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>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

>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.