          United States Court of Appeals
                      For the First Circuit

No. 11-1262

      SOCIETY OF THE HOLY TRANSFIGURATION MONASTERY, INC.,

                       Plaintiff, Appellee,

                                v.

              ARCHBISHOP GREGORY OF DENVER, COLORADO,

                       Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. Richard G. Stearns, U.S. District Judge]


                              Before

                     Torruella, Circuit Judge,
                    Souter,* Associate Justice,
                    and Boudin, Circuit Judge.


     Chris L. Ingold, with whom Ingold Law, LLC, Harold R. Bruno,
III, and Robinson Waters & O'Dorisio, P.C., were on brief for
appellant.
     Kristen McCallion, with whom Lawrence K. Kolodney, Eric J.
Keller, Fish & Richardson P.C., Mark A. Fisher, and Duane Morris
LLP, were on brief for appellee.



                          August 2, 2012




*
    The Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
           TORRUELLA, Circuit Judge. Interpretations and studies of

theological texts have led to countless disputes throughout the

ages.   This appeal concerns a different form of conflict arising

from one monastery's translation of certain ancient religious

texts, and another monastery's unauthorized use of verbatim or

near-verbatim copies of such texts on its Orthodox faith-devoted

website.       Seven,   a   number   both   religiously   and   factually

significant, is the quantity of works the former monastery contends

the latter infringed.        The parties here let fly a legion of

arguments and defenses as to why ultimate judgment should rest in

their favor.    We have pored over the voluminous record before us

and the district court's orders granting summary judgment to the

former monastery. See Holy Transfig. Monas. v. Archbishop Gregory,

754 F. Supp. 2d 219 (D. Mass. 2010) ("Holy Transfiguration II");

Holy Transfig. Monas. v. Archbishop Gregory, 685 F. Supp. 2d 217

(D. Mass. 2010) ("Holy Transfiguration I").       We arrive at the same

conclusion as the district court and hold that summary judgment was

properly granted as to each of the former monastery's claims.          We

accordingly affirm the decision of the district court.

                             I.   Background1

A.   A Tale of Two Monasteries


1
   We construe "the record in the light most favorable to the
nonmovant and resolv[e] all reasonable inferences in the party's
favor." Meuser v. Fed. Express Corp., 564 F.3d 507, 515 (1st Cir.
2009) (quoting Rochester Ford Sales, Inc. v. Ford Motor Co., 287
F.3d 32, 38 (1st Cir. 2002)) (internal quotation mark omitted).

                                     -2-
            Plaintiff-Appellee Society of the Holy Transfiguration

Monastery, Inc. (the "Monastery") is an Eastern Orthodox monastic

order located in Brookline, Massachusetts.            It was founded in the

early 1960s and incorporated as a non-profit organization.                 In

1965, the Monastery began a spiritual affiliation2 with the bishops

of   the   Russian   Orthodox     Church    Outside   of   Russia   ("ROCOR").

Although the Monastery concedes it commemorated the bishops of

ROCOR for a time (until 1986 to be precise), it considers itself an

independent entity in both its organization and governance. Stated

differently, the Monastery was not formed at the order or direction

of ROCOR or any bishop a part thereof; instead, its formation

occurred prior       to   its   spiritual   affiliation    with ROCOR.     On

December 8, 1986, the Monastery ceased its commemoration of the

ROCOR bishops, thus ending its spiritual affiliation with ROCOR.

            Since the Monastery's formation, its members, consisting

of approximately thirty-five monks, have worked on translating

religious texts, including services, psalms, and prayers, from

their original Greek into English.            The cardinal works at issue

(the "Works") consist of (1) the St. Isaac Work,3 (2) the Psalter,



2
   The record reflects that "spiritual affiliation," often used
interchangeably with the terms "ecclesiastical jurisdiction" or "in
communion," is a term used when a monastery agrees with the
particular confession of faith of a bishop or group of bishops and
enjoys their blessing during that time.
3
   The full title of the St. Isaac work is "The Ascetical Homilies
of St. Isaac the Syrian."

                                      -3-
(3) the Octoechos, (4) the Pentecostarion, (5) the Dismissal Hymns,

(6) the Prayer Book, and (7) the Horologion.4

            Though the Works and their corresponding translations

are of ancient texts, they became in demand over the years amongst

parishes due to an increasing need for English versions of Orthodox

liturgical texts for liturgies conducted in English. The Monastery

obliged such requests, but on a limited basis.          For instance, it

provided    copies   of   its   then-in-progress     Dismissal    Hymns    to

approximately twelve parishes with specific instructions that no

copies be made. Its limited distribution purpose was two-fold: the

Monastery hoped to receive feedback as to the quality of the

translations for those parishes seeking a linguistically-friendly

English-language religious text, and at the same time, help to meet

the growing need for religious texts in English language religious

services.

            Not all were satisfied with the Monastery's vocation. In

the late 1970s (before the Monastery's termination of its spiritual

affiliation with ROCOR), Defendant-Appellant Archbishop Gregory

(the "Archbishop"),       a   member of   the   Monastery   at   that   time,



4
   The respective known dates of registration for these Works are
January 3, 1986 (St. Isaac Work), February 24, 1986 (Psalter), June
24, 1986 (Octoechos), June 24, 1986 (Pentecostarion), December 10,
1987 (Dismissal Hymns), November 16, 1988 (Prayer Book), and
December 3, 1997 (Horologion).     Of the seven, four works were
registered as published works (St. Isaac, Horologian, Prayer Book,
and Psalter), and three, as unpublished works (Octoechos, Dismissal
Hymns, and Pentecostarion).

                                    -4-
obtained ROCOR's permission to leave the Monastery and move west to

Colorado where he formed his own monastery, the Dormition Skete.

Throughout the years, the Dormition Skete has dedicated itself to

painting traditional Byzantine Orthodox icons for both church and

private use.     It is only composed of a few members; those relevant

to this dispute include the Archbishop and Father Peter, a priest

monk5 in the order who, true to his apostolic name, has served and

supported the Archbishop in various capacities.

            In addition to forming the monastery, the Archbishop

created      a    website   devoted     to   the   Orthodox   faith,

www.trueorthodoxy.info (the "Website"), over which he has conceded

to having authority and ownership.       The asserted purpose of the

Website is "to share information about the Orthodox Christian

religion with users of the internet." Created on February 8, 2005,

religious works have since been posted free-of-charge to the

Website for non-profit, educational purposes. Of relevance to this

dispute are a posting of a portion of the St. Isaac work, done

sometime in 2005, and postings of the remaining six Works in August

2007.     To perform such postings, the Archbishop relied on Father

Peter, who helped build, design, and program the Website.




5
   At deposition, Father Peter defined the position of "priest
monk" as a monk (a member of a monastic order who has withdrawn
from the world for religious reasons and assumed certain vows) who
also performs religious services.

                                  -5-
            Like many a missionary before him, the spreading of

religious    teachings     (here,    through    the   posting   of   translated

religious    texts   via    the     internet)   brought   trouble     upon   the

Archbishop -- trouble not isolated to this dispute alone.                     On

January 23, 2006, the Monastery filed a lawsuit in the U.S.

District Court for the Eastern District of Michigan against the

Archbishop and his publisher at the time, Sheridan Books, Inc. The

Monastery alleged copyright infringement of two works, the St.

Isaac work (at issue on this appeal)6 and the St. Andrew work (not

at issue on this appeal).7          The parties ultimately entered into a

Settlement Agreement on July 24, 2006.            Pursuant to the terms of

this agreement, the court dismissed the Michigan lawsuit with

prejudice.    Notably, the Archbishop, in settling, agreed to the

following:

            [T]he Monastery is the owner of the copyrights
            in and to the translations of [the St. Andrews
            work and the St. Isaac work] . . . . [The
            Archbishop]    further   agree[s]   that,   in
            consideration of the overall settlement of the
            dispute concerning the Works, [he] will not
            challenge the validity of the Monastery's
            copyright and/or the registrations in and to
            the    Works     at    any   time    in    the
            future. . . . Archbishop Gregory warrants and
            represents that . . . no copy, duplicate,
            transcript, reproduction or replica, of any


6
   The electronically posted (and now contested) St. Isaac work
consisted of one of the homilies from the Ascetical Homilies of
Saint Isaac, specifically, Homily 46.
7
   The full title of the St. Andrew work is "The Life of Saint
Andrew the Fool-For-Christ of Constantinople."

                                       -6-
            portion of the St. Isaac Work has been or will
            be printed or published by or for Archbishop
            Gregory and that Archbishop Gregory asserts
            that he does not have any knowledge of the
            existence of any copy, duplicate, transcript,
            reproduction, or replica of any portion of the
            St. Isaac Work in any medium, and will not
            assist in the creation of copy [sic],
            duplicate, transcript reproduction or replica
            of the St. Isaac Work in any medium, at any
            time in the future.

(Emphasis added.)

            Despite this agreement, the contested portion of the St.

Isaac   work    remained    on   the    Dormition    Skete's   Website   post

resolution     of   the   Michigan     dispute,   and   in   August   2007,   a

collection of the remaining six Works also was posted to the site.

B.   Seeking Secular Judgment

            The Monastery took action.            On December 28, 2007, it

filed the Complaint in this action alleging infringement of the

Monastery's copyrights in the Works and breach of the Settlement

Agreement for the continued display of portions of the St. Isaac

work.

            In response, the Archbishop promptly removed what he

believed at the time to be the allegedly infringing material from

the site.      He then filed a motion to dismiss the Monastery's

Complaint on February 14, 2008, which the court subsequently

denied.     When his efforts proved unsuccessful, the Archbishop

answered the Monastery's Complaint on April 24, 2008.                  In his

Answer, the Archbishop admitted that the Works, including a portion


                                       -7-
of the St. Isaac work, were available on his Website.        However, he

denied both the Monastery's claim of ownership to the Works'

copyrights, as well as its claims of copyright infringement.            The

Archbishop   also   raised   several     defenses,   including   that   the

Monastery's Works were made for hire for ROCOR; the Works had been

published without copyright notice and were in the public domain;

the Archbishop made fair use of the Works; and the dispute was a

Church matter, best left to a different hierarchy of laws.

           On October 30, 2009, each of the parties filed cross

motions for partial summary judgment. The Monastery claimed it was

entitled to partial summary judgment because the Archbishop had

breached the parties' prior Settlement Agreement by posting a

portion of the St. Isaac work on his Website, and because the

Archbishop's posting of the work, in and of itself, constituted

copyright infringement.      The Archbishop riposted, challenging the

Monastery's ownership of copyrights in the Pentecostarion, the

Octoechos, the Psalter, and the St. Isaac works, and asserting that

ROCOR was the true owner of the copyrights at issue.        Staying firm

in his position that the Monastery lacked any legal right to

enforce ROCOR's copyrights against the Archbishop, the Archbishop

argued there was no genuine issue of material fact for the court to

resolve.

           The district court found merit to the Monastery's motion.

Holy Transfiguration I, 685 F. Supp. 2d at 229.        It granted partial


                                   -8-
summary judgment in favor of the Monastery as to both the breach of

contract claim and allegation of copyright infringement of the St.

Isaac work on February 18, 2010.   Id. at 223-26.   It in turn denied

the Archbishop's motion, noting that he proffered no valid defense

to the Settlement Agreement's enforcement, failed to establish a

fair use defense, and could not show a valid ownership claim in the

Works.   Id. at 223-24, 226-29.    Regarding the latter finding, the

district court noted that the Archbishop's contention that ROCOR

was the true owner of the contested copyrights failed, as the ROCOR

documents on which he relied had not been authenticated; the court

also expressed misgivings as to whether the Archbishop had standing

to raise an ownership claim on behalf of ROCOR.      Id. at 228-29 &

n.17.

           On July 23, 2010, the Monastery moved yet again for

summary judgment, this time on its surviving infringement claims

against the Archbishop.   The Monastery alleged that the Archbishop

infringed its copyrights in the remaining six Works, specifically,

the Psalter, the Prayer Book, the Horologian, the Pentecostarion,

the Dismissal Hymns, and the Octoechos.

           The Archbishop opposed the motion.   He asserted that the

Monastery was not the owner of the copyrights at issue; the Works

were in the public domain, having been published without copyright

notice; and the Works lacked originality. Holy Transfiguration II,

754 F. Supp. 2d at 224-26.   He also asserted a fair use defense, as


                                  -9-
well as a defense under the Digital Millennium Copyright Act

("DMCA"), the latter of which limits the liability of internet

service providers ("ISP") for copyright infringement by their

users.    See id. at 227-29; see also 17 U.S.C. §§ 101, et seq.

               The district court again found in favor of the Monastery.

Holy Transfiguration II, 754 F. Supp. 2d at 230.               As before, the

court rejected the Archbishop's argument that ROCOR was the true

owner of the copyrights and found no merit to his fair use defense.

