Last week I tweeted about my angst at the Supreme Court taking its first case about fair use in 25 years. The good folks at Law360 reached out and asked if I could expand my thoughts, so I did, and here’s the result: Google-Oracle High Court Fight Threatens Fair Use Ecosystem.
In the piece, I outline three reasons to fret about this case going sideways and taking fair use with it:
First, there are some in the copyright owner community who have decried the transformative turn (or sought to contain its impact) for decades. At a U.S. Copyright Office roundtable I attended a few years ago, a representative from a photographers’ group compared Judge Leval’s fair use opinion in the Authors Guild Inc. v. Google Inc. case to the infamous “separate but equal” ruling in Plessy v. Ferguson.
Second, Google is massively, extraordinarily wealthy and influential. The company is one of the handful of big tech entities that seem to be constantly under attack this political cycle. Size and wealth have not hurt Google in past fair use cases, when it was seen as a benevolent innovator, but we may be in a different era. The fair use ecosystem could be gravely harmed if the court crafts a rule designed to force Google to trim its sails or share its wealth, creating a chilling effect on users without Google’s resources.
Third, functional works like software can be hard to evaluate using a lens developed with more expressive works in mind. (Indeed, Google argues that the software interfaces at issue should not receive copyright protection at all, under Section 102(b)’s exclusion for “system[s]” and “method[s] of operation.” If the court agrees, the fair use issue could be avoided altogether — a guy can dream.)
You never know—the facts in Campbell weren’t great either. A bunch of old white folks whose only known musical enthusiasm is opera generously construing a raunchy 2 Live Crew song as parody in order to save fair use for a generation was probably not the most likely outcome for folks making predictions about that case’s outcome in the early 1990s. Who knows, maybe a “stubbornly analog” Court can use this case to make technology law a little bit better for the remainder of the 21st century.