Top 10 Fair Use Cases of 2014

This year, fair use law experienced mostly positive developments. The biggest trend, which harkens back to Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605 (2d Cir. 2006) and Perfect 10, Inc. v., Inc., 508 F.3d 1146 (9th Cir. 2007), involves fair use findings in cases where the new work transforms the “function or purpose” of the original work without altering or actually adding to it. We saw a series of decisions concluding that aggregating content (e.g., television clips, digitized books, legal briefs, etc.) into searchable databases for new uses can be transformative, even if little or nothing about the original content itself changes. In another, more disturbing trend, we continued to see cases where people acquired copyright registrations for the sole purpose of trying to silence their critics. Thankfully, in each of these cases, fair use (even when poorly applied by Judge Easterbrook) protected freedom of speech. Finally, we saw a biographical film about the life of a pornography actress protected for its critical content and an even-handed (albeit monstrously long) opinion involving digital coursepacks at Georgia State University.

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