Id. at 224, 227-28.         It additionally held that the Archbishop's

evidence in support of his public domain argument was "neither

clear    nor     persuasive,"   id.    at     225,   and   found   that   "[t]he

distribution by the Monastery of the Works to a select group of co-

religionists       for    restricted   purposes      constitutes    a     limited

publication as a matter of law," which does not extinguish a

copyright, id.        The district court further determined that the

Archbishop failed to show the Works lacked originality, as he

provided no evidence to support his argument or to counter the

Monastery's "detailed side-by-side comparisons, illustrating the

significant differences between the Monastery's Works and those"

the Archbishop referenced as illustrating the lack of originality

between the Monastery's translations and other versions.                  Id. at

226.    Lastly, the district court deemed the Archbishop's eleventh

hour DMCA safe harbor defense, not previously raised in either his

Answer   or     amended   Answer,   waived     and   additionally    noted   the


                                       -10-
questionable application of the DMCA to the Archbishop.              Id. at

228-29.

          The Archbishop now appeals the district court's grants of

summary judgment.   The Archbishop reasserts for this court many of

his prior arguments, including that ROCOR, not the Monastery, owns

the copyrights to the contested Works; the Works lack originality;

the Works were placed in the public domain without copyright

notices; the Archbishop's use of the Works was fair; and the

Archbishop is sheltered from liability pursuant to DMCA's safe

harbor provision, and if he is not, he holds neither direct nor

vicarious liability for the alleged infringement.        The Archbishop

additionally   scatters   the    following   claims   amidst   his    prior

arguments: the Archbishop was not the alleged direct infringer of

the Works; the district court improperly determined that the

Archbishop lacked standing to challenge the Monastery's ownership

of the St. Isaac work; and the Monastery's course of engaging in

litigation constituted an improper attempt to create a monopoly.

We begin our journey through the intricacies of copyright law

applicable to this dispute.

                           II.    Discussion

          We lay the foundation of the applicable standard of

review.   Summary judgment is properly granted where the movant

"shows that there is no genuine dispute as to any material fact and

the movant is entitled to judgment as a matter of law."          Fed. R.


                                  -11-
Civ. P. 56(a).    We examine the district court's grant of summary

judgment with fresh and searching eyes, Airframe Sys., Inc. v. L-3

Commc'ns Corp., 658 F.3d 100, 105 (1st Cir. 2011), keeping their

lenses tinged towards "construing the record in the light most

favorable to the nonmovant and resolving all reasonable inferences

in that party's favor."   Carmona v. Toledo, 215 F.3d 124, 131 (1st

Cir. 2000).

           To establish copyright infringement, a plaintiff must

concurrently proceed down two roads and "prove two elements: '(1)

ownership of a valid copyright, and (2) copying of constituent

elements of the work that are original.'"    Situation Mgmt. Sys.,

Inc. v. ASP. Consulting LLC, 560 F.3d 53, 58 (1st Cir. 2009)

(quoting Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340,

361 (1991)).    We address each prong's requisites, i.e., ownership

and copying, and set off first upon the ownership path.

A.   Validity of Ownership

           The Copyright Act provides that copyright protection

extends to the individual who actually created the work.    See 17

U.S.C. § 201(a) ("Copyright in a work . . . vests initially in the

author or authors of the work.").      To show ownership of a true

copyright, "a plaintiff must prove that the work as a whole is

original and that the plaintiff complied with applicable statutory

formalities."    Lotus Dev. Corp. v. Borland Int'l, Inc., 49 F.3d

807, 813 (1st Cir. 1995); see also T-Peg, Inc. v. Vt. Timber Works,


                                -12-
Inc., 459 F.3d 97, 108 (1st Cir. 2006) (the claimant bears the

burden of proving a valid copyright and its infringement).                It is

generally accepted that "a certificate of copyright registration

constitutes prima facie evidence of copyrightability and shifts the

burden to the defendant to demonstrate why the copyright is not

valid."   Lotus, 49 F.3d at 813 (emphasis in original) (quoting

Bibbero Sys., Inc. v. Colwell Sys., Inc., 893 F.2d 1104, 1106 (9th

Cir. 1990)) (internal quotation mark omitted).

           The    Monastery      has   met    its   prima   facie   burden   of

establishing ownership of the copyrights to all the Works, as it

holds a certificate of registration issued by the U.S. Copyright

Office for each religious text.8         See 17 U.S.C. § 410(c); Situation

Mgmt. Sys., 560 F.3d at 58 (stating "certificates of copyright are

prima   facie    evidence   of    [a   plaintiff's]     ownership    of   valid

copyright interests in its works").             Thus, it now falls to the

Archbishop to carry the burden of establishing the invalidity of

the Monastery's copyrights.        See Lotus, 49 F.3d at 813; CMM Cable

Rep, Inc. v. Ocean Coast Props., Inc., 97 F.3d 1504, 1513 (1st Cir.



8
   According to the record, the St. Isaac, Psalter, Prayer Book,
and Horologion Works were registered with the U.S. Copyright Office
as published works within approximately five years of their first
publication dates.    See 17 U.S.C. § 410(c); Brown v. Latin Am.
Music Co., 498 F.3d 18, 23 (1st Cir. 2007) (stating "a registration
within five years of first publication is accompanied by a
presumption of validity of the copyright"). As previously noted,
the remaining works, the Pentecostarion, Dismissal Hymns, and
Octoechos, were registered with the U.S. Copyright Office as
unpublished works.

                                       -13-
1996).   Although the Archbishop sets forth several arguments

challenging the Monastery's ownership of the copyrights, he fails

to so bear his evidentiary burden.                We address each of his

ownership challenges in turn.

            1.   Transfer Alert: Who Owns the Copyright?

            The cornerstone of the Archbishop's argument is that the

Monastery's works are in fact owned by a third party, ROCOR.                The

Archbishop argues that the Monastery was once a part of ROCOR and

its secession in 1986 had the effect of transferring its copyrights

in the Works to ROCOR.

            There   are   two   ways    under   governing   law   by    which a

transfer of copyright may be effectuated.           The first manner is by

"an instrument of conveyance, or a note or memorandum of the

transfer, [that] is in writing and signed by the owner of the

rights conveyed or such owner's duly authorized agent."                17 U.S.C.

§ 204(a).    The Archbishop does not allege, nor does the record

reveal, any writing or instrument by the Monastery showing such an

intent to transfer ownership of the Works' copyrights to ROCOR or

another entity.     Because there is no signed writing or instrument

establishing a transfer of copyright to ROCOR, we turn to the

second means of copyright transfer, i.e., by operation of law, with

the governing law in this case being the Monastic Statutes for

Monasteries of ROCOR (the "Monastic States") and the Regulations of

ROCOR (the "Regulations").


                                       -14-
            The Archbishop rests the yoke of his persuasive burden on

this latter means of copyright transfer. Specifically, he contends

a transfer by operation of law occurred here because, pursuant to

the Monastic Statutes (to which all member monasteries must agree

on joining ROCOR) the Monastery expressly accepted that if it ever

ceased to be a ROCOR monastery, all of its property would transfer

to ROCOR.   The Archbishop cites to the following language from the

Monastic Statutes for support:

            The   articles  of   incorporation  of   the
            monastery, convent or community must make it
            clear that it will always be in the
            jurisdiction of the Synod of Bishops of
            [ROCOR] and that, in case of its closing or
            liquidation, its possessions will be handed
            over to the diocese subject to the Synod of
            Bishops of [ROCOR], or directly to the Synod
            of Bishops.

(Emphasis added.)

            The Archbishop's argument leads us into a desert of case

law on the issue of copyright transfers by operation of law.          See

Taylor Corp. v. Four Seasons Greetings, LLC, 403 F.3d 958, 963 (8th

Cir. 2005) ("[T]he Copyright Act does not define the phrase 'by

operation of law,' and sparse case law addresses the transfer of

copyright    by   operation   of   law.")   (internal   quotation   marks

omitted); Valdez v. Laffey Assocs., No. 07-CV-4566 (BMC)(LB), 2010

WL 1221404, at *6 (E.D.N.Y. Mar. 26, 2010) (noting sparsity of case

law on transfer of copyright ownership by operation of law); Brooks

v. Bates, 781 F. Supp. 202, 205 (S.D.N.Y. 1991) (same).         Indeed,


                                   -15-
not even the Copyright Act defines what constitutes a transfer by

operation of law.      See Taylor, 403 F.3d at 963.

            The few cases addressing this question generally concern

a transfer by operation of state law, with the transfers at issue

typically    arising      from   a   corporate    merger    or    dissolution,

bankruptcy, foreclosure, and the like.           See id. at 963-64; Valdez,

2010 WL 1221404, at *6.          Such cases also focus on whether the

author of the transfer provided express or implied consent to such

change of ownership.       Taylor, 403 F.3d at 963; Brooks, 781 F. Supp.

at   205    (stating   "transfers     of    copyrights     by    operation    of

law . . . depend upon circumstances which establish the author's

express or implied consent"); see also Time, Inc. v. Kastner, 972

F. Supp. 236, 238 (S.D.N.Y. 1997).          Thus, a transfer by operation

of law is a voluntary transfer done on the part of the copyright

owner to another.      See Advance Magazine Publishers, Inc. v. Leach,

466 F. Supp. 2d 628, 636 (D. Md. 2006) ("[T]ransfers by operation

of law are expressly limited to voluntary transfers, except in

bankruptcy proceedings.").

            The Archbishop's argument differs from the few cases that

address transfers of copyright ownership by operation of law.                 To

begin with, the underlying law which the Archbishop asks us to

interpret and apply -- ROCOR's Monastic Statutes and Regulations --

contrasts    with   the    aforementioned    cases    in   which    state    law

predominantly served as the guiding light.


                                     -16-
          Generally, the Supreme Court has cautioned that where

parties "seek resolution of a church property dispute in the civil

courts[,] there is substantial danger that the State will become

entangled in essentially religious controversies."            Serbian E.

Orthodox Diocese for U.S. & Can. v. Milivojevich, 426 U.S. 696, 709

(1976); see also Presbyterian Church in U.S. v. Mary Elizabeth Blue

Hull Memorial Presbyterian Church et al., 393 U.S. 440, 449 (1969)

("If civil courts undertake to resolve [church property litigation

disputes triggering religious doctrine and practice] . . . the

hazards are ever present . . . of implicating secular interests in

matters of purely ecclesiastical concern.").        Against this concern

must be   weighed    the   "obvious   and   legitimate   interest   in   the

peaceful resolution of property disputes, and in providing a civil

forum where the ownership of church property can be determined

conclusively."      Jones v. Wolf, 443 U.S. 595, 602 (1979).             The

Supreme Court often has echoed that civil courts may resolve church

property disputes, "so long as [such resolution] involves no

consideration of doctrinal matters, whether the ritual and liturgy

of worship or the tenets of faith."             Id. (quoting Md. & Va.

Eldership of Churches of God v. Church of God at Sharpsburg, Inc.,

396 U.S. 367, 368 (1970)).     Where such resolution is possible, the

Supreme Court has advocated a "neutral principles of law" approach,

"developed for use in all property disputes." Presbyterian Church,




                                  -17-
393 U.S. at 449; see also Jones, 443 U.S. at 603; Md. & Va.

Churches, 396 U.S. at 368-70 (1970) (Brennan, J., concurring).

           A review of the record confirms that we may apply the

Monastic Statutes' plain terms without treading upon religious

doctrine, church governance, and ecclesiastical laws -- territory

that the Supreme Court has made clear lies beyond our civil court

jurisdiction.    The specific section of the Monastic Statutes that

the Archbishop asks us to apply provides in part:

           The articles of incorporation of the monastery
           [here, appellee] . . . must make it clear that
           it    will    always    be    [under    ROCOR]
           jurisdiction . . . and that, in case of its
           closing or liquidation, its possessions will
           be handed over to the diocese . . . ."

Neutrally applying this plain language, we conclude that the

Archbishop's position as to ROCOR's ownership holds little water.

           We first examine the Monastic Statute language to which

the Archbishop expressly directs us.                We split the statutory

language   in   two    and   turn    first   to   its    requirement      that   a

monastery's     articles     of     incorporation       clearly   state    ROCOR

jurisdiction.

                      a.    Monastic Statute Requirement that the
                      Monastery's Articles of Incorporation Expressly
                      Affirm ROCOR Jurisdiction

           An examination of the Monastery's various articles of

incorporation and by-laws9 does not show language to the effect


9
   Most of the copies of the Monastery's by-laws and articles of
incorporation in the record do not contain a date, making it

                                      -18-
that, from the date of its spiritual affiliation onward, the

Monastery would permanently be under ROCOR jurisdiction or that it

agreed to have its property continually fall under ROCOR's dominion

and control.    In fact, a review of all such articles and by-laws

reveals no reference whatsoever to ROCOR or to the entities'

ecclesiastical affiliation.      The same holds true for a review of

the certificates of registration (dating from 1986, the year the

Monastery ceased its spiritual affiliation with ROCOR, on through

1997) for each of the respective Works. Each certificate expressly

lists under Name of Author, "Holy Transfiguration Monastery," with

no mention of or reference to ROCOR.             The absence of a clear or

implicit agreement on the Monastery's part (whether in its articles

of incorporation, by-laws, the Works' certificates of registration,

or otherwise) to be permanently bound by ROCOR statutory law or to

relinquish title in its property to ROCOR does not constitute the

type   of   "express   or   implied    consent     to   transfer"   copyright

ownership that courts have held sufficient to support the finding

of a transfer by operation of law.           Valdez, 2010 WL 1221404, at *6;

see also Taylor, 403 F.3d at 963.

                   b.    Monastic Statute Requirement that Upon
                   Closing   or    Liquidation, the   Monastery's
                   Possessions Cede to ROCOR




unclear as to how recent or old the various versions are and where
they fall in relation to the period of the Monastery's spiritual
affiliation with ROCOR.

