Will the Supreme Court Provide the Fair Use Clarity that IP Law Needs?

By Terry Campo
August 18, 2020

“If Oracle wins at the high court, it won’t just mark a victory for this one tech company or the copyrightability of interfaces. The resulting precedent on fair use will eliminate widescale legal confusion, marking a win for all creators seeking to keep their intellectual property safe and secure.”

Fair use - https://depositphotos.com/193098702/stock-illustration-fair-use-red-3d-speech.htmlOn July 30, IP Watchdog Editor-in-Chief Eileen McDermott reported that, as part of its series on a 1990s copyright modernization bill known as the Digital Millennium Copyright Act, the Senate Subcommittee on Intellectual Property recently held a hearing relating to what is known as the fair use doctrine – an exemption to copyright law that has long confused innovators and consumers alike.

Not a Fair Fight

Congress created fair use so the American people can use IP for “transformative use” (typically commentary or criticism) without worrying over copyright infringement. This clarification to IP law protects everyone from columnists that use book passages for newspaper reviews to teachers that borrow excerpts from magazine articles in their lesson plans. As highlighted in the hearing, however, some corporations– eager to find legal loopholes – have seemingly tried expanding the lower courts’ interpretation of fair use to evade IP law altogether. These companies’ legal deflection tactics sometimes succeed because the judiciary has yet to clearly define what fair use is, and what it is not. As a result, fair use cases in the courts have often turned into lengthy cat and mouse games that are won by those with the most money, power, and legal resources.

Testifying at the Subcommittee hearing, National Press Photographers Association General Counsel Mickey H. Osterreicher highlighted how it’s in the interest of large companies to retain this confusing system. It is, after all, what allows them to ostensibly exploit artists, songwriters, and developers without receiving any legal or financial repercussions. Jacqueline Charlesworth of Alter, Kendrick & Baron LLP seemed to agree, stating that courts could offer a “more precise” interpretation of fair use to prevent this mistreatment from continuing.

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Justice in Sight

Thankfully, the days of this ill-defined system, which breeds cronyism, not justice, may soon be numbered. As reported in IP Watchdog on August 4 by lawyer and professional lecturer Steven Tepp, the high court will hear Google v. Oracle, a landmark copyright case, in October. Legal experts have labeled it “the copyright case of the century,” and for good reason. Since the case revolves around fair use, it will allow the nine justices to provide judicial clarity over the doctrine the nation’s innovators have desperately needed for decades.

Tepp’s piece did a tremendous job of describing the case in detail. This article won’t concern itself with those particulars, but in summary, Google copied significant portions of coding from Oracle’s Java platform to create Android, its mobile operating system. The company doesn’t dispute that it took the coding, but it argues that fair use law entitled it to do so. Most lawyers would agree that a company copying something for use in a competing platform isn’t “transformative,” as fair use requires, especially since Google used it for a commercial purpose. Nevertheless, Google has argued so in the courts for ten years and counting now.

Most plaintiffs don’t have the resources required to fight in court for a decade, but Oracle – a sizable tech giant in its own right – has been and continues to remain up for the task. That’s good news because if Oracle wins at the high court, it won’t just mark a victory for this one tech company or the copyrightability of interfaces. The resulting precedent on fair use will eliminate widescale legal confusion, marking a win for all creators seeking to keep their intellectual property safe and secure.

Unfortunately, however, Google appears to recognize the danger that could come from this Supreme Court decision – not just for this case, but also ostensibly for its business model generally. So, now, it seems to be doing everything it can to prevent the high court from deciding on fair use, which would create the lasting precedent.

The Facts on Fair Use

In a supplemental brief to the Supreme Court, Google argues that fair use is a matter of fact, not a matter of law. As such, the company reasons that, per the Seventh Amendment, a jury – not a judge – must make the decision. By this reasoning, the U.S. Court of Appeals for the Federal Circuit overstepped by overturning the jury’s verdict in favor of Google on appeal – and therefore, the Supreme Court can’t review the Federal Circuit’s findings.

By no legal standard is fair use purely a matter of fact. Baltimore & Carolina Line, Inc. v. Redman, demonstrated how fact patterns encompass “who did what, when, where, how or why.” In Google v. Oracle, the matter of fact would be that Google took the coding in question. The matter of law would be whether fair use applies. Past case law demonstrates the validity of the nuance between matters of fact and law as well. For example, in Harper & Row the High Court found that, if the fact pattern found is “sufficient to evaluate each of the statutory factors, an appellate court … may conclude as a matter of law that the challenged use does not qualify as a fair use.” To argue anything else is disingenuous.

A Chance to Follow Through

Here’s hoping the Supreme Court recognizes as much. For far too long, businesses have successfully run roughshod over innovators across a wide array of industries because of the lack of clarity surrounding the fair use doctrine. Through Google v. Oracle, the nine justices can mitigate these abuses by interpreting the doctrine correctly and expounding upon what the law allows. They just need to follow through.

 

Image Source: Deposit Photos
Author: Aquir014b
Image ID: 193098702 

 

The Author

Terry Campo

Terry Campo is a Washington, D.C.-based attorney. He was a counsel to the U.S. Senate Judiciary Committee and later the general counsel to Senator Charles E. Grassley (R-IA).

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author as of the time of publication and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

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