First, when evaluating purpose and character of the allegedly infringing
use, courts will consider three factors: (1) whether the use of copyrighted
material is commercial in nature; (2) whether a work is transformative of the
original; and (3) whether the use is for a legitimate purpose.215 The commercial
nature of aggregators does not weigh in favor of fair use of copyrighted
material, although this is not the definitive criterion for determining the
purpose and character of use.216 Some aggregators serve as media monitoring
companies that distribute stories to paying clients, such as Meltwater, while
other news aggregators, such as Yahoo! News, get paid not by clients but
rather through revenue from advertisements around the republished news
stories.217 Although both types of aggregators generate profit, courts have
previously held that the commercial aspect can be of “minimal significance” if
the fair use is for a legitimate purpose.218 Although the commercial factor does
not support a finding of fair use for most aggregators, courts also consider
whether there was a transformative use of the prior work, as well as the
purpose of the use, in the analysis of the purpose and character of the
infringing content.219