                                      -19-
            The Archbishop argues that when the Monastery ceased

commemorating the bishops of ROCOR, this act constituted a "closing

or    liquidation"     under    the   statutes,      and    thus,         all    of    the

Monastery's     ownership       claims      and    property      interests             were

transferred to ROCOR.           The Archbishop likens the Monastery's

termination     of     ecclesiastical        affiliation        to    a     corporate

dissolution, merger, bankruptcy, mortgage foreclosure, or the like,

the latter of which courts have held may indicate a transfer of

copyright by operation of law. Cf. Lone Ranger Television, Inc. v.

Program Radio Corp., 740 F.2d 718, 719, 721 (9th Cir. 1984)

(finding     transfer    of    copyright      by    operation        of    law        where

corporation merged into another, leaving one surviving company that

then transferred copyright to subsidiary); U.S. Home Corp. v. R.A.

Kot   Homes,   Inc.,    563    F.   Supp.   2d     971,   976   (D.       Minn.   2008)

(similar); Fantasy, Inc. v. Fogerty, 664 F. Supp. 1345, 1356 (N.D.

Cal. 1987) (concluding copyright transfer occurred where assets

from dissolving corporation were transferred to sole shareholder).

            In contrast to these cases -- and even more telling, in

contrast to the specific language of the statute -- the Monastery

here continued to exist after it terminated its commemoration of

the ROCOR bishops; it did not close, liquidate, dissolve, merge

into another religious institution, or otherwise discontinue its

existence.     Instead, it continued to operate as it had prior to its

spiritual affiliation with ROCOR, as an independent monastery. The


                                      -20-
express terms of the Monastic Statutes are clear: "in case of [a

monastery's] closing or liquidation, its possessions will be handed

over to the diocese" (emphasis added). Because the Monastery never

closed, liquidated, or otherwise ceased its existence, no such

"hand[ing] over" of its possessions to ROCOR could have taken

place, unless it authorized otherwise.            And as we have explained,

we find no such authorization or agreement in the record.

                    c. Additional Relevant Language in the
                    Monastic Statutes

          Lastly, immediately preceding the statutory language

referenced and discussed above, the statute states that "[t]he

possessions of a monastery, convent or community are its property

and registered in its name, which is why each monastery, convent

and community must take steps to become incorporated as an entity"

(emphasis added).     Reading this language, it seems clear that a

monastery, on joining ROCOR, remains the owner of its possessions

unless and until it becomes incorporated as an entity of ROCOR.

Stated differently, if a monastery never so incorporates itself as

dictated by the Monastic Statutes, its possessions will remain

under the monastery's domain.

          Notably,    a   review    of     the    record   reveals   no   such

incorporation on the part of the Monastery.           The most the evidence

shows is that the Monastery was founded in 1960 independently of

ROCOR -- i.e., not at the order or request of ROCOR -- and

incorporated   in   Massachusetts    as    a     non-profit   corporation   on

                                    -21-
January 12, 1961, before its spiritual affiliation with ROCOR.                 In

1965, the Monastery commenced its spiritual affiliation with ROCOR,

but the only act it seems to have taken reflecting such an

affiliation      (the   Archbishop    pointing   us     to    no   contradictory

evidence) is acceptance of an antimension,10 which the Monastery

returned when it discontinued its affiliation with ROCOR.                 We are

far from being authorities as to the weight the giving of an

antimension to another religious body might hold under church law

and offer no ruminations on the matter.                 But a review of the

evidence reveals no other act or document confirming that the

Monastery reincorporated itself under ROCOR law.               The giving of a

consecrated cloth does not, under civil law, ring of the type of

alteration in corporate structure that a transfer in authority over

the   Monastery's       possessions   may    properly    be    deemed   to   have

occurred.

            In sum, with no evidence in the record showing a transfer

of copyright ownership by operation of law, we hold that the

Monastery, and not ROCOR, holds title to the copyrights at issue in

this dispute.

            2.    No Notice?: No Problem

            The Archbishop casts his next lot and contends that

certain of the Monastery's Works became a part of the public domain


10
   The Monastery defines an antimension as "a cloth signed by a
bishop that is kept on an altar table to indicate that the bishop
has consecrated the cloth to be served on as an altar."

                                      -22-
because they were published without copyright notice prior to 1989.

There were three paths under the common law pursuant to which a

work could be exposed to the public or enter the public domain:

(1) exhibition or performance of the work; (2) limited publication;

and (3) general publication.   Burke v. Nat'l Broad. Co., 598 F.2d

688, 691 (1st Cir. 1979).      Only one such path, however, would

extinguish the creator's copyright in a work; the road to such loss

was general publication.   Id.; see Brown, 498 F.3d at 23.   For the

most part, the Copyright Act of 1976 abolished the common law of

copyright, but even under the 1976 Act, general publication without

notice could cause a work to enter the public domain if the

copyright owner failed to register the work within five years of

the date of first publication.    Brown, 498 F.3d at 23; see also

Charles Garnier, Paris v. Andin Int'l, Inc., 36 F.3d 1214, 1224

(1st Cir. 1994).   The Berne Convention Implementation Act of 1988

transformed this legal landscape, and notice is no longer mandatory

for works published after that Act's March 1, 1989 effective date.

See Pub. L. No. 100-568, sec. 7, § 401(a), 102 Stat. 2583, 2857

(codified at 17 U.S.C. § 401(a)); Garnier, 36 F.3d at 1219.     But

the Berne Act does not apply to works published before 1989, so a

work published without proper notice prior to 1989 would still

become part of the public domain if the copyright owner failed to

cure the defective notice in time.     Id. at 1224-26.




                                -23-
            On appeal, the Archbishop does not clarify whether his

position is that all of the disputed Works passed into the public

domain or that only some did.      Moreover, he does not clarify which

of the three copyright regimes -- the 1909 Act, the 1976 Act, or

the Berne Act -- apply to which works.      Regardless, under all three

regimes, lack of proper notice definitely would not render the

Works part of the public domain if there had been no "general

publication"   of   the   Works.    Because    the   Archbishop   has   not

established that "general publication" without notice has ever

occurred for any of the disputed Works, we may reject his public-

domain claim without having to untangle the web of statutory

regimes.

            A general publication is "when a work is made available

to members of the public at large without regard to who they are or

what they propose to do with it."         Burke, 598 F.2d at 691.       That

is, a general publication consists of such a level of circulation

within the public sphere that a work may be deemed "dedicated to

the public and rendered common property."            Id.   Conversely, a

limited publication "occurs when tangible copies of the work are

distributed, but to a limited class of persons and for a limited

purpose."   Id. at 692.

            The Archbishop's brief arguments on appeal do little to

show such a dispersal of the Works that they could be deemed to

have entered the public domain.      At most, the Archbishop contends


                                   -24-
that the Monastery "allowed the disputed Works to pass into the

public domain and provided the court with evidence of the same,"

and   therefore,     the    district    court    erred     in    granting    summary

judgment against him. The evidence to which the Archbishop directs

our   attention,     however,    does    not    show    the     wide   distribution

typically associated with a general publication; instead, it simply

shows the Archbishop's unsupported assertions that translations of

certain Works were disseminated into the public, with a vague

reference to the fact that certain Works were sent to people for

use in their churches.

              The Monastery does not contest this latter proposition.

In    fact,   it   concedes     it   authorized     St.    Nectarios        Press   to

distribute booklets –- composed of in-progress translations of

certain of the Works at issue on appeal expressly attributing

copyright ownership to the Monastery –- to certain parishes for

their use and editorial critiques.              Any such promulgation though,

according to the Monastery, was restricted and should be deemed a

limited publication not requiring such notice.

              We   agree.     Delivery    of    these     booklets     to   selected

religious congregations for the circumscribed purpose of literary

feedback rings more of a limited publication (distribution "to a

limited class of persons and for a limited purpose") – than of a

general publication (distribution to "the public at large without

regard to who they are or what they propose to do with [the


                                        -25-
work]").         Burke, 598 F.2d at 691; see also Warner Bros. Entm't,

Inc. v.      X    One   X   Prods.,   644   F.3d    584,   593   (8th      Cir.   2011)

(distinguishing         between   a   general      publication    and      a   limited

publication).

             The Archbishop directs us to nothing more than his own

unsubstantiated contentions that certain Works were "passed around"

in the public sphere for decades without notice.                     Even accepting

this statement as true, we face the reality that not just any

publication of the Works without notice will insert them into the

public realm; instead, any such injection must be authorized by the

copyright holder, i.e., the one effectively relinquishing its

copyright. Harris Custom Builders, Inc. v. Hoffmeyer, 92 F.3d 517,

521   (7th       Cir.   1996)   ("A   finding      of   forfeiture    of    copyright

protection cannot be based on an unauthorized distribution of the

work without notice because the notice requirement applies only to

copies of works published 'by authority of the copyright owner,'

pursuant to § 401(a)."); see also Copyright Act of 1976, Pub. L.

No. 94-553, § 401(a), 90 Stat. 2541, 2577 (amended 1988) ("Whenever

a work protected under this title is published in the United States

or elsewhere by authority of the copyright owner, a notice of

copyright as provided by this section shall be placed on all

publicly distributed copies . . . ." (emphasis added)); Cipes v.

Mikasa, Inc., 346 F. Supp. 2d 371, 374-75 (D. Mass. 2004); Zito v.

Steeplechase Films, Inc., 267 F. Supp. 2d 1022, 1026 (N.D. Cal.


                                        -26-
2003) (citing 1 Melville B. Nimmer & David Nimmer, Nimmer on

Copyright § 4:04 at 4-22 to 4-23 (2002)) (hereinafter 1 Nimmer).

Here, the only copyright holder that could have authorized such

publication without notice is the Monastery.    We find no evidence

of such authorization in the record, nor does the Archbishop direct

us to any material showing to the contrary.11

          Because any authorized publication of the Works that took

place was only to a select group (specific religious congregations)

for a particular purpose (editorial feedback), only a limited

publication took place.    Thus, the Monastery did not lose its

copyright ownership via a general publication.    If any copies of

the Works were circulated outside the targeted circle of parishes,

it was unauthorized and did not affect the Monastery's ownership.

          3.   Originality of the Works

          The Archbishop next asserts that the Works here were not

original, and therefore, not copyrightable.12      See Johnson v.


11
   The Monastery points to the Archbishop's undeveloped references
to booklets lacking a copyright notice during the course of this
dispute, but which he contended supported the conclusion of a
publication without notice.         The Monastery counters the
Archbishop's argument with a sworn affidavit from the publisher of
St. Nectarios Press stating that the "versions" the Archbishop
references are inaccurate copies of those actually distributed to
the public.    Such evidence falls far short of supporting the
conclusion that the Monastery authorized publication without notice
of the underlying Works and relinquished its copyright.
12
    The Archbishop brings additional challenges to the Works'
originality.    Because these arguments better fall into the
analytical category of whether copying of the Works occurred, we
turn to these points infra.

                               -27-
Gordon, 409 F.3d 12, 17 (1st Cir. 2005) (to establish ownership of

a valid copyright, a "plaintiff must show that the work, viewed as

a whole, is original"); Lotus, 49 F.3d at 813 (showing ownership of

a true copyright requires that a plaintiff "prove that the work as

a whole is original").          Principally, the Archbishop alleges that

the underlying Works are derivative of other works, that is, they

are merely a commixture of various ancient religious works that had

previously been translated into English, with the Monastery making

only   "minor     edits,"     "insignificant      changes,"    or     "negligible

additions or subtractions" to the translations it relied upon.

            To    bolster     this    argument,    the    Archbishop     proffers

affidavits from a colleague, Bishop John.13                The Bishop's sworn

statements compare various texts to the Works and claim that the

former texts clearly demonstrate the duplicative nature of the

latter.         Thus,   so    the    Archbishop   postulates,        because   the

Monastery's translations are nothing more than a nearly identical,

cobbling   together      of   already    translated      religious    texts,   the

Monastery cannot claim copyrights to the contested Works.

            The Monastery retorts that its translations are both

unique    and    entitled     to    copyright   protection,    citing     to   the

Copyright Act's express acknowledgment of the copyrightability of


13
   According to his sworn affidavit, Bishop John is "a hierarch in
the Genuine Orthodox Church of America," who "was ordained to the
holy priesthood by Metropolitan Valentine, First Hierarch of the
Russian Orthodox Autonomous Church" and "[f]or more than 20
years . . . ha[s] been a student of Orthodox Christianity."

                                        -28-
derivative works.     17 U.S.C. §§ 101, 103.       Moreover, it notes that

courts repeatedly have recognized the validity of copyrights to

works that the Monastery claims are comparative to those at issue

here.    See, e.g., Merkos L'Inyonei Chinuch, Inc. v. Otsar Sifrei

Lubavitch, Inc., 312 F.3d 94, 97 (2d Cir. 2002) (citations omitted)

(recognizing copyrightability of translations of religious texts).

