Question

A publisher plans to release a new book written by a prominent politician. The publisher maintains strict control over the release of excerpts or other material from the book. For example, releases of advance copies to the media for review have been allowed only on the condition that no material from, or review of, the book be published until the book’s release and all recipients of such copies have been required to sign nondisclosure agreements. The publisher finds that significant portions of the book are posted to a blog owned by an online media company, which obtained the book as an advance copy for review. The online media company did not use the material to create anything new, but rather copied material in order to attract visitors to its blog. If more people visit the blog, the online media company could seek more compensation from advertisers. The publisher moves for a temporary restraining order, and the online media company argues that the fair use defense should apply. How would a court rule on the motion for a temporary restraining order and petition for a preliminary injunction? Discuss and apply each of the four fair use defense factors in your analysis.

Answer 1

The four factors judged under fair usage are a) the purpose and character of use, b) the nature of the copyrighted work, c) the amount and substantiality of the portion, d) the effect of the use on the market potential of the product.

The judge is likely to issue a temporary restraining order as the case fails most of the four tests. The blog company does not have any malicious intent behind publishing the excerpts, thus passes the first test. However, it fails the second test. It also fails the third test as it violated the IPR for a large portion of the material. The fourth test is also failed as such large scale excerpts may lead to people not buying the book. Hence, the restraining order will be justified.