Category: Culture

Influencer Responsibility Raises Many Questions With Few Answers

Attorney Carrie Goldberg posted an interesting thread on Twitter last week in response to a September 4 New York Times article written by Taylor Lorenz. Before I go on, if you are unfamiliar with Goldberg’s work, her Brooklyn law firm defends victims of online harassment, and she has deservedly become one of the nation’s thought leaders on the subject of internet platform responsibility and liability. As I said in my praise for her book Nobody’s Victim, if anyone is going to help sensibly reform the over-broad application of Section 230 to the benefit of its unintended victims, it will be women like Carrie. But for the purposes of this post, I will stay away from legal liability and stick to questions of social conduct.

The headline of Lorenz’s article poses what Goldberg called the “million-dollar question”: Are Influencers Responsible for the Behavior of Their Followers? The article focuses on a 17-year-old TikToker named Chris (@Donelij) who had been making what users of that platform call “reaction” videos. These are created with the app’s “Duet” function, which enables a creator to capture himself in a split-screen alongside a video posted by any other TikToker. In Chris’s case, he “duets” with videos that reveal some shocking or surprising twist so that his viewers get to watch his reaction when he shifts from approving smile to bemused deadpan. This recurring schtick earned @Donelij over two million followers.

But because Chris performed his deadpan bit in response to a number of transgender TikTokers, whose videos reveal some variation on a surprising gender switch, Chris’s videos apparently inspired some of his viewers to antagonize or threaten the LGBTQ TikTokers featured in the Duets. “Even though he never says a word,” writes Lorenz, “thousands of people have called [his videos] out for being homophobic. Young gay and trans TikTokers who have been featured in Chris’s reactions report they have suffered vicious harassment from commenters and in messages.”

Lorenz reports that, last week, both of Chris’s accounts were banned by TikTok due to “multiple community guideline violations.” Assuming the reaction videos and their associated fallout with the LGBTQ TikTokers was the reason for these terminations, Lorenz poses her thesis question about responsibility. To this, Goldberg offered a tweet thread describing her views regarding both the moral and legal responsibilities of creators, followers, and platforms, placing most of the burden, when harm is done, on platforms.

In general, I agree with Carrie. Many of us would like to reverse, or at least reassess, the longstanding assumption that online platforms are strictly neutral conduits, and that users are the only responsible parties for anything. At the same time, however, this particular example strikes me as difficult to reconcile with regard to questions of responsibility, though it does point to the fact that our frame of reference (i.e. old media) falls short when grappling with the true nature of social platforms. Let’s step back for a moment.

All speakers bear some measure of responsibility for the consequences of their speech. While I do not think the contours of that responsibility are easily generalized, it is morally incumbent upon any speaker to at least acknowledge that speech has the power to inspire conduct and to at least contemplate what that conduct might be. Regardless, there will always be jerks among listeners, who will infer, even from expressions of parody and satire, a coded endorsement of their intolerance or hatred for some individual or group.

Does that mean, for instance, that comedian Dave Chappelle, because he has LGBTQ material in his show, is responsible if someone interprets his jokes as permission to harass members of that community? If anyone is paying attention to Chappelle, he endorses no such thing. Quite the opposite. But because we are talking about individuals who would go out of their way to harass people in the first place, neither Chappelle, nor any other creator, can possibly account for every mental malfunction that transpires between their jibes and some listener’s behavior. (It isn’t J. D. Salinger’s fault that Catcher in the Rye was allegedly inspirational to at least two murders and one attempted murder.)

So, with regard to traditional, pre-social-media, experiences (whence most of our views are derived), I suspect the reasonable answer is that the influencer is not responsible for the conduct of the follower. Returning to the example at hand, then, it seems difficult to cite Chris’s minimalist comedy—shifting from smile to deadpan in response to various surprise videos—as an inducement to harassing the gay and trans people featured in his Duets.

Given the way TikTok works (akin to Instagram in which “following” simply means the follower will see a creator’s videos from time to time while scrolling), it seems more likely that Chris’s followers unavoidably include at least some individuals who already spend their time hating on the LGBTQ community, and that his reaction pieces simply provided the names of some new targets. Any asshole who would go out of his way to mock, shame, or threaten someone in this way is not suddenly moved to engage in that behavior by one guy making a relatively anodyne joke.

At the same time, the extent to which Chris believes his schtick conveys a negative view of gay and trans people is a moral calculus he ought to consider. My GenZ, TikTok-using daughter showed me how a “duetter” can choose to hide the screen name of the person in the video to which they are responding. So, it is fair to ask why Chris did not employ this option (if he did not), which does not make the “duetted” party impossible to identify but does make them harder to locate without additional effort.

