- C. Fair Use
Defendants maintain that their use of the Course is protected by the "fair use" doctrine. To determine whether a given use is fair, the Court must consider four factors:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
17 U.S.C. § 107.
- 1. The Purpose and Character of the Use
The central focus of an inquiry into purpose and character of the use is whether the allegedly infringing work
merely supersedes the original work or instead adds something new, with a further purpose or different character, altering the first with new meaning or message, in other words, whether and to what extent the new work is transformative. If the secondary use adds value to the original -- if copyrightable expression in the original work is used as raw material, transformed in the creation of new information, new aesthetics, new
47
