4 ms·

While I’m really hoping that Google wins this, I also hope that the Supreme Court applies the law as they see it, without any consideration at all for the socia

While I’m really hoping that Google wins this, I also hope that the Supreme Court applies the law as they see it, without any consideration at all for the social impact. If you want a law change, you should be hoping to see that come out of the legislature, not a branch of government that specifically does not have legislating powers.

datashow 7y ago
There are different philosophies here. I'm mostly with you. I too believe the court should apply the law, not invent the law. On the other hand, there are people who believe the court should just make the "right" decision, take history to the "right" path. However, I do have problem with your statement "without any consideration at all for the social impact". I fear this statement goes to an extreme which would never be hold by any judge in real life. By the way, it's not only the judges and the law make the case, lawyers of both sides are also important in the process.
- AmericanChopper 7y ago
  > However, I do have problem with your statement "without any consideration at all for the social impact". I fear this statement goes to an extreme which would never be hold by any judge in real life. A lower court judge? Absolutely not. They have huge amounts of discretion in making their judgements. The Supreme Court justice? Absolutely yes. In cases where the Supreme Court is exercising it’s appellate jurisdiction, the only authority it has it to determine constitutionality, and interpret existing legislation. If the legislature passes bad legislation, as long as it doesn’t violate the constitution, then the Supreme Court has no authority to over turn it. This isn’t an extreme position, it’s the constitutionally prescribed role of the Supreme Court.
  - deleted 7y ago
    [deleted]
  - dragonwriter 7y ago
    > In cases where the Supreme Court is exercising it’s appellate jurisdiction, the only authority it has it to determine constitutionality, and interpret existing legislation. Art. III, Sec. 2 directly refutes this narrow view of the appellate role of the Supreme Court.
    - AmericanChopper 7y ago
      Article III grants the Supreme Court judicial power, it does not grant the Supreme Court any legislative power at all. It directly affirms what I said. Nothing I’ve said is even remotely controversial. No Supreme Court justice has ever claimed to have legislative power. It’s honestly quite shocking that people are willing to dispute the most basic concepts in civics.
      - dragonwriter 7y ago
        > Article III grants the Supreme Court judicial power And, contrary to your description, that power is expressly not a power limiting it only to “determine constitutionality, and interpret existing legislation” whereas trial judges have “huge amounts of discretion in making their judgements” that the Supreme Court lacks (in fact, as the Supreme Court has, but rarely exercises, appellate power over fact decisions as well as law, its domain is broader, in jury trials, than that of the trial judge, who is the original trier of law but not fact.)
        AmericanChopper 7y ago
        Lower courts have original jurisdiction over nearly all legal actions commenced in the United States. You absolutely do expect trial court judges to exercise a much greater level of discretion than appellate judges, regardless of whether it pertains to matters of law or fact. However, none of that is to distract from the fact that, contrary to your misinterpretation of Article III, judicial powers do not bestow any legislative powers whatsoever.
cortesoft 7y ago
Laws can't be interpreted in a vacuum, and the Supreme Court has recognized that multiple times. Programmers like to think of laws like they are code, and you just need a computer to compute the results. This isn't how the law works, nor could it ever. There is always ambiguity in the law, and the supreme court's job is to use their knowledge of the law, combined with their understanding of the world as it exists, and come up with the best decision that aligns with the law and the current state of the world.
- kortilla 7y ago
  > and come up with the best decision that aligns with the law and the current state of the world. No, the current state is in constant flux. The only ambiguity the court should be resolving is the intent of the law. Not whether or not it “makes sense given the current politics of the day”. If the law no longer makes sense in the current state of the world, a new one should be passed by legislation.
- AmericanChopper 7y ago
  Any particular law does not exist in a vacuum. It exists within the context of firstly the constitution, and secondly all other statutes and previous court decisions. Supreme Court justices have the authority to determine the constitutionality of a law, and they have the authority to determine how a law should be interpreted in a given case (with essentially unlimited discretion for applying their own judicial ideology). However, they have no authority whatsoever to determine the social merit of a law. The legislature has the sole authority to legislate, and the constitution prohibits either of the other branches from usurping that power. It is far beyond the jurisdiction of the Supreme Court to determine the merit of a law in any way other than its constitutionality. Anybody who expects the Supreme Court to act as a safe guard against otherwise constitutional law, that they simply don’t like, is undermining the separation of powers detailed in the constitution, and will be sorely surprised when they find out that’s not what the Supreme Court does.
blululu 7y ago
Something to consider in the case of copyright law is that the copyright is explicitly justified in the Constitution by the potential benefit to society[1]. A large part of this case comes down to the meaning of fair use and whether ownership of API is justified according to the cost/benefit that it presents to society. [1] US Constitution: "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries"
- AmericanChopper 7y ago
  Copyright is not a constitutional right, which you’d see if you hadn’t trimmed the opening phrase of that section out of your quote > Clause 8. The Congress shall have Power * * * To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. https://law.justia.com/constitution/us/article-1/50-copyrights-and-patents.html https://law.justia.com/constitution/us/article-1/50-copyrigh... All this does is allow for Congress to pass copyright legislation, without violating the 1st amendment, which it otherwise would.
  - wahern 7y ago
    > All this does is allow for Congress to pass copyright legislation, without violating the 1st amendment, which it otherwise would. The First Amendment wasn't even drafted, let alone ratified, before the US Constitution and its Copyright Clause came into effect. The Copyright Clause exists because the Federal government's expansive Commerce Clause powers wouldn't exist for at least another 100 years. Without an express grant, the Federal government wouldn't have had any power to grant and regulate copyrights. Under modern jurisprudence, the Copyright Clause is unnecessary to grant the Federal government jurisdiction as copyrights are an archetype of a national commercial domain; even the most conservative rollback of Commerce Clause jurisprudence would be unlikely to change this. Instead, many legal scholars, including several justices in uncontended dicta, have opined that the clause effectively limits the Federal government's powers by restricting the scope of Federal copyrights (copyrightable subject matter, defenses to infringement, etc) to what was cognizable under the Common Law in 1789. (Indeed, the majority said exactly that regarding time limits, though AFAIK it's only in dicta have they said the clause implicitly limits copyright powers more generally.) So, for example, Congress could never completely legislate away a Fair Use defense. Likewise for doctrines like the Idea-Expression dichotomy, which Google heavily relied upon in their first trial (less so in their second trial because of appeal court decisions) to argue that APIs weren't copyrightable in the first place. It's true that the First Amendment is used--and used more often--to restrain the reach of copyright. But that's mostly because the First Amendment has undergone an expansive reinterpretation similar to the evolution of the Commerce Clause. The drafters would have perceived little, if any, tension, between the Copyright Clause and the First Amendment--mostly because of how they understood terms of art like free speech, but also because times were simpler then and the flaws and ambiguity in their legal concepts hadn't yet been revealed by 100+ years of litigation.
dragonwriter 7y ago
> While I’m really hoping that Google wins this, I also hope that the Supreme Court applies the law as they see it, without any consideration at all for the social impact On the fair use, if not the copyrightability, issue, social impact is an express consideration of the law. (Though given that the copyright power is expressly contingent on a particular social purpose, it arguably is on copyrightability even if the statute doesn't invoke it.)
- AmericanChopper 7y ago
  > social impact is an express consideration of the law It is, but in a very narrow sense. The fair use test is a part of the law, some of the factors it considers relate to social impact (for example allowance made for education), but it has no general ‘social impact’ criteria. https://www.law.cornell.edu/uscode/text/17/107 https://www.law.cornell.edu/uscode/text/17/107 This is the only definition of “fair use” that Google will be arguing they comply with.

