Tag: Featured

Google v. Oracle: A Troubling Use of Fair Use

Once the die was cast (i.e. after oral arguments) in Google v. Oracle, I don’t think I was alone in feeling that if the Supreme Court held that the computer code at issue in this case was not properly a subject of copyright protection, that would be an acceptably narrow decision, even though many might disagree with it as a statutory reading.1 On the other hand, I and others felt that if the Court held Google’s use of Oracle’s code to be a fair use, that would be potentially harmful to copyright law in general, and perhaps a disservice to many parties with an interest in this case—except of course to Google.

The argument against the copyrightability of the code at issue (a.k.a. declaring code or APIs), was founded on the merger doctrine, which holds that where an expression and its idea or function are inextricably bound together, the expression cannot be protected by copyright. Here, the majority opinion, written by Justice Breyer, declined to address that consideration, instead stating that “for the sake of argument,” the Court would assume the code is protected, and then it still delivered an opinion on the copyrightability question by couching it in a fair use analysis.

Although the Court did state that the decision is unique to software and does not “overturn or modify earlier cases involving fair use,” we must hope that summary can be reconciled with the part of the opinion which states, “The upshot, in our view, is that fair use can play an important role in determining the lawful scope of a computer program copyright, such as the copyright at issue here.” That is a troubling generalization, which forces the fair use doctrine (a case-by-case defense) to do what the Court otherwise could have done instead, which would have been to write an opinion limiting the statutory protection for the code at issue, and also limit its own finding. In that instance, fair use should not even be considered. Instead, the Breyer opinion asks fair use to do something it is not meant to do.

As a result, this outcome not only could disturb case law, but it also falls short of providing the market certainty many in the software business were seeking in the briefs filed on behalf of Google. For instance, the brief signed by 83 computer scientists stated, “Forcing companies that reimplement APIs to rely on fair use will not meaningfully address … anticompetitive effects. Though better than nothing, a fair use standard creates uncertainty because it depends on fact-intensive, case-by-case determinations which can result, as this case demonstrates, in lengthy and expensive litigation.”

So, rather than providing that hoped-for certainty, by either accepting or rejecting the merger argument, it is notable that the opinion instead asserts factor two (nature of the protected work) of the fair use test ahead of factor one (purpose and character of the use) in order to frame its conclusion with a lengthy discussion about what declaring code does and why the Court agrees it is distinguishable as an unprotectable type of code. The opinion states:  “It is inextricably bound to­gether with a general system, the division of computing tasks, that no one claims is a proper subject of copyright. It is inextricably bound up with the idea of organizing task into what we have called cabinets, drawers, and files, an idea that is also not copyrightable.”

That is extremely close to saying the code at issue fails for copyright protection under merger. So, why didn’t the Court just go ahead and make that finding rather than risk sowing added confusion by stuffing a pseudo copyrightability opinion into prong two of a fair use analysis? Because now, it is possible that a greater number of parties will be disserved by this outcome.

Perhaps what happens in the market should not weigh too heavily where the Court restricts its opinions to questions of law, but this opinion makes clear in its fourth factor analysis that it is terribly concerned about broad market effects. And its assumptions about the market, especially the implications beyond software, seem divorced from reason as a fair use consideration. The factor four opinion suggests the majority was unduly persuaded by the argument that Sun was unsuited as a developer to create a product like Android. “…evidence at trial demonstrated that, regardless of Android’s smartphone technology, Sun was poorly positioned to succeed in the mobile market.” That is potentially a market-devastating view, and here’s why:

First, if a party authors a work that some other entity is potentially better at exploiting, that is grounds for licensing the work, not appropriating it. Consequently, the Court’s failure to hold, in a more straightforward ruling, that the code copied was not protected fosters this more insidious interpretation of “market harm” in its fourth factor analysis.

Second, the biggest gorilla in the sandbox just got a bonus prize. After all, won’t a company like Google always have the resources and capabilities to build the next doodad faster and better than another entity? But in Google v. Oracle, to “level the playing field,” the Court just held that a startup which cannot compete with the Googles of the world, may not necessarily license its IP to the giants either, depending on how one interprets this fourth factor reasoning. Because let’s remember, Oracle ain’t exactly a startup.

