GOOGLE LLC v. Oracle America, Inc., 141 S. Ct. 1183 – Supreme Court 2021
Copyright and patents, the Constitution says, are to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Art. I, § 8, cl. 8. Copyright statutes and case law have made clear that copyright has practical objectives. It grants an author an exclusive right to produce his work (sometimes for a hundred years or more), not as a special reward, but in order to encourage the production of works that others might reproduce more cheaply. At the same time, copyright has negative features. Protection can raise prices to consumers. It can impose special costs, such as the cost of contacting owners to obtain reproduction permission. And the exclusive rights it awards can sometimes stand in the way of others exercising their own creative powers. See generally Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156, 95 S.Ct. 2040, 45 L.Ed.2d 84 (1975); Mazer v. Stein, 347 U.S. 201, 219, 74 S.Ct. 460, 98 L.Ed. 630 (1954).
Macaulay once said that the principle of copyright is a “tax on readers for the purpose of giving a bounty to writers.” T. Macaulay, Speeches on Copyright 25 (E. Miller ed. 1913). Congress, weighing advantages and disadvantages, will determine the more specific nature of the tax, its boundaries and conditions, the existence of exceptions and exemptions, all by exercising its own constitutional power to write a copyright statute.
Four provisions of the current Copyright Act are of particular relevance in this case. First, a definitional provision sets forth three basic conditions for obtaining a copyright. There must be a “wor[k] of authorship,” that work must be “original,” and the work must be “fixed in any tangible medium of expression.” 17 U.S.C. § 102(a); see also Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340, 345, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991) (explaining that copyright requires some original “creative spark” and therefore does not reach the facts that a particular expression describes).
Second, the statute lists certain kinds of works that copyright can protect. They include “literary,” “musical,” “dramatic,” “motion pictur[e],” “architectural,” and certain other works. § 102(a). In 1980, Congress expanded the reach of the Copyright Act to include computer programs. And it defined “computer program” as “`a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result.'” § 10, 94 Stat. 3028 (codified at 17 U.S.C. § 101).
Third, the statute sets forth limitations on the works that can be copyrighted, including works that the definitional provisions might otherwise include. It says, for example, that copyright protection cannot be extended to “any idea, procedure, process, system, method of operation, concept, principle, or discovery….” § 102(b). These limitations, along with the need to “fix” a work in a “tangible medium of expression,” have often led courts to say, in shorthand form, that, unlike patents, which protect novel and useful ideas, copyrights protect “expression” but not the “ideas” that lie behind it. See Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49, 54 (C.A.2 1936) (Hand, J.); B. Kaplan, An Unhurried View of Copyright 46-52 (1967).
Fourth, Congress, together with the courts, has imposed limitations upon the scope of copyright protection even in respect to works that are entitled to a copyright. For example, the Copyright Act limits an author’s exclusive rights in performances and displays, § 110, or to performances of sound recordings, § 114. And directly relevant here, a copyright holder cannot prevent another person from making a “fair use” of copyrighted material. § 107.
We have described the “fair use” doctrine, originating in the courts, as an “equitable rule of reason” that “permits courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster.” Stewart v. Abend, 495 U.S. 207, 236, 110 S.Ct. 1750, 109 L.Ed.2d 184 (1990) (internal quotation marks omitted). The statutory provision that embodies the doctrine indicates, rather than dictates, how courts should apply it. The provision says:
“[T]he fair use of a copyrighted work,… for purposes such as criticism, comment, news reporting, teaching … scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
“(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
“(2) the nature of the copyrighted work;
“(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
“(4) the effect of the use upon the potential market for or value of the copyrighted work.” § 107.
In applying this provision, we, like other courts, have understood that the provision’s list of factors is not exhaustive (note the words “include” and “including”), that the examples it sets forth do not exclude other examples (note the words “such as”), and that some factors may prove more important in some contexts than in others. See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577, 114 S.Ct. 1164, 127 L.Ed.2d 500 (1994); Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 560, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985); see also Leval, Toward a Fair Use Standard, 103 Harv. L. Rev 1105, 1110 (1990) (Leval) (“The factors do not represent a score card that promises victory to the winner of the majority”). In a word, we have understood the provision to set forth general principles, the application of which requires judicial balancing, depending upon relevant circumstances, including “significant changes in technology.” Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 430, 104 S.Ct. 774, 78 L.Ed.2d 574 (1984); see also Aiken, 422 U.S. at 156, 95 S.Ct. 2040 (“When technological change has rendered its literal terms ambiguous, the Copyright Act must be construed in light of its basic purpose”).