Case 1:12-cv-01340-JSR Document 84 Filed 07/03/14 Page 7 of 8
briefs, such copying was necessary to make the briefs comprehensively text searchable. Thus the Court finds that defendants only copied what was reasonably necessary for their transformative use, and that the third factor is therefore neutral.
Regarding the fourth factor, a finding of fair use is disfavored “only when the market is impaired because the … material serves the consumer as a substitute, or … supersedes the use of the original.” Bill Graham Archives, 448 F.3d at 614 (quoting Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105, 1125 (1990)). In determining whether such a market exists, the Second Circuit “looks at the impact on potential licensing revenues for ‘traditional, reasonable, or likely to be developed markets.’” Bill Graham Archives, 448 F.3d at 614 (quoting American Geophysical Union v. Texaco Inc., 60 F.3d 913, 930 (2d Cir. 1994)). In this instance, West’s and Lexis’s usage of the briefs is in no way economically a substitute for the use of the briefs in their original market: the provision of legal advice for an attorney’s clients. White himself admits that he lost no clients as a result of West’s and Lexis’s usage. Lexis 56.1 ¶ 94. Furthermore, no secondary market exists in which White could license or sell the briefs to other attorneys, as no one has offered to license any of White’s motions, nor has White sought to license or sell them. See Blanch, 467 F.3d at 258 (finding that this factor “greatly favor[ed]” the alleged infringer where the copyright holder had “never licensed any of her photographs for use in works of graphic or other visual
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