            The Copyright Act provides that "[c]opyright protection

subsists . . . in original works of authorship."           17 U.S.C. 102(a).

Assessing whether a work is original is a matter of law.              Yankee

Candle Co. v. Bridgewater Candle Co., 259 F.3d 25, 34 n.5 (1st Cir.

2001).    Courts assessing the applicability of the Copyright Act's

protections to allegedly unique works frequently note that the

"originality" bar is set quite low.          See, e.g., Feist, 499 U.S. at

345    ("[T]he   requisite   level   of     creativity   [required   to    show

originality] is extremely low; even a slight amount will suffice.

The vast majority of works make the grade quite easily, as they

possess some creative spark . . . ."); Universal Furniture Int'l,

Inc. v. Collezione Europa USA, Inc., 618 F.3d 417, 430 (4th Cir.

2010) ("Establishing originality implicates only a light burden.").

            The Copyright Act makes clear that translations may be

original and copyrightable, despite being derivative of another

product.   See 17 U.S.C. § 101 ("A 'derivative work' is a work based

upon     one     or   more     preexisting        works,     such     as     a

translation . . . ."); id. § 103 ("The subject matter of copyright



                                     -29-
as specified by section 102 includes compilations and derivative

works . . . .") (emphasis added).               The originality standard for

such derivative works is, as set forth above, far from a high one.

Specifically, courts have held there is a "'minimal,'" "'low

threshold,'" Original Appalachian Artworks, Inc. v. Toy Loft, Inc.,

684 F.2d 821, 824 (11th Cir. 1982) (quoting Durham Indus., Inc. v.

Tomy Corp., 630 F.2d 905, 910 (2d Cir. 1980)), that is "modest at

best," Thomas Wilson & Co. v. Irving J. Dorfman Co., 433 F.2d 409,

411    (2d    Cir.   1970),    for   establishing    the    originality      of   a

compilation or derivative work.             With this framework in mind, we

have    two    responses      to   the    Archbishop's     argument   that    the

Monastery's Works cannot be original or copyrightable because they

are composed of an amalgamation of different English translations

of religious texts.

              First, the law does not support the Archbishop's argument

that such a derivative work or compilation cannot be copyrightable.

Courts consistently have held that such works may be copyrighted

provided that "there is originality in [the works'] arrangement or

selection."      M. Kramer Mfg. Co. v. Andrews, 783 F.2d 421, 438 (4th

Cir. 1986); see also Apple Barrel Prods., Inc. v. Beard, 730 F.2d

384, 388 (5th Cir. 1984) ("The mere fact that component parts of a

collective      work   are    neither     original   to    the   plaintiff    nor

copyrightable by the plaintiff does not preclude a determination

that the combination of such component parts as a separate entity



                                         -30-
is both original and copyrightable." (citing 1 Nimmer §§ 3.02,

3.03)).      Indeed, in a case that is at least comparable to the

Archbishop's framing of the Monastery's Works, the Seventh Circuit

held   that     flashcards     containing      standard,      publicly-known

mathematical equations and their solutions were protected under

copyright law because "the arrangement, the plan and the manner in

which [the equations and answers] were put together by the author,

does constitute originality."      Gelles-Widmer Co. v. Milton Bradley

Co., 313 F.2d 143, 147 (7th Cir. 1963); see also M. Kramer Mfg.

Co., 783 F.2d at 439 (citing examples of copyrightable compilations

and noting that "[i]n each case the copyright depended on the fact

that the compiler made a contribution - a new arrangement or

presentation of facts - and not on the amount of time the work

consumed").14    Thus, even if the Monastery's translations of the

religious texts may be deemed nothing more than a blend of various

pre-existing English versions, this, in and of itself, does not

make   the    Monastery's    gathering    of   such   texts   automatically

unoriginal.

             Second, the record does not support the Archbishop's

argument.     The only evidence the Archbishop offers to show a lack

of originality in the Works are Bishop John's affidavits, stating

the Works contain "insignificant changes" or "negligible additions

or subtractions" to other sources he has examined, assessed, and

14
   Even Bishop John concedes that the Monastery "has expended some
effort in their copyrighted work."

                                   -31-
compared to the Works.15   However, the Monastery examined the same

sources the Bishop attested to having compared with the Works. The

Monastery created a detailed comparison in which it placed its

translations along-side those materials cited by Bishop John, as

well as the Archbishop's translations, effectively demonstrating

notable differences between the Bishop's referenced texts and the

Monastery's   (and   nearly   identical    similarities     between     the

Archbishop's translations and the Monastery's).             Although the

comparison shows certain similarities between the Monastery's Works

and those referenced by the Bishop, the differences in the same

reflect a creativity in the Monastery's word usage, structure, and

overall   translation.     Cf.   Feist,   499   U.S.   at   345    (stating

"[o]riginality does not signify novelty; a work may be original

even though it closely resembles other works so long as the

similarity is fortuitous, not the result of copying").

           It is well-accepted that "[o]riginal, as the term is used

in copyright, means only that the work was independently created by

the author (as opposed to copied from other works), and that it

possesses at least some minimal degree of creativity."            Id. at 345

(citing 1 Nimmer §§ 2.01[A],[B]).         The evidence in the record

satisfies us that the Monastery has cleared the "extremely low"



15
   Bishop John's affidavits do not go into great detail as to the
methodology he utilized to analyze the translations of the
Archbishop's and Monastery's works, its comparison of the latter to
other translations, or the process behind the selection of these
other texts.

                                 -32-
creativity bar.      Id.      We therefore affirm the district court's

determination that the Monastery's Works were original and thus

copyrightable.

            Having concluded our traversal of the ownership prong of

a copyright infringement claim, we proceed to the second prong of

our   analysis,    i.e.,   whether    copying    of   the   Works     occurred.

Situation Mgmt. Sys., 560 F.3d at 58.

B.    Copying

            A party seeking to establish copying of a work's original

elements must make a dichotomized showing.            The copyright holder

first    must     factually     establish,      whether     via     direct   or

circumstantial evidence, that the alleged infringer copied the

protected work.      Yankee Candle, 259 F.3d at 33.               Secondly, the

holder must show that the copying was so flagrantly extreme that

the allegedly infringing and copyrighted works were, for all

intents and purposes, "'substantially similar.'"                  Id. (quoting

Segrets, Inc. v. Gillman Knitwear Co., 207 F.3d 56, 60 (1st Cir.

2000)); see also Coquico, Inc. v. Rodríguez-Miranda, 562 F.3d 62,

66 (1st Cir. 2009).        It is accepted that "[p]roof of '[b]oth

species of copying [is] essential for the plaintiff to prevail.'"

Airframe Sys., 658 F.3d at 106 (quoting 4 Nimmer § 13.01[B], at 13-

10 (2011)) (hereinafter 4 Nimmer).           Thus, if a plaintiff cannot

show that factual copying occurred but can show such copying

rendered the works substantially similar, his infringement claim

will fail; likewise, if a plaintiff satisfies the factual copying

                                     -33-
prong, but cannot show that such copying produced a substantially

similar result, denial of his infringement claim will be warranted.

Id. (citing Creations Unltd., Inc. v. McCain, 112 F.3d 814, 816

(5th Cir. 1997); 4 Nimmer § 13.01[B], at 13-10)).          We commence our

binary analysis.

            1.   Actual Copying

            Proving actual copying by direct evidence is generally a

difficult task, as it is the rare case in which the specific act of

copying was witnessed, observed, or recorded.             See Johnson, 409

F.3d at 18 ("Plagiarists rarely work in the open and direct proof

of actual copying is seldom available."). For this reason, parties

typically    rely   on   circumstantial   evidence   to   prove   that   the

defendant had access to the protected work and that the resulting

product, when fairly compared to the original, was sufficiently

similar that actual copying may properly be inferred.             Concrete

Mach. Co. v. Classic Lawn Ornaments, Inc., 843 F.2d 600, 606 (1st

Cir. 1988) (quoting Atari, Inc. v. N. Am. Philips Consumer Elecs.

Corp., 672 F.2d 607, 614 (7th Cir. 1982)).

            We have termed the degree of similarity for purposes of

indirectly adducing evidence of copying, "probative similarity."

Johnson, 409 F.3d at 18; see also Lotus, 49 F.3d at 813 (describing

"probative similarity" as when "the offending and copyrighted works

are so similar that the court may infer that there was factual

copying").    Although similar, this degree of similarity is not to

be confused with the degree that a plaintiff must meet after he has

                                   -34-
established   copying      --   when   he   "must    show    that    the    'alleged

infringing    work    is   "substantially      similar"      to     the    protected

expression in the copywritten work.'"           Yankee Candle, 259 F.3d at

33 n.4 (quoting Matthews v. Freedman, 157 F.3d 25, 27 (1st Cir.

1998)); see also 4 Nimmer § 13.03[A], at 13-33 ("Although the term

'substantial similarity' often is invoked as a proxy to prove

copying as a factual proposition, we have seen that the term

'probative similarity' is to be preferred in that context and the

question of    'substantial       similarity'       arises   analytically       only

thereafter.").

          Here, we have the relatively unique case of both direct

and indirect evidence of copying.             See Segrets, 207 F.3d at 61

(noting the "somewhat unusual[]" instance in which there is direct

evidence of copying); see also Rogers v. Koons, 960 F.2d 301, 307

(2d Cir. 1992).      Specifically, the Archbishop conceded in both his

Answer and in deposition testimony that identical or near-identical

reproductions of the Monastery's Works had been reproduced and

"were available on his Website."            Thus, there is no genuine issue

of material fact as to whether the Archbishop reproduced and

displayed exact or near-exact copies of the Monastery's Works.

          But lest there be any doubts as to the Archbishop's

concessions, there is ample circumstantial evidence in the record

from which we may infer actual copying.              See Coquico, 562 F.3d at

67. As previously stated, the Archbishop admitted to accessing the

Monastery's Works and does not dispute that he has copies of the

                                       -35-
Works at issue in this case.       TMTV, Corp. v. Mass Prods., Inc., 645

F.3d 464, 470 (1st Cir. 2011) (actual copying established where

evidence showed, among other factors, that defendant-appellant had

access to protected work).         Moreover, a comparison of the Works

with   those    reproduced   on   the   Archbishop's    Website    more   than

satisfies the "probative similarity" standard, as the texts are

nearly indistinguishable from one another, with only minor textual

differences where such variation exists.16            See Lotus, 49 F.3d at

813; see also Coquico, 562 F.3d at 67 ("What we have called

'probative similarity' can, when accompanied by proof of access,

serve as a harbinger of actual copying . . . .").             This evidence

(access to the protected works coupled with probative similarity)

sufficiently supports the Monastery's claim as to actual copying.

And so, with no doubt as to actual copying, we continue onward in

our similarity study.

           2.    Substantial Similarity

           We    traditionally     have    assessed    whether    substantial

similarity lies between copyrightable expressions by applying the

"ordinary observer" test.         Under this rubric, two works will be

deemed substantially similar if a reasonable ordinary observer, on

examining both, "would be disposed to overlook [the disparities


16
   Both below and on appeal, the Monastery has provided detailed
comparisons of the parties' respective versions of the religious
texts. This extensive analysis shows verbatim or near word-for-
word similarities between the Works and the Archbishop's texts.


                                    -36-
between the works], and regard their aesthetic appeal as the same."

Concrete Machinery, 843 F.2d at 607 (quoting Peter Pan Fabrics,

Inc. v. Martin Weiner Corp., 274 F.2d 487, 489 (2d Cir. 1960)); see

also Ideal Toy Corp. v. Fab-Lu Ltd., 360 F.2d 1021, 1022 (2d Cir.

1966) (describing ordinary observer test as "whether an average lay

observer     would    recognize     the   alleged     copy    as    having    been

appropriated from the copyrighted work").            The district court here

applied the ordinary observer test in its two orders.                     See Holy

Transfiguration II, 754 F. Supp. 2d at 226-27; Holy Transfiguration

I, 685 F. Supp. 2d at 226.          It concluded in each that an average

lay observer reviewing the Monastery's Works and the Archbishop's

versions of such would be inclined to overlook any differences

between the texts and consider them to be, for all intents and

purposes, the same.       See Holy Transfiguration II, 754 F. Supp. 2d

at 226-27; Holy Transfiguration I, 685 F. Supp. 2d at 226.

           The       Archbishop    now    attacks    the     district      court's

utilization of the traditional ordinary observer test. In essence,

he argues that the court should have applied a more differentiating

dissection    analysis     and    isolated   the    original,      or   protected,

components of the Works from the remaining elements.                    Had it done

so, so the argument goes, it would have recognized that the Works

consist of non-copyrightable elements, preventing a finding of

actionable copying.

           In general, the Archbishop's overall argument rests on

solid ground: a court's substantial similarity analysis must center

                                      -37-
on a work's original elements.              See Coquico, 562 F.3d at 68; see

generally 17 U.S.C. § 103(b).              Such examination may require more

than the simple determination that "an overall impression of

similarity"      between    the       contested     works      as    a     whole      exists.

Johnson, 409 F.3d at 19; see also Yankee Candle, 259 F.3d at 33

("The determination of whether an allegedly infringing [work] is

substantially      similar       to    [another    work]       is    not       so    simple   a

task . . . as a strict visual comparison of the two items.").