Social platforms will naturally generate Venn diagrams that are complex variations on the unremarkable fact that certain relationships between speakers and followers are often coincidental rather than causal. A video that made the rounds several weeks ago depicted a bevy of bouncing Boomers, festooned in their Trumpanalia and partying on a city street to the song “Y-M-C-A.” And because it would be absurd to interpret this dyspeptic dance as a celebration of gay pride, it is reasonable to assume that the relationship between the Village People and these village idiots was merely coincidental.

But what is unique about social platforms, of course, is not that they offer a forum for response, but that they insist upon a response. That blank space awaiting our input practically taps its foot in anticipation of some offering to the altar of “engagement.” And for many who create and/or comment, both praise and scorn, depending who is doing which, can serve as encouragement, even of speech that is very ugly. When some clown writes “Die faggot” at the gay TikToker, and others pile on in kind, these users are all receiving instantaneous and 24/7 positive reinforcement for their terrible conduct. This is a psychological stimulus unique to social media. It cannot be compared to the relationship between influencers and followers in other contexts. And, yes, to Goldberg’s point, the platforms bear the ultimate responsibility for designing and monetizing was is essentially a digital narcotic. 

Almost every conversation about platform responsibility—many of which focus on the role of Facebook in contemporary politics—is a variation on the theme of policy measures. What can and should the platform do to moderate the content on its site? What can and should Congress do to oversee the influence of these platforms? The paradox inherent to those intertwined questions is self-evident. It seems hopeless to expect that the divisions sown by Facebook will be adequately addressed by a house divided.

But very few of our conversations about responsibility begin with the premise that social media, from a psychological perspective, is basically crack in the schoolyard. More specifically, because TikTok is predominantly a GenZer’s platform, many of the harassers referred to in Lorenz’s article are very likely minors. That does not wholly relieve them of responsibility for their conduct, but it colors the concept of “community standards.” Give a platform like that to millions of adolescents and tell them to play nice? What do we think is going to happen?

I do not know that the example of Chris’s reaction videos is especially helpful in this conversation. His content seems a bit too removed from the corresponding harm that was done, and it seems tame relative to the degree of ugliness that often flows freely on the internet. Further, it would be difficult to proscribe his videos according to some rule that would not apply to a great deal of parody and satire (though there may be more than is reported in Lorenz’s article).

As the title of this post admits, I do not think there are easy answers to these questions. It does seem that the rules on social media are acutely distinct from our pre-internet experiences, but defining those rules is another matter. Social media is a narcotic, and we all bear a measure of responsibility for its use. Meanwhile, it doesn’t seem quite right that, of all the parties involved, the digital drug-makers are left to profit from the best and worst consequences without any obligations.  

Schrödinger’s Reality

In January of 2019, I wrote a post asking if, thanks to the internet, we had achieved a state of maximum inescapable bullshit. But whether we were there almost two years ago, we are certainly there now. It took less than a decade for the internet—and, it turns out, mostly Facebook—to destroy American democracy. I know that’s fatalistic, but even if the psychotic would-be monarch lurking inside that corpus we call Trump is no longer president come January, the self-inflicted damage to democratic institutions, conducted in the “marketplace of ideas,” may be irreparable. At least for quite some time.

I would propose that maximum inescapable bullshit derives from two conditions. The first is that, even with the best intentions, we lose almost all context (i.e. accountability) for the inputs that drive much of our political discourse. And the second is that our capacity for discourse itself is overwhelmed by volunteering to be constantly outraged, without a break to process what may not be useful information.

Take the shocking story of Kyle Rittenhouse as an example. The facts, as they are known, indicate that he should be charged with murder and his mother charged as an accessory; and the extent to which any police officers condoned his presence prior to the shooting should be investigated. That ought to be enough for the moment. In a pre-Facebook world, this incident would not be a top story every day, let alone every ten seconds. But on Facebook, I am reminded several times a day by incendiary memes that a Christian group has raised about a hundred-thousand dollars to support Rittenhouse. Now, pause a moment.

The point is not whether those memes refer to a true story. It is certainly a plausible story, and there are undeniably many addle-minded Americans who think of Rittenhouse, now apparently nicknamed the “Kenosha Kid,” as a hero. But also recognize that the meme itself happens to be exactly the kind of post that a professional Russian troll at the Internet Research Agency would generate in the wake of these shootings. At the same time, his buddy sitting next to him will be posting the counter-meme designed to stir up outrage on the other side, as it were. Further, the story could be true and grist for the propaganda mill at the same time.

