Summary
If you’re in the high-tech industry and are sued for copyright infringement, there are two words you need to remember (in addition to the phone number of your attorney, of course). Those two words are “fair use.”
This week, we were once again reminded of the increasing willingness of courts – and now juries – to “excuse” otherwise infringing conduct because the defendant’s use of the plaintiff’s copyrighted work resulted in the creation of new works or advances not contemplated by the plaintiff/copyright owner. In Oracle v. Google, a San Francisco jury found that Google’s unauthorized use of some 11,000 lines of Oracle’s copyrighted Java open-source code in Google’s Android mobile phone operating system was fair use.
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…Copyright scholars have long expressed frustration at trying to pin down the meaning of fair use – although perhaps none so eloquently as Professor Paul Goldstein of Stanford Law School:
Fair use is the great white whale of American copyright law. Enthralling, enigmatic, protean, it endlessly fascinates us even as it defeats our every attempt to subdue it.
The truth of Professor Goldstein’s observation is plainly evident in the Oracle court’s “Melville-esque” instructions to the jury about fair use. Indeed, of the court’s 22-page set of jury instructions, nine pages are devoted to explaining how the jury was to decide the fair use issue.
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