On September 26, 2014, the District of Massachusetts shot down a plan to develop a “textbook dictionary.” James Richards, inspired in part by the Autobiography of Malcolm X, developed a project to convert the dictionary from a reference book into something that looked more like a textbook. Richards felt that this format would be more conducive to helping students and adults improve their reading and listening comprehension skills.
In order to accomplish his plan, Richards borrowed the text from a CD-ROM version of Merriam Webster’s Collegiate Dictionary. He deleted about 30% of the words, which he regarded as rare or anachronistic. Then, for the remaining 70%, Richards increased the font sizes and spacing, underlined words for emphasis, redacted etymological histories, and added examples of how words might be used in a sentence. Richards then asked Merriam Webster for permission to put his textbook dictionary up on the web for free. When Merriam Webster refused, Richards brought a pro se declaratory judgment action, alleging that his textbook dictionary was a fair use.
Judge Indira Talwani, who addressed the four fair use factors out of the traditional order, held that the textbook dictionary was not a fair use:
- Nature of the Work. Although the dictionary was based in fact, the definitions chosen by Merriam Webster were the result of a creative process. This disfavored fair use.
- Extent of Material Used. As noted, Richards took verbatim about 70% of the dictionary, the majority of the work. This also disfavored fair use.
- Market Effect. The Court agreed, and Richards did not dispute, that the distribution of Richards’ textbook dictionary would impede the market share and profitability of Merriam Webster’s online version of its dictionary, thus strongly disfavoring fair use.
- Purpose and Character of the Use. The Court acknowledged that the alteration of the dictionary from reference work to textbook was arguably somewhat transformative. Because of this, and the noncommercial nature of the use, the Court held that this factor was a close call. However, even if this factor favored fair use, it was not enough to make up for the other three factors.
This case is also notable because it is the first published opinion by Judge Talwani on a substantive copyright law issue. Her nomination to the District of Massachusetts was confirmed in May 2014.