Take the matter a step further, and try to investigate the claim made in the meme, and where do we begin? With a Google search, naturally. But alas, the first results may or may not be credible. Or perhaps the real story is not exactly what the headlines, or the meme, promised. Can we trust ourselves, or one another, to vet a story that fulfills our confirmation bias? Either way, it’s a lot of damn work when we multiply this example by dozens of stories every hour.

How many of us pause to consider the source of an image with its provocative headline? Was it made by a well-meaning citizen trying to get the word out? A professional troll in St. Petersburg? A fourteen-year-old kid who spends his time on 8Chan and gets his kicks (lulz) pranking the Boomers? Or was it made by domestic provocateurs, who want to incite violence? Answer:  all of the above.

I said that part two of attaining maximum inescapable bullshit is that we volunteer to be constantly outraged, and usually to little or no purpose. Whether based in truth or not, what is the value of chronically engaging with that meme, and a thousand others just like it, every day for weeks on end? Awareness is not increased. Knowledge is not enhanced or refined. Justice is not served any more rapidly or more properly. And for sure, underlying policy issues are not addressed.

It may feel cathartic to click the Angry button or to share the meme with likeminded friends, and some people may even believe they are helping to spread useful and important information. But this is almost never true. All that is being accomplished is self-immolation. We pour gasoline on our own smoldering rage, and the only tangible goal being achieved is that those who truly want to destroy democratic societies put another hashmark on their side of the tally board. That, and Facebook gets to monetize it all.

To reiterate, it does not really matter whether that one story about a group raising money for Rittenhouse is true. It is an example among millions of memes or video clips that have an astounding power to color our perception of events for which we are not present. And this is the same potent force that inspires people like Rittenhouse to do what he did.

Harvard researcher Joan Donovan, in a recent article for MIT Technology Review describes the rise of “riot porn” presently dominating right-wing propaganda, amplifying the narrative, mostly through video clip editing and manipulation, that BLM protestors are a threat to white people everywhere. “With riot porn,” writes Donovan, “what moves someone from watching to showing up is the potential for participating in a violent altercation. The motivating factor is the hope to live out fantasies of taking justice into their own hands …”

We mock QAnon, which, as it turns out, really is the result of Boomers who don’t know how the internet works. But I would remind my wise and learned Xers of the political left, who believe they seek the truth, that they helped soften the ground for the now thriving conspiracy of the “deep state” with their many tweets and shares etc. during the Obama years. All that misguided enthusiasm for leakers and the generalized fear of government surveillance online did not seem to pause to contemplate the future Rittenhouse being radicalized on platforms where we would have been happy to have the FBI watching and possibly able to intervene before he left for Kenosha.

While propaganda of this nature is currently more prominent and effective on the far right—not  least because Trump exploits the narrative—my broader point is that we are all consuming at least sampler plates of “riot porn” or “outrage porn” or however we want to describe it. Tribalism is reinforced and galvanized such that we seem headed for an inevitable clash of Hatfields and McCoys on a national scale. I hope not. But for sure, we have to come to grips with the fact that social media is not only not the solution, it is the problem.

With credit to my eldest for this observation, our reality is now Schrödinger’s Cat: everything on the internet is both true and not true at the same time. We are, of course, witnessing so much extreme conduct in contemporary society that no story is beyond plausibility. But this also means that no story is beyond deniability. The line between conspiracy theory and reality is murky to say the least, and that’s hard enough to track. But we can know for certain that none of the meme-based, click-bait impressions feeding our emotional fires has any accountability whatsoever. Yet we continue to comment and share and to teach the machines and the manipulators how to do an even better job of messing with us next month.

For years, the internet industry and its well-funded network of tech-utopians insisted that these platforms are, at worst, neutral lenses revealing society for what it is, or, at best, improving the world by giving everyone a platform for the “exchange of ideas.” Any criticism that these platforms might be used to severely damage the democratic institutions they were allegedly going to help was met with an impatient eye-roll, a *sigh* at the naïve luddites, resistant to change and innovation. But if it is not clear by now that these platforms are the primary catalysts in democracy’s decline, that alone proves we have achieved maximum inescapable bullshit. 

