Fair Use in Sayre v. Moore: A Reply to Oracle

The Supreme Court is now considering the case of Google LLC v. Oracle America, Inc. Oracle has argued that Google infringed its copyright in computer software, but a jury found that Google’s use was not infringing under the fair use doctrine. The Federal Circuit reversed the jury verdict under a de novo standard of review. I have argued that this reversal violates the Seventh Amendment.Seventh Amendment rights depend on whether an issue would have been decided by a jury in English law courts during the late 1700s. My argument is that in the 1785 English case of Sayre v. Moore, the court required a jury to decide an issue that is analogous to fair use, so the Seventh Amendment applies to Google’s jury verdict. But some have criticized my interpretation of Sayre, construing it instead to be about other copyright doctrines, such as the fact-expression dichotomy or independent creation. This Essay responds to those criticisms. It analyzes the text of the Sayre opinion and makes observations based on that analysis. The Essay concludes that the issue put to the jury in Sayre was closely analogous to the modern issue of fair use