Purpose-transformativeness versus content-transformativeness

In 2008, Tony Reese presciently told us that the case law on fair use “transformativeness” showed a trend towards favoring transformative purpose over transforming content, so that exact reproduction could have a very good shot at fair use.  Today’s example, via Eric Goldman, involves Westlaw and Lexis’s creation of databases containing the full text (minus some privacy redactions) of legal filings.  In a quick opinion, the court deems this conduct clearly transformative–it results in the creation of a completely new thing, a legal research database–and not harmful despite being commercial and involving full copies (or as near as makes no difference).  At this point, I think it’s safe to say that it’s easier to win a fair use case by engaging in large-scale, wholesale copying to create a database than it is to win a fair use case by altering the content of a single work–there are plenty of cases in the latter category, of course, but there are also cases finding infringement, and so far there aren’t any in the former category.  I would be surprised if the Authors’ Guild v. Google case became the first.

Critics of so-called “expansive” fair use holdings sometimes argue that (1) favoring databases is an unjustified extrapolation from Campbell, which after all was a content-transformativeness case, and (2) that conceptually, “transformativeness” overlaps with the derivative works right, which also speaks of how a work may be “transformed” or adapted.  (1) and (2) are, it seems to me, really in conflict–any need to constrain content-transformativeness for fair use purposes in order to protect the derivative works right doesn’t apply to purpose-transformativeness, which generally needs to work with reproductions to achieve its aims.  Anyway, Reese’s careful framework seems to me to explain the subsequent six years of cases too.

This entry was posted in google, http://schemas.google.com/blogger/2008/kind#post, reading list. Bookmark the permalink.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s