09 April 2021

Easy Riding Ain't Free Riding

Motoring right in:

  • There already is a lot of commentary about Monday's decision in Google v. Oracle, 593 U.S. ____ No. [20]18–956 (05 Apr 2021) (PDF). There will be more. However, there's an implicit circuit split that was resolved almost without comment in the majority opinion — and it matters.

    At the outset, Google argues that “fair use” is a question for a jury to decide; here the jury decided the question in Google’s favor; and we should limit our review to determining whether “substantial evidence” justified the jury’s decision. The Federal Circuit disagreed. It thought that the “fair use” question was a mixed question of fact and law; that reviewing courts should appropriately defer to the jury’s findings of underlying facts; but that the ultimate question whether those facts showed a “fair use” is a legal question for judges to decide de novo.

    We agree with the Federal Circuit’s answer to this question. We have said, “[f]air use is a mixed question of law and fact.” We have explained that a reviewing court should try to break such a question into its separate factual and legal parts, reviewing each according to the appropriate legal standard. But when a question can be reduced no further, we have added that “the standard of review for a mixed question all depends—on whether answering it entails primarily legal or factual work.”

    Id., slip op. at 18–19 (citations omitted).

    This is critical for two reasons. First, because there must be significant deference to findings of fact, those findings of fact must be either accepted or challenged only on the same ground as the findings of fact on any other issue. (On summary judgment, "no reasonable juror" could believe otherwise; after trial, whether to the bench or a jury, "substantial evidence" in the context of the correct legal theory.) More critically, though, the actual weighing of those facts is a matter of law purely for the judge. And that's… dangerous.

    It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits. At the one extreme some works of genius would be sure to miss appreciation. Their very novelty would make them repulsive until the public had learned the new language in which their author spoke. It may be more than doubted, for instance, whether the etchings of Goya or the paintings of Manet would have been sure of protection when seen for the first time. At the other end, copyright would be denied to pictures which appealed to a public less educated than the judge. Yet if they command the interest of any public, they have a commercial value — it would be bold to say that they have not an aesthetic and educational value — and the taste of any public is not to be treated with contempt.

    Bleistein v. Donaldson Litho. Co., 188 U.S. 239, 251–52 (1903). That is exponentially more difficult in considering whether the artistic process involved justifies a fair use defense of the resulting product. Frankly, in most instances there will be at least one jury member with a closer appreciation of artistic/creative process than a federal judge, particularly since being "trained only to the law" encourages the exact opposite of "creativity": The ultimate in persuasive legal writing, under ordinary circumstances, demonstrates that there is and can be no controversy because precedent requires it — someone else already said it before.

  • Which doesn't prevent journalists from entirely missing the point of legal decisions on fair use. Consider — or, if you have any taste, don't — the late Andy Warhol's screen prints based upon a photograph of the late Prince (Rogers Nelson; the symbol is not HTML friendly). An NYT critic's analysis completely blew it by inverting what was actually at issue. Mr Gopnik just saw "fair use denied" and thought that was the end of the game, and that Warhol was therefore being accused of being an infringer. Not so much; actually reading the Second Circuit opinion in The Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, No. [20]19–2420 (2d Cir. 26 Mar 2021) (PDF) demonstrates otherwise. This case was not about Warhol's own use, which was pursuant to a license to create certain silk-screen images in extremely limited quantities. Rather, this case was about whether the Foundation exceeded the scope of the license the artist had for the silk-screen images by making coffee mugs, etc. based on the silk screen images. The Second Circuit rejected the Foundation's claim that all of the images were fair use; it sent consideration of the mass-produced non-silk-screen "originals" back down for further proceedings on breach of the license.

    This reminds me a great deal of the way test companies and some academic publishers mistreat authors over quotations, frequently used for either multiple-choice questions on tests or writing prompts in books. The company typically represents that the extract — almost always an entire poem, or a truly extended segment of text that one cannot reasonably treat as fair use (since good academic purpose is only served by taking the essence, in the same way as Nation Enterprises determined that the passage from former President Ford's memoirs was the essence of the book and therefore not fair use), will have limited use. But those companies, however, commonly understate their "print run" (I've seen three orders of magnitude — a claimed "less than three thousand" tests that was over two million according to the company's later marketing bombast), the scope of use, the number of editions, or some combination thereof. That's what Ms Goldsmith is objecting to here: That the Foundation has no "I had a license!" defense precisely because it knowingly and wilfully exceeded the scope of the license (which appears to have been obtained under dubious circumstances in the first place).

  • So, Senator Turtle, "My advice to the corporate CEOs of America is to stay out of politics." OK, fine. I'll be one of the first to agree that experience in business does not qualify one to proclaim expertise on implementing, or deciding, public policy (and vice versa). But that means that Senator Turtle should also be rejecting "the corporate CEOs of America" as candidates for office. Goodbye, Ms Whitman and Mr Rauner and Mr Thiessen. And Mr Drumpf.

    Oh, that's not what you meant? It's certainly what you said… and I've confirmed by looking at the text of your entire speech that that short quotation is not out of context of what was stated. Which leads to the eternal mythological question of whether Procrustes measured for turtle nests… and whether Senator Turtle's education and experience takes him beyond mere exercise of power, beyond mediocre. Plus, it's pretty sad when your party is criticizing baseball for being too "woke," too aware of the unstated implications of others' actions and policies and intent — which is precisely what Jim Crow laws rely upon.

  • Which leads to the fascinating question of whether it's actually good business practice in the long run to to avoid/evade corporate taxes that are essential for infrastructure and workforce basic training efforts, on which businesses are disproportionately free riders in the first place.

    <soto voce> Pssst. Don't tell Senator Turtle to compare this item to the previous one when considering whether any of America's corporate CEOs have a future in Heffalump party politics, especially as candidates. </soto voce>