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> 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

by 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
  This is more like deciding whether there was a murder to begin with before deciding it was self-defense. The thing is that fair use implies the underlying data was copyrighted, but something being copyrighted doesn't imply fair use, which is why I think your analysis is backwards.
  - colejohnson66 6y ago
    > The thing is that fair use implies the underlying data was copyrighted, but something being copyrighted doesn't imply fair use, which is why I think your analysis is backwards. For those who may not understand: in the US, fair use is a defense, not a right. By arguing that your usage was fair use, you are admitting to copyright infringement. Just that your infringement was fair use. The analogy above to self defense is a good one; By arguing your killing was self defense, you are admitting that you killed somebody, but that it was justified.
    - deleted 6y ago
      [deleted]
    - dragonwriter 6y ago
      > By arguing that your usage was fair use, you are admitting to copyright infringement. No, its actually fairly common to argue both that an act wasn’t infringement but, if it was, it would be fair use. One way you might do this is to argue that the thing copied was outside the scope of copyright, bur then argue that, if it was covered by copyright, it would be fair use. That was, in fact, Google’s argument in this very case.
      - pdonis 6y ago
        Your honor, I will show that (1) my client never received the Ming vase from the plaintiff, (2) he returned it in perfect condition, and (3) it was already cracked when he got it. I agree such arguments are fairly common, but that doesn't make them any less fishy, in my view.
lostcolony 6y ago
Not so. The appeals court found in Oracle's favor, not Google's. Meaning they found that the API was copyrightable, and that Google's use was not fair use. The majority supreme court opinion basically said "even assuming it is copyrightable, this IS fair use", with the implication that if it's not copyrightable, there is no case, so the same outcome, a win for Google. They intentionally were keeping their decision as little precedent setting as possible. Thomas' dissent said "you can't decide this based on hypotheticals! You have to decide whether it's copyrightable or not first!" - had justice Thomas felt the code was not copyrightable in the first place he could have written his own concurring opinion. In fact, he did not; his position, as made clear in his dissent, was that he felt APIs -were- copyrightable, AND that this was not fair use. The court did not agree with him. And had the court first started with addressing whether an API was copyrightable, the outcome would have either been they are not (a more far reaching decision, but still a win for Google), or that they were, and that this was fair use (so the same outcome, but now with, again, a more far reaching decision). You claim that Thomas is saying that "if the court decided it was copyrightable, then they would have also had to have found this was not fair use". If that is indeed what he said (not my take on it, but I'll grant it), that is false on the face of it, as that is -explicitly what the court did not do-. They accepted it was copyrightable as a hypothetical, and then focused solely on, if that is true, was this was fair use? And they found that it was. To form an argument in this way is logically consistent; Thomas may disagree with it, as is his right, but the statement that the court has made a logical error is absurd.
- pdonis 6y ago
  > Not so. The appeals court found in Oracle's favor, not Google's. Meaning they found that the API was copyrightable, and that Google's use was not fair use. Again, you are not disagreeing; you are agreeing. Thomas is arguing that the appeals court's ruling, which you correctly describe, should have been affirmed. Which is the opposite decision from the one the Court made, just as I said. > The majority supreme court opinion basically said "even assuming it is copyrightable, this IS fair use" Here is the exact quote from the opinion: "we assume, for argument’s sake, that the material was copyrightable. But we hold that the copying here at issue nonetheless constituted a fair use." In other words, the Court did not even consider the question of whether or not the material was copyrightable. They assumed it "for the sake of argument", which is just a dodge. They should have considered the question directly; and here is what Thomas says about that: "The majority purports to assume, without deciding, that the code is protected. But its fair-use analysis is wholly inconsistent with the substantial protection Congress gave to computer code. By skipping over the copyrightability question, the majority disregards half the relevant statutory text and distorts its fair-use analysis." Further comments below. > You claim that Thomas is saying that "if the court decided it was copyrightable, then they would have also had to have found this was not fair use". Yes, because the relevant facts that would support a ruling, based on the statute, that the code was copyrightable, also indicate, based on the statute, that Google's use was not fair use. But by skipping over the copyrightability analysis, the majority is simply ignoring those facts and those portions of the statute. That is Thomas's point. > To form an argument in this way is logically consistent Not if it ignores additional information that is not consistent with information used in the argument. Thomas is not saying that the Court's argument is logically inconsistent on its face. He's saying that it's inconsistent once you put back in the information that the Court left out: the facts that support a ruling, based on the statute, that the code was copyrightable, also support a ruling, based on the statute, that Google's use was not fair use. The majority is simply failing to consider those facts. In other words, the Court can't just "assume for the sake of argument" that the code is copyrightable in a vacuum. They have to take into account the relevant facts of the case that support such an assumption, and consider the implications of those facts, and the relevant parts of the statute, for the fair use analysis.

