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Bad Faith Not Determinative in Deciding Fair Use
In NXVIM Corp. v The Ross Institute, 364 F.3d 471 (2d Cir. 2004), the Second Circuit denied plaintiff's request for a preliminary injunction on “fair use” grounds, even though it was clear that bad faith was present.
Plaintiff NXVIM provided a business-training program called “Executive Success” and developed training material and manuals for the course. The materials had a multitude of copyright notices, and students were required to sign nondisclosure agreements regarding the same. Defendant Rick Ross runs nonprofit Web sites in connection with his work as a cult de-programmer and often provides information to the public about groups that were accused of practicing mind control. Ross commissioned a critique of NXVIM's material, which he received improperly from a past participant in Executive Success. Despite the copyright notices on the manuals, Ross published the critique, which included quotes and sections from the copyrighted manuals. NXVIM sued for infringement, and Ross claimed fair use.
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