5 ms·

Which of Breyer's clerks drafted this? They clearly understand many tech issues and I hope they find their place on some Federal circuit to herald an era of lo

by abhv 6y ago

Which of Breyer's clerks drafted this? They clearly understand many tech issues and I hope they find their place on some Federal circuit to herald an era of logic in tech law. "Google’s limited copying of the API is a transformative use. Google copied only what was needed to allow programmers to work in a different computing environment without discarding a portion of a familiar programming language. Google’s purpose was to create a different task-related system for a different computing environment (smartphones) and to create a platform—the Android platform—that would help achieve and popularize that objective. " ... "Here the record showed that Google’s new smartphone platform is not a market substitute for Java SE." ... "Google copied these lines not because of their creativity or beauty but because they would allow programmers to bring their skills to a new smartphone computing environment. " ... "the Court concludes that Google’s copying of the API to reimplement a user interface, taking only what was needed to allow users to put their accrued talents to work in a new and transformative program, constituted a fair use of that material as a matter of law. "

ethbr0 6y ago
"Held: Google’s copying of the Java SE API, which included only those lines of code that were needed to allow programmers to put their accrued talents to work in a new and transformative program, was a fair use of that material as a matter of law." If the un-italicized is the new test, that's probably the most reasonable thing I'm going to read this month. And it's only the 5th.
- gred 6y ago
  They didn't establish a new test, they applied the existing 4 tests / factors and found that they indicated fair use. The first 2 or 3 pages contain a description of the 4 tests and how they were found to apply in this case.
  - ethbr0 6y ago
    Not entirely. Per my understanding, this is a fairly big shift: "The fair use question is a mixed question of fact and law. Reviewing courts should appropriately defer to the jury’s findings of underlying facts, but the ultimate question whether those facts amount to a fair use is a legal question for judges to decide de novo. This approach does not violate the Seventh Amendment’s prohibition on courts reexamining facts tried by a jury, because the ultimate question here is one of law, not fact. The “right of trial by jury” does not include the right to have a jury resolve a fair use defense." Or to put it another way, convincing a jury that something is or isn't fair use is very different than convincing precedent-bound judges, especially with this on the books as the controlling case. In final impact, it seems like an incredibly good judgement for everyone: you can prove to a jury what was / wasn't copied, and then a judge will apply a standard fair use test over those facts, with a tendency towards allowing transformative use. Legal protections against copying, room for progress, and (most importantly!) more certainty and standardization in how cases are decided.
    - gred 6y ago
      That may be true, I remember there was quite a bit of surprise when the Court of Appeals overrode the fair use jury finding (not so much because they decided differently, but rather the fact that they set aside the jury's finding at all).
    - lostcolony 6y ago
      Well, it sounds like it's still the same test; it's just deciding that fair use cases must be decided by judges, not by juries. Which, as you say, seems like a good decision.
    - torstenvl 6y ago
      That analysis is addressing an argument that the Supreme Court could not overturn the finding that it was not fair use. That argument was based on the Seventh Amendment's reexamination clause. The Supreme Court held that the reexamination clause did not prevent it from addressing this issue, because the question is a mixed question of law and fact, i.e., it's a legal conclusion based on evidentiary facts. The Supreme Court cannot re-examine the "underlying facts," but the Seventh Amendment does not preclude it from deciding, as a matter of law, whether those underlying facts constitute fair use.
      - ethbr0 6y ago
        It, or other reviewing courts. So the net effect will be to hopefully create more consistency around fair use defenses. Which is good for innovators.
abhv 6y ago
UPDATE: based on Wikipedia [1], the "API" was likely saved by one of these people (all likely in their mid-20s!): Emily Barnet, 2020, Yale (2015) Diana Li Kim, 2020, Yale (2017) Arjun Ramamurti, 2020, Yale (2018) Daniel Richardson, 2020, Virginia (2018) Brittany Jones-Record, 2020, Stanford (2016) David Scott Louk, 2020, Yale (2015) Elizabeth B. Deutsch, 2021, Yale (2016) Joel F. Wacks, 2021, Chicago (2018) [1] https://en.wikipedia.org/wiki/List_of_law_clerks_of_the_Supreme_Court_of_the_United_States_(Seat_2) https://en.wikipedia.org/wiki/List_of_law_clerks_of_the_Supr...
- kyrra 6y ago
  While Breyer wrote the piece, it was a single majority piece, which means all 6 justices agreed on it. The other 5 justices and their clerks were all effectively editors on the majority opinion.
- jsjsbdkj 6y ago
