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  • Writer's pictureDenny Esford

Fair Use: Will the Supreme Court Know it When it Sees It?

Updated: Jun 4, 2021

On October 7, 2020, the Supreme Court heard oral argument in the matter of Google v. Oracle. The justices are being asked to decide whether Google’s copying of certain Oracle code in its Android platform for mobile devices was illegal. A decision is expected this June. In this blog, I will take you through a basic understanding of a key legal argument: what is fair use in copyright law?

I Can’t Just “Google It”?

The issues in Google v Oracle are whether the Oracle’s code in a computer program is even entitled to its current legal protection, and if so, is what Google copied considered “fair use” and therefore not subject to a lawsuit. Denying copyright protection to computer code altogether could easily send the entire software industry (that has relied on copyright protection for years) into chaos. But if copyright protection does exist for computer code, was Google’s use of Oracle’s code legally fair?

What is Fair Use?

What is “fair” is a subjective standard even outside the realm of a courtroom. But in the Copyright Act, Congress took a shot at articulating the factors judges and juries should use to determine the fair use of another author’s copyrighted work:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

Well that Clears Everything Up—NOT.

If you think using those factors to decide what is fair would get you about as many opinions as people you ask, you would not be far off. Google has argued in its briefs that it’s use of the code was transformative, an accepted legal doctrine arising from the third and fourth factors saying Google used the code for a “further purpose or different character” such that the effect on Oracle’s copyright is minimal and therefore fair use of the code.

Many of us who litigate in this area harken back to the famous quote from a 1964 case where Supreme Court Justice Potter Stewart declined to define hard core pornography but instead assured the reader “I know it when I see it.” Jacobellis v Ohio, 378 U.S. 184 (1964). Indeed, even before Congress stepped in to help define it, one appellate court went so far as to describe the fair use doctrine as “the most troublesome in the whole of copyright law.” Time, Inc. v. Bernard Geis Assoc., 293 F. Supp. 130, 144 (2nd Cir. 1968).

A Loophole by Any Other Name?

How much deference should a trial or appellate court give to a jury’s decision? In this case the jury determined that Google’s use of Oracle’s code was indeed fair use. In May 2020, and a potential tipoff to what the Justices may be thinking, the Supreme Court ordered the parties to submit additional briefs on the proper standard of review in addressing fair use.

In our judicial system, a jury is charged with deciding the facts and then taking the law as given to them by the trial judge and applying that law to those facts and reach a conclusion. The “reasonableness standard” says an appellate court can only overturn a jury’s determination of facts when it is clear that no reasonable jury could have reached that jury’s conclusion based on the evidence presented at trial.

Duck, Duck, Google

In what many non-lawyers would see as a classic “legal technicality,” the Supreme Court could hold that fair use is the province of jury deliberation and juries are entitled to a reasonableness deference that federal courts, including the Supreme Court, are not entitled to second guess. This would also allow the Court to sidestep the thorny real-life consequences of holding that certain types of computer code cannot be protected under federal copyright law.

Because under our U.S. Constitution’s “case and controversy” restriction, federal courts cannot issue advisory opinions but only rule on controversies that are actually before them and not issues that have been rendered moot. Holding that Google was entitled to the jury’s fair use finding notwithstanding Oracle's copyrights would leave the argument of whether Oracle’s code is even entitled to copyright protection for some future case.

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