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Although I applaud the effect of this decision, I can't help but agree with Clarence Thomas that the reasoning behind it is not sound. It waffles back and fort

by lisper 6y ago

Although I applaud the effect of this decision, I can't help but agree with Clarence Thomas that the reasoning behind it is not sound. It waffles back and forth between arguments for fair use and arguments that APIs are not (or at least should not be) copyrightable in the first place. You can't have it both ways. If APIs are copyrightable (and a plain reading of the text of the law appears to indicate that they are) then Google's copying was clearly not fair use. The purpose was clearly commercial, not educational or a parody. The API was not merely a fact or an idea, it was a specific embodiment that required effort to produce. And the copying clearly had a negative impact on the value of the original. What really happened here is that the Supreme Court did an end-run around the law to paper over a major fuckup by Congress. On the one hand, I'm glad that they fixed the problem. But the way that they did it fills me with dread for the future because it undermines the rule of law. For the record, I absolutely despise Clarence Thomas and everything that he stands for. But in this case I think he has a valid point.

shadowgovt 6y ago
IANAL, but there is definitely such a thing as commercial fair use. The music industry is rife with "they stole my riff" cases that hinge on whether the copying was transformative and the amount that was copied. I wouldn't go so far as to say this undermines the rule of law (rather, the Court's precedent-setting power is part of the rule of law. It may undermine rule by Congress, but nothing about the US system makes Congress a king, and if they want to take back their power on this topic, they need only craft a clearer law addressing these issues directly). I think reasonable people can agree with Justice Thomas on this (sidebar: this is why I love reading SCOTUS rulings - they're generally wise people and both the majority and dissent sides are usually reasonable takes). The tests of "is it transformative" and "how much was taken" are probably the most subjective tests in the copyright precedent.
jacques_chester 6y ago
> It waffles back and forth between arguments for fair use and arguments that APIs are not (or at least should not be) copyrightable in the first place. The precedential parts are unambiguous: Google's actions were fair use, as a matter of law (this is code to lower courts to not fuck around). The majority opinion did not answer whether APIs are copyrightable in the first place because it was unnecessary to settle the dispute. The rest of it is obiter dicta. Thomas's objection, as is usually the case, is irrelevant. IANAL, TINLA.
- kemitchell 6y ago
  > The majority opinion did not answer whether APIs are copyrightable in the first place because it was unnecessary to settle the dispute. They didn't answer it. They assumed it. They couldn't reach the fair uses analysis any other way. No copyright, no infringement, no need to assert affirmative defenses like fair use. > In reviewing that [lower court] decision, we assume, for argument's sake, that the material was copyrightable. > We shall assume, but purely for argument's sake, that the entire Sun Java API falls within the definition of that which can be copyrighted. We shall ask instead whether Google's use of part of that API was a "fair use." You can call all dissents irrelevant if you like. But Thomas' dissent addressed the issue of the case, and arguably more directly than the majority's. The Federal Circuit decision on copyrightability, for which the Supreme Court denied cert, still stands. Its importance, not its rule, is called into question today.
  - jacques_chester 6y ago
    > They didn't answer it. They assumed it. Which is another way of saying: they didn't answer it. Because it wasn't necessary for the dispute in hand. > But Thomas' dissent addressed the issue of the case, and arguably more directly than the majority's. Thomas invented what he thinks Congress intended, through the usual the-law-is-only-what's-written-except-when-I-don't-like-it of American conservative jurisprudence. The copyright act was unclear on this question and that's why it came to court. The majority dealt with the actual dispute. It should be noted that I prefer strict Dixonian legalism as a jurisprudential style. Thomas doesn't really do that. He cosplays.
mumblemumble 6y ago
>You can't have it both ways. If APIs are copyrightable ... then Google's copying was clearly not fair use. You seem to have misunderstood the idea of fair use. Fair use is a specific doctrine covering the acceptable ("fair") use of copyrighted works. Fair use of a non-copyrightable work would be, technically speaking, a contradiction in terms. See, for example, the US copyright office's explanation: https://www.copyright.gov/fair-use/more-info.html https://www.copyright.gov/fair-use/more-info.html The first sentence is "Fair use is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances." Furthermore, there is no requirement that fair use be non-commercial. It is more likely that the courts will find that non-commercial use is fair, but that is not a hard and fast rule. An easy example here is book reviews quoting passages from the text.
- kemitchell 6y ago
  The point of much of Thomas' dissent, as I understood it, was precisely that the court is muddying the rules by taking concerns that properly belong in copyrightability into fair use. They've carved out a subset of copyrights---copyrights on "declaring code"---and made them difficult or impossible to practically enforce. But they did so under one vague fair use factor, not the rules about copyrightability. Because, as Thomas sees it, there's no dignified argument for exclusion or second-class status under the copyrightability rules, most of which come from statute, rather than the courts.
dpifke 6y ago
The purpose was clearly commercial, not educational or a parody. This is addressed in the decision on page 27. The Court wrote: The text of §107 includes various noncommercial uses, such as teaching and scholarship, as paradigmatic examples of privileged copying. There is no doubt that a finding that copying was not commercial in nature tips the scales in favor of fair use. But the inverse is not necessarily true, as many common fair uses are indisputably commercial. For instance, the text of §107 includes examples like “news reporting,” which is often done for commercial profit. So even though Google’s use was a commercial endeavor—a fact no party disputed, see 886 F. 3d, at 1197—that is not dispositive of the first factor, particularly in light of the inherently transformative role that the reimplementation played in the new Android system.
- lisper 6y ago
  > news reporting Sure, but what that means is that I can do (say) movie reviews for profit and include clips from the film. It does not mean that I can re-broadcast the CBS Evening News with my own commercials.