  A supreme court clerkship is very impressive, but "saved by one of these people" is strong. My understanding is the justices have a conference, stake out their positions, and then the chief assigns cases based on who can attract a majority to their opinion. So Breyer presumably had a rationale that could get at least 4 concurrences in conference. It's possible for the other justices to later change their minds based on the actual opinion the chambers produce, but that doesn't seem to be the case here. It's also possible the case was just assigned based on workload, considering the 6-2 split, almost anyone could have written it. In other words, the clerks do the work of researching and fleshing out the finished opinion, but I don't think they have much influence on the rationale used to decide the case. I've heard stories of clerks having to write opinions they personally disagreed with.
  - stupendousyappi 6y ago
    Breyer was a prominent copyright law scholar before he became a judge. Between that, and the fact that he hasn't gotten many opportunities to write majority opinions in his 27 years on the court, and the fact that he's likely about to retire in a few months, giving him the opinion was the obvious and collegial thing for Roberts to do. I'm biased, but I don't think the technical elements of this case were challenging to an intelligent layman. I think most people smart enough to become judges can understand the concept of an interface that is independent from an implementation, which is all this case really required, along with quantitative estimates of the amount of code involved. So I doubt that he needed clerks to understand any of it.
carlhjerpe 6y ago
"Here the record showed that Google’s new smartphone platform is not a market substitute for Java SE." Does this mean that companies copying the S3 API as a substitute for S3 are still untested territory?
- 6gvONxR4sf7o 6y ago
  Another way to read that would be that the S3 API isn't a substitute for S3, and so another company using the S3 API could be fine so long as they don't copy the code for S3 itself? My impression is that this is probably nuanced enough we need to read past the syllabus if we wanted to really unpack the reasoning. I can't tell which is the key part from which to make an analogy.
- comex 6y ago
  Theoretically, yes. But such companies would also have the ability to argue that their API was fully interoperable with S3, a factor counseling in favor of fair use. Google could have talked about interoperability in this case too, but for some reason didn't; see my other comment [1]. https://news.ycombinator.com/item?id=26701488 https://news.ycombinator.com/item?id=26701488
- smsm42 6y ago
  Strictly speaking, yes - this decision, as many other SCOTUS decisions, is tailored to specific case and leaves the other situations to be argued on their own merits. But having definite precedent in the situation where API has been recognized as non-copyrightable both sends signal to the lower courts about where SCOTUS leans, and to the potential plaintiffs about their chances to ultimately prevail. It is not a definite solution for all cases, but it shifts the calculus to the side of "if you sue for copyright infringement about S3 API, it'd be an uphill battle for you and probability to lose is high".
  - ghayes 6y ago
    And remember that Fair Use is a four-part balancing test. Thus, a single factor shifting will still have to be weighed against the rest. Also, for the S3 APIs, you're also talking about using even _less_ of Amazon's copyrighted code (e.g. a dozen function signatures compared to millions of LoC).
jmull 6y ago
Why do you think Breyer and the other assenting justices wouldn't be able to come to this kind of decision without a clerk taking the lead?
- albntomat0 6y ago
  I believe the parent commenter was highlighting the particular wording of the opinion, rather than the actual decision itself. One could imagine an opinion supporting the same decision with less clear or precise language. As I understand the process, the opinion was frequently reviewed and advised by Breyer, but actually written by one of the clerks.
- layoutIfNeeded 6y ago
  Thinly veiled ageism.
  - supernova87a 6y ago
    I think you might be surprised at how deftly Supreme Court justices are able to see through specific tech issues to identify the core dispute at hand and how decades-old laws and regulations should (or should not) apply. If anything, they are even better with age at not getting confused by increasing technical detail of our API era, and making sure that the principles of law cut through that. (and how to structure a decision so it's clear to everyone) If you relied on a tech-heavy decision to be made, this would not be a Supreme Court issue.
- kristjansson 6y ago
  Acknowledgement of the actual process of drafting opinions like this?
- supernova87a 6y ago
