As digital technology and the online environment transform the distribution and use of intellectual property, our Copyright & Trademark group is on the front lines in protecting and enforcing our clients’ most important creative assets. Our trial-tested team represents a wide range of clients, from entrepreneurs to major corporations, from playwrights to media giants, and from individual songwriters to the country’s largest performing rights organizations.
Intellectual Property Litigation: Second Circuit Affirms That Scanning and Distribution of Print Books by Nonprofit is Not Transformative Fair Use
February 17, 2025
Litigation partners Catherine Nyarady and Crystal Parker’s latest intellectual property litigation column, “Second Circuit Affirms That Scanning and Distribution of Print Books by Nonprofit is Not Transformative Fair Use,” appeared in the February 17 issue of the New York Law Journal. The authors discuss a recent Second Circuit decision in which the appeals court affirmed a lower court’s finding that a defendant nonprofit’s copying of physical books and distributing them for free online did not constitute “fair use” under the Copyright Act of 1976. The Act allows for the “fair use” of copyrighted material in certain circumstances by entities who do not own the rights, including the reproduction of materials for teaching, research and news reporting, among other fair uses, and provides four factors for courts to consider when assessing fair use: purpose and character, or the extent to which the secondary work is transformative; the nature of the copyrighted work; the amount and substantiality of the portion of the work reproduced; and the effect of the use upon the potential market for the copyrighted work. The court found that all four factors favored the publisher plaintiffs, a decision that may have significant downstream implications for other digital lending services by making it more difficult to operate absent licensing agreements with copyright holders of the various works they seek to distribute.
Litigation associate Scott Caravello assisted in the preparation of this column.
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