The full text of this Comment may be found here.
32 Fordham Intell. Prop. Media & Ent. L.J. 808 (2022).
Comment by Jonathan Alexander Fisher*
[A]
pril 2021 marked the most recent instance of the Supreme Court discussing copyright law, and more specifically fair use, in Google LLC v. Oracle America, Inc. The April 2021 decision notably resolved the case solely on fair use grounds, avoiding a difficult question as to the copyrightability of computer code that generates software user interfaces. By resolving this specific case in this manner, the Supreme Court’s actions seemingly confirm a pattern among fair use cases in which rulings made “narrowly” on the unique factual predicate often produce unclear applications within the “broader” context of fair use. Given the flexible, judge-made origins of the doctrine, each case acts as a guidepost within the “broader” doctrine.
This Comment explores how the “narrow” rulings, likely made to account for the Court’s institutional ideals, including incrementalism, may lead to these later fair use limitations. By exploring three fair use cases, this Comment aims to opine on the purported pattern of limitations by highlighting both the soundness of the rulings at their then-present decisions, and within more modern contexts. This Comment also proposes how a conscious shift in an opinion’s scope to include more information on how to apply the then-present case as “broader” guideposts within fair use may solve the limitation issues. This Comment finally evaluates this expanding scope against other possible mechanisms of understanding both application of legal principles to novel scenarios and to other potential fair use solutions.
*J.D. Candidate, Fordham University School of Law, 2022; B.S. Cornell University, 2017. The Author is the Online Editor for Volume XXXII, and former staff member on Volume XXXI, of the Fordham Intellectual Property, Media & Entertainment Law Journal. The Author wishes to thank Professor Michael Maimin for guiding the development of this Comment in its original form as a final paper for his Current Supreme Court Controversies course. The Author also wishes to thank both the editorial board and staff members of the IPLJ, especially Laura Rann, Caroline Vermillion, Nicole Kim, Anna Zhou, and Ziva Rubinstein, for their attentive eye to detail and thoughtful feedback in editing this Comment. Finally, thank you to my friends and family for their support as I wrote and honed this Comment from its initial paper beginnings into its final form.