dissenting:

I respectfully dissent and disagree with the majority’s reversal of the district court’s ruling on fair use.

The copyright dispute in this case arises from a change in religious doctrine of the Worldwide Church of God (“WCG”). This doctrinal shift produced a splinter church, the Philadelphia Church of God (“PCG”). PCG, which was founded by “defrocked” WCG ministers in 1989, seeks to adhere to WCG’s original religious doctrine as espoused by its former leader Herbert W. Armstrong. In particular, PCG views Mystery of the Ages (“MOA”), a book written by Armstrong, as a divinely inspired text necessary for proper interpretation of the Bible. It is required reading for every member baptized into the PCG church and any prospective member prior to their attendance at church services.

WCG, on the other hand, has renounced many of Armstrong’s teachings since shortly after his death in 1986. Although it had previously distributed approximately 1.25 million copies of MOA in book form and 8 million copies in serial form, WCG ceased publication and distribution of MOA in 1988. WCG then destroyed all excess copies of MOA in its inventory, retaining only archival and research copies. WCG has not printed or distributed any copies of MOA since 1988 and has no plans for publication or distribution of the work as originally written.

WCG took this course of action, at least in part, because it believes that MOA contains historical, doctrinal and social errors. Armstrong’s successor at WCG explained that WCG has kept MOA out of print based on a “Christian duty” to keep Armstrong’s doctrinal errors out of circulation. WCG has described MOA as “not in conformity with biblical teaching” and “racist.” Although WCG claims that it plans to publish an annotated version of MOA, as of 1998, a decade after it ceased publishing MOA, testimony of WCG leaders demonstrates that the annotation of MOA is “not something that is going to be decided or happen any time soon.” Apart from determining whether an annotation is financially feasible, WCG would need to take surveys of its membership, assess its priorities, determine the format, hire an author and researcher, and secure a publisher before any such annotation of MOA could be published.

PCG was founded because its ministers and members believe the religious doctrine espoused by Armstrong and as set forth in MOA When WCG changed its church doctrine and renounced much of Armstrong’s teachings, the founders and believers of PCG were forced from WCG as they could no longer practice their religious beliefs as set forth in MOA. It was WCG’s doctrinal shift and renunciations that created the PCG and its need to publish MOA.

In light of these facts, this court must decide whether PCG’s publication and distribution of MOA to church members and the public without charge beginning in January 1997 constitutes fair use of WCG’s copyrighted work.

The fair use doctrine is an equitable rule of reason. Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 , 448 & n. 31, 104 S.Ct. 774 , 78 L.Ed.2d 574 (1984). The statutory factors listed in 17 U.S.C. § 107 provide guidance in determining when the fair use doctrine applies. However, there are no bright-line rules and “each case raising the [fair use] question must be decided on its own facts.” Id. at 448 n. 31, 104 S.Ct. 774 (quoting H.Rep. No. 94-1476). All four statutory factors “are to be explored, and the results weighed together, in light of the purposes of copyright.” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 578 , 114 S.Ct. 1164 , 127 L.Ed.2d 500 (1994).

Here, PCG, a nonprofit organization, copied and distributed MOA free of charge to spread a religious message. PCG began publishing MOA because it was out of print and difficult to obtain through normal channels. It is undisputed that PCG *1123 did not solicit any funds in connection with its distribution of MOA. PCG’s use stands in sharp contrast to other uses found to be commercial under the first statutory factor. See Campbell, 510 U.S. at 583-85 , 114 S.Ct. 1164 (parodie rap song sold to the public); Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 562 , 105 S.Ct. 2218 , 85 L.Ed.2d 588 (1985) (magazine printed excerpts of soon-to-be published presidential memoir); Dr. Seuss Enterprises L.P. v. Penguin Books USA Inc., 109 F.3d 1394, 1403 (9th Cir.), cert. dismissed, 521 U.S. 1146 , 118 S.Ct. 27 , 138 L.Ed.2d 1057 (1997) (book-length parody of O.J. Simpson murder trial written in style of Dr. Seuss and intended for public sale); Hustler Magazine, Inc. v. Moral Majority, Inc,, 796.F.2d 1148, 1152-53 (9th Cir.1986) (magazine’s parody of prominent minister mailed to minister’s supporters together with letters soliciting donations and displayed on television as part of a fundraising drive).

