NXIVM Corp. v. The Ross Institute

From Wikipedia, the free encyclopedia
Jump to: navigation, search
NXIVM Corp. v. The Ross Institute
United States Court of Appeals for the Second Circuit
Court United States Court of Appeals for the Second Circuit
Full case name NXIVM Corporation and First Principles, Inc. v. The Ross Institute, et al.
Argued November 19 2003
Decided April 20 2004
Citation(s) 364 F.3d 471, 70 U.S.P.Q.2d 1538
Case history
Prior action(s) Preliminary injunction denied (United States District Court for the Northern District of New York 2003). Appealed to United States Court of Appeals for the Second Circuit
Subsequent action(s) Certiorari denied (Supreme Court of the United States 2004)
Defendants’ use of material for critical commentary was fair use despite bad faith on the part of the defendants in obtaining the material.
Court membership
Judge(s) sitting Chief Judge John M. Walker, Jr.; Circuit Judges Dennis Jacobs and Chester J. Straub
Case opinions
Majority Walker, joined by Jacobs
Concurrence Jacobs
Laws applied
17 U.S.C. § 107

NXIVM Corp. v. The Ross Institute, 364 F.3d 471 (2004)[1], was a United States Court of Appeals for the Second Circuit decision that held that defendants’ critical commentary of material obtained in violation of a non-disclosure agreement was fair use despite bad faith on the part of the defendants in obtaining the material.[1][2]


NXIVM offered a seminar training program called Executive Success involving a methodology NXIVM claimed improved communication and decision-making. NXIVM provided a manual as part of the seminar to its participants who signed non-disclosure agreements not to release the manual to others.

Rick Ross was a “cult deprogrammer” who maintains two websites to provide information about controversial groups that had complaints against them of mind control. Ross received the NXIVM manual through one of its seminar participants and commissioned two reports by two authors who analyzed and critiqued the manual, quoting sections of the manual in support their analysis. The reports were published on Ross’s websites and the Executive Success program was added to Ross's list of "cults."

About 17 of 500 pages were republished by Ross.[3]

The United States District Court for the Northern District of New York denied a preliminary injunction against the defendants to remove the material from Ross’s websites. Plaintiffs appealed to the United States Court of Appeals for the Second Circuit.


The issue before the Court was whether a fair use defense was available where the materials used were obtained in bad faith.

Opinion of the Court[edit]

The Court noted that the propriety of the defendants’ conduct is relevant for a fair use defense as set forth by the Supreme Court in Harper & Row v. Nation Enterprises but stated that it is only a part of the evaluation and bad faith is not dispositive of a fair use defense.

The Court weighed the four fair use factors to determine if Ross’s use was fair, and made the following findings:

  1. The purpose and character of the use was transformative as criticism and favored the defendants even if the defendants’ bad faith in obtaining the manual favored the plaintiffs.
  2. The nature of the copyrighted work was unpublished and favored the plaintiffs.
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole did not favor the plaintiffs as (1) it was reasonable for the defendants to quote liberally from the manual in order to critically comment on it and (2) there was no identifiable "heart" of the manual.
  4. The market inquiry heavily favored the defendants because, "as a general matter, criticisms of a seminar or organization cannot substitute for the seminar or organization itself or hijack its market".

The Court ruled in favor of the defendants and affirmed the denial of the preliminary injunction.

See also[edit]


  1. ^ Aspen Publishers (2007). Copyright. Keyed to Keyed to Course Using Gorman and Ginsburg's Copyright: CAses and Materials Seventh Edition. Casenote Legal Briefs. Wolters Kluwer. pp. 95–96. ISBN 978-0-7355-6176-2. 
  2. ^ Roger E. Meiners; Al H. Ringleb; Frances L. Edwards (2006). The legal environment of business. Cengage Learning. p. 230. ISBN 978-0-324-20485-8. 
  3. ^ Kenneth D. Crews; Dwayne K. Buttler (2006). Copyright law for librarians and educators: creative strategies and practical solutions. ALA Editions. p. 58. ISBN 978-0-8389-0906-5. 

External links[edit]