Substantial Similarity

I must admit, full time employment certainly interferes with one’s blogging agenda. Last week, the Ninth Circuit decided Perfect 10 v. Google. Quite a few very smart people have already commented on this decision, but there may yet be a couple points left to make. And, in any event, I’ve never promised originality.

First, just a day after its unfortunate CDA § 230 decision, it’s nice to see our favorite Circuit still has some grasp on internet issues. No surprise, this one was written by Judge Ikuta, the only panel member who came close to getting things right in the Rommates decision. In P10, the court managed to wade through some fairly technical legal and factual issues, and did so with some nuance. There are too many noteworthy statements in the opinion to do them all justice, so I’ll just focus on one of the key points from the court’s fair use anaysis.

With respect to the first factor, the court offered this observation:

Indeed, a search engine may be more transformative than a parody because a search engine provides an entirely new use for the original work, while a parody typically has the same entertainment purpose as the original work.

The fair use analysis, which is of course highly fact-intensive and context-dependent, often prompts both counsel and courts to grope for easy-to-apply, hard and fast rules that frequently oversimplify, if not flat-out misstate, the law. “Consumptive uses are presumptively unfair.” “Commercial uses are presumptively unfair.” “Parodies are fair; satires are not.” These sorta-truisms always run the risk of being adopted by lazy or sloppy courts and calcifying as precedent until the Supreme Court, or on occasion a Circuit Court, sets things straight. Even still, these rules of thumb seem to gasp and wheeze along, waiting for their chance to reemerge, like that pesky infection you thought you’d beaten after almost finishing that bottle of penicillin.

Since Campbell, parody has been at the top of the fair use hierarchy. Any putative fair use that failed to take the piss out of the original, even if fair, has been seen as somehow less fair. And as for a use as utterly un-ironic as caching or indexing? Well, that’s hardly funny at all. How can it be fair?

Here the Ninth has thankfully eschewed the dominant fair use rule of thumb and looked at the issue, Kelly v. Arriba Soft notwithstanding, with something that approaches a fresh perspective. Non-parodic uses, to be sure, can be highly transformative. A use like Google’s which fundamentally repurposes the bundles of bits it indexes, caches, and searches, is undoubtedly transformative. And it’s nice to see the public benefit considerations weigh into the court’s analysis. So to the extent the P10 decision is a harbinger of future courts deciding fair use cases on their individual merits rather than by choosing into which oddly-shaped and mist-shrouded bucket it likely fits, let’s hear it for Ikuta.

Of course, as others have noted, there is a danger here of replacing one over-simplified paradigm with another. Hopefully, courts realize that parodies are no less fair than they were yesterday, and that even non-parodic, non-search-related uses still have a fighting chance at being fair even if, dare I say, they aren’t transformative at all.

One other point worth mentioning, that I may or may not get around to addressing in a later post: the P10 decision may also signal that copyright holders can’t get away with manufacturing a sham licensing market under factor four. Although it’s not a sufficient remedy to the inherent circularity of the potential market analysis, if more directly articulated, it would be a good common sense rule.