Third, imagine we are looking beyond software, and this fourth factor opinion can be argued to mean that, for instance, the novelist who is “poorly positioned” to make a film adaptation of her book is subject to a similar finding in relation to a film studio appropriating her work. Granted, that’s a bit extreme, and she would, we hope, be protected by other considerations in the law. But I use the example to underscore how flawed this view of “market harm” is as a matter of principle.

All the ink spilled in this part of the opinion, lauding the value of smartphones, the quality of the Android system, etc. is an argument that only proves market harm to Oracle due to the failure by Google to obtain a license—and one that simply waves a hand at any implication of the derivative works right. “Given the costs and difficulties of producing alternative APIs with similar appeal to programmers,” the opinion states, “allowing enforcement here would make of the Sun Java API’s [sic] declaring code a lock limiting the future creativity of new programs.”

That language, which connotes a hostility to copyright in general, upends the law by failing to acknowledge that licensing works does not lock up works. We have over 200 years of evidence and jurisprudence to back up that general premise. But again, if this Court accepted the market rationale for this outcome, then it should have held the code at issue unprotectable rather than write a fourth factor “market harm” analysis that describes any rightsholder as “poorly positioned” to exploit a particular use of their works.

By transforming a copyrightability opinion into a fair use analysis, the Court seems to have fallen for the temptation to limit copyright’s protections based solely on works already developed, while failing to more expansively imagine works that may or may not be developed in the future. Aside from the potential damage done to other copyright subjects by this fair use holding (despite the Court’s caveat), the opinion does little for the next software venture, except to tell its principals that when a Google-scale behemoth appropriates some amount of their code, they may be about a decade’s worth of litigation away from finding out if there’s a remedy. And the number of new ventures that can afford that is zero.

  1. I wrote against the merger argument here and here.

Fair Use & The CASE Act

Although this week marks the eighth annual observation of Fair Use Week, I remain unconvinced that the fair use doctrine is any better understood today than it was before this ritual began. I see fair use errors all the time—e.g. in chat threads where creators are trying to do the right thing—and I maintain that it is often the fair use advocates themselves who cause confusion by promoting theories that have not thrived terribly well in court. And it is confusion about the legal use of works, especially online, that was a major reason why the small-claim copyright provision was finally adopted with the passage of the CASE Act in December.

I mention the CASE Act because the site fairuseweek.org led off this week with a post written by scholar Kenneth D. Crews which asserts the “defense of fair use will be on the docket” when the Copyright Office implements the law and establishes the small-claim copyright tribunal, the Copyright Claims Board (CCB) at the end of this year.

Granted, none of us can say for certain how events will transpire at the CCB, but Crews raises concerns that seem to predict that the doctrine itself may be amended by the decisions of the Board—and presumably not in a way the fair use advocates would endorse. Specifically, one statement by Crews caught my attention because it seems to echo a wishful thinking principle about factor four of the fair use test, and one that was recently rejected (again) in Dr. Seuss Enterprises v. ComicMix. Crews writes:

Think of that fourth factor of fair use: the effect of the use on the market for or value of the work.  A court will often need confidential economic data about the sales of the work in question and the revenue earned.  The Copyright Claims Officers, parties, and staff attorneys do not have clear authority to compel disclosures and discovery.  They can “request” documents and information.  As a result, the Board could frequently be called upon to decide questions of fair use, but without the needed evidence.  The choices at that point will be far from satisfactory.

While financial data may be relevant evidence when considering the potential harm to the rightsholder’s market under the fourth factor, the case law generally holds that this analysis is agnostic with regard to such details. In fact, ComicMix attempted to assert this exact defense, arguing that DSE should be required to prove with financial evidence the direct harm their mash-up book would do to the plaintiff’s market. The district court in that case erred when it agreed with this argument, but that error was overturned by the Ninth Circuit Court of Appeals, which held that ComicMix’s fair use defense failed on all four factors. As the court stated directly on this matter:

Not much about fair use doctrine lends itself to absolute statements, but the Supreme Court and our circuit have unequivocally placed the burden of proof on the proponent of the affirmative defense of fair use. ComicMix tries to plow new ground in contending that fair use is not an affirmative defense and that the burden shifts to Seuss to prove potential market harm.

