statutorily favored purposes under Section 121. The court in Swatch similarly expressed doubts about whether the use was transformative, but nevertheless concluded that the public benefit and information dissemination purposes—aligned as the Court noted with SEC regulatory guidance—was a favored purpose.[1]
HathiTrust is particularly instructive for CDL because like HathiTrust, the use here is aligned with other Congressionally-sanctioned information policies, the use is non-commercial, and it is aimed at opening up access to readers for research and learning purposes. “Transformative use” is a critical part of the fair use assessment, but is not necessary. Indeed, the vast majority of routine academic, educational, and personal study uses are likely not transformative—multiple copies made for classroom use, reproductions of a work for home study, replication of a work into a different format for later consultations—they all happen in large numbers every day and are in most cases not “transformative” but nonetheless permissible. In cases such as with CDL, where the purpose of the use so well aligns with the overall purposes of the Act, transformative use considerations should not override.
- B.The Nature of the Work
The second fair use factor, “the nature of the copyrighted work,” has rarely played a significant role in the overall fair use assessment. Several recent cases have explicitly denied its significance, finding variously that it may be “of limited usefulness,”[2] is “rarely found to be determinative,”[3] and is “of relatively little importance” in the case at hand.[4] Traditionally, however, courts have used the second factor to examine whether the work used falls at the “core of intended copyright protection”[5] or closer to its fringes. Use of works of a more scientific or scholarly nature have weighed in favor of fair use;[6] “the law generally
- ↑ Compare Swatch Group Mgt. Servs Ltd. v. Bloomberg L.P., 742 F.3d 17, 29 (2d Cir. 2014) (Bloomberg did not transform Swatch’s work), amended and superseded by Swatch Group Mgt. Services Ltd. v. Bloomberg L.P., 756 F.3d 73, 85 (2d Cir. 2014) (Swatch’s use gave it an “arguably transformative” character).
- ↑ HathiTrust, 755 F.3d at 98.
- ↑ Id. at 102 (quoting Davis v. Gap, Inc., 246 F.3d 152, 175 (2d Cir.2001).
- ↑ Cambridge Univ. Press v. Patton, 769 F.3d 1232, 1270 (11th Cir. 2014).
- ↑ Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 586 (1994).
- ↑ Am. Geophysical Union v. Texaco Inc., 60 F.3d 913, 925 (2d Cir. 1994) (use of scientific journal articles was favored under the second factor); Penelope v. Brown, 792 F. Supp. 132, 137 (D. Mass. 1992) (use of scholarly work favored); Cambridge Univ. Press v. Patton, 769 F.3d 1232, 1270 (11th Cir. 2014) (informational educational works may be favored for use under second factor, but one
