Editing NXIVM Corp. v. Ross Institute (section)

== Opinion of the court ==
The court noted that defendants’ misconduct in obtaining unauthorized material is one of several relevant factors in a fair use defense as set forth by the [[Supreme Court of the United States|Supreme Court]] in ''[[Harper & Row v. Nation Enterprises]]'', but that obtaining the manuscript in bad faith does not preclude a fair use defense.<ref name=Berkeley/>

The court weighed the [[s:United States Code/Title 17/Chapter 1/Section 107|four fair use factors]] to determine if Ross’s use was fair, and made the following findings:<ref name="Casenotes2007"/>

#  The purpose and character of the use was [[transformative]] as criticism and favored the defendants even if the defendants’ bad faith in obtaining the manual favored the plaintiffs.
# The nature of the copyrighted work was unpublished and favored the plaintiffs.
# The amount and substantiality of the portion used in relation to the copyrighted work as a whole did not favor the plaintiffs as (1) it was reasonable for the defendants to quote liberally from the manual in order to critically comment on it and (2) there was no identifiable "heart" of the manual.
# The market inquiry heavily favored the defendants because, "as a general matter, criticisms of a seminar or organization cannot substitute for the seminar or organization itself or hijack its market."

The court ruled in favor of the defendants and affirmed the denial of the preliminary injunction, stating,
<blockquote>If criticisms on defendants' websites kill the demand for plaintiffs' service, that is the price that, under the First Amendment, must be paid in the open marketplace for ideas...Certainly, no critic should need an author's permission to make such criticism, regardless of how he came by the original; nor should publication be inhibited by a publisher's anxiety or uncertainty about an author's ethics if his secondary work is transformative.<ref name=justia/></blockquote>