datashow 7y ago

There are different philosophies here. I'm mostly with you. I too believe the court should apply the law, not invent the law. On the other hand, there are people who believe the court should just make the "right" decision, take history to the "right" path. However, I do have problem with your statement "without any consideration at all for the social impact". I fear this statement goes to an extreme which would never be hold by any judge in real life. By the way, it's not only the judges and the law make the case, lawyers of both sides are also important in the process.

AmericanChopper 7y ago
> However, I do have problem with your statement "without any consideration at all for the social impact". I fear this statement goes to an extreme which would never be hold by any judge in real life. A lower court judge? Absolutely not. They have huge amounts of discretion in making their judgements. The Supreme Court justice? Absolutely yes. In cases where the Supreme Court is exercising it’s appellate jurisdiction, the only authority it has it to determine constitutionality, and interpret existing legislation. If the legislature passes bad legislation, as long as it doesn’t violate the constitution, then the Supreme Court has no authority to over turn it. This isn’t an extreme position, it’s the constitutionally prescribed role of the Supreme Court.
- deleted 7y ago
  [deleted]
- dragonwriter 7y ago
  > In cases where the Supreme Court is exercising it’s appellate jurisdiction, the only authority it has it to determine constitutionality, and interpret existing legislation. Art. III, Sec. 2 directly refutes this narrow view of the appellate role of the Supreme Court.
  - AmericanChopper 7y ago
    Article III grants the Supreme Court judicial power, it does not grant the Supreme Court any legislative power at all. It directly affirms what I said. Nothing I’ve said is even remotely controversial. No Supreme Court justice has ever claimed to have legislative power. It’s honestly quite shocking that people are willing to dispute the most basic concepts in civics.
    - dragonwriter 7y ago
      > Article III grants the Supreme Court judicial power And, contrary to your description, that power is expressly not a power limiting it only to “determine constitutionality, and interpret existing legislation” whereas trial judges have “huge amounts of discretion in making their judgements” that the Supreme Court lacks (in fact, as the Supreme Court has, but rarely exercises, appellate power over fact decisions as well as law, its domain is broader, in jury trials, than that of the trial judge, who is the original trier of law but not fact.)
      - AmericanChopper 7y ago
        Lower courts have original jurisdiction over nearly all legal actions commenced in the United States. You absolutely do expect trial court judges to exercise a much greater level of discretion than appellate judges, regardless of whether it pertains to matters of law or fact. However, none of that is to distract from the fact that, contrary to your misinterpretation of Article III, judicial powers do not bestow any legislative powers whatsoever.

