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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 o

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
  [deleted]
- 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.
pdonis 6y ago
> 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 You are not disputing Thomas's point; you are agreeing with it. Thomas's point was exactly that, before even embarking on a fair use analysis, the Court should have first decided the question of whether the code was copyrightable. In the absence of a finding that the code was copyrightable, fair use analysis indeed makes no sense. The "cannot square" part of Thomas's statement is just saying that the reason the majority did not even attempt to decide the question of whether the code was copyrightable was that the reasoning they would have had to use in order to find that it was copyrightable--which they would have had to do to even embark on a fair use analysis--would also have completely invalidated the reasoning they used to decide that Google's use was fair use. In other words, they are simply ignoring a glaring inconsistency in their position. A decision that the code was not copyrightable in the first place would have been consistent, but the Court did not do that. A decision that the code was copyrightable and Google's use was not fair use would have been consistent, but the Court did not do that either. Instead, Thomas is saying, the Court decided that Google's use was fair use, on grounds that are inconsistent with the code even being copyrightable at all. As much as I hate to side with Oracle, I have to agree with Thomas on this point. The Court should either have ruled explicitly that the code was not copyrightable at all, or should have refused to let Google get away with what is obviously not fair use if the code is copyrightable. > Thomas' argument, if followed, would either have led to this same decision, or would make the opposite point he was trying to make. No, Thomas's argument, if followed, would end up with the opposite decision from the one the Court made: that Google's use was not fair use and that the decision below should have been affirmed, not reversed.
- lmm 6y ago
  Why would the court be obliged to reason front to back? Surely this is no different from e.g. "the defendant had adequate grounds for killing in self-defence, so there is no need to examine whether they intended to kill the victim".
  - Natsu 6y ago

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
[deleted]
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.

pdonis 6y ago

> 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 You are not disputing Thomas's point; you are agreeing with it. Thomas's point was exactly that, before even embarking on a fair use analysis, the Court should have first decided the question of whether the code was copyrightable. In the absence of a finding that the code was copyrightable, fair use analysis indeed makes no sense. The "cannot square" part of Thomas's statement is just saying that the reason the majority did not even attempt to decide the question of whether the code was copyrightable was that the reasoning they would have had to use in order to find that it was copyrightable--which they would have had to do to even embark on a fair use analysis--would also have completely invalidated the reasoning they used to decide that Google's use was fair use. In other words, they are simply ignoring a glaring inconsistency in their position. A decision that the code was not copyrightable in the first place would have been consistent, but the Court did not do that. A decision that the code was copyrightable and Google's use was not fair use would have been consistent, but the Court did not do that either. Instead, Thomas is saying, the Court decided that Google's use was fair use, on grounds that are inconsistent with the code even being copyrightable at all. As much as I hate to side with Oracle, I have to agree with Thomas on this point. The Court should either have ruled explicitly that the code was not copyrightable at all, or should have refused to let Google get away with what is obviously not fair use if the code is copyrightable. > Thomas' argument, if followed, would either have led to this same decision, or would make the opposite point he was trying to make. No, Thomas's argument, if followed, would end up with the opposite decision from the one the Court made: that Google's use was not fair use and that the decision below should have been affirmed, not reversed.

lmm 6y ago
Why would the court be obliged to reason front to back? Surely this is no different from e.g. "the defendant had adequate grounds for killing in self-defence, so there is no need to examine whether they intended to kill the victim".
- Natsu 6y ago