  Knowledge of how the justices work. The way that the Court and every one of the justices work is that he/she will draft out with the clerks the broad principles and approach that he/she wishes the decision to be crafted around. Which cases influence the precedent, which regulations take what role in the decision, what issues to "turn" the case on, etc. It's the job of the clerks then to go research, summarize, and create the bulk of justice's position based on knowledge of the details. They (justice + clerks) then review and talk about the evolving draft opinion several times over the course of months, circulating drafts to the other justices (and their clerks) as well. And note, most of the facts/issues already came up in the lower courts cases and rulings, so there has already been some fair surfacing of the details of the dispute (and what other judges believe the important issues to be) as it made its way through the system. The justices have many opinions per term to do this for, and you can be very sure that while the "authoring" justice has been briefed on (and very well has tested the ideas with the clerks in detail), the summary of how APIs work and their legal status is not based on the justice him/herself wading through license agreements and "figuring out" the structure of the code or its legal status. So, that is not to say that the justices are ignorant of the details (far from it), but the level of detail needed to form the groundwork of the opinion is heavily shouldered and created by the law clerks. But the main conclusions of the opinion are definitely of the justice him/herself (with input from the clerks). -- By the way, the clerks (you may not realize) already have had a role in getting the case even to be heard before the Supreme Court, in briefing and summarizing the underlying appealed case on why it should be ripe for a decision, so they already many of the issues at stake and how to think about them. Maybe think of it like a software engineering manager and the individual developer. The manager can lay out the principles by which a certain piece of code is to be written, and the capable developer will identify all the issues, test cases, etc., and they will review it together at various stages. You would not say that either could have done it without the other. It's kind of like that (when software engineering works like it should).
datavirtue 6y ago
"Here the record showed that Google’s new smartphone platform is not a market substitute for Java SE." Well that nukes it. The courts took how long to identify this precedented principle? It seems like the rest of the opinion is just there to ward off more of this tomfoolery for people that don't get it.
- paulmd 6y ago
  The lower courts have been frankly awful about refusing to acknowledge the rulings that SCOTUS has been handing down about software and technology in general. For example Alice Corp v CLS Bank International basically put an end to the validity of "[generic idea or business method], but on a computer" patents and the lower courts have basically said "haha ok great but we're not doing it", continuing to rule on "on a computer" patents as if they were valid, and with the patent office continuing to issue such patents. Obviously this is copyright vs patent law but it goes to establish that there's been a big problem with the lower courts on "computer laws". It's a nexus of the problem with jurisdiction-shopping (finding a lower court that wants to keep lots of cases coming in and is willing to pump out questionable decisions to do so) and just the legal system being about 30 years behind the times in general in terms of understanding computers and how innovative a particular idea may be.
gyc 6y ago
> Which of Breyer's clerks drafted this? They clearly understand many tech issues and I hope they find their place on some Federal circuit to herald an era of logic in tech law. Breyer also has a brother who was a District Court judge in the SF Bay Area who's undoubtedly had to deal with various tech cases. Not saying there's any kind of shared knowledge of tech within the Breyer family but just kind of interesting.
- supernova87a 6y ago
  It is not publicized which of the Supreme Court clerks helped author an opinion, for definite reasons. What you will likely see is in a couple years, one or two of the clerks start to appear as law professors or judges involved in such cases.
spullara 6y ago
How much precedence does this carry for other cases or does each instance of "fair use" need to be evaluated by the Supreme Court before we know if it was legal?
- comex 6y ago
  Precedent works by analogy. What matters is not just the outcome of a particular case, but the reasoning. When similar legal questions come up in future cases, lower courts are required to cite this case and follow the same reasoning, to the extent the reasoning applies to the facts of that case. Of course, no two cases have exactly the same facts, and different facts may produce a different outcome. But if a future case is similar enough to this one, the lower court will be expected to compare the two cases and explain why the differences in facts justify a different outcome. No legal question is resolved for sure until it reaches the Supreme Court, but most cases never make it there, instead being resolved by lower courts applying higher courts' precedents.
schneidmaster 6y ago
Breyer has actually been writing on these issues for quite some time; see for example his article "The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies, and Computer Programs" [0] -- published in the Harvard Law Review in 1970. His overall body of work demonstrates a pretty good understanding of the underlying technical issues, and he has been a reliable ally on the bench in this area. [0]: https://www.jstor.org/stable/1339714?seq=1 https://www.jstor.org/stable/1339714?seq=1