Despite PCG’s nonprofit status, its free-of-charge distribution of MOA, and the religious purpose behind such distribution, the majority concludes that the first statutory factor militates against a finding of fair use because PCG’s use is not transfor-mative and PCG profits by using MOA as a marketing tool to attract new tithing members. As an initial matter, PCG’s use need not be transformative to qualify as fair use. Campbell, 510 U.S. at 579 , 114 S.Ct. 1164 . In this case, altering or adding to MOA would defeat PCG’s religious purpose because it believes that MOA is a divinely inspired text. As to the profitability of PCG’s use, WCG does not contest PCG’s assertion that unsolicited donations in response to the distribution of MOA fail to come close to covering the enormous expense of printing MOA. WCG itself has-stated that the costly production of MOA was one of the reasons it ceased publication. In my view, the noncommercial and religious elements of PCG’s use overwhelm any commercial aspects and weigh in favor of fair use under the first statutory factor. Moreover, the fact that MOA had been out of print for nine years at the time of PCG’s publication and could only be obtained through some libraries and used bookstores also supports a finding of fair use under the first factor. See Harper & Row, 471 U.S. at 553 , 105 S.Ct. 2218 (“A key, though not necessarily determinative factor in fair use is whether or not the work is available to the potential user. If the work is out of print and unavailable for purchase through normal channels, the user may have more justification for reproducing it ....”) (quoting S.Rep. No. 94-473 (1975)); Maxtone-Graham v. Burtchaell, 803 F.2d 1253 , 1264 n. 8 (2d Cir.1986) (out-of-print status of copyrighted book supports fair use determination).

The second and third statutory factors are mostly irrelevant to this case. For example, as a religious text, Armstrong’s MOA defies easy classification under the second factor as either informational or creative. Compare New Era Publications, Int’l v. Carol Publishing Group, 904 F.2d 152, 157 (2d Cir.1990) (“the quoted works — which deal with [Scientology founder L. Ron] Hubbard’s life, his views on religion, human relations, the Church, etc. — are more properly viewed as factual or informational”) and Religious Technology Center v. Netcom On-Line Com. Services, Inc., 923 F.Supp. 1231, 1246 (N.D.Cal.1995) (policy letters of Hubbard Communication Office and works which are part of the methodology of “applied religious philosophy” are primarily functional or instructive, but other Hubbard works which appear more creative or original deserve greater fair use protection) with Bridge Publications, Inc. v. Vien, 827 F.Supp. 629, 635-36 (S.D.Cal.1993) (“the undisputed evidence shows that L. Ron Hubbard’s works are the product of his creative thought process, and not merely informational”). As to the amount of copying, even wholesale copying does not weigh against a finding of fair use under the third factor if it is consistent with the noncommercial purpose and character of the use. Sony, 464 U.S. at 449-50 , 104 S.Ct. 774 . In contrast to Hustler where the purposes of raising funds and rebut *1124 ting derogatory information could have been served by less than wholesale copying of the parody, PCG’s purpose in seeking to spread the religious message of Armstrong’s divinely inspired text, like the nonprofit purpose of home videotaping in Sony Corp., requires copying of the text as a whole. Accordingly, neither the second nor the third statutory factor militate against a finding of fair use.