Google v. Oracle VIII: On Juries Deciding Fair Use

Soon after the pandemic forced the Supreme Court to delay proceedings in Google v. Oracle, it directed the parties to “file supplemental letter briefs addressing the appropriate standard of review” with respect to the Federal Circuit’s decision in 2018, concluding that no reasonable jury could find that Google’s copying to create Android was fair use. On August 7, both parties filed their letters in response to the Court’s inquiry.

This is a nuanced matter, and I will leave the civil procedure questions to the practicing attorneys and those who have a detailed record on the day-to-day proceedings in this decade-long case. But I was intrigued by the broader copyright law consideration underlying the Court’s review standard question because it is one I have often thought about myself:  is fair use best weighed by a jury, by a court, or by some appropriate combination of the two? 

As a general rule, we look to juries to consider disputed issues of fact and courts to weigh or apply principles of law, and any copyright expert will tell you that a fair use analysis is a mix of fact and law. But as we see in Google v. Oracle, there can be ample disagreement about the line between fact and law that exists in a given fair use consideration.

As a simple example, consider factor three of the four-prong test—the amount and substantiality of the portion of the work used. A jury can reasonably arrive at a factual finding as to how much of a copyrighted work has been used. But the same jury may struggle somewhat with how much weight to give these facts with respect to the overall, four-factor, fair use analysis. Particularly because fair use is judge-made law, case law can be the most instructive guide, yet one which juries are not expected to know.

With that in mind, it is worth thinking about an argument presented by several legal scholars to the Supreme Court in defense of Google on this issue. They argued that the Federal Circuit’s failure to defer to the jury verdict on its ultimate conclusion of fair use was in error for three reasons. First, they argued it was unprecedented for a fair use finding by a jury to be overturned; second, they asserted that the court of appeals’ de novo standard for reviewing the matter was inconsistent with the Supreme Court’s standard; and third, they argued that the decision was an unconstitutional abridgement of the Seventh Amendment right to jury trial in civil litigation.

Is the “Exceptional Overruling” Truly Exceptional?

The first argument—that this was an unprecedented overturning of a fair use finding by a jury—may not carry much weight with the Court for the simple fact that jury decisions on fair use are not very common in the first place. Copyright cases involving fair use are typically decided on summary judgment, and fair use case law decisions encompasses a large anthology of discussion among judges that guides most fair use considerations before those questions get anywhere near a jury. [1] So, the supposed anomaly in Google v. Oracle, while it may be good for blog headlines, may not be as compelling a legal argument as it appears.

The Standard of Review: Are the Facts Really That “Complicated”?

The amici’s second argument—that the Federal Circuit erred when it engaged in de novo review—turns on that mix of law and fact bugaboo inherent to fair use analyses. When dealing with mixed questions of fact and law, the Supreme Court has stated that a court must decide whether the question tilts more toward fact or more toward law.  One reason for this is that when juries commit errors of factfinding, justice may not be served to the parties involved, but the law itself is not usually altered. Conversely, when errors of law are left intact without review, the law itself may be changed substantially, causing problems far beyond the specific case. Or as the Federal Circuit stated, in seeking to harmonize its standard with the Supreme Court’s opinion in U.S. Bank Nat’l Ass’n v. Vill. at Lakeridge, LLC (2018): 

Where applying the law to the historical facts “involves developing auxiliary legal principles of use in other cases—appellate courts should typically review a decision de novo. But where the mixed question requires immersion in case-specific factual issues that are so narrow as to “utterly resist generalization,” the mixed question review is to be deferential. [Citations omitted]

The Federal Circuit opinion devotes considerable time in its opinion explaining its approach before finding that de novo review was justified.  Nevertheless, amici for Google assert that the fair use analysis in this case is more factual than it is legal, tilting toward deference to the jury. Their basis for this is that, “the facts [in this case] are undeniably complicated.”

But are the facts in Google v. Oracle terribly complicated?  For instance, the Federal Circuit only highlighted eight facts it found to be relevant to the fair use analysis, including the finding on which the parties agreed that Google “copied material for the same purpose as in the original work” by using Java’s declaring code in Android. Even though that undisputed fact resolves the vast majority of the first prong of the fair use test, Google’s primary appeal to fair use is that its use of the Java packages to build Android —was “transformative” on the grounds that the work was used “in a new context.”

Here, the Federal Circuit correctly found this defense to be based on errors in both fact and law. Though I am admittedly jumping past the standard of review question, the record does not support Google’s claim of fair use. It deployed Oracle’s code for the same purpose in a small computer (a mobile device) instead of a large computer (a PC), which answers a question of fact; and even if this had been a new use, courts have largely held that “use in a new context” does not necessarily support a finding of “transformativeness,” which answers a question of law.

