The Latest Supreme Court Ruling On Kirtsaeng Hints at a Possible Expansion of Fair Use,
When the US Supreme Court ruled in favor of the defendant in Kirtsaeng v. Wiley in 2013, many people thought that upholding the first sale doctrine would be the only legacy of Kirtsaeng, but the most recent ruling offers a bonus to fair use advocates.
Last month’s ruling focuses on whether Kirtsaeng could recover attorney fees from the publisher who sued him, but as Techdirt noted the ruling also includes language which, in my opinion, suggests that the Supreme Court is willing to reconsider the limits of fair use.
From the ruling (PDF):
In accord with such precedents, we must consider if either Wiley’s or Kirtsaeng’s proposal well advances the Copyright Act’s goals. Those objectives are well settled. As Fogerty explained, “copyright law ultimately serves the purpose of enriching the general public through access to creative works.” 510 U. S., at 527; see U. S. Const., Art. I, §8, cl. 8 (“To promote the Progress of Science and useful Arts”). The statute achieves that end by striking a balance between two subsidiary aims: encouraging and rewarding authors’ creations while also enabling others to build on that work. See Fogerty, 510 U. S., at 526. Accordingly, fee awards under §505 should encourage the types of lawsuits that promote those purposes. (That is why, for example, Fogerty insisted on treating prevailing plaintiffs and prevailing defendants alike—because the one could “further the policies of the Copyright Act every bit as much as” the other. 510 U. S., at 527.) On that much, both parties agree. Brief for Petitioner 37; Brief for Respondent 29–30. The contested issue is whether giving substantial weight to the objective (un)reasonableness of a losing party’s litigating position—or, alternatively, to a lawsuit’s role in settling significant and uncertain legal issues—will predictably encourage such useful copyright litigation.
Techdirt looked at the ruling and concluded that "it looks like the Supreme Court has just blessed the fact that copyright should encourage people to build upon existing works, and appears to be giving a nod to a broad interpretation of fair use that says that building on the works of others is a key part of the purpose copyright itself".
For example, should Paramount v Axanar or a lawsuit involving one of the other Star Trek fan films head to trial and result in a precedent-setting decision which expands fair use, the Supreme Court would be willing to uphold the ruling.
Or at least that’s what some hope, and TBH it’s not out of the question. Remember, Google Books was widely assumed to be piracy for many years before the courts ruled that it was fair use, and this ruling could signal future tectonic shifts in the legal landscape.
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