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Further, the posting of the entire recording was necessary to fulfill this newsworthy purpose. Because of that newsworthy purpose, a transformative use was not required. Important factors: Bloomberg’s publication of the call was analogous to news reporting (publication of such calls is mandatory for American corporations). A news organization (Bloomberg) tapped into an earnings report phone call made by executives of a foreign corporation (Swatch) to 132 analysts, and posted a recording and transcript of the phone call. Important factors: As to the full-text database and disabled-access, the Court of Appeals did not find any evidence of financial harm. On appeal, the Second Circuit affirmed fair use as to the full-text database (“a quintessentially transformative use”) and as to use of text in formats accessible to print-disabled people (although not a transformative use, it is still considered a fair use based on the Betamax decision), but remanded the issue of fair use for long-term preservation of books. A district court ruled that libraries that provided a search engine company (Google) with books to scan were protected by fair use when the libraries later used the resulting digital scans for three purposes: preservation, a full-text search engine, and electronic access for disabled patrons who could not read the print versions. Important factors: On remand, the second factor (the scholarly nature of the work) and the fourth factor (impact of the use on the market value) weighed in favor of fair use. The case was remanded to the district court which, in 2016, found the majority of instances to be fair use.
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On appeal, the Eleventh Circuit rejected the 10% standard and emphasized the importance of a flexible case-by-case fair use analysis. In a case alleging 75 instances of infringement in an educational setting, a district court, proposing a fair use standard based on less than 10% of a book, determined that 70 instances were not infringing. Important factors: No more than 1% of Wright’s unpublished letters were copied and the purpose was informational. A biographer of Richard Wright quoted from six unpublished letters and ten unpublished journal entries by Wright. Falwell’s copying did not diminish the sales of the magazine (since it was already off the market) and would not adversely affect the marketability of back issues. Falwell made several hundred thousand copies of the page and distributed them as part of a fund-raising effort. Publisher Larry Flynt made disparaging statements about the Reverend Jerry Falwell on one page of Hustler magazine. 3.0.1 Consider Fair Use Before Requesting DMCA Takedown.2 Artwork, Visual Arts, and Audiovisual Cases.