by lisper 6y ago

shadowgovt 6y ago

IANAL, but there is definitely such a thing as commercial fair use. The music industry is rife with "they stole my riff" cases that hinge on whether the copying was transformative and the amount that was copied. I wouldn't go so far as to say this undermines the rule of law (rather, the Court's precedent-setting power is part of the rule of law. It may undermine rule by Congress, but nothing about the US system makes Congress a king, and if they want to take back their power on this topic, they need only craft a clearer law addressing these issues directly). I think reasonable people can agree with Justice Thomas on this (sidebar: this is why I love reading SCOTUS rulings - they're generally wise people and both the majority and dissent sides are usually reasonable takes). The tests of "is it transformative" and "how much was taken" are probably the most subjective tests in the copyright precedent.

jacques_chester 6y ago

> It waffles back and forth between arguments for fair use and arguments that APIs are not (or at least should not be) copyrightable in the first place. The precedential parts are unambiguous: Google's actions were fair use, as a matter of law (this is code to lower courts to not fuck around). The majority opinion did not answer whether APIs are copyrightable in the first place because it was unnecessary to settle the dispute. The rest of it is obiter dicta. Thomas's objection, as is usually the case, is irrelevant. IANAL, TINLA.

kemitchell 6y ago
> The majority opinion did not answer whether APIs are copyrightable in the first place because it was unnecessary to settle the dispute. They didn't answer it. They assumed it. They couldn't reach the fair uses analysis any other way. No copyright, no infringement, no need to assert affirmative defenses like fair use. > In reviewing that [lower court] decision, we assume, for argument's sake, that the material was copyrightable. > We shall assume, but purely for argument's sake, that the entire Sun Java API falls within the definition of that which can be copyrighted. We shall ask instead whether Google's use of part of that API was a "fair use." You can call all dissents irrelevant if you like. But Thomas' dissent addressed the issue of the case, and arguably more directly than the majority's. The Federal Circuit decision on copyrightability, for which the Supreme Court denied cert, still stands. Its importance, not its rule, is called into question today.
- jacques_chester 6y ago
  > They didn't answer it. They assumed it. Which is another way of saying: they didn't answer it. Because it wasn't necessary for the dispute in hand. > But Thomas' dissent addressed the issue of the case, and arguably more directly than the majority's. Thomas invented what he thinks Congress intended, through the usual the-law-is-only-what's-written-except-when-I-don't-like-it of American conservative jurisprudence. The copyright act was unclear on this question and that's why it came to court. The majority dealt with the actual dispute. It should be noted that I prefer strict Dixonian legalism as a jurisprudential style. Thomas doesn't really do that. He cosplays.

mumblemumble 6y ago

>You can't have it both ways. If APIs are copyrightable ... then Google's copying was clearly not fair use. You seem to have misunderstood the idea of fair use. Fair use is a specific doctrine covering the acceptable ("fair") use of copyrighted works. Fair use of a non-copyrightable work would be, technically speaking, a contradiction in terms. See, for example, the US copyright office's explanation: https://www.copyright.gov/fair-use/more-info.html https://www.copyright.gov/fair-use/more-info.html The first sentence is "Fair use is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances." Furthermore, there is no requirement that fair use be non-commercial. It is more likely that the courts will find that non-commercial use is fair, but that is not a hard and fast rule. An easy example here is book reviews quoting passages from the text.

kemitchell 6y ago
The point of much of Thomas' dissent, as I understood it, was precisely that the court is muddying the rules by taking concerns that properly belong in copyrightability into fair use. They've carved out a subset of copyrights---copyrights on "declaring code"---and made them difficult or impossible to practically enforce. But they did so under one vague fair use factor, not the rules about copyrightability. Because, as Thomas sees it, there's no dignified argument for exclusion or second-class status under the copyrightability rules, most of which come from statute, rather than the courts.

dpifke 6y ago

The purpose was clearly commercial, not educational or a parody. This is addressed in the decision on page 27. The Court wrote: The text of §107 includes various noncommercial uses, such as teaching and scholarship, as paradigmatic examples of privileged copying. There is no doubt that a finding that copying was not commercial in nature tips the scales in favor of fair use. But the inverse is not necessarily true, as many common fair uses are indisputably commercial. For instance, the text of §107 includes examples like “news reporting,” which is often done for commercial profit. So even though Google’s use was a commercial endeavor—a fact no party disputed, see 886 F. 3d, at 1197—that is not dispositive of the first factor, particularly in light of the inherently transformative role that the reimplementation played in the new Android system.

lisper 6y ago
> news reporting Sure, but what that means is that I can do (say) movie reviews for profit and include clips from the film. It does not mean that I can re-broadcast the CBS Evening News with my own commercials.