The Fair Use Industries: Supreme Court Brief of @davidclowery, @helienne, @theblakemorgan and @sgawrites in Google v. Oracle

Google’s appeal of its major loss to Oracle on fair use is shaping up to be the most important copyright case of the year, if not the decade.  It could set fair use standards for years to come.  We’re going to be posting installments of the friend of the court brief that David, Helienne, Blake and The Songwriters Guild filed in the U.S. Supreme Court supporting Oracle in the Google v. Oracle fair use case.  You can read the whole brief here.

Cover Page
Cover Page of Friend of the Court Brief

Independent creators rely on copyright protection to safeguard their works. This is true not just of songwriters and composers, but of countless creators, including recording artists, photographers, filmmakers, visual artists, and software developers. Copyright is,
in fact, of existential importance to such creators, who would be utterly lacking in market power and the ability to earn their livings without it.

Google’s business model is a prime example of the need for strong copyright protection. Since Google’s founding, Amici have experienced, observed and believe that Google has used its unprecedented online footprint to dictate the terms of the market for creative works.  By tying together a set of limited exceptions and exclusions within the U.S. Copyright Act and analogous laws in other countries, and then advocating for the
radical expansion of those exceptions, Google has amplified its own market power to the great detriment of copyright owners. Thus, where fair use is meant to be a limited defense to infringement founded on the cultural and economic good for both creators and the public, Google has throttled it into a business model: what its amicus brazenly refers to as the bedrock on which rests the fictitious “fair use industries.”

There is no shortage of amici exhorting this Court to weigh carefully the implications of this case’s fair use issues, and their resolutions. Amici today simply join the chorus of those seeking to illustrate Google’s longstanding pattern of integrating willful copyright
infringement into its business model. Google does so, as it did here, by advocating for fair use exceptions so broad as to include its wholesale, verbatim copying of Oracle’s declaring code and structure without a license.  Google’s flagrant disregard of original expression in order to make a larger profit—by taking without authority the works belonging to others—compromises any argument that its use is non-commercial,
transformative, or in any sense “fair.”

Accordingly, the Federal Circuit was correct in finding that the nature and purpose of Google’s unlicensed use of Oracle’s code and program organization was to create a commercial substitute in the form of Android. It is abundantly clear that this
unauthorized substitution is not in the public interest. Here, Google’s claim to be, “promoting software innovation” is just a code word for promoting Google’s
interest in extracting higher profit margins out of the pockets of creators. Given that its interest in doing so is antithetical to incentives to create original works, finding fair use would clearly not serve the constitutional and statutory purposes of copyright.

[Tomorrow: Independent Artists and Songwriters rely on copyright protection and clear fair use standards to defend themselves in the market.]

One thought on “The Fair Use Industries: Supreme Court Brief of @davidclowery, @helienne, @theblakemorgan and @sgawrites in Google v. Oracle

  1. Google just gave me a great idea. I’m going to stop paying my mortgage payments, and tell them that living in this house is “fair use.” And I’m going to stop paying the electric company, because using their electricity is “fair use.” And I’m going to walk in to the grocery store, load up with food, and walk out without paying. When the security guard stops me, I’ll tell him I’m taking the food for free because it’s “fair use.” Afterall, if Google can do it, why can’t I?

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