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Abstract: Most debates about the proper meaning of "transformativeness" in fair use are really about a larger shifttowards more robust fair use. Part I of this short Article explores the copyright-restrictionist turn towards defending fair use, whereas in the past critics of copyright's broad scope were more likely to argue that fair use was too fragile to protect free speech and creativity in the digital age. Part II looks at some of the major cases supporting that rhetorical and political shift. Although it hasn't broken decisively with the past, current case law makes more salient the freedoms many types of uses and users have to proceed without copyright owners' authorization. Part III discusses some of the strongest critics of liberal fair use interpretations, especially their arguments that transformative "purpose" is an illegitimate category. Part IV looks towards the future, suggesting that broad understandings of transformativeness are here to stay.
INTRODUCTION
In 2008, Professor Tony Reese presciently told us that the case law on fair use transformativeness favored protecting transformative purpose over transforming content, so that, among other things, exact reproduction could have a very good shot at fair use.1 Since then, defendants who made exact copies with transformative purposes (according to the courts) have done extremely well, while the record of unauthorized transformed content is somewhat more mixed, though also increasingly favorable. Purpose-transformativeness, where a work is reproduced wholesale or nearly so, but in a different context-such as a news report about a controversial artwork that contains an image of that artwork-is regularly enough to justify a finding of fair use. Content-transformativeness, where a work is physically altered, can also lead to a fair use finding where the meaning is changed substantially as a result.
The case law is consistent with a broader cultural recognition of the value of fair use of many flavors. As a founder of the nonprofit Organization for Transformative Works (OTW),2 which works to preserve and protect noncommercial fanworks-including fanworks based on existing copyrighted works-I have a deep commitment to both purpose-transformativeness and content-transformativeness, since fanworks regularly perform both kinds of transformations. I have seen fans exercise their fair use rights with increasing resolve, and the concept of transformativeness has helped them articulate and defend their creations.
Most debates...