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The two pillars of the fair use doctrine of the 1976Copyright Act
I.
Introduction
In some circumstances, the “fair use” doctrine acknowledges the right to allow the legal
use of other intellectual property or copyrighted works. It is one of the exceptions to the
Copyright Act of 1976 that can be used as a justification against an accusation of copyright
infringement. This exception allows certain persons or organizations, such as educational
institutions, to have the lawful ability to use or reproduce the copyrighted work for any
“transformative” purposes (recreation from original work), including criticism, news reporting,
comment, teaching, scholarship, and even research (Stim, 2019, para. 1). Although the term “fair
use” was well-introduced and defined in the Section 107 of the 1976 Copyright Act, it seems to
have a vague application in certain contexts. This vagueness allows for a great deal of flexibility,
but it also makes it difficult for the courts to determine who would be eligible for advantages
provided by the doctrine. This paper will examine how flexible the fair use doctrine is by delving
into how courts have evaluated and given final decisions on both “fair use” and “non-fair use”
lawsuits, such as Harper & Row v. Nation Enterprises, Google LLC v. Oracle America, Inc., and
Authors Guild, Inc. v. Google, Inc.; thereby, it contributes to the better understanding of
“transformative” use under the fair use doctrine.
II.
History of Fair Use Doctrine and Its Four Criteria
When deciding whether the particular lawsuit can be labeled as “fair use” or not, the court
must consider four primary criteria provided by Section 107 of the 1976 Copyright Act to guide
their judgment. According to the American Library Association, section 107 of the Copyright
Act of 1976 was amended to include the fair use doctrine after a series of precedent-setting court
rulings determined that some unauthorized copying practices were “fair uses.” As stated in the
U.S. The Copyright Office Fair Use Index, the first criterion to evaluate under Title 17 of the
U.S. Code is the “purpose and nature of the use,” which includes determining whether the use is
for non-commercial educational purposes or for commercial uses. Second, the court evaluates the
“nature of the copyrighted work” by reviewing the primary purpose of the original work’s owner.
Third, the “amount and substantiality of the portion used in relation to the whole” must be
considered. Lastly, the court must consider “the effect of the usage on the potential market” by
considering the financial damage of copyright infringement on the original work. As the fair use
doctrine is the exception to copyright infringement, the court must carefully conduct each case
on a case-by-case basis through all four criteria listed above to avoid wrongful judgments.
III.
Fair Use and Non-fair Use Cases Analysis
Numerous legal cases have been classified as fair use lawsuits regarding intellectual
property and copyrights. Reviewing differences in cases that the courts have decided is the most
effective way to gain a deeper understanding of the flexibility of fair use. This is because such
cases give the most specific illustrations of how each doctrine’s criteria has been used in various
circumstances. The first case is Authors Guild v. Google, Inc, 804 F.3d 202, which was
previously characterized as a fair use case (2d Cir. 2015). It has come to be known that Google
has scanned millions of books that were given by many libraries, who agreed with the
digitization of books, and made them searchable online via their service, which is known as
Google Books. (Stim, 2019, para. 37). This allows its customers to identify the words, keywords,
or phrases they wish to search on the internet so that they may find them quickly and for free
from the scanned materials. Furthermore, any libraries participating in the campaign have the
right to keep the online copies they provided to Google. Concerned that the process of scanning
books involves an infringement of the copyright and must be sued, some of the writers of those
digitalized books have chosen to file a lawsuit against Google and numerous other entities
associated with it. The court, on the other hand, agreed with the defendants and decided that the
reproduction of digital copies for internet search constituted an acceptable “fair use.” The judge
decided to base their decision on the criteria regarding the amount of work that can be legally
copied from a copyrighted work. They argued that since the Google database only enables users
to find terms involved in the digital volumes, they can only read some of the materials.
Therefore, limiting researchers to just the phrases or keywords they find would not lead to a
replacement that would impair the market for the original works. This case helps clarify what a
“transformative” use of the fair use doctrine is by showing what Google, Inc., had done with the
books borrowed from libraries. Indeed, Google solely transformed those books into online
versions in which the researchers would find it easier to find the words online, but limited to
access to the whole book. In other words, “transformative” use has given the world of technology
a new way to make books and other copyrighted works more accessible to people, as in this case,
but it did not replace or damage the original works financially.
