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Thomas's dissent explicitly points this out. Without diving into "are APIs copyrightable?", the majority are skipping what should have been evaluated first bef

• GavinMcG 6y ago
  Why should it have been evaluated first? I understand the intuition you're getting at: logically, the first question could make the second irrelevant. But if the second question resolves the issue even when the first is construed in favor of the other party, what's the rationale for demanding the court focus on the first question?
  • ghaff 6y ago
    IANAL, but I can imagine something like the following: A. We decide this is fair use based on the small number of LOC used and call it a day B. OR we can decide that APIs are not copyrightable even though they're self-evidently creative works because of the importance of interoperability based on something something related to Borland v. Lotus, a case that we couldn't agree on the last time it came up. Hey folks. Let's do A.
    • Gh0stRAT 6y ago
      While I agree that APIs should not be copyrightable, the Supreme Court has been criticized for "legislating from the bench". Avoiding the temptation to set bigger and more far-reaching precedents than is strictly necessary for the case at hand avoids giving the impression that the judicial branch is doing the job of the legislative branch.
      • hctaw 6y ago
        This is something I struggle with, personally. I have fundamental problems with an unelected council that serves for life creating law. However, we have an extremely inefficient form of Government that doesn't allow for quick adaptation, and legal questions will arise tomorrow that did not occur to legislators today. The courts are supposed to help resolve any ambiguity. The question over whether or not APIs are copyrightable is, however, not a question of ambiguity. APIs are software (or documentation, or source code, etc), and any category you place them into is copyrightable under the current law. If we don't want APIs to be copyrightable, then they must have explicit exemptions carved out in the law. The courts are bound to consider an API as copyrighted right now, and the only question is whether violating that copyright is fair-use. I think the Court did the right thing in skirting the question. That's up to legislators, the Court cannot help. We need fundamental reform of IP protections for software anyway.
        • sprayk 6y ago
          Slow legislation is a feature rather than a bug. Less opportunity for reactionary laws based on emotion or a collective misunderstanding of events that we later regret. It's not a perfect deterrent, obviously, e.g. the Patriot Act
          • ClumsyPilot 6y ago
            Cipyright law needed reform for like 40 years. Thre is slow, and there is dysfunctional
            • ghaff 6y ago
              However, the main reform that people are asking for is a shortening of copyright terms which really isn't a factor that plays into this case or, for the most part, with computer software generally. One can imagine copyright reform that broadly and explicitly exempts interfaces from at least copyright protection but that has generally not been one of the top issues historically.
            • dragonwriter 6y ago
              Copyright law has received many reforms over the last 40 years. It may not have received the particular reforms you want, but that’s a very different issue.
              • ClumsyPilot 6y ago
                It doesnt matter what I want, it has not addressed the issues that need to be adressed, in either way.
        • TimTheTinker 6y ago
          > We need fundamental reform of IP protections for software anyway. That really is the root issue here. So many problems we're seeing (Pai's clownshow in the FCC, SCOTUS legislating from the bench, federal agencies trampling citizens' rights, etc.) stem from the legislative branch abdicating their authority to third parties -- the librarian of Congress, the FCC, SCOTUS, and even (by legal reference) professional organizations and laws in other countries. It's ridiculous. A first principle of a democratic government is that citizens can soon fire someone whose legislation and/or executive decision they do not like. We would all have voted Pai out if we could have... but he shouldn't have had the power to do what he did in the first place (remove network neutrality rules). Congress gave him that power - which I would argue was an abdication of authority vested in them.
      • spacemanmatt 6y ago
        AFAIK, the Court's overt mission is to interpret and regulate the intent of Congress. They literally must legislate from the bench where Congress has left them an obligation to do so. And Congress can legislate when they feel the Court has taken too much liberty with interpretation or regulation. But I really do think this case falls squarely inside the parameters of "interpretation" as most members would see it.
      • azernik 6y ago
        That is part of the dynamic. More importantly, though, a narrow decision makes a broad decision easier. If some justices think the code isn't copyrightable, they can increase their voting power by agreeing to set a less sweeping precedent that more justices agree with.
      • hluska 6y ago
        With what I know of Amy Coney Barrett, I’m very surprised she had no part in this decision. You did an absolutely wonderful job of explaining her whole feeling on the bench in two paragraphs. Seriously friend, that’s some excellent writing - excellent excellent job!!
        • GavinMcG 6y ago
          The case was argued weeks before Barrett was confirmed to the court.
          • hluska 6y ago
            That’s the perfect explanation!!! :) I’m dumb - thanks so much!!!!
      • thaumasiotes 6y ago
        > Avoiding the temptation to set bigger and more far-reaching precedents than is strictly necessary for the case at hand avoids giving the impression that the judicial branch is doing the job of the legislative branch. Well, that's the theory. In fact, they are doing the job of the legislative branch, they can't stop people from noticing this, and sticking to this approach just means they're doing their job badly.
    • bcrosby95 6y ago
      This is what the Supreme Court does in general. They decide on the narrowest of rulings possible.
    • dctoedt 6y ago
      > Hey folks. Let's do A. In an earlier concurring opinion when he was on the D.C. Circuit — i.e., before joining the Supreme Court as Chief Justice of the United States (his official title) — John Roberts referred to "... the cardinal principle of judicial restraint — if it is not necessary to decide more, it is necessary not to decide more ...." [0] [0] https://scholar.google.com/scholar_case?case=1927857743263044592 https://scholar.google.com/scholar_case?case=192785774326304...
