfect high definition it they're not offering grainy things they're offering really good things they could substitute for our own license offerings and i also want to go back to two point one you have the license offerings that you've spoken about exclusively now has has been for for promotional  but if they wanted something to to broadcast or to make part of their commercial presentations it seems to me they wouldn't be able to use what t v audience provides the contract the t was two points one their whole argument is based on the idea that somehow there's no market for any kind of internal use we know that's not true or that there's no market for research  texaco that's not true there were scientists using copies of just eight articles for scientific purposes internally and that was still deemed to not be fair use because i suspect  know you do that we all know you do but but but because the concept and that it makes sense because if you get if you look at their customers so these customers are two hundred thousand people there's a lot of internal use and then as we've bethnal declaration is a traditional market for us the other reason that this internal use argument that they are making again the burden on them is wrong is it's all based on a language in their contract that the data supply will be used internally jaded is not clips they haven't proved that data would have been meant by anyone to be clips and this is where i go to castle rock and say ex post facto  arguments should not be countenanced by the court because as judge hellerstein found and as you can see yourselves in all the marketing material the average time is the clips is being great for exit packages for clients great for social media campaigns beth noble org expert went on the internet and on a single day just one day found one hundred forty thousand clips going back to t v eyes the idea that they're th they can stand here and say oh no it's just used internally for research when you actually look at what they're pitching it as what they're marketing as if infer kind of internal scientific research by two people but it's for big corporate america to make big things on the internet to tout their products and that's wrong and i also think going back to two things that judge newman asked about mr i have c e o comment that you were asking about that you can get entire new stories not only was he the c e o he was there thirty six witness their bounds to that and i also note that the wallace declaration specifically says you can have many news clips in ten minutes and since they don't limit ten minutes you can have as many syria out of ten minutes you can view as you want and you can download as much as you want as long as you take a break and twenty five minutes you can get everything i also you also asked judg t about whether the issue is i believe what people actually do verses what is made available if i recall your your question and you asked ms sullivan for what the this case the potential scope of retransmission is more relevant than evidence of actual retransmission by dial up users same thinking in google books where the court in google books said what matters is what does google make accessible to people not so much what people use not what people use but what is it that they have made accessible and i also know the google itself one of the t b i is a mickey even acknowledged i believe in oral argument and others building google the google would not have tried to defend digitizing and selling entire books but that's the situation that we have here today and it is not justified by any of their perhaps this goes back to what i was saying earlier you can get complete books you can go to the library which has having bought the book as a license to lend it to anybody to read or you can go to the publisher and buy the book but when you're dealing with fourteen hundred radio and television stations it's seems to me  provide you with was the location you know go to w d m s and demoing at four o'clock in the afternoon and find a reference to your product how are you going to do that with google it's easy you just get the book but with with this it seems to be impossible to do to extract the kind of information that people legitimately will want to have and can use for for important  what you know where something appeared or how often it provides the entire transcript so you can see the words as to what was said and that's ok with fox news we believe that it's ok to supply the transcript you know in response to a search term i'm not in beijing i'm going into a business of selling all of that ten ten minutes worth of rocks but but transcripts thems them selves in response to search and we're not disagreeing with we're not or the video and it only shows the transcript that's right we believe that they go too far by copying the audio visual files and presenting that to people because that  beyond any kind of we believe a reasonable transformative purpose it's much more like infinity where there simply retransmitting works you know leaving the character the originals unchange and in either new expression new meaning or message that's not transformative such copying was not being transformative in neon and in the third circuit in video pipeline and judge codes excellently reason meltwater decision also found similar conduct the ability to see how the story was current and to the extent this court believes that that is important there's ways they could have but they didn't design their system to have cheated that what could they have done that they didn't do well for one thing they could have much shorter clips as your honor had noted they stay start at fourteen seconds before for contacts so just by their own admission twenty eight seconds should be enough to see the context they do much more than that both with what you can get from the searches and also using as your honor judge kaplan indicated the date time with it what else don't they do they don't have any kind of spoiler you know for me when i get my kids yearbook pictures that usually say for review purposes only you could still see what your child looks like but you're not likely to frame it and put it up in your room because it says for review purposes only when will it when when executive interviews hawks clips and gets tried people to lice them it uses that kind of spoiler t v eyes doesn't do that what else could t v eyes do you would if it wanted to do with it but it but it doesn't it could not let people download and rain are you saying no i'm i don't believe that i think though i'm trying to response and judging humans you know the question which was well suppose when i'm trying to respond to is if this court says well suppose i'm going to decide to to let them have a little audiovisual i don't think that's that's right we're quired when you're any principle of a fear or use law but if this were to require that there's it's not this case but there's all sorts of things that they could have done but they don't want to do  and the story is necessary for proper research they have put absolutely nothing in the record and is their burden to do so to say that that's required when we had dr noble a professor at fordham of journalism who in her expert report says we do research all the time and that is not required i also point out your honors because i think it's important as well i don't think we want to get in again you could go to fox you could go to our website you can go to our syndication partners or you can go to the internet news archive which has one hundred percent of our content and you can view it and download and but you can download it and buy you can buy it but you can get second issue can they get back up to fourteen seconds before that yes that yes they they can do that but i think it would be is judge kaplan was was indicating you either you run a different search because unlike google there's possibly others have have asked a lot of questions that maybe if i were the my surprise judge i'd be asking in a settlement conference we have here the proper outcome would be to vacate and remand thus affording pay the parties an opportunity to see if they can work something out but putting that aside decision by this court as to whether t v is is fair use or not t v eyes already had the opportunity as you saw in the papers it's revised its product in the course correct that's right and that's the issue and then and then and i