More generally, it is worth noting that “transformativeness” is one of the most vexing doctrines in the fair user’s handbook; it has confounded judges in district courts, sparked heated debate among legal scholars, and split circuits across the country. Very recently, in Brammer v. Violent Hues (2019), the Fourth Circuit held that a “…difference in purpose is not quite the same thing as transformation.” So, assessing “transformativeness” sounds an awful lot like a question of law amenable to review. As the Federal Circuit states in its opinion on this question:

… Google’s use of the API packages is not transformative as a matter of law because: (1) it does not fit within the uses listed in the preamble to § 107 ; (2) the purpose of the API packages in Android is the same as the purpose of the packages in the Java platform; (3) Google made no alteration to the expressive content or message of the copyrighted material; and (4) smartphones were not a new context.

Google characterizes the Federal Circuit’s holding as merely a challenge to “the sufficiency of the evidence,” based on its conclusion that “no reasonable jury could find that Google’s verbatim and entirely commercial use of the declaring code and SSO to compete against the Java platform was a fair use.’” (Citation omitted). Again, I will let the civil procedure question go, but note that to this layman, who probably knows fair use better than the average juror, that all reads as a mix of at least equal parts fact and law. “Verbatim,” “commercial,” and “potential” threat to the market are all bright yellow flags tilting against a finding of fair use as a matter of law. 

In fact, this is a pretty good example of what I referred to above as the distinction between juries and courts in fair use cases. Neither “verbatim” copying nor “commercial” use are disputed facts in this case. Yet a jury, even understanding these facts with little difficulty, can still err in apportioning weight to these factors in the overall fair use analysis. Hence review seems more than justified.

It is also notable that at least two of those subjects—“potential market” and “commercial use”– are frequently confused by the general public, and occasionally misapplied by district courts, as it was in Brammer. So, can a jury get these legal considerations wrong? I believe they can. Or as the letter for Oracle succinctly states, “A ‘primarily legal’ mixed question that is reviewed on appeal de novo does not somehow become a ‘factual’ one reviewed deferentially just because the factfinder was a jury rather than a judge.

What Does History and the Seventh Amendment Say?

Keep in mind that the procedural question at issue here is not whether the Federal Circuit erred in its holding that Google’s use of Oracle’s code was not a fair use (SCOTUS should rule on that question in the end), but only whether the appellate court applied the correct standard of review to the jury’s fair use finding , “including but not limited to any implications of the Seventh Amendment.”

To this, amici for Google present a final historical argument in order to draw two intertwined conclusions: 1) fair use in general is highly amenable to consideration by juries; and 2) evidence of fair use jury verdicts in eighteenth century English case law, establishes a jury right in the common law at the time of ratification of the Seventh Amendment.  

Citing two cases, Sayer v. Moore (1785) and Cary v. Kearsley (1802) amici for Google assert, “They represent common-law courts expressly recognizing that the jury should decide whether copyrighted material was used fairly by a defendant….History thus satisfies the constitutional test for whether to apply the Seventh Amendment to the issue of fair use.” These two cases are instructive, say the amici, because they entailed fair use questions presented to a jury. But according to a recent paper by Justin Hughes of Loyola Law School on this topic, those cases were not fair use cases—at least not cases consistent with the modern, American fair use doctrine. Hughes explains:[2]

As much as there are antecedents in these cases to our own thinking about copyright, there was also much going on that reflects concerns incongruent with today’s range of copyrighted works and ideas incompatible with our current themes.

In Sayer, for instance, Hughes observes that the jury charge contained prototypical elements of the idea/expression dichotomy more than facts relevant to a contemporary fair use consideration. And in Cary, Hughes agrees with New Zealand legal scholar Alexandra Sims who writes, “[Cary] represents the beginning of a judicial recognition of fairness in relation to the use of factual materials in the creation of new works, but not fairness in the sense of using material for the purpose of review and criticism or even quotation.” 

On that note, I will presume to interject here that it is a shaky proposal at best to imply that our modern concept of fair use was a living principle at the founding period, let alone one that was so well ingrained in England’s common law that one might hope to demonstrate that it was always viewed as a question of fact to go before a jury. I have not personally traced the fair use pedigree, but I have traced other copyright principles back a few centuries, and I would propose that the ways in which the Americans split with England are often more instructive to jurisprudence than the ways in which some historians identify precedent in the raw ingredients of a bygone world.

