“Fair” in the Future? Long-Term Limitations of the Supreme Court’s Use of Incrementalism in Fair Use Jurisprudence

Authors

Jonathan Alexander FisherFollow

Abstract

April 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.

Recommended Citation

Jonathan Alexander Fisher, “Fair” in the Future? Long-Term Limitations of the Supreme Court’s Use of Incrementalism in Fair Use Jurisprudence, 32 Fordham Intell. Prop. Media & Ent. L.J. 808 (2022).
Available at: https://ir.lawnet.fordham.edu/iplj/vol32/iss3/6