Fair Use Isn’t A Win For The Little Guy | Vol. 3 / No. 30.4

But only if you can afford to be sued | Image: Timothy Vollmer, CC BY 2.0


Last week, Google won the latest battle in an ongoing war against Oracle, who’ve been demanding $9 billion in damages for Google’s supposedly unauthorized use of some Java APIs in their Android operating system. On Sunday I gave a brief primer on the latest news, but I feel like it’s worth talking about it a little more because it’s a situation in which nobody really “wins.”

The Electronic Frontier Foundation celebrated the news, noting the validation and importance of robust fair use laws for protecting innovation in the software industry, but also called the win “bittersweet”:

Judge William Alsup’s previous opinion that the API labels in question are not copyrightable was the correct one, based on a reasonable reading of the copyright law in question. The Federal Circuit decision to reverse that opinion was not just wrong but dangerous. While developers of interoperable software can take some comfort in the fact that reimplementation may be fair use, a simpler and fairer solution would simply have been to recognize API labels as a system or method of operation not restricted by copyright.

Basically, APIs shouldn’t even be copyrightable, and it’s only because of a particularly erroneous federal appeals court ruling that this lawsuit could even go ahead. And yes, it’s great that we have fair use laws, but let’s not pretend that this is a good thing for you or I.

That’s because fair use is a legal defense. It can only be used once someone has sued you for copyright infringement. If I were sued, it’d be the end of me, financially, as a human being. There’s no way on this Earth I could afford to hire a lawyer for a few hours, let alone the hundreds of thousands of dollars it would cost to fight a court case. This has led to all sorts of trolls trying to silence people with legitimate criticisms of them or their work by using copyright (or other) laws, in what are coming to be known as SLAPP cases.

A SLAPP lawsuit — a Strategic Lawsuit Against Public Participation — is a lawsuit that’s brought with the intention of shutting someone up by forcing them to pay to defend themselves in court until they go bankrupts and have to capitulate to their accuser’s demands. It doesn’t matter if, for instance, your use of whatever you had was “fair use” if you can’t pay in court to prove it, and so they can make you go away (or settle) on whatever terms they like.

Some states have anti-SLAPP laws on the books — some of which provide more protection than others — but as yet there is no federal anti-SLAPP statute, and even if there were, a defendant would have to demonstrate that the claims being made were pretty obviously spurious to avoid it going to court.

So it’s great that “fair use” prevailed for Google in this instance. But if you were a small-scale programmer and you were attacked for copyright infringement, it wouldn’t matter: you’d never be able to afford to defend yourself from the lawsuit in the first place. That’s why, unfortunately, this Google “fair use” win isn’t much of a win for the little guy.


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Richard Ford Burley is a human, writer, and doctoral candidate at Boston College, as well as an editor at Ledger, the first academic journal devoted to Bitcoin and other cryptocurrencies. In his spare time he writes about science, skepticism, feminism, and futurism here at This Week In Tomorrow.