However, there have been lawsuits in which the defendants were thought to be in a “fair
use” situation, yet their way of copying from the original works was actually copyright
infringement. The case of Harper & Row v. Nation Enterprises, 471 U.S. 539 (1985), involves
the plaintiff, Harper & Row, suing the defendant, Nation Enterprises, for publishing extracts
from former President Gerald Ford’s unpublished autobiography. The release in The Nation
occurred before the day on which Mr. Ford’s book was scheduled to be published in Time
magazine, which had declined to pay the remaining $12,500 due to a violation of the contract.
This case was brought to court because The Nation’s replication substantially harmed Mr. Ford’s
serialized copyrights’ resale value (Stim, 2019). Based on the infringement of the fourth criterion
of fair use doctrine, which was a great deal of influence on the market potential of the
copyrighted work, the court ruled that this was a non-fair use suit. This lawsuit supports the
flexibility of the doctrine in terms of the amount of the portion reproduced in proportion to the
copyrighted material overall. Although the Nation magazine only copied a few words – precisely,
a 300 words extract from an unpublished work by Harper & Row – that publication replicated the
essential concepts – the “hearts” – of Gerald Ford’s bibliography, according to the BitLaw report.
Consequently, Harper & Row, as well as Time magazine, were adversely affected. Time
magazine had canceled its contract with Harper & Row and refused to pay them the agreed-upon
amount of money. This harmed both parties. Altogether, the fair use doctrine’s flexibility aided
the Supreme Court in reaching the proper judgment on who the doctrine should cover; hence,
this case is not fair use. The plaintiff was successful in obtaining fairness and is entitled to
compensation for economic losses inflicted by the defendant.
Some fair use cases require complicated considerations, which might help to have access
to the fair use doctrine from a variety of perspectives regarding the technology or software cases.
The Harvard Law Review (HLR) in 2021 reviewed the Google LLC v. Oracle America, Inc., 141
S.Ct. 1183 (2021), fair use case, which was heavily related to programming code. Apparently,
the flexible principle of fair use doctrine of the 1976 Copyright Act, at the time of the case, was
not able for the judge to entirely rely on the four crucial factors to determine whether the case
was fair use or not. The controversy between Google LLC, a defendant, and Oracle America, a
plaintiff, stemmed over the use of portions of the programming language called Java, which
Google copied “around 11,500 lines of code from the Java API” to assist Google programmers in
improving Android apps. Prior to the Supreme Court’s decision, majority justices expressed their
dissent on three of the four criteria that the judge held supported Google’s fair use as a matter of
law. As Justice Thomas argued, “the majority skipped over the copyrightability analysis, thereby
ignoring half the relevant statutory text and distort[ing] its fair-use analysis” (Harvard Law
Review, 2021). Overall, the Supreme Court still held that “Google’s copying of parts of the Java
application programming interface (API) in its creation of the Android programming platform
was fair use as a matter of law,” according to Harvard Law Review. To reach this decision, the
Court cannot only depend on their judgment by merely looking at the flexibility of the fair use
doctrine’s four criteria; they had to expand their view on the “transformativeness” in the fair use
analysis, however. The idea of “transformative” use must be expanded in this situation since it is
highly tied to technology and software development, both of which usually involve creativity.
Thus, it helped the court understand the importance of Google’s “reimplementation” of the Java
API in a new technological context.
By reviewing different fair use and non-fair use cases, it somewhat demonstrates that the
flexible principle of the fair use doctrine had effectively guided the Court’s judgment in carefully
determining through four factors that led to the conclusion on which parties would be protected
by this doctrine. In the Harper & Row v. Nation Enterprises case, for instance, the Nation
magazine only reproduced a few words, which based on the third factor, the volume of
copyrighted material copied, is still not extremely substantial and may consider fair use;
however, the information copied was the “heart” of the content and, thus, resulted in financial
damage for Harper & Row. More importantly, the findings of this paper also reflect the fact that
in some cases, such as Google LLC v. Oracle America, Inc., the flexibility of the fair use
doctrine is not perfectly adequate; instead, the idea of “transformative use” also needs to be taken
into consideration to resolve any cases that involve a great deal of creativity, such as those that
arise in the context of technology or software. However, by analyzing the Google case, an overreliance on “transformative” usage would result in “distorting of its fair-use analysis,” and this
may appear to become “virtually dispositive of fair-use findings,” as argued by the authors of the
Harvard Law Review case summary.
IV.