would hope that in explaining my point of view hope with maybe hopefully but i'm hopeful that in your explanation as to why it's not fair use that would be helpful but but right now i think it's it's so important there's so many times that people say oh you know search is great search is great but search is only great if there's something to find and there's a reason that all the television networks and people supported us that the and in beaky that the society of journalists have supported us because people recognize c of television journalism because if people could under the guise of search create this loophole that lets people get access provide access and s the copyright owner is desperately trying to monetize and offering in all kinds of different ways and where congress under one await his authorize a separate way of getting that content in a noncommercial way it would open the floodgates to being able to have television journalists now more than ever be able to get the revenue that it needs to continue to create these works and i no that it's a matter of public interest that w p i x this court found the public has a compelling interest to induce the creation of television  programming and that the supreme court in harper said it mohnish courts the gate insufficient deference to the scheme established by the copyright act for fostering original works it is great that all these competing voices in the news exist we are offering our content to everyone we're not hiding our content get as cable subscription get our content but don't let t v eyes come under the guise of an index and say now we're going to take page that's one seven fifty six third at seventy three so that's established as a legal matter and that's why we're transformative even as to the audio visual piece second it's been discussed whether date time could be an easy end run i'd like to point the court to the undisputed and admitted fact in the record that daytime search has only been used for five point five percent of the views in the record that's at appendix sixteen twenty three it's admitted you concede that it could be used yes or no and it has been in five percent of the cases no we don't concede that it's been used as an end run your honor we just could see that it's been used and that's evidentiary that it's not used as a substitute for watching the monday night football that's correct or and i gave you the reasons why it's related to research if you don't think top of the news and length of story is relevant comparing facts to and has been and that's n b c i'm not sure how i can convince you but i think it is relevant third i've heard i've listened to my my  talented and learned adversary and i didn't hear any evidence of actual harm to licensing opportunities first point don't take it from me take it from mr miss sente of fox that their licenses cost one thousand to five thousand dollars that's at appendix eight hundred seventy eight but even if they were cheaper your honor and even if they offered blanket licenses which they do not that wouldn't solve the problem judge jacobs describes which is you can't an individual transactions interact with fourteen hundred interactions with customers the last thirty seconds or a minute or a minute a half which seems to me to imply that they're rejecting is irrelevant almost everything they see and nobody really wants a fourteen hundred t v broadcast from the evening news they look to pick a few things that have a limited number of trends what i'm saying your honor is even if you're looking for a small fraction of them there's no way you can do the search term search that t v s provides in bilateral negotiations with multiple broadcasters you just can't do it and i didn't hear ms and now i dispute but the but fox doesn't put the same thing on its website as we provide remember even if we it's it's sixteen percent of their content is clipped and they say oh it's fifty percent if you take out the ads but what they put on their website isn't what t v shows it isn't what was actually broadcast it's edited it's corrected if somebody makes a blooper it's cleaned up and it doesn't have the ticker at the bottom it's not the same programming they do not provide clips like we provide they simply don't your honor and i think listen i ignored her contractual protections she said we have no spoiler alert she said there's no because we already have a kind of red slash it's indisputed that on our download page and in eight hundred emails we supplied in the record we say over and over again you cannot use this for rebroadcasting purposes  use it as an overlay to the image we see it right below the image you can look for yourself at appendix two sixty five for an example our important note read under the image t v eyes may be used for internal review analysis or research only any editing reproduction publication rebrov casting public showing or public display is forbidden and when people do it we shut them down it's undisputed you can look for yourself at the record at twenty three ninety four when national review posted something on the on the website we took it down a few so you ever serious argument that this is not just about what t v ice is doing one of everybody did it where everybody made everything available what kind of a market with this your honor if if other services like v eyes provided the research that is provided here that would be a fair use and it would not until somebody in a future case if they prove that it cannibalizes a market of theirs let them prove it but there's no evidence here the poignant story from ms ashton that was told about losing your customers i would remind him his action is in england england doesn't have their use you have to get a license here in america we have camel versus a cuff and you don't have to license fair use and we shouldn't have to license fair use here if there's no proof of market harm ling people to get scrutiny of our democracy not at this moment in history but your honor as to going back to the district court we think the business model is fair use through and through us to all six functions you should remain part reviewers in part b kate the injunction to the extent  operates against e mail archiving as our email downloading and the time but your honor if you do if you do go back we certainly we've already made tweaks to our business model the twenty five minute blocker does prevent watching your entire program through consecutive know you're on a date time is ten minutes only and it's a total of of twenty five consecutive minutes that's the same for date time as for search term searches i do not your honor your honor when i say it is that a daytime search could be used to try to get to the beginning of the program if you found your search term and you try to go to the beginning of the program not the story but your i don't want to at this point it's late even dull to be a lot of time i want to make the key point here that this case comfortably within others gilby google plus watch if you accept that the audio visual medium with its conveying of town demeanor and cadence arched eyebrow and so forth if you accept that that's part of the valuable information that serves the research purpose and the only question before you is is there market harm there is not there is no proof of it we show that there was nothing and they didn't rebut it and is this too much and your honor i know these snippets look a little different from google judgeship jacob called them super snippets there think of them in south x accusing snippets that are just as limited as google snippets it's just that given the need to get into the programming you go with your search term to the exact place you want to watch and you find the context yourself instead of having google pick it for you in advance we think it's comfortably with and google for use to simply find this is a fair use entirely on the record now if you send us back for expensive discovery will think internet will fill in gage in the conference will make whatever modifications we thinking keep us alive but remember we're a small company where a fair use we think you should hold us to be a fair use now in the proud tradition of happy trust google and swatch thank you thank you thank you both it's been expertly argued the court is grateful we will reserve decision the case of tell you also first is called in is taken on submission that's the last case on calendar please