Case 1:20-cv-04160-JGK-OTW Document 188 Filed 03/24/23 Page 19 of 47
- 2–4 (D. Ariz. May 11, 2015) (service that made complete copies of copyrighted print works and published them online was not transformative because republication did “not imbue the Works with new expression or meaning”).[1]
The Court of Appeals for the Second Circuit previewed as much in HathiTrust and Google Books, cases that “test[ed] the boundaries of fair use.” Google Books, 804 F.3d at 206. The defendant in HathiTrust scanned whole copies of millions of books, including those protected by valid copyrights, to create a database on which the general public could search for particular terms across the scanned works. 755 F.3d at 91. The creation of this “full-text searchable database [was] a quintessentially transformative use,” the court held, because “the result of a word search is different in purpose, character, expression, meaning, and message from the page (and the book) from which it
- ↑ Other cases consistently have held that the first fair use factor weighs against infringers who do nothing more than “change[] the format” of a preexisting work, as IA does here. Infinity Broad. Corp. v. Kirkwood, 150 F.3d 104, 108 n.2 (2d Cir. 1998); accord Disney Enters. v. VidAngel, 869 F.3d 848, 862 (9th Cir. 2017) (explaining that courts “unanimously reject the view that “space-shifting” is fair use under § 107” and holding that it was not fair use to “make[] illegal copies of pre-selected movies [on discs] and then sell[] streams …. in a different format than that in which they were bought”); UMG Recordings, Inc. v. MP3.com, Inc., 92 F. Supp. 2d 349, 350-52 (S.D.N.Y. 2000) (service that “simply repackage[d] [] recordings to facilitate their transmission through another medium” was not transformative). These cases further support the conclusion that IA’s use of the Works in Suit is not transformative.
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