cortesoft 7y ago

Laws can't be interpreted in a vacuum, and the Supreme Court has recognized that multiple times. Programmers like to think of laws like they are code, and you just need a computer to compute the results. This isn't how the law works, nor could it ever. There is always ambiguity in the law, and the supreme court's job is to use their knowledge of the law, combined with their understanding of the world as it exists, and come up with the best decision that aligns with the law and the current state of the world.

kortilla 7y ago
> and come up with the best decision that aligns with the law and the current state of the world. No, the current state is in constant flux. The only ambiguity the court should be resolving is the intent of the law. Not whether or not it “makes sense given the current politics of the day”. If the law no longer makes sense in the current state of the world, a new one should be passed by legislation.
AmericanChopper 7y ago
Any particular law does not exist in a vacuum. It exists within the context of firstly the constitution, and secondly all other statutes and previous court decisions. Supreme Court justices have the authority to determine the constitutionality of a law, and they have the authority to determine how a law should be interpreted in a given case (with essentially unlimited discretion for applying their own judicial ideology). However, they have no authority whatsoever to determine the social merit of a law. The legislature has the sole authority to legislate, and the constitution prohibits either of the other branches from usurping that power. It is far beyond the jurisdiction of the Supreme Court to determine the merit of a law in any way other than its constitutionality. Anybody who expects the Supreme Court to act as a safe guard against otherwise constitutional law, that they simply don’t like, is undermining the separation of powers detailed in the constitution, and will be sorely surprised when they find out that’s not what the Supreme Court does.

blululu 7y ago

Something to consider in the case of copyright law is that the copyright is explicitly justified in the Constitution by the potential benefit to society[1]. A large part of this case comes down to the meaning of fair use and whether ownership of API is justified according to the cost/benefit that it presents to society. [1] US Constitution: "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries"

AmericanChopper 7y ago
Copyright is not a constitutional right, which you’d see if you hadn’t trimmed the opening phrase of that section out of your quote > Clause 8. The Congress shall have Power * * * To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. https://law.justia.com/constitution/us/article-1/50-copyrights-and-patents.html https://law.justia.com/constitution/us/article-1/50-copyrigh... All this does is allow for Congress to pass copyright legislation, without violating the 1st amendment, which it otherwise would.
- wahern 7y ago
  > All this does is allow for Congress to pass copyright legislation, without violating the 1st amendment, which it otherwise would. The First Amendment wasn't even drafted, let alone ratified, before the US Constitution and its Copyright Clause came into effect. The Copyright Clause exists because the Federal government's expansive Commerce Clause powers wouldn't exist for at least another 100 years. Without an express grant, the Federal government wouldn't have had any power to grant and regulate copyrights. Under modern jurisprudence, the Copyright Clause is unnecessary to grant the Federal government jurisdiction as copyrights are an archetype of a national commercial domain; even the most conservative rollback of Commerce Clause jurisprudence would be unlikely to change this. Instead, many legal scholars, including several justices in uncontended dicta, have opined that the clause effectively limits the Federal government's powers by restricting the scope of Federal copyrights (copyrightable subject matter, defenses to infringement, etc) to what was cognizable under the Common Law in 1789. (Indeed, the majority said exactly that regarding time limits, though AFAIK it's only in dicta have they said the clause implicitly limits copyright powers more generally.) So, for example, Congress could never completely legislate away a Fair Use defense. Likewise for doctrines like the Idea-Expression dichotomy, which Google heavily relied upon in their first trial (less so in their second trial because of appeal court decisions) to argue that APIs weren't copyrightable in the first place. It's true that the First Amendment is used--and used more often--to restrain the reach of copyright. But that's mostly because the First Amendment has undergone an expansive reinterpretation similar to the evolution of the Commerce Clause. The drafters would have perceived little, if any, tension, between the Copyright Clause and the First Amendment--mostly because of how they understood terms of art like free speech, but also because times were simpler then and the flaws and ambiguity in their legal concepts hadn't yet been revealed by 100+ years of litigation.

dragonwriter 7y ago

> While I’m really hoping that Google wins this, I also hope that the Supreme Court applies the law as they see it, without any consideration at all for the social impact On the fair use, if not the copyrightability, issue, social impact is an express consideration of the law. (Though given that the copyright power is expressly contingent on a particular social purpose, it arguably is on copyrightability even if the statute doesn't invoke it.)

AmericanChopper 7y ago
> social impact is an express consideration of the law It is, but in a very narrow sense. The fair use test is a part of the law, some of the factors it considers relate to social impact (for example allowance made for education), but it has no general ‘social impact’ criteria. https://www.law.cornell.edu/uscode/text/17/107 https://www.law.cornell.edu/uscode/text/17/107 This is the only definition of “fair use” that Google will be arguing they comply with.