Typically, to properly conduct this examination, a court must

"dissect[]    the       copyrighted      work     and   separat[e]          its       original

expressive elements from its unprotected content," honing in solely

on the unique (and thus protected) components.                       Coquico, 562 F.3d

at   68;   see    also     Johnson,      409     F.3d     at    19    (noting          court's

responsibility      to    examine       "juxtaposed       works      as    a    whole"     and

decipher "'what aspects of the plaintiff's work are protectible

[sic] under copyright laws and whether whatever copying took place

appropriated those [protected] elements.'" (quoting Matthews, 157

F.3d at 27)) (alteration in original).                  This distillation process

is necessary so as to ensure the purity of the originality that we

are analyzing.      See Feist, 499 U.S. at 348 ("The mere fact that a

work is copyrighted does not mean that every element of the work

may be     protected.").          Indeed,      should     a    work's      appearance of

similarity       rest     upon        elements     that        are       not        themselves

copyrightable, this will drive a problematic stake through an

infringement claim.         See TMTV, 645 F.3d at 470 ("No infringement

                                          -38-
claim lies if the similarity between two works rests necessarily on

non-copyrightable aspects of the original . . . ."); Matthews, 157

F.3d at 27. Our review as to the carved out originality components

of a work is de novo.       Coquico, 562 F.3d at 68 ("Appellate review

of the originality vel non of the constituent elements of the

copyrighted work is de novo."); see also CMM Cable, 97 F.3d at 1517

("[C]ourts     clearly          may          determine      the       question

of . . . copyrightability so long as they do so in accord with the

familiar rules governing summary judgment.").

                 a.     Short Phrases

          The Archbishop attempts to guide us in the appropriate

textual incisions he asserts are warranted.                 Specifically, he

argues the district court erred in its comparison of the Works to

the Archbishop's versions; instead of comparing the respective

texts as a whole, the court should have performed the requisite

triage pursuant to which it would have discovered that the only

elements unique to the Works are, at most, "short phrases, single

words, and expressions that are obvious."                  Because copyright

protection cannot extend to such elements, the Archbishop claims it

likewise cannot extend to the Works.

          We   are    not    convinced        that   the   district    court's

application of the ordinary observer test here was inappropriate or

that a deeper dissection analysis was warranted. An examination of

each of the district court's orders shows that it considered the

respective works as a whole while also narrowing in on their

                                      -39-
particular       textual   variations      (where   present),17      ultimately

concluding that "the slight textual differences between the two

[texts]    are    insufficient    as   a   matter   of    law   to   render    the

Archbishop's versions not 'substantially similar' to the infringed

portions   of     the   Works   copyrighted   by    the   Monastery."         Holy

Transfiguration Monastery II, 754 F. Supp. 2d at 227; see Holy

Transfiguration Monastery I, 685 F. Supp. 2d at 226 (noting the

"minuscule differences" between the respective parties' versions of

the St. Isaac texts "are insufficient as a matter of law to render

the website copy . . . not 'substantially similar' to the version

copyrighted in the St. Isaac Work").

            Moreover, while both this court and the Copyright Office

have generally recognized that short phrases may not be subject to

copyrightability, see 37 C.F.R. § 202.1(a) (listing as "works not


17
   For instance, the district court noted the following specific
differences in the works' translations:

     [R]egarding Psalm 3 of the Psalter Work, the Monastery's
     phrasing "without cause" has been replaced by "vainly" in
     the Archbishop's corresponding website document.       In
     addition, there are slight textual differences between
     portions of the Monastery's Prayer Book Work and the
     corresponding text posted on the Archbishop's website
     (e.g., the Archbishop changes "Friend of Man" to "Lover
     of man" throughout the document).

Holy Transfiguration Monastery II, 754 F. Supp. 2d at 227 n.5

     The Archbishop's copying [of the St. Isaac Work] omitted
     footnotes and a total of three words, added a question
     mark, and changed the spelling of six words. It also
     added six quotation marks, and changed some headings.

Holy Transfiguration Monastery I, 685 F. Supp. 2d at 226 n.13.

                                       -40-
subject to copyright" "[w]ords and short phrases such as names,

titles, and slogans; familiar symbols or designs; mere variations

of typographic ornamentation, lettering or coloring; [and] mere

listing of ingredients or contents"); see also CMM Cable, 97 F.3d

at 1519, applicability of this law very much turns on the specific

short phrases at issue, as not all short phrases will automatically

be deemed uncopyrightable, see CMM Cable, 97 F.3d at 1520 n.20

(acknowledging that "not all short, simple, declarative sentences

fall within the meaning of [37] C.F.R. § 201.1(a)"); Syrus v.

Bennett, 455 F. App'x 806, 809 (10th Cir. 2011) ("[A] short phrase

may   command   copyright   protection   if   it   exhibits   sufficient

creativity.") (quoting 1 Nimmer § 2.01[B], at 2-17).          As so often

is the case, context matters.18

           Here, we have no context to analyze.       Aside from brief-

yet-undeveloped citations to relevant case law, the Archbishop

fails to identify -- whether below or on appeal -- the alleged


18
   Compare Applied Innovations, Inc. v. Regents of the U. of Minn.,
876 F.2d 626, 635 (8th Cir. 1989) (holding test statements in
copyrighted psychological test sufficiently original to be
copyrightable as derivative works); Salinger v. Random House, Inc.,
811 F.2d 90, 98 (2d Cir. 1987) (noting although ordinary phrases
might not be copyrightable, their "use in a sequence of expressive
words does not cause the entire passage to lose protection") with
ATC Distrib. Grp., Inc. v. Whatever It Takes Transmissions & Parts,
Inc., 402 F.3d 700, 706-10 (6th Cir. 2005) (denying copyright
protection to part numbers and transmission parts catalog partly
because did not show originality required for copyright
protection); Southco, Inc. v. Kanebridge Corp., 390 F.3d 276, 286-
87 (3d Cir. 2004) (similar); Lexmark Int'l, Inc. v. Static Control
Components, Inc., 387 F.3d 522, 541-43 (6th Cir. 2004) (rejecting
copyrightability of toner loading software program and lock-out
code because lacked creativity warranting protection).

                                  -41-
short phrases which he contends are not copyrightable.            Judges are

not mindreaders.      To properly assess whether the alleged short

phrases are subject to protection, we must know what they are.             We

have often admonished counsel that "it is not the job of this court

to do [appellant's] work for him." United States v. Rodríguez, 675

F.3d 48, 59 (1st Cir. 2012); United States v. Zannino, 895 F.2d 1,

17 (1st Cir. 1990).         In contrast to the cases to which appellant

cites, which specifically reference the contested short phrases and

thoroughly explain why those are or are not subject to copyright

protection, the Archbishop has left us to sift through the parties'

respective translations and weed out the alleged short phrases that

he contends represent the only original (yet not copyrightable)

portions of the Works.

           Left alone with a plethora of ancient religious texts and

phrases, we cannot properly know those phrases the Archbishop wants

us to touch versus those we should not.                 And we need not so

decipher on our own.          We thus deem the Archbishop's dissection

argument   as   to    the     copyrightability    of    the   Works   waived.

Rodríguez, 675 F.3d at 59; Zannino, 895 F.2d at 17.

                     b. Merger Doctrine

           The Archbishop raises an additional challenge to the

copyrightability      of     the   Works    and   the     district    court's

determination as to his liability for infringement. He argues that

because there are only a limited number of ways by which the Works

at issue could have been translated, the Works consist of non-

                                     -42-
copyrightable ideas that have merged with expression, preventing

the final product from being copyrightable.             Best described as a

reliance    on   the   merger     doctrine,   we   unfurl   the   Archbishop's

argument.

            It   is    accepted    that   "[t]he   merger    doctrine      denies

copyright protection when creativity merges with reality; that is,

when there is only one way to express a particular idea."                Coquico,

562 F.3d at 68; see also Merkos, 312 F.3d at 99.             Thus, the merger

doctrine will, where applicable, prevent copyright protection to a

work; this is so because

            [w]hen there is essentially only one way to
            express an idea, the idea and its expression
            are inseparable and copyright is no bar to
            copying that expression.    [Even] [w]hen the
            idea and its expression are not completely
            inseparable, there may still be only a limited
            number of ways of expressing the idea.

Yankee Candle, 259 F.3d at 36 (quoting Concrete Machinery, 843 F.2d

at 606) (second and third alterations in original). Conversely, if

a work consists of a more specialized expression, "it moves further

away from [merger of idea and expression] and receives broader

copyright    protection."         Concrete    Machinery,    843   F.2d    at   607

(quoting Atari, 672 F.2d at 617) (alteration in original) (internal

quotation mark omitted).

             The Archbishop claims the Monastery's Works fall on the

former end of this spectrum because there were only a limited

number of manners by which the Works (originally in ancient Greek)

could be translated into English. Thus (so we presume the argument

                                      -43-
goes, as the Archbishop does not clearly articulate as such), the

expression of these once ancient Greek texts effectively merged

with the (unstated) idea because the resulting translations were

essentially the only viable interpretations that could result from

an English-rendition of the ancient Greek works.

            Yet again, the Archbishop leaves us in the dark as to

what idea(s) he claims has, for all intents and purposes, merged

with expression such that copyrightability may not attach.                        On a

more basic note, though, lies the essence of this dispute: we are

dealing   here    with     translations,      and   "the   art   of    translation

involves choices among many possible means of expressing ideas,"

making the merger doctrine "inapposite to the context presented

here."      Merkos,    312   F.3d    at   99;   see    also   id.     at   97   ("The

translation process requires exercise of careful literary and

scholarly judgment.").         We thus reject the Archbishop's merger

argument and affirm the district court's well-supported finding as

to the respective texts' substantial similarity.

                      c.   Comparing the Texts

            The   district     court      carefully     compared      each   of    the

allegedly    infringing      texts   with     the     Monastery's     Works.        On

reviewing detailed, side-by-side comparisons of the texts, and

specifically noting those sections in which slight variations in

the texts were present, it found that no reasonable juror could

conclude the Archbishop's versions were not "substantially similar"


                                       -44-
to the Works.    See Holy Transfiguration II, 754 F. Supp. 2d at 227

& n.4, n.5; Holy Transfiguration I, 685 F. Supp. 2d at 226 & n.13.

             Our independent review of the Works and the Archbishop's

translations confirms the district court's ruling.      We agree that

the    Archbishop's   translations   are,   as   a   matter   of   law,

substantially similar to the Monastery's Works where his versions

differed -- if at all -- only in minor textual variations that

would likely cause the ordinary observer to overlook the subtle

discrepancies and deem the texts essentially indistinguishable.

See Johnson, 409 F.3d at 18; Matthews, 157 F.3d at 28 (substantial

similarity requires "the disregard of minor differences in favor of

major similarity").

             The Monastery having established both elements of an

infringement claim -- i.e., actual copying and actionable copying

-- we echo the district court's determination that the Archbishop

copied the Works.     We thus affirm the district court's grant of

summary judgment to the Monastery as to copyright infringement of

the Works.    See Johnson, 409 F.3d at 18; Yankee Candle, 259 F.3d at

37 ("Although summary judgment is often inappropriate on the

question of substantial similarity, where reasonable minds cannot

differ, summary judgment is appropriate.") (internal citations

omitted).

C.    Defenses




                                 -45-
            The Archbishop next argues that even if we determine

copyright infringement occurred, he should not be held liable for

such   transgressions.           The   Archbishop      brings    four     principal

defenses: (1) the copyright claim was for direct infringement, and

because the Archbishop was not the specific individual responsible

for uploading the translations at issue, he may not be held liable

for infringement; (2) the Archbishop is immune from liability under

the 1998 Digital Millennium Copyright Act ("DMCA"), 17 U.S.C.

§§ 101, et seq. or other applicable law; (3) the Archbishop's

reproductions of the Works constituted fair use; and (4) the

Monastery    misused    its     copyright,    thereby        preventing    it    from

litigating   a    copyright      infringement       claim.      We    address    each

seriatim.

            1.    Direct Infringement Defense

            The   Monastery      contends     the    Archbishop       violated    its

exclusive right to display the Works.               It specifically directs us

to the Archbishop's statement in his Answer, conceding that copies

of the Works "were available on his website."                        The Archbishop

counters that he may not be held liable for direct copyright

infringement because he "is not the person who posted the disputed

Works on the website."          Relying on Sony Corp. of Am. v. Universal

City Studios, Inc., he argues that only the one who "trespasses

into [the copyright holder's] exclusive domain" constitutes a

direct infringer       of   a   copyright;    because he        himself    did   not


                                       -46-
volitionally copy or post the Works to the Website, liability may

not attach to him.     Sony, 464 U.S. 417, 433 (1984).               We disagree

with the Archbishop's position.

