AMERICAN GEOPHYSICAL UNION, ET AL., Plaintiffs-Counterclaim-Defendants-Appellees, -v.- TEXACO INC., Defendant-Counterclaim-Plaintiff-Appellant. IN RE TEXACO INC., ET AL., Reorganized Debtors. ACADEMIC PRESS, INC., ET AL., Petitioners-Appellees, -v.- TEXACO INC., Respondent-Appellant.
Docket No. 92-9341
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
1994 U.S. App. LEXIS 36735
 
November 21, 1994, Petition for Rehearing Submitted  
December 23, 1994, Decided
PRIOR HISTORY:  [*1]  Petition for rehearing by defendant-appellant. Petition denied; prior opinion modified. Judge Jacobs votes to grant the petition for rehearing, but agrees with the language changes made by this amending opinion.
 
Original Opinion of October 28, 1994, Reported at: 1994 U.S. App. LEXIS 30437.

JUDGES: Before: NEWMAN, Chief Judge, WINTER and JACOBS, Circuit Judges.

OPINION:
 
PER CURIAM:

The petition for rehearing is denied. The opinion filed October 28, 1994, is amended in the following respects:

1. At slip op. p. 7900, at the end of the second paragraph, insert, "Our differences stem primarily from the fact that, unlike the District Court, we have had the benefit of the Supreme Court's important decision in Campbell, decided after Judge Leval issued his opinion."

2. At slip op. p. 7906, line 5, after "Supreme Court," insert "had", and on line 15, after "1262.", insert, as a new paragraph, "Indeed, Campbell warns against 'elevating . . . to a per se rule' Sony's language about a presumption against fair use arising from commercial use. 114 S. Ct. at 1174. Campbell discards that language in favor of a more subtle, sophisticated approach,  [*2]  which recognizes that 'the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.' Id. at 1171. The Court states that 'the commercial or nonprofit educational purpose of a work is only one element of the first factor inquiry' id. at 1174, and points out that 'if, indeed, commerciality carried presumptive force against a finding of fairness, the presumption would swallow nearly all of the illustrative uses listed in the preamble paragraph of § 107 . . . .' Id."

3. At slip op. p. 7918, in the first two lines of the second paragraph, delete "In analyzing this fourth factor, which the Supreme Court and commentators recognize" and replace with "Prior to Campbell, the Supreme Court had characterized the fourth factor" and on line 5 of the second paragraph, change the comma after "13-183" to a period and insert, "However, Campbell's discussion of the fourth factor conspicuously omits this phrasing. Apparently abandoning the idea that any factor enjoys primacy, Campbell instructs that 'all [four factors] are to be explored, and the results weighed together, in light of [*3]  the purposes of copyright.' 114 S. Ct. at 1171." Then, begin a new paragraph with "In analyzing the fourth factor,".

4. At slip op. p. 7929, line 2 of the first full paragraph, delete "the critical fourth factor" and substitute "fourth factors".

5. At slip op. p. 7944, in line 21 of the first full paragraph, delete the word " 'critical' " and replace with "'important'".

Judge Jacobs votes to grant the petition for rehearing, but agrees with the language changes made by this amending opinion.