Page:National Fire Protection Association v. UpCodes (2021).pdf/7

 The four enumerated fair use factors should not be considered in isolation but “are to be explored, and the results weighed together, in light of the purposes of copyright,”, 510 U.S. 569, 578 (1994), which are “promot[ing] the Progress of Science and useful Arts,” U.S. Const. art. I, § 8, cl. 8. However, the first and fourth enumerated factors are generally more significant than the second and third. , 804 F.3d 202, 213–14 (2d Cir. 2015). “The task is not to be simplified with bright-line rules, for the statute, like the doctrine it recognizes, calls for case-by-case analysis.”, 510 U.S. at 577.
 * 1. Purpose and Character of the Use

The first factor asks courts to consider “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.” 17 U.S.C. § 107(1). The fact that an infringing “publication was commercial as opposed to nonprofit … tends to weigh against a finding of fair use.”, 471 U.S. at 562. Though it is not strictly necessary for a fair use to be transformative, “the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.”, 510 U.S. at 579. Similarly, where a work is not transformative, the commercial nature of an allegedly infringing use takes on greater significance. , 839 F.3d 168, 183 (2d Cir. 2016).

In, 2020 WL 2750636, at *24–25, an almost factually identical case brought against UpCodes, the district court found disseminating enacted laws for public awareness was a transformative purpose and “seem[ed] consistent with illustrative purposes articulated in the Copyright Act, including teaching, scholarship, and research.” The district court relied on , 896 F.3d 437, 450 (D.C. Cir. 2018) , another factually similar case (although the defendant was a non-profit company and had copied only the text of the laws, not any additional material). , 2020 WL 2750636, at *24. In, the D.C. Circuit stated that “in certain circumstances, distributing copies of