[otterley]

If this issue is eventually litigated, we will see. The law in the Second Circuit (where the final judgment was rendered before the case was eventually settled) may well be different than the law in a different circuit. If there is a split in the circuit courts, then the Supreme Court may have to weigh in on this issue.

When fair use is an issue, the courts look at the facts in context each time. These are obviously different facts than scanning books for populating a search index and rendering previews; and each side is going to argue that the facts are similar or that they are dissimilar. How the court sees it is going to be the key question.

[tyre]

This could either be:

1. a fascinating Supreme Court opinion.

2. a frustrating ruling because SCOTUS doesn't understand software and code.

3. the type of anti-anticlimactically(?) narrow ruling typical of the Roberts court.

While our Congresspersons can't seem to wrap their minds around technology/social media, I think SCOTUS would understand this one enough to avoid (2).

[otterley]

Fair use cases tend to produce narrowly-written law because the outcomes hinge on how the court judges the facts against the list of factors codified in the Copyright Act (17 U.S.C. section 107). The courts don't really have breathing room to use a different test. I don't recall any cases in which the courts have set binding guidelines for interpretation of these factors.

[dtech]

The Google vs Oracle case showed that SCOTUS can handle technical topics