4 ms·

http://acronymrequired.com/2011/10/the-four-dog-defense.html http://acronymrequired.com/2011/10/the-four-dog-defense.html Where there are contradictory asserti

http://acronymrequired.com/2011/10/the-four-dog-defense.html http://acronymrequired.com/2011/10/the-four-dog-defense.html Where there are contradictory assertions of fact in the various defenses, I agree there's something... uncomfortable about it, at least. But I don't think that applies in a case like "it's fair use, anyway." If we imagine a case where someone copied a small bit of written material for criticism or educational purposes, something clearly fair use, introducing uncertainty about whether the document had been placed in the public domain doesn't cloud the question of whether the behavior was okay, and answering the question in the easier way doesn't force any conclusions about the other matter.

pdonis 6y ago
> If we imagine a case where someone copied a small bit of written material for criticism or educational purposes ...then we are imagining a case totally unlike this one, where Google copied the entirety of Oracle's API interface declaration code for the purpose of using it to make money. This is one of the key points Thomas makes in his dissent. So this case is not a case of "we weren't sure whether the material was copyrightable, but in any case our use was clearly for a purpose that would be fair use if it was". Another point in this respect that Thomas makes is that Google tried four times to get a license from Oracle to use their Java API code, before just copying it and using it anyway. That shows what, in legal terms, would be called mens rea--Google clearly knew the code was copyrightable, because if it weren't, they would not have tried to get a license. So Google now saying they aren't sure the code was copyrightable, as they did in their brief in this case, is, to say the least, disingenuous.
- dllthomas 6y ago
  > ...then we are imagining a case totally unlike this one That was my intent. My comment was meant to move to a setting where judgement was clear and then bring it back to see what was preserved; I don't think it did a good job of the second half of that. > Google tried four times to get a license from Oracle to use their Java API code Did Google try to license just the API? My understanding was that they tried to license the implementation, and eventually went with a (purported?) clean-room reimplementation. That doesn't seem to indicate a belief (or even a worry) that the interface itself is covered by copyright. > Google clearly knew the code was copyrightable, because if it weren't, they would not have tried to get a license. Even ignoring the previous point, I don't think that follows. Outcomes in law are rarely certain; "pay not to have to deal with the question" is not necessarily a bad response to ambiguity (particularly when that ambiguity was created by law and the courts rather than the counter-party, in which case there is concern about motivating more such ambiguity).
pdonis 6y ago
Apropos of the "four dog defense", Dashiell Hammett in The Thin Man has a woman say to a man she is walking out on: "I don't like crooks, and even if I did I wouldn't like crooks that are stool pigeons, and even if I did like crooks that are stool pigeons, I still wouldn't like you."

pdonis 6y ago

> If we imagine a case where someone copied a small bit of written material for criticism or educational purposes ...then we are imagining a case totally unlike this one, where Google copied the entirety of Oracle's API interface declaration code for the purpose of using it to make money. This is one of the key points Thomas makes in his dissent. So this case is not a case of "we weren't sure whether the material was copyrightable, but in any case our use was clearly for a purpose that would be fair use if it was". Another point in this respect that Thomas makes is that Google tried four times to get a license from Oracle to use their Java API code, before just copying it and using it anyway. That shows what, in legal terms, would be called mens rea--Google clearly knew the code was copyrightable, because if it weren't, they would not have tried to get a license. So Google now saying they aren't sure the code was copyrightable, as they did in their brief in this case, is, to say the least, disingenuous.

dllthomas 6y ago
> ...then we are imagining a case totally unlike this one That was my intent. My comment was meant to move to a setting where judgement was clear and then bring it back to see what was preserved; I don't think it did a good job of the second half of that. > Google tried four times to get a license from Oracle to use their Java API code Did Google try to license just the API? My understanding was that they tried to license the implementation, and eventually went with a (purported?) clean-room reimplementation. That doesn't seem to indicate a belief (or even a worry) that the interface itself is covered by copyright. > Google clearly knew the code was copyrightable, because if it weren't, they would not have tried to get a license. Even ignoring the previous point, I don't think that follows. Outcomes in law are rarely certain; "pay not to have to deal with the question" is not necessarily a bad response to ambiguity (particularly when that ambiguity was created by law and the courts rather than the counter-party, in which case there is concern about motivating more such ambiguity).

pdonis 6y ago

Apropos of the "four dog defense", Dashiell Hammett in The Thin Man has a woman say to a man she is walking out on: "I don't like crooks, and even if I did I wouldn't like crooks that are stool pigeons, and even if I did like crooks that are stool pigeons, I still wouldn't like you."