TTT-LS wrote:Also, I'm a 3L who has taken copyright, in case that matters. Taking one class doesn't come close to making me an expert, of course. Anyhow, factually this is pretty similar to Harper & Row, so that's strike one for fair use. The fact that this is online and H&R was offline is probably immaterial for most of the fair use analysis. As for the sec. 107 factors, they're close but in the aggregate seem to militate for a lack of fair use. Here's why:
1. The copying here on TLS is at least partially commercial (the site hosts, ads & gets revenue per page view, right?), and the use involved (straight copying w/o parody, etc.) is non-transformative. On the other hand, one could argue that TLS has copied the material for the purpose of news commentary of a sort. Seems like this factor is a wash.
2. While one could argue that the USNWR rankings are more factual than expressive in nature (given emphasis on employment stats, library square footage, etc.), there is a clear element of expression embedded therein, so factor 2 is probably also a wash.
3. Factor 3 involves a framing issue. If we characterize the law school rankings as their own, separate copyrightable work, then TLS has taken 100% of the work, which would work against fair use. If the relevant work is the whole USNWR rankings issue, then the LS rankings constitute only a medium % on a quantitative basis, but may still be the "heart of the work," since the LS rankings contribute much of the magazine issue's dollar value. See Harper & Row. In either case, this factor clearly cuts against fair use.
4. Factor 4 seems to be what you were really arguing, QQT. Yes, some people might never buy the newsstand rankings issue. But USNWR still charges for some of the online content, IIRC, and the fact that some people would normallyt just go and get the copyrighted content online (perhaps via other sources guilty of infringement) is no defense to the fact that the rankings copied onto TLS are more or less a substitute for those on sale by USNWR. QQT's argument that the copying here will benefit the (c) owner has been raised in several cases and rejected in each. See Harper & Row; Castle Rock v. Carol Publishing; A&M Records v. Napster. Factor 4 thus points strongly against fair use as well.
But that's just my take.
What LS do you go to?