            As set forth above, the Monastery is the owner of the

copyrights at issue.      See supra at Part II.A.              By virtue of its

ownership, it holds certain exclusive rights, including the right

to perform or authorize reproduction of the Works, to prepare

derivatives of the Works, to distribute copies to the public, or to

publicly display the Works.        See 17 U.S.C. § 106; see also Cartoon

Network LLP v. CSC Holdings, Inc., 536 F.3d 121, 126 (2d Cir. 2008)

(stating "[s]ection 106 of the Copyright Act grants copyright

holders a bundle of exclusive rights" (quoting Bill Graham Archives

v. Dorling Kindersley Ltd., 448 F.3d 605, 607 (2d Cir. 2006))

(internal quotation marks omitted). An infringer of a copyright is

thus "[a]nyone who violates any of the exclusive rights of the

copyright owner as provided by section[] 106." 17 U.S.C. § 501(a).

The specific exclusive right at issue here is the Monastery's right

to display its Works.         We turn to the Copyright Act itself for

guidance.

            Section 101 of the Copyright Act defines "copies" as

"material   objects   .   .    .   in    which    a    work   is   fixed   by   any

method . . . and from which the work can be perceived, reproduced,

or otherwise communicated . . . ."               17 U.S.C. § 101.      A work is

"'fixed'    in   a    tangible      medium        of    expression     when     its



                                        -47-
embodiment . . . is sufficiently permanent or stable to permit it

to be perceived, reproduced, or otherwise communicated for a period

of more than transitory duration."       Id.   A "display" of a work is

defined under the Act as "show[ing] a copy of [a work], either

directly or by means of a film, slide, television image, or any

other device or process."         17 U.S.C. § 101.           Applying these

definitions to the facts, we draw the following conclusions.

          Here,   the   Archbishop's     verbatim       or   near-identical

versions of the Works constituted a "copy" under the Copyright Act.

The translation   images   were   embodied     in   a   medium   (here,   the

computer server and internet) where they could be perceived by,

electronically communicated to, and/or reproduced by those who

accessed the server.    See 17 U.S.C. § 101.

          The copies also were embodied or "'fixed' in a tangible

medium of expression," as they were loaded on the Archbishop's

computer server and posted to his Website.               Id.; see Cartoon

Network, 536 F.3d at 129 (to determine whether a work is "fixed" in

a medium, court must examine whether the work is "embodied" in the

medium); Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1160

(9th Cir. 2007) (citing MAI Sys. Corp. v. Peak Computer, Inc., 991

F.2d 511, 517-18 (9th Cir. 1993) and noting that "a computer makes

a 'copy' of a software program when it transfers the program from

a third party's computer (or other storage device) into its own

memory, because the copy of the program recorded in the computer is



                                  -48-
'fixed' in a manner that is 'sufficiently permanent or stable to

permit it to be perceived, reproduced, or otherwise communicated

for a period of more than transitory duration'" (quoting 17 U.S.C.

§ 101)).   The copies likewise satisfy the statute's "transitory

duration" requirement, as they were continuously displayed on the

Archbishop's Website.    See 17 U.S.C. § 101; see also Cartoon

Network, 536 F.3d at 129-30 (discussing meaning of Copyright Act's

"transitory duration" requirement).   Before the Monastery served

the Archbishop with the Complaint in January 2008, the St. Isaac

Work had been posted on the Website continuously since 2005, and

the remaining six Works, since August 2007.

           Lastly, the Archbishop "display[ed]" the Works publicly

-- that is, he "show[ed] a copy of" the Works "by means of a . . .

device or process," 17 U.S.C. § 101 -- when he posted the Works on

his website.    Although the question of whether a computer has

"displayed" a copyrighted work may be a difficult one in other

contexts, see, e.g., Perfect 10, 508 F.3d at 1160-62, it is beyond

question here that the Archbishop has "displayed" the Works on his

website.   We need not delineate the outer bounds of the scope of

the term "display" where, as here, the fact that the Works were

"displayed" on the Archbishop's website is undisputed.

           The Archbishop asks us to overlook the fact that images

of the Works were displayed via his computer, and instead, focus on

whether he was the specific individual who so electronically placed



                               -49-
the images on the Website.          He argues that because he himself did

not personally engage or participate in any of the volitional

display acts that infringed upon the Monastery's exclusive rights,

he should not be held liable.

               The Archbishop's "volitional act" position is not a novel

one; it is an argument that has been raised -- with varying degrees

of success -- in our sister circuits.                See, e.g., Quantum Sys.

Integrators, Inc. v. Sprint, 338 F. App'x 329, 335-36 (4th Cir.

2009); Cartoon Network, 536 F.3d at 131-32; Parker v. Google, Inc.,

242 F. App'x 833, 836-37 (3d Cir. 2007); CoStar Grp., Inc. v.

LoopNet, Inc., 373 F.3d 544, 549-51 (4th Cir. 2004).               We need not

determine whether a volitional act must be shown to establish

direct    copyright     infringement    because,      regardless   of    such    a

holding, the Monastery here still prevails.

               Contrary to the Archbishop's contention that he did not

engage in infringing acts, the record makes clear that he performed

several acts to ensure that copies of the Works were available on

his server and posted to his Website.           First, the Archbishop was

the registered owner of the domain name, "trueorthodoxy.info,"

i.e.,    the    Website.    Second,    during   deposition     testimony      the

Archbishop       "admit[ted]   he    bears   responsibility     for     and   has

authority over the content that appears on the [w]ebsite."                      In

fact, he expressly stated:

               Q.     Are you familiar        with    the   website
               trueorthodoxy.info?


                                      -50-
          A.        Yes, somewhat.

          Q.        Who owns that website?

          A.        I do.

                    * * *

          Q.     [Referring to one of the Archbishop's
          sworn affidavits] Where you say that the
          website trueorthodoxy.info is registered to
          you.

          A.        Yes.

          Q.        That's accurate?

          A.        Yes.

          Q.     And also . . . that you are responsible
          for the content of the website.

          A.        Yes.



          Q.        And that's accurate?

          A.        Yes.

                    * * *

          Q.     Who selects the content that appears on
          the website?

          A.        I, normally.

(Emphasis added.)

          Third, at deposition the Archbishop conceded his active

involvement in the posting of materials to the server for public

access:

          Q:     Did you -- did you yourself actually
          place content on the website?



                                   -51-
          A.        No.

          Q.        Who did?

          A.        Father Peter.

          Q.        Did you supervise him in doing that?

          A.        To some extent, yes.

          Q.        How did you supervise him?

          A.     If there's something I liked, I had him
          put it up.

          Q.        So you brought things . . .

          A.        I chose what goes up.

                    * * *

          Q.     [H]ave you been responsible for the
          content of the website since the inception?

          A.        Yes.

          Q.     Okay. And you're still responsible for
          the content now?

          A.        Yes.

(Emphasis added.)

          Fourth, the Archbishop confirmed he knew Father Peter

generally was uploading religious services to the Website and that

he expressly authorized him to do so.            Indeed, the Archbishop

appears to believe that this final point, in and of itself, will

save him from liability.       It does not.

          A review of the record makes clear that Father Peter

acted as the Archbishop's agent in both building and handling the

technical aspects of the Website.          Established law confirms that

                                    -52-
agency principles may apply in the copyright context, see, e.g.,

Metcalf v. Bochco, 294 F.3d 1069, 1072-73 (9th Cir. 2002); see also

d'Abrera v. U.S., 78 Fed. Cl. 51, 59 (Fed. Cl. 2007), and that a

principal    (here, the     Archbishop)     may   be    held    liable    for   the

authorized acts of its agent (here, Father Peter). See Restatement

(Third) of Agency § 1.01 (2006).

             The record confirms that the Archbishop held authority

and control over the Website, and that he knew of and assented to

Father    Peter's   postings    of     religious       texts     to     the   site.

Furthermore, Father Peter's postings to the site clearly fell

within his actual authority because he knew of the Archbishop's

overall goal of "shar[ing] information about the Orthodox Christian

religion with users of the internet," and the materials he posted

fell within this ambit.      See id. § 2.01 (defining actual authority

as "when, at the time of taking action that has legal consequences

for the principal, the agent reasonably believes, in accordance

with   the   principal's    manifestations        to   the     agent,    that   the

principal wishes the agent to so act.").               For these reasons, the

Archbishop's attempt to shift the blame onto Father Peter --

because   the   latter    personally   performed       acts    of     unauthorized

copying -- fails.        See Restatement (Third) of Agency § 7.04 ("A

principal is subject to liability to a third party harmed by an

agent's conduct when the agent's conduct is within the scope of the

agent's actual authority or ratified by the principal; and (1) the



                                     -53-
agent's conduct is tortious, or (2) the agent's conduct, if that of

the principal, would subject the principal to tort liability.").

          The law on which the Archbishop relies concerning direct

infringement liability is equally unpersuasive.               Although the

Archbishop contends the Supreme Court's decision in Sony supports

his postulation that a showing of personal involvement in the

alleged infringement is required, a close reading of the case shows

otherwise.    The Supreme Court clearly defined an infringer as

"'[a]nyone   who   violates   any   of     the   exclusive   rights   of   the

copyright owner,' that is, anyone who trespasses into his exclusive

domain by using or authorizing the use of the copyrighted work in

one of the [statute's listed exclusive rights]." Sony, 464 U.S. at

433 (quoting 17 U.S.C. § 501(a)) (emphasis added).            It also noted

that an infringer is "not merely one who uses a work without

authorization by the copyright owner, but also one who authorizes

the use of the copyrighted work without actual authority from the

copyright owner."     Id. at 435 n.17 (emphasis added).           Here, the

Archbishop repeatedly confirmed his responsibility for and control

over the Website, as well as his express authorization to Father

Peter to engage in acts that would violate the Monastery's display

right.

          On careful consideration of this evidence and relevant

precedent, we conclude that -- regardless of whether the law

mandates a showing of volitional conduct to establish direct



                                    -54-
infringement -- the Archbishop here engaged in sufficient acts of

authority and control over the server and material actually posted

that he may be held liable for direct infringement of the Works.19

See generally Screen Gems-Columbia Music, Inc. v. Metlis & Lebow

Corp., 453 F.2d 552, 554 (2d Cir. 1972) ("[C]opyright infringement


19
    The Archbishop additionally points to the Fourth Circuit's
decision in CoStar Group as authority for his claim that he cannot
be held liable because he, himself, did not personally post the
disputed material to the site. His position is inapposite. Costar
Group provides that "ISPs, when passively storing material at the
direction of users in order to make that material available to
other users upon their request, do not 'copy' the material in
direct violation of § 106 of the Copyright Act," and that "the
automatic copying, storage, and transmission of copyrighted
materials . . . does not render an ISP strictly liable for
copyright infringement." CoStar Group, 373 F.3d at 555 (emphasis
added). The Archbishop here, however, can hardly be described as
a passive conduit who unconsciously and mechanically loaded the
images onto his computer and made them available on the Website.
Cf. Quantum Sys. Integrators, 338 F. App'x at 336; CoStar Group,
373 F.3d at 558 (Gregory, J., dissenting) (citing cases and noting
"the non-volitional defense to direct infringement claims extends
only to 'passive' service providers, through which data flow is
'automatic'").
    Moreover, the Fourth Circuit subsequently limited its CoStar
holding in Quantum, stating the appellant in that case (challenging
the lower court's finding of infringement) "overstate[d] the
'volitional' requirement purportedly established by CoStar" because
the latter concerned passive conduct "typically engaged in by an
ISP," and the acts at issue in Quantum were of a more active,
volitional, and controlled nature. Quantum, 338 F. App'x at 336
(internal citation and quotation mark omitted).       Other courts
similarly have noted the distinction between active, volitional
involvement in infringement versus passive, mechanical, or habitual
actions that produce an infringing result, the latter of which
generally have been held not to trigger direct infringement
liability. See, e.g., Cartoon Network, 536 F.3d at 131; see also
ALS Scan, Inc. v. RemarQ Cmty., Inc., 239 F.3d 619, 621-22 (4th
Cir. 2001); Playboy Enters., Inc. v. Webbworld, Inc., 991 F. Supp.
543, 552-53 (N.D. Tex. 1997); Marobie-Fl, Inc. v. Nat'l Ass'n of
Fire & Equip. Distribs., 983 F. Supp. 1167, 1176-79 (N.D. Ill.
1997).

                               -55-
is in the nature of a tort, for which all who participate in the

infringement     are   jointly    and     severally   liable.");    Shapiro,

Bernstein & Co. v. H.L. Green Co., 316 F.2d 304, 307 (2d Cir.

1963).20

           2.    Digital Millennium Copyright Act Defense

           The Archbishop next raises an argument concerning the

DMCA, which provides a safe harbor of immunity for certain service

providers.      See 17 U.S.C. § 512.       To begin with, the Archbishop

does not expressly assert a defense under the DMCA itself.           Even if

he were to have done so, however, any such defense would have been

unavailing.

           As the district court noted, the Archbishop failed to

raise an affirmative defense pursuant to the DMCA in his pleadings.

