In a closely watched case attracting more than a dozen
amici, the US Court of Appeals for the Second Circuit
further clarified the boundaries of fair use, finding that a key
element of this balancing test is "the effect of the
[secondary] use on the potential market for or value of the
copyrighted work." Fox News Network, LLC v. TVEyes,
Inc., Case Nos. 15-3885; -3886 (2d Cir., Feb. 27, 2018)
(Jacobs, J). The Court referenced its 2015 decision in in
Authors Guild v. Google (Google Books) (
IP Update, Vol. 16, No. 12), in which it found that
Google's creation of a text‐searchable database of
millions of books (including books under copyright) was a fair use
because Google's service was "transformative" and
because integral features protected the rights of copyright
holders. The Court cautioned, however, that Google Books
"test[ed] the boundaries of fair use." Here, the Court
concluded that "TVEyes has exceeded those bounds."
