A
In considering the first statutory factor‐‐the “purpose and character” of the secondary use, 17 U.S.C. § 107(1)‐‐the primary inquiry is whether the use “communicates something new and different from the original or [otherwise] expands its utility,” that is, whether the use is “transformative.” Google Books, 804 F.3d at 214. To be transformative, a use must “do[] something more than repackage or republish the original copyrighted work”; it must “‘add[] something new, with a further purpose or different character, altering the first with new expression, meaning or message….’” Authors Guild, Inc. v. HathiTrust, 755 F.3d 87, 96 (2d Cir. 2014) (quoting Campbell, 510 U.S. at 579). “Although … transformative use is not absolutely necessary for a finding of fair use, … [transformative] works … lie at the heart of the fair use doctrine,” Campbell, 510 U.S. at 579, and “a use of copyrighted material that ‘merely repackages or republishes the original’ is unlikely to be deemed a fair use,” Infinity Broad. Corp. v. Kirkwood, 150 F.3d 104, 108 (2d Cir. 1998) (quoting Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105, 1111 (1990)).
Precedent is helpful. Both parties rely most heavily on Google Books, which provides the starting point for analysis.
In Google Books, a consortium of libraries collaborated to make digital copies of millions of books, many of them under copyright. Google pooled these digital copies into a text‐searchable database. 804 F.3d at 207. Anyone could search the database free. When a user entered a search term, Google returned a list of books that included the term, and, for each responsive book, Google provided a few “snippets” that contained the term. Id.
We held that Google’s copying served a transformative purpose because it created a text‐searchable database that “communicate[d] something new and different from the original.” Id. at 214. “[T]he result of a word search is different in purpose, character, expression, meaning, and message from the page (and the book) from which it is drawn.” Id. at 217 (quoting HathiTrust, 755 F.3d at 97).
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