Conclusion
Although the flexible principle of fair use can be immensely beneficial for the court in
determining which parties need to be fined because of violations of copyright infringement and
which are considered fair use, this flexibility seems to be a not-so-good tool for the court to use
in the era of information technology. This is because innovation and creativity in the technology
era require the court to use the concept of “transformative” use of the fair use doctrine. It is
possible that there could wind up being the over-reliance on the “transformative” use of the
doctrine, which would then result in an unfair judgment being handed down to individuals who
have suffered from the other parties’ violations of copyright. Therefore, the four factors for
determining fair use cases must be modified to be more appropriate in the technological era. To
reach this goal, the technological developments and their impact on what may be copyrighted,
how works may be copied, and what constitutes an infringement must be addressed in great
detail and from all aspects, not primarily by examining its “transformative” use.
References
American Library Association. (n.d.). Fair use: What is Fair use? Retrieved November 20th,
2022 from
https://www.ala.org/ala/washoff/WOissues/copyrightb/copyrightarticle/whatfairuse.htm
ARL editors. (n.d.). Copyright timeline: A history of copyright in the United States. Association
of Research Libraries. Retrieved November 17th, 2022 from
Copyright Timeline: A History of Copyright in the United States
Tysver, D. A. (n.d.). Importance of copyright decisions. Forsgren Fisher. Retrieved November
16th, 2022 from https://www.bitlaw.com/source/cases/copyright/index.html
HLR editors. (2021, November 10). Copyright act of 1976: Google LLC v. Oracle America,
Inc., Leading case: 141 S. Ct. 1183 (2021). Harvard Law Review, 35(43), 431-440.
Retrieved November 17th, 2022 from https://harvardlawreview.org/2021/11/google-llcv-oracle-america-inc/
Stim, R. (2019, October 11). Summaries of fair use cases. The Board of Trustees of the Leland
Stanford Junior University. Retrieved November 15th, 2022 from
Stim, R. (2019, October 01). What is fair use? The Board of Trustees of the Leland Stanford
Junior University. Retrieved November 17th, 2022 from
Assignment: Legal Research Paper
Length and Format: 8-10 pp, double-spaced, 11 or 12-pt font in Arial or Times New Roman.
Approximately 2000-2500 words (excluding references)
Real-Life Audience: The law does not exist in a world of legal abstraction. Rather, I want you to
appreciate that the law is a tool for actual ethical application to our lives. For this reason, I
want you to create a scenario where your research and recommendations serve to advise
your firm on your chosen issue. A business scenario is a description of either a real or
hypothetical company. Business scenarios are a combination of people, events and factors that
describe the current business situation. For your chosen scenario, you might be the General
Counsel writing a memo to the V.P of Human Resources or to the owner of the business
advising them on applicable case law and next steps. Your business scenario should include the
possible legal threats and challenges for the company. Here’s an example: Bill is the owner of
First Flight Furnishings, Inc., a small, closely held corporation in the state of Texas. Samir, a key
employee, just left. Samir was intimately involved in a major transaction and knows all the
secrets of a $40 million deal that hasn’t yet been finalized. To make matters worse, he is going
to a competitor in California. Bill had Samir sign a non-compete contract before he started
working at First Flight that says employees cannot work for a competitor for six months after
they leave, but another employee, Kate, left last year for a different competitor and Bill didn’t
pursue it. What should Bill do now?
Purpose: Your purpose is to provide practical legal advice to solve a business problem in a way
that also furthers the business objectives of the firm. For example, your memo should explain
the law and help the decision-makers to balance both risks and business objectives. (e.g., If you
draft a covenant not to compete that is too broad, it might dissuade employees from leaving and
competing with the firm. But if it is ruled to be overly broad, it may be struck down and the firm
will be unprotected from outside competition.) Your memorandum should not be a Wikipedia-like
treatment of the topic, full of history and dry description, but should instead reflect your
individualized research crafted around the audience whose legal problem you are solving. You
should explain the topic, discuss the pros and cons of an approach to it, and then make a
well-supported argument that favors a particular approach or action.
Requirements: Your memorandum should include a description of the relevant case law and at
least one court case that would apply to the situation. Consider the context of the audience to
whom this memo is written. How would your explanation of the law be helpful strategically to the
person drafting the contract?
Your paper must include at least 5 sources, which could be statutes, cases, law review articles,
or general periodicals (Washington Post, New York Times, Wall Street Journal or similar). No
more than two of your five sources can be from these general, or popular press, periodicals.
Copying and pasting or incorrectly paraphrasing of others’ work will be viewed as an
intellectual integrity violation and will be closely scrutinized. The paper will go through
Turnitin to check for originality and integrity issues.
