3 ms·

The interesting question is how broad this fair use ruling is. According to the Supreme Court's other fair use cases, fair use is highly fact-specific and there

The interesting question is how broad this fair use ruling is. According to the Supreme Court's other fair use cases, fair use is highly fact-specific and therefore case-specific. What kinds of actions and motivations by Google could have led to a determination that the use was not fair? Or is Embrace/Extend/Extinguish as practiced by the big tech companies now always protected by fair use?

jcranmer 6y ago
The centerpoint of the analysis is recognizing that declaring code is different from implementing code. From this key distinction, it pretty much follows that most copying of declaring code that does not also copy implementing code is inevitably fair use, so it can effectively be argued that copying APIs is inherently fair use. Kind of like how we say that commentary or parody is inherently fair use--it's always case-specific, but there are broad categories where you're almost always going to agree that it's fair use.
kemitchell 6y ago
That's exactly the question. We see the majority trying to preserve flexibility in fair use throughout, even going so far as to head off arguments that this decision affects others: > We do not say that these questions are always relevant to the application of fair use, not even in the world of computer programs. Nor do we say that these questions are the only questions a court might ask. > The fact that computer programs are primarily functional makes it difficult to apply traditional copyright concepts in that technological world. ... In doing so here, we have not changed the nature of those concepts. We do not overturn or modify our earlier cases involving fair use. ... Rather, we here recognize that applications of a copyright doctrine such as fair use has long proved a cooperative effort of Legislatures and courts, and that Congress, in our view, intended that it so continue. We see Thomas leading this question in dissent: > Because the majority's reasoning would undermine copyright protection for so many products long understood to be protected, I understand the majority's holding as a good-for-declaring-code-only precedent. Fair use is a mishmash of vague, impressionistic factors and a long list of cases from which to argue by analogy. It's not sharp-lines law. It's finger painting. Which is why lawyers so rarely recommend that people rely on fair use in any really meaningful way, outside areas where there have been a lot of court decisions, or where strong industry norms have evolved between repeat players.

jcranmer 6y ago

The centerpoint of the analysis is recognizing that declaring code is different from implementing code. From this key distinction, it pretty much follows that most copying of declaring code that does not also copy implementing code is inevitably fair use, so it can effectively be argued that copying APIs is inherently fair use. Kind of like how we say that commentary or parody is inherently fair use--it's always case-specific, but there are broad categories where you're almost always going to agree that it's fair use.

kemitchell 6y ago

That's exactly the question. We see the majority trying to preserve flexibility in fair use throughout, even going so far as to head off arguments that this decision affects others: > We do not say that these questions are always relevant to the application of fair use, not even in the world of computer programs. Nor do we say that these questions are the only questions a court might ask. > The fact that computer programs are primarily functional makes it difficult to apply traditional copyright concepts in that technological world. ... In doing so here, we have not changed the nature of those concepts. We do not overturn or modify our earlier cases involving fair use. ... Rather, we here recognize that applications of a copyright doctrine such as fair use has long proved a cooperative effort of Legislatures and courts, and that Congress, in our view, intended that it so continue. We see Thomas leading this question in dissent: > Because the majority's reasoning would undermine copyright protection for so many products long understood to be protected, I understand the majority's holding as a good-for-declaring-code-only precedent. Fair use is a mishmash of vague, impressionistic factors and a long list of cases from which to argue by analogy. It's not sharp-lines law. It's finger painting. Which is why lawyers so rarely recommend that people rely on fair use in any really meaningful way, outside areas where there have been a lot of court decisions, or where strong industry norms have evolved between repeat players.