The district court’s injunction was shaped by an error of law: the mistaken assumption that the Watch function (and some features subsidiary to it) had fair‐use protection. We therefore remand to the district court to revise the injunction in accordance with this opinion.
Because the product TVEyes currently offers includes the infringing Watch function and its subsidiary features (i.e., clients’ ability to archive, download, and email clips, as well as to view clips after conducting a date/time search[1]), the court should enjoin TVEyes from offering that product. However, because Fox does not dispute TVEyes’s right to offer its Search function, the court’s injunction shall not bar TVEyes from offering a product that includes that function without making impermissible use of any protected audiovisual content.[2]
CONCLUSION
The order of the district court is reversed to the extent it held that TVEyes’s product was a fair use. The order is affirmed to the extent it denied TVEyes’s request for additional relief. We remand for the district court to revise the injunction to conform with this opinion. Any further appeal will be assigned to this panel.
- ↑ There is no copyright infringement in the use of the date/time search function to discover the particular program that was playing on a certain channel at a certain time. That information is a historical fact, which is not copyrightable. See Arica Institute, Inc. v. Palmer, 970 F.2d 1067, 1075 (2d Cir. 1992). However, enabling a client to view a copied video located on the basis of a date/time search can constitute infringement, and it is not a fair use.
- ↑ Because Fox has not challenged the Search function on this appeal, and the parties have therefore presented no arguments about it, we express no views on it, neither upholding nor rejecting it.
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