The Copyright Act provides a fair use defense that permits an unauthorized use of a copyrighted work in certain circumstances. Following the Google Books case, which, according to the Second Circuit, “tests the boundaries of fair use,” Authors Guild v. Google, 804 F.3d 202, 206 (2d Cir. 2015), two cases pending at the U.S. Courts of Appeals for the Eleventh and Federal Circuits may further test these boundaries.

In Code Revision Commission v. Public.Resource.org, No. 17-11589, the Eleventh Circuit will decide whether Public Resource's copying and distribution of the annotated version of the official state code of Georgia is a fair use. And in Oracle America v. Google, No. 17-1118, the Federal Circuit will decide whether Google's use of portions of Oracle's Java programming language in Google's Android mobile operating system constitutes a fair use. We report here on these cases, providing guidance for practitioners.

The Federal Copyright Act

Section 107 of the Copyright Act states, “the fair use of a copyrighted work … for purposes such as criticism, comment, news reporting, teaching … scholarship, or research, is not an infringement of copyright.” 17 U.S.C. §107. The act provides four non-exclusive factors that courts may consider when deciding whether an accused use is fair:

(1) the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.