by abhv 6y ago

ethbr0 6y ago

"Held: Google’s copying of the Java SE API, which included only those lines of code that were needed to allow programmers to put their accrued talents to work in a new and transformative program, was a fair use of that material as a matter of law." If the un-italicized is the new test, that's probably the most reasonable thing I'm going to read this month. And it's only the 5th.

gred 6y ago
They didn't establish a new test, they applied the existing 4 tests / factors and found that they indicated fair use. The first 2 or 3 pages contain a description of the 4 tests and how they were found to apply in this case.
- ethbr0 6y ago
  Not entirely. Per my understanding, this is a fairly big shift: "The fair use question is a mixed question of fact and law. Reviewing courts should appropriately defer to the jury’s findings of underlying facts, but the ultimate question whether those facts amount to a fair use is a legal question for judges to decide de novo. This approach does not violate the Seventh Amendment’s prohibition on courts reexamining facts tried by a jury, because the ultimate question here is one of law, not fact. The “right of trial by jury” does not include the right to have a jury resolve a fair use defense." Or to put it another way, convincing a jury that something is or isn't fair use is very different than convincing precedent-bound judges, especially with this on the books as the controlling case. In final impact, it seems like an incredibly good judgement for everyone: you can prove to a jury what was / wasn't copied, and then a judge will apply a standard fair use test over those facts, with a tendency towards allowing transformative use. Legal protections against copying, room for progress, and (most importantly!) more certainty and standardization in how cases are decided.
  - gred 6y ago
    That may be true, I remember there was quite a bit of surprise when the Court of Appeals overrode the fair use jury finding (not so much because they decided differently, but rather the fact that they set aside the jury's finding at all).
  - lostcolony 6y ago
    Well, it sounds like it's still the same test; it's just deciding that fair use cases must be decided by judges, not by juries. Which, as you say, seems like a good decision.
  - torstenvl 6y ago
    That analysis is addressing an argument that the Supreme Court could not overturn the finding that it was not fair use. That argument was based on the Seventh Amendment's reexamination clause. The Supreme Court held that the reexamination clause did not prevent it from addressing this issue, because the question is a mixed question of law and fact, i.e., it's a legal conclusion based on evidentiary facts. The Supreme Court cannot re-examine the "underlying facts," but the Seventh Amendment does not preclude it from deciding, as a matter of law, whether those underlying facts constitute fair use.
    - ethbr0 6y ago
      It, or other reviewing courts. So the net effect will be to hopefully create more consistency around fair use defenses. Which is good for innovators.

abhv 6y ago

UPDATE: based on Wikipedia [1], the "API" was likely saved by one of these people (all likely in their mid-20s!): Emily Barnet, 2020, Yale (2015) Diana Li Kim, 2020, Yale (2017) Arjun Ramamurti, 2020, Yale (2018) Daniel Richardson, 2020, Virginia (2018) Brittany Jones-Record, 2020, Stanford (2016) David Scott Louk, 2020, Yale (2015) Elizabeth B. Deutsch, 2021, Yale (2016) Joel F. Wacks, 2021, Chicago (2018) [1] https://en.wikipedia.org/wiki/List_of_law_clerks_of_the_Supreme_Court_of_the_United_States_(Seat_2) https://en.wikipedia.org/wiki/List_of_law_clerks_of_the_Supr...

