Monday, April 5, 2021
Today the Supreme Court issued its decision in Google LLC v. Oracle America, Inc. By a 6-2 vote, it holds that Google’s copying of a portion of a computer program owned by Oracle constituted “fair use” for purposes of federal copyright law. The opinion is focused mostly on substantive copyright law, but—as covered earlier here and here—the posture of the case prompted some interesting procedural questions. The jury had ruled in favor of Google on its fair use defense, and the Supreme Court asked the parties to file supplemental letter briefs addressing “the appropriate standard of review” regarding fair use, “including but not limited to the implications of the Seventh Amendment, if any, on that standard.”
Justice Breyer’s majority opinion, joined by Chief Justice Roberts and Justices Sotomayor, Kagan, Gorsuch, and Kavanaugh, agrees with the Federal Circuit that the “ultimate question” of fair use was for reviewing courts to decide de novo:
We have said, “[f]air use is a mixed question of law and fact.” Harper & Row, 471 U. S., at 560. We have explained that a reviewing court should try to break such a question into its separate factual and legal parts, reviewing each according to the appropriate legal standard. But when a question can be reduced no further, we have added that “the standard of review for a mixed question all depends— on whether answering it entails primarily legal or factual work.” U. S. Bank N. A. v. Village at Lakeridge, LLC, 583 U. S. ___, ___(2018) (slip op., at 9).
In this case, the ultimate “fair use” question primarily involves legal work. “Fair use” was originally a concept fashioned by judges. Folsom, 9 F. Cas., at 348. Our cases still provide legal interpretations of the fair use provision. And those interpretations provide general guidance for future cases. See, e.g., Campbell, 510 U. S., at 592–593 (describing kinds of market harms that are not the concern of copyright); Harper & Row, 471 U. S., at 564 (“scope of fair use is narrower with respect to unpublished works”); Sony, 464 U. S., at 451 (wholesale copying aimed at creating a market substitute is presumptively unfair). This type of work is legal work. U. S. Bank, 583 U. S., at ___ (slip op., at 8) (“When applying the law involves developing auxiliary legal principles for use in other cases[,] appellate courts should typically review a decision de novo”).
Justice Breyer recognizes that the fair use inquiry “may, of course, involve determination of subsidiary factual questions, such as whether there was harm to the actual or potential markets for the copyrighted work or how much of the copyrighted work was copied.” But he finds that “the Federal Circuit carefully applied the fact/law principles we set forth in U. S. Bank, leaving factual determinations to the jury and reviewing the ultimate question, a legal question, de novo.”
Justice Breyer also concludes that such review of jury verdicts does not violate the Seventh Amendment. He finds no violation of the amendment’s Reexamination Clause because “the ultimate question here is one of law, not fact. It does not violate the Reexamination Clause for a court to determine the controlling law in resolving a challenge to a jury verdict, as happens any time a court resolves a motion for judgment as a matter of law. See, e.g., Neely v. Martin K. Eby Constr. Co., 386 U. S. 317, 322 (1967).” Justice Breyer then rejects Google’s argument that the first clause of the Seventh Amendment—the “right of trial by jury”—entitled it “to have a jury resolve a fair use defense.”
That Clause is concerned with “the particular trial decision” at issue. Markman v. Westview Instruments, Inc., 517 U. S. 370, 376 (1996). Even though it is possible to find pre-Revolutionary English cases in which a judge sent related questions like fair abridgment to a jury, those questions were significantly different from the “fair use” doctrine as courts apply it today. See, e.g., Gyles v. Wilcox, 2 Atk. 141, 142– 144, 26 Eng. Rep. 489, 490–491 (Ch. 1740) (asking the Court to resolve the narrow question whether a shortened work could be considered a new work); Sayre v. Moore, 1 East 361, n., 102 Eng. Rep. 138, 139, n. (K. B. 1785) (discussing the jury’s role in resolving whether copying constituted infringement). As far as contemporary fair use is concerned, we have described the doctrine as an “equitable,” not a “legal,” doctrine. We have found no case suggesting that application of U. S. Bank here would fail “to preserve the substance of the common-law [jury trial] right as it existed in 1791.” Markman, 517 U. S., at 376.
To be clear: although Google loses regarding its preferred standard of review, it wins on the merits because the majority ultimately finds that “Google’s copying of the Sun Java API was a fair use of that material as a matter of law.”
Justice Thomas’s dissent, joined by Justice Alito, largely agrees with the majority regarding the standard of review. The dissenters simply conclude that “Google’s use of that copyrighted code was anything but fair.” They also differ in one respect about the Seventh Amendment. Justice Thomas writes in a footnote:
I would not, however, definitively resolve Google’s argument that the Seventh Amendment commits the question of fair use to a jury. I tend to agree with the Court that fair use was not “itself necessarily a jury issue” when the Constitution was ratified. Markman v. Westview Instruments, Inc., 517 U. S. 370, 376–377 (1996). Google cites cases about “fair abridgment,” but Congress has since made clear that copyright holders have “exclusive rights” over any “abridgment.” 17 U. S. C. §§101, 106. And in any event, judges often declined to refer these issues to juries. See, e.g., Gyles v. Wilcox, 2 Atk. 141, 144, 26 Eng. Rep. 489, 490–491 (Ch. 1740); Folsom v. Marsh, 9 F. Cas. 342, 345–349 (No. 4,901) (CC Mass. 1841) (Story, J). Still, we should not so casually decide this question when the parties barely addressed it.