TVEyes to Petition Supreme Court Over 2nd Circuit's Decision on Fox Litigation

TVEyes is taking its legal fight with Fox to the Supreme Court and asking for more time to do so. In an application Wednesday to extend time to file a petition for writ of certiorari, TVEyes asked Justice Ruth Bader Ginsburg -- as circuit justice for the 2nd Circuit Court of Appeals -- to move its petition deadline from Aug. 13 to Sept. 12. It said the case "presents an exceptionally important question" about the Copyright Act's fair use defense -- especially the fourth fair use factor, dealing with the effect of the use on a potential market for, or value of, a copyrighted work. It said the 2nd Circuit's decision earlier this year reversing a lower court decision that some TVEyes functions constitute fair use (see 1802270025) conflicts with prior Supreme Court and other appellate court decisions rejecting the idea market harm can be presumed from a copyright defendant's commercial success. It also said the 2nd Circuit decision is in conflict with the Supreme Court and other appellate courts in saying Fox can "control a market that enables criticism of and commentary on Fox" and let a copyright owner pre-empt the exploitation of a transformative market. Fox didn't comment Thursday.