Even though PCG’s use is primarily noncommercial and religious, such use could not be considered fair use in light of the fourth and most important statutory factor if it impaired the value or marketability of WCG’s original MOA or its proposed annotated MOA. Yet, WCG has intentionally kept MOA out of circulation and made no reasonable effort to create an annotated version of MOA in the decade following its decision to cease publication. WCG originally distributed MOA free of charge as a way of spreading the religious message of its then current leader Armstrong. Like PCG, WCG used MOA as an educational and evangelical tool and may have obtained an indirect financial benefit by attracting tithing members. WCG’s decision to cease publication of MOA destroy inventory copies, and disavow MOA’s religious message in the context of its doctrinal shift as a church demonstrates that MOA is no longer of value to WCG for such purposes, regardless of PCG’s actions. Because WCG has admitted that it has no plans to publish or distribute MOA as originally written, there can be no market interference.

Nor has WCG shown that “some meaningful likelihood of future harm exists” as to the potential market for WCG’s planned publication of an annotated version of MOA. See Sony Corp., 464 U.S. at 451 , 104 S.Ct. 774 . In Maxtone-Graham v. Burtchaell, 803 F.2d 1253 (2d Cir.1986), the court determined that publication of a book opposing abortion which used quotations from an earlier book tending to view abortion in a favorable light did not economically harm the earlier work. The court held that the plans for a second edition of the earlier work was not affected by the publication of the infringing work in part because “it is unthinkable that potential customers for a series of sympathetic interviews on abortion and adoption would withdraw their requests [for a second edition] because a small portion of the work was used in an essay sharply critical of abortion.” Id. at 1264 , 803 F.2d 1253 . It continued by stating that “[t]his conclusion is supported by our finding that the two works served fundamentally different functions, by virtue both of their opposing viewpoints and disparate editorial formats.” Id.

Here, as in Maxtone-Graham , the functions served by MOA and the proposed annotation as well as their potential markets are different. In contrast to PCG’s evangelical use, the central purpose behind WCG’s proposed annotated version of MOA is to identify Armstrong’s historical, doctrinal, and social errors. The target markets for the two versions of MOA are different because it simply does not make sense for WCG to widely distribute an annotated MOA highlighting the errors of the original MOA to the general public in order to recruit new members. Unlike a publication which would provide a straightforward explanation of WCG’s religious doctrines for the purposes of recruitment, an annotated version of MOA would require a reader to become familiar with the text of the original MOA and then to read WCG’s response to or criticism of Armstrong’s religious views in order to discover WCG’s doctrines. Indeed, because WCG hopes to use an annotated MOA to reach out to those familiar with Armstrong’s teachings, PCG’s use creates a larger potential market for an annotation rather than interfering with it. Moreover, the failure of WCG to make any reasonable progress on the annotation over the course of a decade as well as WCG’s belief that it has a Christian duty to keep Armstrong’s doctrinal errors out of circulation tends to undermine the credibility of WCG’s intention to publish any such annotation.

Because there is no evidence, beyond the mere speculation by WCG’s leaders, *1125 that PCG’s use has a “demonstrable effect on the potential market for, or value of,” MOA or WCG’s proposed annotation, the use “need not be prohibited in order to protect the author’s incentive to create.” Sony Corp., 464 U.S. at 450 , 104 S.Ct. 774 . The prohibition of PCG’s noncommercial, religious use “would merely inhibit access to ideas without any countervailing benefit.” Id. at 450-51 , 104 S.Ct. 774 . Accordingly, the fourth statutory factor also supports a finding of fair use.

In this lawsuit, WCG appears less interested in protecting its rights to exploit MOA than in suppressing Armstrong’s ideas which now run counter to church doctrine. Although the Supreme Court has recognized that “freedom of thought and expression ‘includes both the right to speak freely and the right to refrain from speaking at all,’ ” it does not “suggest that this right not to speak would sanction an abuse of the copyright owner’s monopoly as an instrument to suppress facts.” Harper & Row, 471 U.S. at 559 , 105 S.Ct. 2218 .

In light of this principle and the statutory factors discussed above, I conclude that the district court did not err in granting partial summary judgment to PCG because it properly found that PCG’s distribution of MOA constitutes fair use.