Pendulum May Be Swinging Away From Fair Use

Law360, New York (October 26, 2017, 2:24 PM EDT) -- "Fair use ... is not a jacket to be worn over an otherwise infringing outfit," explained Judge Jed Rakoff in the latest decision that seems to indicate that courts are tempering the fair use defense to copyright infringement.

On Sept. 8, 2017, Judge Rakoff issued his written opinion in Penguin Random House LLC et al. v. Frederick Colting et al., finding that defendant's condensed and edited children's versions of various classic novels, known as "KinderGuides," did not fall under the fair use defense to copyright infringement.[1]

The defendant argued that the guides were transformative and akin to "CliffNotes" for children, including "condensed...

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