A Seventh Amendment Right to Fair Use Determinations?

AuthorJustin Hughes
Published in Landslide® magazine, Volume 13, Number 1, a publication of the ABA Section of Intellectual Property Law (ABA-IPL), ©2020 by the American Bar Association. Reproduced with permission. All rights reserved.
This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
Justin Hughes is the Hon. William Matthew Byrne Distinguished Professor of Law at Loyola Law School, Los Angeles, where he teaches
intellectual property and international trade courses. He can be reached at justin.hughes@lls.edu.
A Seventh
Right to Fair Use
By Justin Hughes
ractically everyone in the intellectual prop-
erty (IP) community knows the Oracle v.
Google litigation1 has centered on the copy-
rightability of the Java language’s application
programming interfaces (APIs) and, if they
are protected by copyright, whether Google’s
use of 37 Java APIs was fair use. The sec-
ond of these issues has generated interest
in a topic that previously had received little
attention from courts and commentators: the
respective roles of judges and juries in fair
use determinations. In Oracle v. Google, an
initial jury concluded that the APIs were pro-
tected by copyright but deadlocked on fair
use; a trip to the Federal Circuit (because
the case included patent claims) conrmed
the jury’s copyrightability determination and
remanded for fair use to be considered anew.
A second jury concluded that Google’s repur-
posing of the 37 APIs was fair use, but the
Federal Circuit disagreed, reversing the fair
use determination and leaving Google liable
for infringement.
Because this is widely believed to be the
rst time that an appellate panel has reversed
a jury’s nding of fair use—and did so on a de novo review
standard—the ruling has triggered a lively discussion about
the relative roles of judges and juries in fair use determina-
tions. Fair use is a mixed question of law and fact, so, of
course, there is the policy issue of how these mixed questions
should be resolved and who should make those resolutions.
But before the policy debate, there is the constitutional issue:
whether defendants in copyright infringement cases have a
Seventh Amendment right to jury determination of fair use.
Presumably, if there is such a Seventh Amendment right,
judges—trial or appellate—may only review jury determina-
tions on a “clearly erroneous” standard.
As in many such discussions, some people are jump-
ing to conclusions colored by the substantive outcome they
seek in the litigation; others are simplifying things in a way
that undercuts a careful analysis of the precedent, doctrine,
and history. In Oracle v. Google, the Federal Circuit pre-
sented such simplication in a footnote: “Justice Joseph
Story described fair use as a ‘question of fact to come to a
jury’ in 1845.”2 An amicus brief before the U.S. Supreme
Court repeats this.3 Both the Federal Circuit footnote and the
amicus brief refer back to Justice Story’s 1845 decision while
riding circuit in Massachusetts, Emerson v. Davies.4
The problem is that Justice Story said no such thing in
Emerson v. Davies. Instead of appealing to historical authority

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