So, turning to the CCB, it seems the most logical assumption is to expect that, as a small-claims body adjudicating relatively straightforward cases, the Officers will not be eager to “plow new ground” in fair use doctrine. In fact, the Board is obligated by statute to follow the law. Its fourth factor analyses, therefore, should be consistent with the courts and largely ignore detailed financial information (as Crews indicates may be necessary) because those facts are not especially germane to that prong of the test. At the same time, where there may be a circuit split on any matter, including fair use, the CCB is required by the CASE Act to follow the precedent of the circuit where the case would be decided if it went to court.

To reiterate a point made many times on this blog and elsewhere, because potential market harm implies a market the rightsholder has never exploited, including possible derivative works, there is no financial data available in such an instance. And despite attempts to argue the contrary, recent case law has reiterated the principle that fair use does not extinguish the copyright owner’s exclusive right to prepare derivative works, or to prevent the preparation of derivative works if that is the copyright owner’s decision.

I would also add that a fair use analysis is a mix of law and fact, and to the extent that anyone may be concerned about the fate of the doctrine itself, it is opinions of law that matter. When, inevitably, a case is presented to the CCB that contains errors of fact on either side, the outcome of that individual case may be unfair as a result, but the law remains unaffected. Still, I homed in on Crews’s comment about factor four because it highlights why I would question his thesis that fair use doctrine somehow hangs in the balance as the CCB is formed and begins to adjudicate cases. Concerned that the CCB might begin to write its own common law, Crews states:

Decisions from the Copyright Claims Board will not be binding on anyone other than the immediate parties, and they officially will have no precedential value in later actions in a court or before the Board.  Yet conventions of lawyering and the inevitability of human reasoning will surely press to the contrary.  As the Board builds a record of rulings, the outcomes and the reasoning will undoubtedly be fodder for scrutiny and statistical tabulation.  Individual rulings will in some manner be referenced in later proceedings.  Analyses of trends and patterns will be pursued for their scholarly value and as insights for parties and attorneys thinking about the next case to come before the new Board.

This apprehension appears to hinge on an assumption that the Board would make decisions or render opinions that might reshape fair use doctrine, even though, as Crews notes, there is nothing officially controlling about the Board’s opinions. This is doubtful. For one thing, the types of cases in which both parties agree to adjudication by the CCB are very unlikely to present revolutionary legal challenges not already answered by case law. Although we correctly describe fair use as a case-by-case consideration, that does not mean each case presents a novel consideration. Further, if this assumption is not a sufficient guardrail, the CASE Act contains a provision that allows the CCB to dismiss any case that presents a novel theory of law.

In the last ten years alone, we have seen a compelling variety of contemporary fair use defenses; and if the CCB merely follows that guidance, Crews’s concerns should be allayed. Unless, of course, the concern is not that the CCB will be inconsistent with case law but that it will further solidify case law. After all, advocates of a broader, or looser, fair use doctrine have generally not faired too well in a number of headline cases in federal courts. So, I imagine that if the CCB renders decisions that affirm ComicMix, ReDigi, KinderGuides, Brammer, and VidAngel, to name a few, this might not be very popular among those who currently advocate a more expansive approach to fair use.

Crews does state explicitly that fair use can “survive” the work of the Copyright Claims Board, and he is certainly not wrong to say that the efficacy of the Board has to prove itself—frankly in all aspects of copyright litigation, and not just fair use. Moreover, the rubber-meets-road decisions by the CCB may serve to better educate both plaintiffs and respondents about copyright’s protections and limitations. And finally, I disagree with Crews that a respondent who believes he has a fair use defense is safer opting out of a CCB adjudication in the early days of its existence. As discussed in this post about Brammer v. ViolentHues (a very typical digital-age litigation), the defendant might have arrived at the same rejection of his untenable fair use defense for a fraction of the cost.

Photo by Corgarashu

 

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