The Seventh Circuit’s 2014 opinion in Kienitz v. Sconnie Nation has played an outsized role in the discourse on fair use, an affirmative defense to copyright infringement.1 The opinion is quite short, spanning just over three pages, and it emerged from a circuit that produces relatively few fair use opinions.2 Yet Kienitz is often cited for its rejection of “transformative use,” a relatively new but influential concept that has reshaped fair use doctrine.3 The court in Kienitz warned that transformative use threatens to replace the four-factor test for fair use found in § 107 of the Copyright Act4 and could erode authors’ exclusive rights to produce “derivative works” based on their original works.5 In place of transformative use, Kienitz proposed that courts should simply “stick with the statutory list” of four factors when analyzing fair use.6 The opinion applied this approach by focusing its analysis on factors three and four: the amount of the copyrighted work used and the effect of that use on the market for the copyrighted work.7

Is Kienitz’s approach a viable model for analyzing a fair use defense without relying on transformative use? The answer is no. This Note concludes that Kienitz’s reasoning is fundamentally flawed and suffers from many of the same infirmities it identified in transformative use.8

There are three problems with Kienitz’s reasoning. First, its approach to factor four defines the scope of derivative works in a way that would severely limit authors’ rights.9 Second, it employs a test, known as the “substitute/complement test,” which tends to underestimate market harm.10 Finally, its analysis of factor three implies there was no copyright infringement, which if true, would have made the fair use defense unnecessary.11 If Kienitz’s amputation of transformative use was an attempt to remedy its harmful symptoms, its cure was worse than the disease.12

Although its analysis was flawed, Kienitz’s diagnosis of the problems with transformative use was accurate.13 Transformative use has been applied in a way that has come to dominate the statutory fair use factors and blurs the line between protected derivative works and fair use.14 This Note proposes two ways to restructure fair use analysis to limit the negative effects of transformative use: (1) rearrange the order in which the factors are analyzed and (2) make a finding of transformative purpose a threshold requirement of transformative use.

Part I explains how the scope of fair use has contracted and expanded throughout United States history and how transformative use has driven the current period of expansion. Part II examines the analysis in Kienitz and concludes, for the reasons described above, that it does not provide a viable alternative to transformative use. Part III demonstrates an alternative fair use analysis of the facts in Kienitz to show how the opinion could have benefited from incorporating transformative use into its analysis and by applying this Note’s two proposals for restructuring fair use. In the process, Part III also reveals, and argues against, common issues in other courts’ analyses of each fair use factor, including the widespread underappreciation of factor two15 and Campbell v. Acuff-Rose Music, Inc.’s unprecedented instruction to emphasize findings from factor one in the analysis of factor three.16

Since 2015, state Anti-Strategic Lawsuits Against Public Participation (“anti-SLAPP”) laws that were enacted to prevent litigious plaintiffs from silencing a defendant’s First Amendment rights have come under attack from state and federal courts.[1] California Civil Procedure § 425.16 (“§425.16”), California’s anti-SLAPP law, is particularly susceptible to this judicial narrowing, as it is widely considered the broadest anti-SLAPP statute in the country.[2] Indeed, the California Supreme Court in the 2019 case FilmOn.com Inc. v. Double Verify Inc. narrowed § 425.16’s applicability by articulating a stricter context-based standard for protected conduct under the statute’s catchall subdivision, § 425.16(e)(4).[3]

This Article argues that this stricter standard is unwarranted in light of § 425.16’s legislative intent, previous California Supreme Court § 425.16 rulings, and the reasonable protections built in to § 425.16 for plaintiffs. Moreover, the court’s underlying frustration with § 425.16 overuse will likely be exacerbated, not ameliorated, by this stricter standard. Additionally, the vulnerable defendants § 425.16 was intended to help, in particular online watchdogs, will likely suffer the most under this stricter standard. This Note concludes that the California Legislature should act to clarify § 425.16(e)(4) or risk continued judicial efforts to narrow its applicability and potentially thwart its legislative purpose.

The United States patent system has long been considered the gold standard of global patent systems, in part because of the consistency and strength of the protections that it has granted to inventors.1 The rapid growth of the United States economy during the nation’s early years is often attributed in part to the patent system adopted by the country,2 and the strength of the United States patent system allows the United States to remain among the world’s most innovative countries despite falling behind other countries in areas relevant to innovation such as higher education and researcher concentration.3 A hallmark of a strong patent system is predictability.4 “In a strong patent system, patent rights are granted to particular inventions in a predictable manner, and patent infringement similarly is enforced in a predictable manner.”5 This predictability reinforces the strength of the patent system by allowing inventors to protect their inventions and efficiently allocate resources for future innovation.6

Until relatively recently, the rules regarding patent eligible subject matter were clear and predictable—courts and the United States Patent and Trademark Office, or USPTO, should interpret subject matter eligibility requirements broadly.7 This expansive subject matter eligibility interpretation was widely criticized as resulting in patents that were both too broad and too vague, 8 which resulted in the judiciary revisiting the issue of patent subject matter eligibility in a series of cases culminating in Alice Corp. Proprietary Ltd. v. CLS Bank International.9 In Alice, the Supreme Court reified a two-step analytical framework for patent subject matter eligibility.10 This framework, which was established in part to clarify patent-eligible subject matter, has been heavily criticized as being “chaotic,” a “real mess,” and even putting patent subject matter eligibility into a “state of crisis.”11 The application of this framework has proven to be “unpredictable and impossible to administer in a coherent consistent way.”12

In the years since Alice, there has been much legal scholarship and research regarding how to resolve the ambiguity surrounding patent subject matter eligibility, but nothing has successfully resolved the issue in practice. In January 2019, the USPTO promulgated guidance on the issue of patent subject matter eligibility.13

This Note will begin by providing a brief discussion of patent subject matter eligibility. Next, the Note will discuss the January 2019 Guidance promulgated by the USPTO and how the Guidance aims to alter the two-step analytical framework from Alice, before assessing whether this Guidance has appeared to have any substantial effect on the federal judiciary in the first year since the Guidance was promulgated.