Page:Code Revision Commission v. Public.Resource.Org, Inc. (F.Supp.3d).djvu/9

1358 proof on the putative infringer. See Harper & Row, Publishers v. Nation Enters. , 471 U.S. 589, 562, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985); Cambridge Univ. Press v. Patton, 769 F.3d 1232, 1280 (11th Cir. 2014). In determining whether application of the fair use doctrine is appropriate, the Copyright Act mandates the review of 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. These four statutory factors are not to be treated in isolation from one another. See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 578, 114 S.Ct. 1164, 127 L.Ed.2d 500 (1994). Rather, “[a]ll are to be explored, and the results weighed together, in light of the purposes of copyright.” Id. at 578, 114 8.Ct. 1164,


 * i. Purpose and character of the use

The first factor that the Court must consider is the purpose and character of Defendant’s use of the copyrighted work. The Court must consider multiple factors, including (1) the extent to which the use is “transformative” rather than merely a superseding use of the original work, and (2) whether the use is for a nonprofit educational purpose, as opposed to a commercial purpose. Peter Letterese & Assocs. v. World Inst. of Scientology Enters. , 533 F.8d 1287, 1809 (11th Cir. 2008). The Eleventh Circuit instructs:

"A transformative work is one that adds something new, with a further purpose or different character, altering the first work with new expression, meaning or message. On the other hand, a work that is not transformative, and that merely supersedes the objects of the original creation, is less likely to be entitled to the defense of fair use because of the greater likelihood that it will supplant the market for the copyrighted work, fulfilling demand for the original."

Id. at 1310 (internal citations and quotation marks omitted).

Defendant does not transform the annotations. It does not add, edit, modify, comment on, criticize, or create any analysis or notes of its own. Defendant’s justification in support of its verbatim copying and free distribution without authorization is that it purports to provide wider distribution of the annotations. Courts have routinely rejected arguments that this is transformative use. See, e.g. , Author’s Guild, Inc. v. HathiTrust , 755 F.3d 87, 101 (2d Cir. 2014) (“[T]he district court concluded that the ‘use of digital copies to facilitate access for print-disabled persons is a transformative’ use. This is a misapprehension; providing expanded access to the print disabled is not ‘transformative’ ”) (citation. omitted)); Seltzer v. Green Day, Inc. , 725 F.3d 1170, 1177 (9th Cir. 2018) (“In the typical ‘non-transformative’ case, the use is one which makes no alteration to the expressive content or message of the original work.” (emphasis omitted)). Defendant’s verbatim copying and posting of the annotations is expressly designed to supplant the O.C.G.A. as already distributed and made available online by Lexis/Nexis, which is not transformative.

The Court must also consider whether Defendant’s use is for a nonprofit educational purpose, as opposed to a commercial purpose. That Defendant is a nonprofit does not end the inquiry pursuant to