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Should Hollywood Be Afraid of Fair Dealing After Google V. Oracle?




Thus spoke Zarathustra.1 Well, at least so spoke the Supreme Court of the United States in the recent Google vs. Oracle decision on the defense of fair use in copyright. Here is my jaded decision making:

The judges claimed to follow the traditional route of analysis, which proceeds in the following order: (a) first, purport to apply the four factors of fair dealing law, (b) the first factor is interpreted to ask if the counterfeit work (the new work) is transformative compared to the original work (the old work), then do this analysis, (c) pretend to apply the other three factors, and (d) finally, add many scholarly discussion pages of all the factors and prior cases and, at the end, draw a conclusion as to whether the fair use defense applies.

What the judges really did was what all the judges do, i.e. (a) first decide with their hearts one way or another by simply comparing the new work and the old job, (b) then label the new job as either transformative (if they decide the fair use defense applies) or non-transformative (if they don’t), (c) then claim to apply the four factors of the law but distort everyone’s interpretation to suit the predetermined outcome, (d) distinguish all similar cases that interfere and capture other cases that arguably support the decision, and (e) finally, add many pages of scholarly discussions that they will end up regretting and will have to distinguish in subsequent cases.

The case would be much clearer (and shorter) if the judges just admitted that they ruled with their hearts, rather than trying to rationalize their decision with countless pages of supposed legal analysis of the four factors. , which they will certainly live. regret and must distinguish in subsequent cases. Exhibit A in this case will be the statement that we need to take into account the public benefits that the copying is likely to produce, which is a dumb approach to fair dealing, since almost all copying has a public interest. Exhibit B will be the courts’ suggestion that the fair use defense applies if the new work taps into a market that the owner of the old work did not tap into. You just can’t take these statements seriously.

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

The net result is that each fair use case will be decided by the judge based on the particular facts and judge the predilections of right and wrong. It is not necessary to read the Google vs. Oracle decision beyond the very narrow confines of the precise obscure facts before the Court in this case, none of which apply to Hollywood, so that we can safely ignore the decision except to quote all the passages that support our position if the need arises. a futile hope that a judge will care.

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

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