Does the “fair-use doctrine” protect wholesale copying of word definitions that may have been in the public domain for decades, or in some instances centuries? Not according to a September 2014 opinion from the United States District Court for the District of Massachusetts.
James T. Richards (“Richards”) brought an action for declaratory judgment against Merriam Webster, Inc. (“Webster”). In his Complaint, Richards recounts his personal history and his early struggles with the English language. In 1976, he “realized that his own reading skills, which were mediocre, could be greatly improved if he learned the meaning of all the words in a Collegiate®/college dictionary.” Richards set out to read the Merriam-Webster Collegiate Dictionary, which he did six or seven times.
Richards’ asserts that his score on the verbal portion of the SAT rose from 560 to 740 after his efforts at dictionary reading. When Richards took the LSAT, he scored above the 99.8th percentile. Richards accredits much of his success to his time spent thumbing the pages of his Webster’s dictionary.
Richards conceived of a “textbook dictionary” to help those with poor reading abilities and poor reading comprehension. While a standard dictionary was used by Richards, he believed that a textbook format for the words and definitions, along with verbal illustrations, could improve reading comprehension skills. Richards developed the concept of a textbook style format in which words and definitions were presented on a page in larger type and without multiple columns, so “everything wasn’t crammed together.” The textbook format would allow the user to customize her own reading experience. Essentially, Richards wanted students and adults struggling with reading comprehension to be able to read the dictionary like a book. Richards planned to disseminate his textbook to the world, free of charge.
To realize his vision, Richards downloaded a large portion of the copyrighted Eleventh Edition of Webster’s dictionary from CD-ROM. By some accounts in the legal filings, Richards downloaded 70% or more of content of the Eleventh Edition. It took Richards about four months to complete his initial download. Richards then modified the entries for certain words by changing font sizes, adding emphasis, adding verbal illustrations, removing etymological history, removing pronunciation clues, and removing archaic and obsolete terms.
Richards then approached Webster, in writing, requesting permission to use “virtually all” of the material in the Eleventh Edition for his textbook dictionary. Webster denied Richards’ request. Richards filed a complaint seeking a declaration that publication of his textbook dictionary would not violate Webster’s copyrights in the Eleventh Edition. Richards presented two primary arguments: (a) that some of the Eleventh Edition’s content was copied from earlier dictionary versions and that content is in the public domain; and (b) that Richards’ use of Webster’s content constituted fair use.
The District Court quickly disposed of Richards’ public domain argument. Richards contended that Webster failed in discovery responses to identify which words and definitions are now in the public domain. Not a bad argument! The Court found, however, that Richards was not seeking to use only those portions of Webster’s content that had entered the public domain. Instead, Richards was seeking to use the work as a whole. In this way, the Court sidestepped the very tedious task – for Webster and the Court — of defining what portions of the Eleventh Edition were in the public domain and therefore free for Richards to use as he saw fit. (Note that no argument was presented that Webster held copyrights in the collective work or compilation of words and definitions that were in the public domain.)
The Court next turned its attention to Richards’ fair-use argument. Richards cited the four factors of 17 U.S.C. §107 used in the factual determination of whether a reproduction constitutes fair use: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.
Although historically the effect of the use upon the potential market was deemed to be the most determinative factor, recent decisions by the Second Circuit indicated a sea change — whether the reproduction was “transformative,” in the context of the purpose and character of the use, was the most important factor. See, e.g., Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013); Authors Guild v. Hathi Trust, 755 F.3d 87 (2d Cir. 2014). In Cariou, the court found “transformative” to mean adding “something new, with a further purpose or different character.” The chance of success on a fair-use argument increases if the reproduction is truly transformative.
Richards argued that his work was transformative; that it was a new way of presenting stale and “crammed” up content to a user that would improve reading comprehension. In its discussion of the purpose and character of use, the Court focused not on the qualitative transformation of the work but instead renewed its emphasis that a significant portion of content from the Eleventh Edition was used and that the other three fair-use factors were heavily against Richards. In so finding, the Court gave less weight to the purpose and character of the use factor.
Indeed, the Court seemed to revert to the tried and true market effect factor. The Court accepted (although without dispute from Richards) that Richards’ use would “impede the market share and profitability of [Webster’s] online dictionary.” With respect to the nature of the work factor, the court accepted Webster’s position that dictionary definitions “represent Merriam Webster’s unique perspective and opinion as to what words mean,” essentially ascribing creative focus to what might otherwise be considered factual recitations. Finally, the Court agreed with Webster that Richards’ use of “the majority of the copyrighted work” militated against finding fair-use.
In sum, although Richards’ claimed intended use was laudable, the Court found that such a substantial use of the protected work, with the probability of significant market harm, outweighed any transformative nature of the work. The Court granted summary judgment in Webster’s favor. The docket indicates no appeal of the decision by Richards. At least for now, we will not know whether a “textbook dictionary” can dramatically improve reading and comprehension in the real world. This is an unfortunate consequence of the decision.
Although Richards represented himself pro se, his court filings were cogent and his arguments had merit, regardless of the outcome. It is not clear whether he ever attended law school or practiced law, but if not he should have! One thing is certain: Richards’ dictionary reading as a young man gave him the tools to ably present and advocate his case. So the method worked, at least for Richards.
Charlie is a partner in the Baltimore office of Gorman & Williams. Charlie’s practice focuses on commercial litigation including patent, trademark, and copyright licensing and litigation and insurance coverage cases involving intellectual property.