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Are there some cases you can cite where this movement occurred? They don't need to be software related. I'm VERY curious about this trend.

wahern 6y ago
Off the top of my head: * Star Athletica LLC v. Varsity Brands Inc., 137 S. Ct. 1002 (2017) * DC Comics v. Towle, 802 F.3d 1012 (9th Cir. 2015) * Golan v. Holder, 565 U.S. 302 (2012) One of the most important cases for contemporary copyright law was Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340 (1991). It was a nominal a win for the defendant, but in fact the opinion set a very low bar and effectively condemned the types of bright-line subject matter exclusions that a robust merger doctrine demands, such as in Baker v. Selden. IIRC, Alex Kozinski wrote some opinions that best reflect the majority perspective today, but I can't find any good citations right now. His arguments are persuasive, but sort of miss the point. Baker v. Selder and the merger doctrine are classic common law solutions to statutory rights that breed complex litigation and inhibit competition. They're not supposed to be intellectually pure or rigorous defenses of legislative powers. Quite the opposite. But courts are far more conservative today and not inclined to exercise their judicial powers this way, with the notable exception of the First Amendment. In fact, certain First Amendment defenses to infringement are slowly becoming more viable, where once upon a time they were dismissed out of hand.
- andrewjl 6y ago
  What are your thoughts on SAS Inst. Inc. v. S&H Computer Sys. Inc.? Does it fall into the grouping above in your opinion? I find it to be a very quirky decision in light of the merger doctrine principles you wrote about, unless I'm missing something.
- andrewjl 6y ago
  Very interesting... and somewhat unexpected especially re First Amendment, thank you for these! Star Athletica LLC surprised me in particular. Stripes and chevrons!

wahern 6y ago

Off the top of my head: * Star Athletica LLC v. Varsity Brands Inc., 137 S. Ct. 1002 (2017) * DC Comics v. Towle, 802 F.3d 1012 (9th Cir. 2015) * Golan v. Holder, 565 U.S. 302 (2012) One of the most important cases for contemporary copyright law was Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340 (1991). It was a nominal a win for the defendant, but in fact the opinion set a very low bar and effectively condemned the types of bright-line subject matter exclusions that a robust merger doctrine demands, such as in Baker v. Selden. IIRC, Alex Kozinski wrote some opinions that best reflect the majority perspective today, but I can't find any good citations right now. His arguments are persuasive, but sort of miss the point. Baker v. Selder and the merger doctrine are classic common law solutions to statutory rights that breed complex litigation and inhibit competition. They're not supposed to be intellectually pure or rigorous defenses of legislative powers. Quite the opposite. But courts are far more conservative today and not inclined to exercise their judicial powers this way, with the notable exception of the First Amendment. In fact, certain First Amendment defenses to infringement are slowly becoming more viable, where once upon a time they were dismissed out of hand.

andrewjl 6y ago
What are your thoughts on SAS Inst. Inc. v. S&H Computer Sys. Inc.? Does it fall into the grouping above in your opinion? I find it to be a very quirky decision in light of the merger doctrine principles you wrote about, unless I'm missing something.
andrewjl 6y ago
Very interesting... and somewhat unexpected especially re First Amendment, thank you for these! Star Athletica LLC surprised me in particular. Stripes and chevrons!