  • btilly 6y ago
    But if the second question resolves the issue even when the first is construed in favor of the other party, what's the rationale for demanding the court focus on the first question? The main influence of the Supreme Court is in setting precedent. In the absence of a ruling from the Supreme Court, the previous ruling from the Court of Appeals for the Federal Circuit is binding precedent on the whole country that APIs are copyrightable. That means that the most important precedents set in this case are still an issue for the software industry.
    • azernik 6y ago
      > In the absence of a ruling from the Supreme Court, the previous ruling from the Court of Appeals for the Federal Circuit is binding precedent on the whole country that APIs are copyrightable. This is not true - other circuit courts are free to set their own, conflicting precedent. Each circuit's decisions are binding only on its own judges, and suggestive but not binding on other circuits. Circuits deciding differently (a "circuit split") is uncommon, and considered urgent grounds for the Supreme Court to take up a test case to resolve the ambiguity; but it's not considered a "breaking" of precedent by either circuit, just a difference of interpretation for the Supreme Court to resolve
      • btilly 6y ago
        For most circuits what you say would be true. But the Court of Appeals for the Federal Circuit is special. As http://www.cafc.uscourts.gov/the-court/court-jurisdiction http://www.cafc.uscourts.gov/the-court/court-jurisdiction says, their jurisdiction is national and determined by subject matter. That said I do not actually know whether they would be binding on another circuit court. But they are definitely binding on all federal courts lower than that. However that question is sort of moot. It is extremely easy for the entity filing the case for infringement to include something about patent or trademark in the suit, which guarantees that you wind up in the Court of Appeals for the Federal Circuit. Where that ruling is binding.
        • dragonwriter 6y ago
• deleted 6y ago
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• lostcolony 6y ago
  Yeah, but Thomas said "The majority can not square it's fundamentally flawed fair-use analysis with a finding that declaring code is copyrightable". Which is obviously false. A fair use analysis can -only- take place if the assumption is the code is copyrightable; if the majority had first decided the code was not copyrightable, fair use is immaterial. Thomas' argument, if followed, would either have led to this same decision, or would make the opposite point he was trying to make.
  • notsureaboutpg 6y ago
    If you read the whole dissent, it makes sense. He's saying that the fair-use analysis the majority used would render any kind of declaring code de facto not copyrightable, since the majority is essentially saying that the traits of declaring code make any implementation of it fair-use by default.
  • avs733 6y ago
    Over the years, the STEM professional in me has become increasingly intrigued by the ways in which law progresses because it is so fundamentally different from my preferred method of making sense of the world. Within that, and with my incredibly limited understanding of how law evolves in the courts...it seems like Thomas says demonstrably incorrect things more frequently than I am comfortable with.
    • deleted 6y ago
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    • rrrazdan 6y ago
      Interesting. In my very limited understanding I have a very opposite view, specifically around Justice Thomas. If you read pdonis’s reply to your parent, you will see that Thomas was rather correct in the way law should have applied in this case. I find that in the limited few of few cases I have read , I politically like the judgement made but I identify more with how Thomas thought about the case. Really fascinated by the American legal system. In some ways really elegant and so much better than the legal system in my own country.
  • 6y ago
• amalcon 6y ago
  That point is super weird, because the court has a tendency to make the narrowest ruling that is able to resolve the case in front of them. Clearly the fair use question is more narrow than the question of copyrightability of APIs.
• gnopgnip 6y ago
  APIs and most code is copyrightable, they are original works of authorship fixed in a tangible medium, all that is required by he Copyright Act of 1976. It doesn't look like either party in this case claimed the code was not eligible for copyright either If they shouldn't be copyrightable because the world would be better off, interoperability between business is harmed, it is up to congress to change the law. Historically legislation like this harms smaller companies mostly, larger companies can better afford to deal with the requirement to license or the cost/work required to stick to fair use or litigate over it, so the larger companies that can afford to lobby to change the law aren't going to want them changed. This case certainly sets precedent that API re-implementation can be fair use, not that it always is. Fair use is very fact specific, based on a four part test where having one part in favor can be fair use, and having three parts in your favor can still be infringement. A future case with products that would have a more substantial effect on the market of the original work, or had more of the original work reused than was strictly necessary could very well be infringement. With regards to "the amount and substantiality of the portion used" in this case less than 1% of the original code was copied just measuring the lines of code. Substantiality is harder to put a number on, but arguably it was only a small portion of the original product. This is a very low and for many other APIs a more substantial portion would need to be copied to be useful. The precedential value of this case is unclear without either the law changing, or further litigation.
  • Natanael_L 6y ago
    How often does the API itself exceed the level of creativity of uncopyrightable plain lists of facts? It's not clear to me that it should be considered copyrightable on its own, especially with the fact that copyright explicitly do not cover functional elements. The declarations only instructs you on how to interact with the actual code, and AFAICT rarely add any creative height on top of what's in the main source code. If presence and order of keywords was sufficient, such legal precedence would create collateral damage at levels that is beyond absurd - outside of software, this would extend to atypical calendar formats, plenty of paper forms, automatic telephone voice menus, map projections, and so much more. Calling it "destructive" wouldn't suffice. Entire industries would be leveled by uncooperative rent seekers that hold old copyrights.