kyrra 6y ago
While Breyer wrote the piece, it was a single majority piece, which means all 6 justices agreed on it. The other 5 justices and their clerks were all effectively editors on the majority opinion.
jsjsbdkj 6y ago
A supreme court clerkship is very impressive, but "saved by one of these people" is strong. My understanding is the justices have a conference, stake out their positions, and then the chief assigns cases based on who can attract a majority to their opinion. So Breyer presumably had a rationale that could get at least 4 concurrences in conference. It's possible for the other justices to later change their minds based on the actual opinion the chambers produce, but that doesn't seem to be the case here. It's also possible the case was just assigned based on workload, considering the 6-2 split, almost anyone could have written it. In other words, the clerks do the work of researching and fleshing out the finished opinion, but I don't think they have much influence on the rationale used to decide the case. I've heard stories of clerks having to write opinions they personally disagreed with.
- stupendousyappi 6y ago
  Breyer was a prominent copyright law scholar before he became a judge. Between that, and the fact that he hasn't gotten many opportunities to write majority opinions in his 27 years on the court, and the fact that he's likely about to retire in a few months, giving him the opinion was the obvious and collegial thing for Roberts to do. I'm biased, but I don't think the technical elements of this case were challenging to an intelligent layman. I think most people smart enough to become judges can understand the concept of an interface that is independent from an implementation, which is all this case really required, along with quantitative estimates of the amount of code involved. So I doubt that he needed clerks to understand any of it.

carlhjerpe 6y ago

"Here the record showed that Google’s new smartphone platform is not a market substitute for Java SE." Does this mean that companies copying the S3 API as a substitute for S3 are still untested territory?

6gvONxR4sf7o 6y ago
Another way to read that would be that the S3 API isn't a substitute for S3, and so another company using the S3 API could be fine so long as they don't copy the code for S3 itself? My impression is that this is probably nuanced enough we need to read past the syllabus if we wanted to really unpack the reasoning. I can't tell which is the key part from which to make an analogy.
comex 6y ago
Theoretically, yes. But such companies would also have the ability to argue that their API was fully interoperable with S3, a factor counseling in favor of fair use. Google could have talked about interoperability in this case too, but for some reason didn't; see my other comment [1]. https://news.ycombinator.com/item?id=26701488 https://news.ycombinator.com/item?id=26701488
smsm42 6y ago
Strictly speaking, yes - this decision, as many other SCOTUS decisions, is tailored to specific case and leaves the other situations to be argued on their own merits. But having definite precedent in the situation where API has been recognized as non-copyrightable both sends signal to the lower courts about where SCOTUS leans, and to the potential plaintiffs about their chances to ultimately prevail. It is not a definite solution for all cases, but it shifts the calculus to the side of "if you sue for copyright infringement about S3 API, it'd be an uphill battle for you and probability to lose is high".
- ghayes 6y ago
  And remember that Fair Use is a four-part balancing test. Thus, a single factor shifting will still have to be weighed against the rest. Also, for the S3 APIs, you're also talking about using even _less_ of Amazon's copyrighted code (e.g. a dozen function signatures compared to millions of LoC).

jmull 6y ago

Why do you think Breyer and the other assenting justices wouldn't be able to come to this kind of decision without a clerk taking the lead?