Perhaps most significantly, it is a unique feature of American copyright that fair use was, in part, codified so that copyright’s limitations would conform to our speech and press rights. And this is one area in which English and American copyright diverge significantly, especially when we travel back through the nineteenth and eighteenth centuries. For instance, English copyright law did not wholly shed its ties to anachronistic licensing acts (i.e. state authority to publish) until the mid-twentieth century. So, it is quite a stretch to assert that when English judges in 1785 and 1802 gave their jury instructions in Sayer and Carey respectively, they were asking those juries to weigh anything that truly resembles American fair use doctrine in the twenty-first century.

“The only analog Google’s amici have cited is the ancient doctrine of ‘fair abridgment,’ states Oracle. “Fair abridgment categorically excused a historical practice of shortening a longer work enough to ‘be called a new [work].” And this is not even always true under our fair use doctrine. Fair use, as we know it, simply did not exist in 1791 at the ratification of the Bill of Rights. Still, the controlling part of the Seventh Amendment is the clause that says, “…and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.”

This prohibition on reexamination is precisely why Google and its amici hope to emphasize the factual nature of fair use considerations and endeavor to straighten the historical line between England’s Lord Mansfield in Sayer, and America’s Justice Story, who became the judicial father of fair use when he presided over the case Folsom v. Marsh (1841). Citing Story in a subsequent case, Emerson v. Davies, amici for Google emphasize that Justice Story “described fair use as a ‘question of fact to come to a jury’ in 1845.”

But Professor Hughes asserts, quite reasonably, that Justice Story said nothing of the kind—at least not as a bright line rule that implicates a standard of review. Instead, Hughes elucidates:

Story is just quoting Mansfield in Sayer—and what Mansfield said in Sayer wasn’t specifically about fair use to begin with. Nowhere in Emerson v. Davies does Story say he himself believes that the test he set out in Folsom was a ‘question of fact to come to a jury.’

In fact, with respect to the standard of review, even if there were not a meaningful ideological divergence between England and the U.S., Hughes declares unequivocally:

Legal historians have yet to find any ruling or statement that a copyright infringement defendant in a court of equity had the right to remove the case to a court of law or to have any elements of the infringement action decided by a jury sitting in one of those courts of law.

Are Copyright Critics Begging for Uncertainty in Fair Use?

Finally, it should not go unnoticed that many of the same advocates for deference to the jury in Google v. Oracle share ideological kinship with some of copyright’s most ardent critics, who often write in papers, blogs, and social media comments that copyright is unjust because of its uncertainties. More specifically, asking for legal certainty in the software market is an explicitly stated goal by several of the amici who have filed on behalf of Google in this case. But it is hard to see this deference to the jury argument as anything other than a departure from that view, or as anything other than an argument of convenience in the moment. After all, if fair use considerations, already a complicated matter, are best left to juries without judicial review, it can only add uncertainty with implications for copyright law that go well beyond the short-term exigencies of software companies.  Or as Hughes puts it:

… if one wants a fair use eco-system in which there are some areas of more objective ex ante rule-like norms exempting certain reasonably defined categories of behavior from copyright liability – if one believes (as Justice Kennedy clearly did) that much of the conduct exempted by § 107 fair use is “amenable to regulation by rule” — one is likely to prefer de novo review as a means to clarify what is and is fair use.

On a very broad level, Google’s letter argues that a jury “properly decides fair use because it is well suited, from both a practical and a policy perspective, to determine how a ‘reasonable’ party would assess the defendant’s conduct.” And right there is where I return to my personal musings on this question and find that this “reasonableness” standard (i.e. a jury’s gut feel) is inherently disconcerting. I have consistently seen users of works and owners of works reveal a general misunderstanding of fair use. So, I believe Oracle’s letter is more on the money when it states that “fair use does not ask what feels fair to an ordinary person.” Instead, it “applies judge-made factors codified in the Copyright Act and elucidated by additional legal rules developed in a vast body of fair use precedent.”

[1] An analysis of district court opinions between 1978-2005 found that “more than half of the opinions addressed a motion or cross-motion for summary judgment, and of these 121 opinions, 86% granted the motion or one of the cross-motions. This supports the conventional wisdom that courts regularly resolve fair use issues at the summary judgment stage.”  Barton Beebe, An Empirical Study of U.S. Copyright Fair Use Opinions, 1978-2005, University of Pennsylvania Law Review, Vol. 156, No. 3.

[2] Justin Hughes. “The Respective Role of Judges and Juries in Fair Use Determinations.” Loyola Law School. Legal Studies Paper No. 2020-09