The Business, Entrepreneurship & Tax Law Review


Dale P. Olson


Fair use, as a defense to a claim of copyright infringement in American law, has evolved within a framework rooted in nineteenth century precedents. Fair use was assessed by the United States Supreme Court in Google LLC v. Oracle America, Inc., which required the Court to address the factually intensive inquiry required by an assertion of fair use against an expansive use of copyrighted software code by Google LLC. In reversing a decision by the United States Court of Appeals for the Federal Circuit in favor of Oracle America, and negating a potentially multi-billion dollar damage award, the Court evaluated traditional fair use concepts against a backdrop of rapidly evolving technology. While reaffirming the validity of its earlier precedents, the Supreme Court outlined a template for evaluating this venerable defense to copyright infringement in the light of continually – and rapidly – evolving technology.

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