albntomat0 6y ago
I believe the parent commenter was highlighting the particular wording of the opinion, rather than the actual decision itself. One could imagine an opinion supporting the same decision with less clear or precise language. As I understand the process, the opinion was frequently reviewed and advised by Breyer, but actually written by one of the clerks.
layoutIfNeeded 6y ago
Thinly veiled ageism.
- supernova87a 6y ago
  I think you might be surprised at how deftly Supreme Court justices are able to see through specific tech issues to identify the core dispute at hand and how decades-old laws and regulations should (or should not) apply. If anything, they are even better with age at not getting confused by increasing technical detail of our API era, and making sure that the principles of law cut through that. (and how to structure a decision so it's clear to everyone) If you relied on a tech-heavy decision to be made, this would not be a Supreme Court issue.
kristjansson 6y ago
Acknowledgement of the actual process of drafting opinions like this?
supernova87a 6y ago
Knowledge of how the justices work. The way that the Court and every one of the justices work is that he/she will draft out with the clerks the broad principles and approach that he/she wishes the decision to be crafted around. Which cases influence the precedent, which regulations take what role in the decision, what issues to "turn" the case on, etc. It's the job of the clerks then to go research, summarize, and create the bulk of justice's position based on knowledge of the details. They (justice + clerks) then review and talk about the evolving draft opinion several times over the course of months, circulating drafts to the other justices (and their clerks) as well. And note, most of the facts/issues already came up in the lower courts cases and rulings, so there has already been some fair surfacing of the details of the dispute (and what other judges believe the important issues to be) as it made its way through the system. The justices have many opinions per term to do this for, and you can be very sure that while the "authoring" justice has been briefed on (and very well has tested the ideas with the clerks in detail), the summary of how APIs work and their legal status is not based on the justice him/herself wading through license agreements and "figuring out" the structure of the code or its legal status. So, that is not to say that the justices are ignorant of the details (far from it), but the level of detail needed to form the groundwork of the opinion is heavily shouldered and created by the law clerks. But the main conclusions of the opinion are definitely of the justice him/herself (with input from the clerks). -- By the way, the clerks (you may not realize) already have had a role in getting the case even to be heard before the Supreme Court, in briefing and summarizing the underlying appealed case on why it should be ripe for a decision, so they already many of the issues at stake and how to think about them. Maybe think of it like a software engineering manager and the individual developer. The manager can lay out the principles by which a certain piece of code is to be written, and the capable developer will identify all the issues, test cases, etc., and they will review it together at various stages. You would not say that either could have done it without the other. It's kind of like that (when software engineering works like it should).

datavirtue 6y ago

"Here the record showed that Google’s new smartphone platform is not a market substitute for Java SE." Well that nukes it. The courts took how long to identify this precedented principle? It seems like the rest of the opinion is just there to ward off more of this tomfoolery for people that don't get it.

paulmd 6y ago
The lower courts have been frankly awful about refusing to acknowledge the rulings that SCOTUS has been handing down about software and technology in general. For example Alice Corp v CLS Bank International basically put an end to the validity of "[generic idea or business method], but on a computer" patents and the lower courts have basically said "haha ok great but we're not doing it", continuing to rule on "on a computer" patents as if they were valid, and with the patent office continuing to issue such patents. Obviously this is copyright vs patent law but it goes to establish that there's been a big problem with the lower courts on "computer laws". It's a nexus of the problem with jurisdiction-shopping (finding a lower court that wants to keep lots of cases coming in and is willing to pump out questionable decisions to do so) and just the legal system being about 30 years behind the times in general in terms of understanding computers and how innovative a particular idea may be.

gyc 6y ago

> Which of Breyer's clerks drafted this? They clearly understand many tech issues and I hope they find their place on some Federal circuit to herald an era of logic in tech law. Breyer also has a brother who was a District Court judge in the SF Bay Area who's undoubtedly had to deal with various tech cases. Not saying there's any kind of shared knowledge of tech within the Breyer family but just kind of interesting.

supernova87a 6y ago
It is not publicized which of the Supreme Court clerks helped author an opinion, for definite reasons. What you will likely see is in a couple years, one or two of the clerks start to appear as law professors or judges involved in such cases.

spullara 6y ago

How much precedence does this carry for other cases or does each instance of "fair use" need to be evaluated by the Supreme Court before we know if it was legal?

comex 6y ago
Precedent works by analogy. What matters is not just the outcome of a particular case, but the reasoning. When similar legal questions come up in future cases, lower courts are required to cite this case and follow the same reasoning, to the extent the reasoning applies to the facts of that case. Of course, no two cases have exactly the same facts, and different facts may produce a different outcome. But if a future case is similar enough to this one, the lower court will be expected to compare the two cases and explain why the differences in facts justify a different outcome. No legal question is resolved for sure until it reaches the Supreme Court, but most cases never make it there, instead being resolved by lower courts applying higher courts' precedents.

schneidmaster 6y ago

Breyer has actually been writing on these issues for quite some time; see for example his article "The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies, and Computer Programs" [0] -- published in the Harvard Law Review in 1970. His overall body of work demonstrates a pretty good understanding of the underlying technical issues, and he has been a reliable ally on the bench in this area. [0]: https://www.jstor.org/stable/1339714?seq=1 https://www.jstor.org/stable/1339714?seq=1