Bringing Merger in Through the Side Door
This is part 2 in a series (of at least three posts). Part 1 is here.
Regular readers of the IP Breakdown—both of you—will recall a semi-regular feature called Is it Fair Use?, which is a fast-paced game in which I give you a lot of facts and an analogous (and often binding) case, and let you decide whether the use of the copyrighted work was a fair use or not. This game has been sweeping the nation for about four and a half years, apparently in layer of negligible thickness.
My point in this feature is that close fair use determinations are unpredictable because they are based on—at least—four fact-intensive factors that often end up as a kind of cultural value judgment. While many fair-use determinations are pretty easy, the ones that end up being decided by a court are usually pretty hard.
Juries Are Scary.
The fair use issue in Oracle v. Google represented a kind of triple witching. First, it involved fair use. Second, it went to trial. Third, it went to a jury trial. Twice. Most fair-use determinations seem to be made by judges, on summary judgment or even Rule 12(b)(6)—which…