Transformativeness in the Age of Mass Digitization

(Excerpt) This Note examines and ultimately argues against the expansion of transformativeness in verbatim-copying cases, given the implications it will have as more copyrighted works are digitized. Part I discusses the background and objectives of the Copyright Act, the fair use exception, and the rise of the transformativeness subfactor. Part II provides a summary of some predigitization fair use cases to establish some basic principles about how courts have ruled on transformativeness. Part III examines relevant cases recently decided on the question of transformativeness in the context of mass digitization. Part IV critiques the ways courts have arrived at their holdings, specifically in overemphasizing societal benefits as a measure of transformativeness and overstating the facts of certain cases to find a transformative purpose or character where one may not exist. This section will also offer a more appropriate analysis that courts should follow in determining whether certain cases of verbatim-copying and digitization are transformative. Finally, it will discuss some possible licensing options to abate the judicial expansion of transformativeness