by pdonis 6y ago

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
This is more like deciding whether there was a murder to begin with before deciding it was self-defense. The thing is that fair use implies the underlying data was copyrighted, but something being copyrighted doesn't imply fair use, which is why I think your analysis is backwards.
- colejohnson66 6y ago
  > The thing is that fair use implies the underlying data was copyrighted, but something being copyrighted doesn't imply fair use, which is why I think your analysis is backwards. For those who may not understand: in the US, fair use is a defense, not a right. By arguing that your usage was fair use, you are admitting to copyright infringement. Just that your infringement was fair use. The analogy above to self defense is a good one; By arguing your killing was self defense, you are admitting that you killed somebody, but that it was justified.
  - deleted 6y ago
    [deleted]
  - dragonwriter 6y ago
    > By arguing that your usage was fair use, you are admitting to copyright infringement. No, its actually fairly common to argue both that an act wasn’t infringement but, if it was, it would be fair use. One way you might do this is to argue that the thing copied was outside the scope of copyright, bur then argue that, if it was covered by copyright, it would be fair use. That was, in fact, Google’s argument in this very case.
    - pdonis 6y ago
      Your honor, I will show that (1) my client never received the Ming vase from the plaintiff, (2) he returned it in perfect condition, and (3) it was already cracked when he got it. I agree such arguments are fairly common, but that doesn't make them any less fishy, in my view.

lostcolony 6y ago

Not so. The appeals court found in Oracle's favor, not Google's. Meaning they found that the API was copyrightable, and that Google's use was not fair use. The majority supreme court opinion basically said "even assuming it is copyrightable, this IS fair use", with the implication that if it's not copyrightable, there is no case, so the same outcome, a win for Google. They intentionally were keeping their decision as little precedent setting as possible. Thomas' dissent said "you can't decide this based on hypotheticals! You have to decide whether it's copyrightable or not first!" - had justice Thomas felt the code was not copyrightable in the first place he could have written his own concurring opinion. In fact, he did not; his position, as made clear in his dissent, was that he felt APIs -were- copyrightable, AND that this was not fair use. The court did not agree with him. And had the court first started with addressing whether an API was copyrightable, the outcome would have either been they are not (a more far reaching decision, but still a win for Google), or that they were, and that this was fair use (so the same outcome, but now with, again, a more far reaching decision). You claim that Thomas is saying that "if the court decided it was copyrightable, then they would have also had to have found this was not fair use". If that is indeed what he said (not my take on it, but I'll grant it), that is false on the face of it, as that is -explicitly what the court did not do-. They accepted it was copyrightable as a hypothetical, and then focused solely on, if that is true, was this was fair use? And they found that it was. To form an argument in this way is logically consistent; Thomas may disagree with it, as is his right, but the statement that the court has made a logical error is absurd.

pdonis 6y ago
> Not so. The appeals court found in Oracle's favor, not Google's. Meaning they found that the API was copyrightable, and that Google's use was not fair use. Again, you are not disagreeing; you are agreeing. Thomas is arguing that the appeals court's ruling, which you correctly describe, should have been affirmed. Which is the opposite decision from the one the Court made, just as I said. > The majority supreme court opinion basically said "even assuming it is copyrightable, this IS fair use" Here is the exact quote from the opinion: "we assume, for argument’s sake, that the material was copyrightable. But we hold that the copying here at issue nonetheless constituted a fair use." In other words, the Court did not even consider the question of whether or not the material was copyrightable. They assumed it "for the sake of argument", which is just a dodge. They should have considered the question directly; and here is what Thomas says about that: "The majority purports to assume, without deciding, that the code is protected. But its fair-use analysis is wholly inconsistent with the substantial protection Congress gave to computer code. By skipping over the copyrightability question, the majority disregards half the relevant statutory text and distorts its fair-use analysis." Further comments below. > You claim that Thomas is saying that "if the court decided it was copyrightable, then they would have also had to have found this was not fair use". Yes, because the relevant facts that would support a ruling, based on the statute, that the code was copyrightable, also indicate, based on the statute, that Google's use was not fair use. But by skipping over the copyrightability analysis, the majority is simply ignoring those facts and those portions of the statute. That is Thomas's point. > To form an argument in this way is logically consistent Not if it ignores additional information that is not consistent with information used in the argument. Thomas is not saying that the Court's argument is logically inconsistent on its face. He's saying that it's inconsistent once you put back in the information that the Court left out: the facts that support a ruling, based on the statute, that the code was copyrightable, also support a ruling, based on the statute, that Google's use was not fair use. The majority is simply failing to consider those facts. In other words, the Court can't just "assume for the sake of argument" that the code is copyrightable in a vacuum. They have to take into account the relevant facts of the case that support such an assumption, and consider the implications of those facts, and the relevant parts of the statute, for the fair use analysis.