Should the fair use analysis be affected by whether the source from which the copy is made is authorized? The issue is a recurring one, and has taken on increased importance in the digital environment, but remains unsettled. In Time, Inc. v. Bernard Geis & Associates, 293 F. Supp. 130, 146 (S.D.N.Y. 1968), surreptious copies of stills from the Zapruder films of the John Kennedy assassination were made. While this troubled the court, the fact that defendant could have obtained the copies by other means was viewed as significant. This was particularly instructive since the court had earlier said that fair use "presupposes good faith and fair dealing," something that was entire absent in the case itself. By contrast, in Atari Games Corp. v. Nintendo of America, Inc., 975 F.2d 832, 843 (Fed. Cir. 1992), the Federal Circuit took a harsh line on copying from unauthorized copies.
In Harper & Row, Publishers v. Nation Enterprises, 471 U.S. 539 (1985), defendant had knowing, unauthorized access to a temporarily "purloined" manuscript copy of Gerald Ford's then unpublished memoirs. Unlike in the Time-Geis case, unauthorized access was the only way to get access to the work "at the time." Before the district court, the purloined nature of the copy went into the mix of finding no fair use. Before the Supreme Court, the majority was also disturbed by the knowing copying from a purloined manuscript, while the dissent regarded it as a standard journalistic practice. These two views are not necessarily in conflict, but the key to Harper & Row is the fact that the work was intercepted on the way to being published: there was no effort by the copyright owner to suppress information.
The issue of the source of the source copy also takes place as part of a larger debate over the role, if any, of good faith in fair use analyses. Judge Pierre Leval of the Second Circuit, in his legendary 1990 Harvard Law review article, "Toward a Fair Use Standard," 103 Harv. L. Rev. 1105, 1126-1128, argues strongly against good faith being a factor. In NXIVM Corp. v. Ross Institute, 364 F.3d 471 (2d Cir. 2004), also involving unauthorized access to a manuscript, citing Harper & Row and my 1995 fair use treatise, Chief Judge John Walker, writing for the panel majority, held that district courts should consider whether bad faith is present in defendant's acts, but declined to follow the Federal Circuit's tough line, and noted that "even if the bad faith subfactor weights in plaintiff's favor, the first factor still favors defendant in light of the transformative nature of the secondary use as criticism." This seems right on target. Judge Jacobs, concurring, thought that "[b]ad faith is a slippery concept in the copyright context...," and noted that the purpose of the use in that case was to criticize plaintiff's work as "the pretentious nonsense of a cult."
One question in all good or bad faith determinations is good or bad faith as to what? What is the conduct that we wish to encourage or discourage?