Holy Transfiguration II, 754 F. Supp. 2d at 228-29.            The law is

clear that if an affirmative defense is not pleaded pursuant to

Fed. R. Civ. P. 8(c)'s requirements, it is waived.                 See Knapp

Shoes, Inc. v. Sylvania Shoe Mfg. Corp., 15 F.3d 1222, 1226 (1st

Cir.   1994)    (noting   Rule   8(c)'s    affirmative   defense    pleading



20
     Because we conclude the Archbishop is liable for direct
infringement, we need not address his arguments as to why (despite
the Monastery's not raising such a claim) secondary liability
cannot attach. See Ortiz-González v. Fonovisa, 277 F.3d 59, 62
(1st Cir. 2002) (noting distinction between direct infringement
versus contributory or vicarious infringement, and concluding act
of infringement was only direct and did not trigger secondary
liability); see also Dream Games of Az., Inc. v. PC Onsite, 561
F.3d 983, 995 (9th Cir. 2009) (holding that theory of secondary
liability not raised below cannot be raised on appeal).

                                    -56-
requirement and stating "[a]ffirmative defenses not so pleaded are

waived").   Although this rule is not absolute, see Conjugal P'ship

v. Conjugal P'ship, 22 F.3d 391, 400 (1st Cir. 1994), no grounds as

have been recognized for its relaxation are present here.                See,

e.g., id. at 400-01 ("One sign of implied consent is that issues

not raised by the pleadings are presented and argued without proper

objection by opposing counsel." (quoting Matter of Prescott, 805

F.2d 719, 725 (7th Cir. 1986) (internal quotation marks omitted));

Law v. Ernst & Young, 956 F.2d 364, 375 (1st Cir. 1992) (citing

Lynch v. Dukakis, 719 F.2d 504, 508 (1st Cir. 1983)) (noting

implied consent lies where opposing party produced evidence as to

affirmative defense or failed to object to the introduction of the

same).   We thus likewise deem any such defense waived.21

            Instead   of   expressly   asserting   such   a   defense,   the

Archbishop argues the DMCA "did not supplant law," directing us to

Ninth Circuit precedent in which that court stated the DMCA's

limitations of liability provisions did not substantially change

"[c]laims against service providers for direct, contributory, or

vicarious copyright infringement," which are "generally evaluated

just as they would be in the non-online world."                 Ellison v.

Robertson, 357 F.3d 1072, 1077 (9th Cir. 2004); see also Perfect

21
   We moreover question whether any such defense, even if asserted,
holds any merit. The Archbishop likely would not qualify as an ISP
under the DMCA's express provisions, see 17 U.S.C. § 512(k), and
even if he did, he has not complied with the specific criteria
necessary for an ISP to receive the protections of the DMCA's safe
harbor provisions. See 17 U.S.C. 512(c)(1).

                                   -57-
10, 481 F.3d at 758 (DCMA's "safe harbors limit liability but 'do

not affect the question of ultimate liability under the various

doctrines         of      direct,           vicarious,        and        contributory

liability'"(quoting Perfect 10, Inc. v. Cybernet Ventures, Inc.,

213 F. Supp. 2d 1146, 1174 (C.D. Cal. 2002))).                       In essence, the

Archbishop seems to remold his prior direct infringement claim to

argue that even if he does not fall under DMCA's safe harbor

provisions, his "passive involvement" in the alleged acts of

infringement is not sufficient to trigger secondary liability, and

by extension, direct liability.                 For the reasons previously set

forth, we reject the Archbishop's contention that his authority for

and control over the Website, or his express authorization and

supervision of Father Peter's postings may be deemed such a level

of "passive involvement" that no form of liability may attach to

his actions.

            3.     Fair Use Defense

            The Archbishop attempts to carry his evidentiary burden

as to another defense, claiming his reproductions of the Works

constitute fair use.            See Campbell v. Acuff-Rose Music, Inc., 510

U.S. 569, 590 (1994) (stating "fair use is an affirmative defense"

for which its proponent bears the burden).                     Fair use "creates a

privilege    for       others    to   use     the    copyrighted     material    in   a

reasonable   manner       despite       the   lack     of   the    owner's   consent."

Weissmann    v.    Freeman,       868    F.2d       1313,   1323   (2d   Cir.   1989).


                                          -58-
Specifically,    the     doctrine   serves   to   mediate   "the   inevitable

tension between the property rights" lying in creative works "and

the ability of authors, artists, and the rest of us to express

them," providing a degree of protection to each where merited.

Blanch v. Koons, 467 F.3d 244, 250 (2d Cir. 2006).

             The Copyright Act codifies the fair use doctrine and

breaks it into four factors that a court must weigh in assessing

whether use of a work is fair or infringing.           See 17 U.S.C. § 107

(listing the purpose and character of a work's use, the nature of

the copied work, the extent of the copying, and its effect on a

work's market value).          When performing such weighing, a court

should carefully balance the relevant interests and apply "an

equitable rule of reason," as "each case raising the question must

be decided on its own facts."         H.R. Rep. No. 1476, at 65 (1976),

reprinted in, 1976 U.S.C.C.A.N. 5659, 5679; see also Sony, 464 U.S.

at 448-49.     Here, we have sufficient facts before us with which to

assess fair use as a matter of law; we accordingly arrange our

scales   and    begin    the   weighing   process.     See   Harper    &   Row

Publishers, Inc. v. Nation Enters., 471 U.S. 539, 560 (1985)

(stating "an appellate court . . . may conclude as a matter of law

that the challenged use does not qualify as a fair use of the

copyrighted work") (alterations omitted) (internal quotation mark

omitted).

                    a.    Purpose and Character of the Use



                                     -59-
            The first factor we must consider is "the purpose and

character of the use, including whether such use is of a commercial

nature or is for nonprofit educational purposes."                       17 U.S.C.

§ 107(1).   Our task under the first prong is to assess "whether and

to what extent the new work is 'transformative,'" that is, "whether

the   new   work    merely     supersedes    the   objects   of   the    original

creation" or whether it "adds something new, with a further purpose

or different character, altering the first with new expression,

meaning,    or     message."      Campbell,    510   U.S.    at   579   (internal

citations and quotation marks omitted); see also Folsom v. Marsh,

9 F. Cas. 342, 345 (No. 4,901) (C.C.D. Mass. 1841) (Story, J.)

(stating for a work to be transformative "[t]here must be real,

substantial condensation of the materials, and intellectual labor

and judgment bestowed thereon; and not merely the facile use of the

scissors; or extracts of the essential parts, constituting the

chief value of the original work").

            The Archbishop posits that his use of the Monastery's

Works was "productive" because his goal was educational, i.e., to

allow Orthodox Christians to sample and learn from the Works'

teachings on the Orthodox faith.              Because he held no commercial

purpose in his use of the Works, the Archbishop contends we should

find the first prong to be in his favor.             Notably, the Archbishop

seems to concede that his use of the Works might not have been

transformative per se, but contends nonetheless that "a work need



                                      -60-
not be transformative to be fair;" because his use was productive,

we should find in his favor as to "purpose and character of use."

            The Monastery counters that the Archbishop's use cannot

be deemed transformative because his versions simply supplanted the

original Works' purpose (also of a religious educational nature)

and failed to make any new or creative point.        Additionally, the

Monastery rejects the Archbishop's contention that his use cannot

be deemed commercial.    It argues that because the Archbishop has

repeatedly infringed the Works (which were expensive to create)

free of cost, he has profited in his alleged use to educate others

and benefitted from others' interest in his versions.

            Regarding the "transformative" or "productive" nature of

the   Archbishop's   versions,   the    Archbishop   is   correct   that

"transformative use is not absolutely necessary for a finding of

fair use."    Campbell, 510 U.S. at 579.    However, copyright's goal

of "promot[ing] science and the arts, is generally furthered by the

creation of transformative works," and the law is clear that the

lesser the transformative nature of the work, the greater the

significance of those factors that may weigh against a finding of

fair use.    Id.

            The Archbishop's translations are not transformative.     A

review of his works reflects minimal "intellectual labor and

judgment."   Folsom, 9 F. Cas. at 345.   The versions are essentially

verbatim or near-verbatim copies of the Works, with only minuscule



                                 -61-
alterations of "expression, meaning, or message."          Campbell, 510

U.S. at 579. Moreover, the Archbishop's translations hold the same

purpose and   benefit   as   the   original   Works,   i.e.,   to   further

religious practice and education.         They thus "merely supersede[]

the object[] of the original" Works.           Id.; see also Worldwide

Church of God v. Phila. Church of God, Inc., 227 F.3d 1110, 1117

(9th Cir. 2000); cf. Núñez v. Caribbean Int'l News Corp., 235 F.3d

18, 23 (1st Cir. 2000) (holding that combining photographs with

editorial commentary created a new use for the works). Courts have

admonished that where a copy's "use is for the same intrinsic

purpose [as the copyright holder's] . . . such use seriously

weakens a claimed fair use;" we find the same debilitating effect

on the Archbishop's claim to be true here.       Weissmann, 868 F.2d at

1324; see also Am. Geophys. Union v. Texaco, Inc., 60 F.3d 913, 923

(2d Cir. 1995) (stating "[t]o the extent that the secondary [work]

involves merely an untransformed duplication, the value generated

by the secondary [work] is little or nothing more than the value

that inheres in the original. . . . [T]hereby providing limited

justification for a finding of fair use").

          The Archbishop contends the first factor still favors a

finding of fair use because any copying he did was not for

commercial gain.   But removing money from the equation does not,

under copyright law, remove liability for transgressing another's

works.   The Supreme Court has held that "the mere fact that a use



                                   -62-
is educational and not for profit does not insulate it from a

finding of infringement."     Campbell, 510 U.S. at 584; see also

Sony, 464 U.S. at 450 ("Even copying for noncommercial purposes may

impair the copyright holder's ability to obtain the rewards that

Congress intended him to have.").         In effect, the commercial-

noncommercial distinction the law draws centers not on whether a

user intends to line his own pockets, but rather on "whether the

user stands to profit from exploitation of the copyrighted material

without paying the customary price."       Harper & Row, 471 U.S. at

562.   "Profit," in this context, is thus not limited simply to

dollars and coins; instead, it encompasses other non-monetary

calculable benefits or advantages.      See Worldwide Church, 227 F.3d

at 1117; Weissmann, 868 F.2d at 1324) ("The absence of a dollars

and cents profit does not inevitably lead to a finding of fair

use."); see also Webster's II New Riverside University Dictionary

939 (1984) (defining the term "profit" as an "advantageous gain or

return").

            Applying this framework, we agree with the Monastery that

the Archbishop "profited" from his use of the Works. Regardless of

whether the Archbishop's versions generated actual financial income

for himself or the Dormition Skete, he benefitted by being able to

provide, free of cost,22 the core text of the Works to members of

22
   At deposition, the Archbishop acknowledged his awareness of the
costs he was saving himself by not purchasing the Monastery's
Works, stating "[y]es, $120 per book [containing one of the Works].
Now you know why we don't buy their works."

                                 -63-
the   Orthodox     faith,      and    by    standing     to    gain    at    least       some

recognition within the Orthodox religious community for providing

electronic    access      to     identical         or    almost-identical           English

translations of these ancient Greek texts.                    For these reasons, we

conclude that as to the first factor, the scales tip in the

Monastery's favor.

                     b.     Nature of the Copyrighted Work

            The    second      statutory        factor,       "the    nature        of    the

copyrighted work," 17 U.S.C. § 107(2), requires us to consider two

elements:    (1)    whether      the       Monastery's     Works      are    factual       or

creative, see Harper & Row, 471 U.S. at 563, and (2) whether the

Works have previously been published, Núñez, 235 F.3d at 23. Here,

due to its brief nature, the last factor shall be first.

            When interpreting the copyright laws, courts commonly

have recognized an author's power to control whether, when, and how

to release his material.             Harper & Row, 471 U.S. at 564.             For this

reason, an author's right to control first publication of his

expression will weigh against another's use of the author's work

before its dissemination.              See id. ("[T]he scope of fair use is

narrower with      respect      to unpublished           works.").          Here,    it    is

uncontested       that    certain          of      the   Works       are     unpublished

(specifically, the Octoechos, Dismissal Hymns, and Pentecostarion).

It also is undisputed that the Monastery took steps to protect

these Works, registering them with the Copyright Office.                                  Cf.


                                            -64-
Núñez,   235   F.3d   at    24   (noting      author's   failure       to   control

photographs' distribution by referencing, among other factors,

their lack of copyright registration).              And so, at least as to

these    Works,   the      Archbishop      effectively        commandeered      the

Monastery's control over if, when, and how any such release of

these Works to the public would take place.

           However, the Monastery's remaining Works were published,

reducing -- to some extent -- concerns as to the Archbishop's

unilateral publication of versions of them.              But that does not tip

the fair use balance in favor of the Archbishop, even with respect

to the previously published Works. See generally Fitzgerald v. CBS

Broad., Inc., 491 F. Supp. 2d 177, 187 (D. Mass. 2007) (fact that

photographs had been published before CBS's use of them "does not

mean that this inquiry weighs in favor of fair use, only that [the]

photographs do not fall into the category of private works to which

the doctrine of fair use is especially unsuited").                We proceed to

the second inquiry.

           We believe the Works here fall closer to the creative end

of the copyright spectrum than the informational or factual end.

See Worldwide Church, 227 F.3d at 1118.                  The Works reflected

creativity,    imagination,      and    originality      in    their    language,

structure, word choice, and overall textual translation.                    See 17

U.S.C. §§ 101, 102 (establishing Copyright Act's protection for

translations of preexisting works); Feist, 499 U.S. at 345-46



                                       -65-
(noting low bar for establishing creativity of a copyrightable

work); Merkos, 312 F.3d at 97 (holding English translation of

Hebrew prayerbook as sufficiently original to be copyrightable).

