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JUDGE KETANJI BROWN JACKSON ON COPYRIGHT

Most recently, Judge Jackson was faced with questions about her record and views on copyright during her confirmation hearings. Senator Thom Tillis asked Judge Jackson a number of written questions related to copyright law (among other things), including her opinion on the proper balancing of the four fair use factors. Judge Jackson answered that, in her view, the fourth fair use factor—the effect of the use upon the potential market for the copyrighted work—was most important in fair use analysis, citing Supreme Court precedent in Harper & Row v. Nation Enterprises. It is notable that Judge Jackson did not discuss factor 1—the purpose and character of the use, including whether it is considered “transformative”—as this factor is conventionally held up alongside factor four as the two most important parts of the fair use inquiry. 

The transformativeness doctrine has become incredibly important in recent years, protecting uses such as full-text searchable scans of works in Authors Guild v. Google and reuse of software code in Google v. Oracle. Judge Jackson’s lack of emphasis on transformativeness in her comments related to fair use could indicate that she might give less weight to transformativeness than the market effects of a particular use. In the next term, the Supreme Court will hear Warhol Foundation v. Goldsmith, a fair use case that turned on transformativeness in the lower courts, and Judge Jackson’s deemphasis on transformativeness could foreshadow an inclination on her part to decide the case on other grounds. 

From Authors Alliance.