In the muddy water we’re falling
Ooh In the muddy water we’re crawling
Holds me down
Hold me now
Sold me out
In the muddy waters we’re falling
— Laura Pergolizzi (LP) – “Muddy Waters,” Lost On You (Vagrant Records 2016)
The United States Supreme Court ruling in Google LLC v. Oracle America, Inc. ended a long-running dispute between two giant technology companies. The case, which first began in 2010, has received considerable attention and commentary with regard to the scope of copyright protection for software and then about the contours of the fair use defense. The Court ultimately left the software copyright questions for another day, but it did render an important decision on fair use, the first major precedent on this important topic since 1994.
The Court’s fair use ruling provides important guidance on the scope of fair use in the context of computer software and other functional works, and it provides some clarity on the extent to which a use of copyrighted works can be deemed transformative. But the Court’s analysis might only exacerbate the unpredictable nature of the fair use defense, particularly given its treatment of the role of good faith, the scope of potential markets that may be affected by an unauthorized use of copyrighted works, and the role (if any) of the public interest in the market effect factor of the fair use analysis.