Should Hollywood Be Afraid Of Fair Use After Google V. Oracle?

Thus spoke Zarathustra.1 Well, at least thus spoke the U.S. Supreme Court in the recent Google v. Oracle decision on the fair use defense in copyright. Here is my jaded take on the decision:

• The Justices purported to follow the time-honored path of analysis, which proceeds in the following order: (a) first, purport to apply the four factors in the fair use statute, (b) the first factor is interpreted to ask whether the potentially infringing work (the “New Work”) is “transformative” compared to the original work (“Old Work”), so make that analysis, (c) purport to apply the other three factors, and (d) finally, add many pages of erudite discussion of all the factors and prior cases and at the end make a conclusion as to whether the fair use defense applies.

• What the Justices really did is what all judges do, which is to (a) first rule with their hearts one way or the other by just comparing the New Work and Old Work, (b) then label the New Work as either “transformative” (if they decide that the fair use defense applies) or “non-transformative” (if they don’t), (c) then pretend to apply the four factors in the statute but twist the interpretation of all of them to fit the pre-ordained outcome, (d) distinguish any similar cases that get in the way and grasp onto other cases that arguably support the decision, and (e) finally, add many pages of erudite discussion that that they will come to regret and have to distinguish in later cases.

• The case would be a whole lot clearer (and shorter) if the Justices had just admitted that they ruled with their hearts, rather than attempting to rationalize their decision with countless pages of supposed legal analysis of the four factors, which they will certainly live to regret and have to distinguish in later cases. Exhibit A in this case will be the statement that “We must take into account the public benefits the copying will likely produce,” which is a silly approach to fair use, since almost all copying has some public benefit. Exhibit B will be the Court’s suggestion that the fair use defense applies if the New Work exploits a market the owner of the Old Work had not exploited. You just cannot take either of these statements seriously.

• The court ruled that the fair use defense can be determined by courts as a matter of law, which means that judges, not juries, will make these determinations.

The net result is that every fair use case will be decided by the judge based on the particular facts and that judge’s predilections of right and wrong. There is no need to read the Google v. Oracle decision beyond the very narrow confines of the precise arcane facts before the Court in that case, none of which apply to Hollywood, so we can safely ignore the decision, other than to quote any passages that happen to support our position if the need arises in a futile hope that a judge will care.

  1. A book by Friedrich Nietzsche about the founder of Zoroastrianism, a religion based on the dichotomy of good and evil, somewhat akin to the outcome of a court decision based on fair use.