4. There Is No Conceivable Harm to the Market for Hustlin’ or Hustlin’ Derivatives. The fourth factor is “the effect of the use upon the potential market for or value of the copyrighted work.” 17 U.S.C. § 107(4). Evaluation of this factor requires an analysis of “the degree to which the defendant’s use adversely affects the potential value of either the original work or derivative works” based on the original work and “the adverse effect with which fair use is primarily concerned is that of market substitution.”

Plaintiffs’ criticisms of Defendants’ fair use defense are without merit. First, the fair use checklist and the fair use analyses the professors performed in accordance with the fair use checklist are wholly consistent with and well grounded in the four factor test of 17 U.S.C. § 107 and the substantive law of fair 19 Plaintiffs do not contend they are entitled to a fee award based on frivolousness, motivation, or the need to advance considerations of compensation and deterrence. Accordingly, Defendants will not address these Fogerty factors.

Case 1:05-cv-08136-DC Document 1070 Filed 08/26/13 Page 48 of 57 42 d. Google Cannot Satisfy Factor Four The fourth statutory factor is the “effect of the use upon the potential market for or value of the copyrighted work.” 17 U.S.C. § 107(4). Google claims that its uses have no adverse effects.

Plaintiff’s Contention Regarding The Fourth Fair Use Factor Ignores The Supreme Court’s Controlling Test Factor four is “the effect of the use upon the potential market for or value of the copyrighted work.” 17 U.S.C. § 107(4). In alleging that Universal must have known this factor would weigh in favor of fair use, Plaintiff focuses solely on the potential effect of her use, standing alone.

Finally, we must consider "the effect of the use upon the potential market for or value of the copyrighted work." 17 U.S.C § 107(4).

The second fair use factor analyzes “the nature of the copyrighted work.” 17 U.S.C. § 107(2). This factor recognizes that “some works are closer to the core of intended copyright protection than others,” so that the fair use analysis may differ across different works.

The fourth fair use factor examines “the effect of the use upon the potential market for or value of the copyrighted work.” 17 U.S.C. § 107(4). “This analysis requires a balancing of ‘the benefit the public will derive if the use is permitted and the personal gain the copyright owner will receive if the use is denied.

The AP’s Actions Usurped Ms. McClatchey’s Primary Market The final factor to consider is “the effect of the use upon the potential market for or value of the copyrighted work.” 17 U.S.C. 107(4). Key to the fourth factor is “whether unrestricted and widespread conduct of the sort engaged in by the defendant…would result in a substantially adverse impact on the potential market for the original.”

Market Effect The four factor is "the effect of the use upon the potential market for or value of the copyrghted work." 17 U.S.C. § 107(4). This factor "requies a balancing of the benefit the public will derive if the use is permtted" versus "the persona gai .

The fourth sentence states that Oracle made portions of the Solaris software available as “open source,” which has nothing to do with section 107. The fifth sentence recites the remaining elements of the section 107 defense. And then the sixth sentence tells Oracle to look through Terix’s counterclaims, including but not limited to more than 40 paragraphs, to see if more information can be found there about fair use.