the blind and print disabled.”[1] The court also relied on Section 121 of the Copyright Act, which permits “authorized entities” to make accessible copies for the print disabled, as illustrating “Congress’s intent that copyright law make appropriate accommodations for the blind and print disabled.”[2]
Some courts have pointed to broader policy objectives, both within and outside of the copyright act, as influencing the purpose and character analysis. For example,[3] in Swatch Group Management Services Ltd. v. Bloomberg, L.P., Swatch argued that Bloomberg infringed its rights when it recorded and distributed a private conference call reporting earnings information from a foreign company.[4] Ultimately concluding that the use was fair, the Second Circuit cited Securities and Exchange Commission (“SEC”) public disclosure regulations as significant in assessing the purpose and character of Bloomberg’s use. The court found that Bloomberg’s purpose in obtaining and disseminating the recording at issue was to make important financial information about Swatch Group available to investors and analysts. “That kind of information is of critical importance to securities markets. Indeed, as Bloomberg points out, the SEC has mandated that when American companies disclose this kind of material nonpublic information, they must make it available to the public immediately. See Regulation FD, 17 C.F.R. § 243.100.”[5]
The U.S. Copyright Office has also cited specific copyright exceptions as positively influencing the fair use assessment. Under Section 1201 of the copyright act, every three years the Office is required to make recommendations about proposed exceptions to Section 1201’s prohibition on circumvention of technological protection measures.[6] Under that provision, the Office must assess for each proposed exception whether users of the class of works are likely to be adversely affected by the anti-circumvention provision in their “ability to make noninfringing uses.”[7] The Office has traditionally provided in-depth analysis of the lawfulness of the proposed uses. In its 2015 recommendations, the Office pointed to the basic purpose of other provisions as favorably affecting the
- ↑ Id.
- ↑ Id.
- ↑ Another example is Am. Inst. of Physics v. Winstead PC, 3:12-CV-1230-M, 2013 WL 6242843, at *9 (N.D. Tex. Dec. 3, 2013) (copying of scientific articles as evidence of prior art in patent examination weighs the purpose and character assessment in favor of fair use in part because “Defendants’ copying of NPL contributes to an efficient patent system”).
- ↑ Swatch Group Mgt. Servs Ltd. v. Bloomberg L.P., 756 F.3d 73, 82 (2d Cir. 2014).
- ↑ Id.
- ↑ 17 U.S.C. § 1201 (2018).
- ↑ 17 U.S.C. § 1201(a)(1)(c).