We   conclude   that    the scales   lean away   from   the   Archbishop's

contention of fair use as to this second factor.

                   c.    Amount and Substantiality of the Use

           The third factor requires us to consider "the amount and

substantiality of the portion used in relation to the copyrighted

work as a whole."       17 U.S.C. § 107(3); see Campbell, 510 U.S. at

586-87.    Our inquiry here is pliable and not affixed by cold

calculations of the percentage of a work used versus unused.           See

Harper & Row, 471 U.S. at 565-67 (emphasizing significance rather

than quantity of material copied); Núñez, 235 F.3d at 24. However,

even though "'wholesale copying does not preclude fair use per se,'

copying an entire work '[generally will] militate[] against a

finding of fair use.'" Worldwide Church, 227 F.3d at 1118 (quoting

Hustler Magazine Inc. v. Moral Majority, Inc., 796 F.2d 1148, 1155

(9th Cir. 1986)); see also Rogers, 960 F.2d at 311 ("It is not fair

use when more of the original is copied than necessary.").

           The Archbishop attempts to narrow our focus to the fact

that the copying he did of the St. Isaac work (specifically, Homily

46) is only "one of seventy-seven homilies in the St. Isaac work,"

which is only "3 pages in a work that in [sic] 568 pages or

approximately a half percent of the entire work," and that his use


                                     -66-
as to the remaining Works only consisted of postings of small

portions of the texts.      Our focus, however, is not so limited.             See

Núñez,   235   F.3d   at    24    (noting     inquiry      as    to   amount   and

substantiality of a work's use "must be a flexible one, rather than

a simple determination of the percentage used"); see also Campbell,

510 U.S. at 586-89 (treating a single song from an album as a whole

work for purposes of fair use analysis); Hustler Magazine, 796 F.2d

at 1154-55 (deeming 300-word parody a complete work even though

part of 154-page magazine; stating "[a] creative work does not

deserve less copyright protection just because it is part of a

composite work").

           Lifting our eyes to the full extent of the Archbishop's

use, we see that he made identical or near-verbatim copies of the

Works -- themselves parts of greater texts, but which alone may be

qualitatively significant.         See Harper & Row, 471 U.S. at 564-66

(use of quotations constituting 300 words of President Ford's

entire memoirs amounted to copying of "the heart of the book" that

weighed against fair use); Roy Exp. Co. Establishment of Vaduz,

Liechtenstein, Black Inc., A.G. v. Columbia Broad. Sys., Inc.,

503 F. Supp. 1137, 1145 (S.D.N.Y. 1980) (use of approximately one

to two minutes from hour-plus long films "quantitatively" and

"qualitatively" substantial).          Thus, the Archbishop's pleas for us

to   acknowledge   how     much   of   the    Works   he   did    not   copy   are

unavailing.    See Harper & Row, 471 U.S. at 565 ("'[N]o plagiarist



                                       -67-
can excuse the wrong by showing how much of his work he did not

pirate.'" (quoting Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d

49, 56 (2d Cir. 1936)).

           Courts have cut both ways as to the fair use of verbatim

copying.    Compare Sony, 464 U.S. at 449-50 (holding identical

copying of videotapes under unique circumstances of case "[did] not

have its ordinary effect of militating against a finding of fair

use"); Núñez, 235 F.3d at 24 (finding newspaper's complete copying

of a photograph to be "of little consequence" because "to copy any

less . . . would have made the picture useless to the story"); with

Harper & Row, 471 U.S. at 565 ("[T]he fact that a substantial

portion of the infringing work was copied verbatim is evidence of

the   qualitative   value   of    the   copied   material,   both   to   the

originator and to the plagiarist who seeks to profit from marketing

someone    else's   copyrighted     expression.");    Worldwide     Church,

227 F.3d at 1118-19 (rejecting argument that verbatim copying of

religious text was reasonable simply because use was religious in

nature); Wihtol v. Crow, 309 F.2d 777, 780 (8th Cir. 1962) (where

defendant inserted identical copy of plaintiff's original piano and

solo voice composition into his choir arrangement, court held

"[w]hatever may be the breadth of the doctrine of 'fair use,' it is

not conceivable to us that the copying of all, or substantially

all, of a copyrighted song can be held to be a 'fair use' merely

because the infringer had no intent to infringe").



                                   -68-
            A telling factor in conducting this analysis is "the

purpose and character of the use," as "[c]opying does not become

excessive . . . merely because the portion taken was the original's

heart." Campbell, 510 U.S. at 586-88; see also Castle Rock Entm't,

Inc. v. Carol Publ'g, 150 F.3d 132, 144 (2d Cir. 1998) (noting

importance of considering context to determine whether copying is

"consistent with or more than necessary to further 'the purpose and

character of the use'" (quoting Campbell, 510 U.S. at 586-87)).

Here, the Archbishop's copying is for the same purpose for which

the Monastery      uses   its   Works   --   for   religious   education and

devotional practice.       Because the Archbishop's use here was "for

the same intrinsic purpose for which [the Monastery] intended it to

be used," this third factor weighs against his contention of fair

use.     Marcus v. Rowley, 695 F.2d 1171, 1175 (9th Cir. 1983); see

also   Worldwide    Church,     227   F.3d   at    1118   (holding   fact   that

plaintiff-infringer used verbatim copy of religious text for same

purpose as defendant-owner weighed against finding of fair use as

to third factor).

                    d.    Effect on the Market

            The fourth and final factor addresses "the effect of the

use upon the potential market for or value of the copyrighted

work."    17 U.S.C. § 107(4).     Considered "the single most important

element of fair use," Harper & Row, 471 U.S. at 566, this factor

requires us to consider both (1) the degree of market harm caused


                                      -69-
by the alleged infringer's actions, and (2) "whether unrestricted

and      widespread     conduct   of     the     sort   engaged    in   by   the

defendant . . . would result in a substantially adverse impact on

the potential market for the original."             Campbell, 510 U.S. at 590

(internal quotation marks and citation omitted).

             As to the degree of market harm, the Archbishop argues

that the Monastery has not shown specific lost sales or profits as

a result of the alleged infringement. But the fourth factor of the

fair use inquiry cannot be reduced to strictly monetary terms.

Statutory law expressly states that it considers not only the

impact of a work's use on the potential market, but also its effect

on the "value of the copyrighted work."                  17 U.S.C. § 107(4)

(emphasis     added).      Indeed,     "[e]ven    copying   for   noncommercial

purposes may impair the copyright holder's ability to obtain the

rewards that Congress intended him to have."                Sony, 464 U.S. at

450.23    Thus, the Copyright Act looks beyond monetary or commercial

value and considers other forms of compensation for a work.                  See

id. at 447 n.28 (explaining that compensation for copyright may

take different forms because "copyright law does not require a

copyright owner to charge a fee for the use of his works;" noting

"the owner of a copyright may well have economic or noneconomic

23
    The district court likewise recognized as much, stating "[a]
rule that would require a victim of infringement to delay taking
action to defend its copyright until actual (and perhaps
irreparable) harm had accrued would run contrary to the very
purpose of the Copyright Act."   Holy Transfiguration I, 685 F.
Supp. 2d at 228 n.16.

                                       -70-
reasons for permitting certain kinds of copying to occur without

receiving direct compensation from the copier").         So do we.

           If we were to rule that the Archbishop's use here was

fair, this unquestionably would affect the market for translations

of ancient religious texts, likely discouraging other institutions

from investing in and expending the time, effort, and resources

necessary for producing works that, without modern translations,

would    remain   predominantly   inaccessible   to   other    religious

institutions and their members. See Núñez, 235 F.3d at 24 (quoting

Infinity Broad. Corp. v. Kirkwood, 150 F.3d 104, 110 (2d Cir.

1998)) (internal quotation marks omitted) (acknowledging that the

fourth factor is "concerned with secondary uses [of works] that, by

offering a    substitute   for the   original,   usurp   a   market   that

properly belongs to the copyright holder"); see also Weissmann, 868

F.2d at 1326 (finding copying of scientific works not fair use

where such a determination "would tend to disrupt the market for

works of scientific research without conferring a commensurate

public benefit").    To say that use of the Works along the lines of

what the Archbishop did here would not affect the value of the

Works would be to drastically undercut the import of such texts and

their corresponding translations within the religious community at

large.

           As to our second inquiry, it is without question that if

others were to engage in the "unrestricted and widespread" copying



                                  -71-
of the Monastery's Works, this would have an "adverse impact on the

potential market for the original" Works.    Campbell, 510 U.S. at

590 (internal quotation mark and citation omitted).      If anyone

could freely access the Works, electronically or otherwise, the

Monastery would have no market in which to try and publish,

disseminate, or sell its translations.      The Archbishop himself

seemed aware of this danger, conceding that his Website provided

explicit instructions so that users could access, download, and

print copies of the Works, effectively negating any potential

market in the Works.    See Harper & Row, 471 U.S. at 568 ("[T]o

negate fair use one need only show that if the challenged use

'should become widespread, it would adversely affect the potential

market for the copyrighted work.'" (quoting Sony, 464 U.S. at 451)

(emphasis added)).   Thus, the Monastery's translations of ancient

texts (which the Archbishop does not contest were expensive to

create) would have been toiled over, with no possible market in

which to reap the fruits of its labor.

          In sum, the record shows that the Archbishop offered

identical or near-identical versions of the creative Works on his

Website for the precise purpose for which the Monastery had created

the Works in the first place, thereby harming their potential

market value.   See Worldwide Church, 227 F.3d at 1120 (assessing

market factor and noting as relevant "[t]he fact . . . that

[appellee] has unfairly appropriated [the work] in its entirety for



                               -72-
the very purposes for which [appellant] created [it]").                   Having

carefully balanced the scales, we conclude that the Archbishop's

defense of fair use fails in full.

            4.     Misuse of Copyright Defense

            And so, we come to the last defense. Attempting to cloak

himself in copyright misuse's protective armament, the Archbishop

alleges that the Monastery's litigation tactics are nothing more

than a deliberate stratagem to prevent the Archbishop from sharing

ancient    religious     works   with    the   Orthodox   community,     thereby

engaging in anti-competitive behavior and creating a monopoly.24

            "This court has not yet recognized misuse of a copyright

as   a   defense    to   infringement."        García-Goyco   v.   Law   Envtl.

Consultants, Inc., 428 F.3d 14, 21 n.7 (1st Cir. 2005).             Moreover,

even if we were to follow the lead of other circuits that have

recognized a copyright misuse defense, see, e.g., Practice Mgmt.

Info. Corp. v. Am. Med. Ass'n, 121 F.3d 516, 521 (9th Cir. 1997),

amended by 133 F.3d 1140 (9th Cir. 1998); Lasercomb Am., Inc. v.

Reynolds, 911 F.2d 970, 973 (4th Cir. 1990), this case certainly

would not be the appropriate vehicle.           Where a misuse-of-copyright



24
   The defense of copyright misuse "derives from the doctrine of
patent misuse," which "'requires that the alleged infringer show
that the patentee has impermissibly broadened the physical or
temporal scope of the patent grant with anticompetitive effect.'"
Broad. Music Inc. v. Hampton Beach Casino Ballroom, Inc., No. CV-
94-248-B, 1995 WL 803576, at *5 n.8 (D.N.H. Aug. 30, 1995) (quoting
United Tel. Co. of Mo. v. Johnson Pub. Co., 855 F.2d 604, 610 (8th
Cir. 1988)).

                                        -73-
defense is recognized, a "defendant may prove copyright misuse by

either proving (1) a violation of the antitrust laws[,] or (2) that

[the copyright owner] otherwise illegally extended its monopoly or

violated the public policies underlying the copyright laws." Broad

Music Inc., 1995 WL 803576, at *5 (citing Lasercomb, 911 F.2d at

978); Nat'l Cable Television Ass'n, Inc. v. Broad. Music, Inc., 772

F. Supp. 614, 652 (D.D.C. 1991)). There is no suggestion here that

the Monastery has violated antitrust laws, and the claim that it

has a "monopoly" on ancient Orthodox texts is belied by the fact

that, as the Archbishop emphasizes elsewhere in his briefs, the

sacred texts in question are available in English translation

through   publishers   other   than   the   Monastery.   Moreover,   the

Archbishop attempts to raise this defense from a record in which it

has never before so much as breathed an appearance. We have stated

time and again that "theories not raised squarely in the district

court cannot be surfaced for the first time on appeal."         Curet-

Velázquez v. ACEMLA de P.R., Inc., 656 F.3d 47, 53 (1st Cir. 2011)

(quoting McCoy v. Mass. Inst. of Tech., 950 F.2d 13, 22 (1st Cir.

1991)) (internal quotation mark omitted); Ramos-Baez v. Bossolo-

López, 240 F.3d 92, 94 (1st Cir. 2001).          We therefore deem the

Archbishop's copyright misuse defense waived.

                           III.   Conclusion




                                  -74-
          Our pilgrimage through the complexities of copyright law

concluded, we keep our words here few -- for the foregoing reasons,

we affirm the decision of the district court.

          Affirmed.




                               -75-
