Safeguarding Fair Use Through First Amendment’s Asymmetric Constitutional Fact Review

Abstract

This Article proposes a novel procedural safeguard for copyright fair use. Two courts recently overturned jury verdicts on the question of fair use. In Corbello v. DeVito, the trial court overturned a jury verdict that had rejected a fair use defense. In Oracle America, Inc. v. Google LLC, the Federal Circuit reversed a jury verdict that had found in favor of a defendant’s fair use defense. While this Article offers a new perspective on these cases, the main goal is more ambitious: a theoretical framework to heighten protection for the free expression interests of users of copyrighted works. Specifically, appellate courts should apply an asymmetric review of fair use determinations as a constitutional fact. And as a constitutional fact, fair use determinations should be reviewed de novo only when the free-speech-claimant does not prevail in the lower court. This is the first work to (1) offer a theoretical justification and limiting principle for constitutional fact review and (2) extend this framework to copyright fair use. The thesis relies on the following three propositions. First, constitutional fact review should be a one-way, asymmetric review, rather than a two-way, symmetric review. De novo review of constitutional facts should only apply when the free-speech-claimant does not prevail in the lower court. The circuit courts of appeals are split on this issue, and for over three decades the Supreme Court has declined to resolve the split. Second, the copyright fair use analysis embeds First Amendment interests. By embedding First Amendment issues within copyright fair use and denying independent First Amendment scrutiny, the Court has de facto constitutionalized the fair use inquiry. Fair use is thus a constitutional fact. And lastly, as a proxy for First Amendment interests, fair use should receive added protections of independent appellate review — like other speech-implicating cases. Specifically, this Article argues copyright fair use determinations should receive asymmetric, independent appellate review of fair use as a constitutional fact. The question of the appropriate standard of appellate review for fair use decisions is underexplored and undertheorized. Other scholars have debated whether independent, constitutional fact review should be applied symmetrically or asymmetrically. Others have recognized that fair use protects core free speech interests. And others have recognized that standards of review in copyright cases matter. But no one has put all of the aforementioned pieces together to propose the heightened procedural protection of constitutional fact review in fair use cases to protect users’ First Amendment interests. This Article fills that gap.