1242. We disagree. … Accordingly, we find that the District Court erred in holding that the second factor favored fair use in every instance. Where the excerpts of Plaintiffs’ works contained evaluative, analytical, or subjectively descriptive material that surpasses the bare facts necessary to communicate information, or derives from the author’s experiences or opinions, the District Court should have held that the second factor was neutral, or even weighed against fair use in cases of excerpts that were dominated by such material.
Patton, 769 F.3d 1269–1270. The annotations in this case contain exactly the evaluative, analytical, or subjectively descriptive analysis and guidance that the Eleventh Circuit addressed in Patton. Thus, the second factor is, at best, neutral as between these parties.
- iii. Amount and substantiality of the portion used
The third factor that the Court must consider is the “amount and substantiality of the portion used in relation to the copyrighted work as a whole.” 17 U.S.C. § 107(3). A court must ask whether the defendant has “helped [itself] overmuch to the copyrighted work in light of the purpose and character of the use.” Peter Letterese, 538 F.3d at 1314 (quoting Campbell, 510 U.S. at 587, 114 S.Ct. 1164). This factor recognizes that the more of a copyrighted work that is taken in quantity and quality, the less likely the use is to be fair. See Harper & Row, 471 U.S. at 565, 105 S.Ct. 2218 (holding that the third factor disfavored fair use because the defendant copied a qualitatively substantial portion of the original work, even though the defendants copied only approximately 300 words out of the 200,000 words in the plaintiffs’ work). Indeed, where a defendant “uses virtually all of a copyrighted work, the fair use defense drifts even further out of its reach.” Pac. & S. Co. v. Duncan, 744 F.2d 1490, 1497 (11th Cir. 1984). In this case, Defendant has misappropriated every single word of every annotation using a bulk industrial electronic scanner.
- iv. Effect on the potential market
The fourth factor that the Court must consider is “the effect of the use upon the potential market for or value of the copyrighted work.” 17 U.S.C. § 107(4). The “central question” is whether, assuming that everyone engaged in the defendant’s conduct, the use “would cause substantial economic harm such that allowing [the conduct] would frustrate the purposes of copyright by materially impairing [the] incentive to publish the work.” Patton, 769 F.3d at 1276. The Supreme Court has expressly stated that this factor forms the most central inquiry of the fair use doctrine. Harper & Row, 471 U.S. at 566, 105 S.Ct. 2218 (stating “[t]his factor is undoubtedly the single most important element of fair use”).
Plaintiffs have established the markets for the O.C.G.A. works: printed publications, CD-ROM, and subscription services. When considering Defendant’s actions being performed by everyone, it is inevitable that Plaintiffs’ markets would be substantially adversely impacted. A judicial decree that Defendant’s wholesale copying of the copyrighted annotations constitutes a fair use would hinder the economic viability of creating and maintaining the O.C.G.A. because people would be less likely to pay for annotations when they are available for free online.
Additionally, Lexis/Nexis’s sole revenue to recoup the costs of preparation of the
