GOOGLE LLC v. ORACLE AMERICA, INC.
Opinion of the Court
“(3) the amount and substantiality of the portion
used in relation to the copyrighted work as a whole; and
“(4) the effect of the use upon the potential market
for or value of the copyrighted work.” §107.
In applying this provision, we, like other courts, have understood that the provision’s list of factors is not exhaustive
(note the words “include” and “including”), that the examples it sets forth do not exclude other examples (note the
words “such as”), and that some factors may prove more important in some contexts than in others. See Campbell v.
Acuff-Rose Music, Inc., 510 U. S. 569, 577 (1994); Harper &
Row, Publishers, Inc. v. Nation Enterprises, 471 U. S. 539,
560 (1985); see also Leval, Toward a Fair Use Standard, 103
Harv. L. Rev 1105, 1110 (1990) (Leval) (“The factors do not
represent a score card that promises victory to the winner
of the majority”). In a word, we have understood the provision to set forth general principles, the application of which
requires judicial balancing, depending upon relevant circumstances, including “significant changes in technology.”
Sony Corp. of America v. Universal City Studios, Inc., 464
U. S. 417, 430 (1984); see also Aiken, 422 U. S., at 156
(“When technological change has rendered its literal terms
ambiguous, the Copyright Act must be construed in light of
its basic purpose”).