Texaco claimed as its primary defense fair use, citing an earlier case where similar photocopying of journal articles by two federal government research centers was held to be non-infringing. One aspect of that defense was transformative use, a relatively new concept at the time, derived from Harvard Law Review article two years earlier by Pierre Leval, a federal judge who was assigned to hear the case. Texaco argued, among other things, that the photocopies were transformative use since they enabled its scientists to take the articles into their labs where they might get damaged during experiments, something they would not do with the originals in the journal. Leval rejected that argument,[4] and held that the company's photocopying was an infringement of the publisher's copyright. Texaco appealed to the Second Circuit Court of Appeals, which affirmed Leval in 1995; it was the first time an appellate court had considered the transformative use question.[5]
