I agree. Personally, I espouse the "copyright should not exist at all" viewpoint. However, I think in the current legal framework, APIs are clearly copyrightable. However, re-implementing the APIs should obviously be allowed under fair use.

Remember that copyright exists solely for the purposes of increasing the production of otherwise-easily-copyable works that take time to create but then are "worthless" (i.e. the marginal cost of each additional copy is ~0 or negligible).

From the Constitution itself:

"[the United States Congress shall have power] To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

I can see how one can argue that software itself - the actual code - will benefit in the same way (though the myriad successful open source projects and SaaS platforms seem to suggest it's not necessary......). However, I think it's pretty dang clear that limiting the copying of APIs will broadly lead to less software being created. It's well established that, for software, ideas are cheap, and that competitive advantages primarily come from excellent execution and excellent VC funding. If someone re-implements your API and your business folds, it's not because your API was your secret sauce and they stole it. It's because their re-implementation - which, by definition of an API, must be "the exact same thing" - was better than yours. They produced a better product, and the market rewarded them for that.

So, for a legal framework whose purpose, as outlined in the constitution, is to promote the arts and sciences, I think it's pretty clear what the path forward is.

> I think the most likely outcome of this case (especially with the absence of Justice Ginsburg) is a remand to the Federal Circuit with instructions to pay more attention to the trial court’s findings.

I think that's somewhat unlikely; I think its somewhat more likely that the court concludes that the Federal Circuit erred in using de novo review, but instead of remanding to the Federal Circuit for reasonableness review reconsiders the jury verdict on the bases of the trial record itself (especially if by doing so it can uphold the trial verdict and kick the copyrightability issue down the road to another case.)

While the Supreme Court will dodge hard issues where it can, it doesn't tend to do it in a way which leaves a good chance that the same issue will come to them again in the same case. When they dodge, they like to make sure the issue stays dodged, at least for the immediate case. There's way too much risk that the Federal Circuit would reach the same answer if told to use a reasonableness standard of review (I don't think it should, but absent reaching the answer itself, the Supreme Court can't be sure of that), which would leave the copyrightability issue to come before the Court again before this case would be finalized.

>I wouldn’t be surprised if Oracle wins on copyright (I think it is almost impossible for Google to count to 5 on their merger doctrine argument) but I disagree that fair use is a long shot. I wonder about the differences (which definitely do exist) between Oracle's Java API and the OpenJDK Java API.

While they really have to be substantially similar to allow interoperability, OpenJDK is open source (GPL) and Oracle's Java is not.

That brings up a couple questions which don't directly bear on the case just heard by the Supremes, but are (IMHO) relevant to potential second-order consequences of a ruling for Oracle:

1. Given that the OpenJDK API is substantially similar to the Oracle Java API, could Google avoid repercussions by switching to the former from their "adaptation" of the latter?

2. Should an API be considered eligible for copyright, wouldn't that enable opportunities for language and library developers to restrict others from developing competing (via performance or utility enhancements) languages/libraries by forcing anyone who wished to implement enhancements to either purchase a license or flat out deny them the ability to do so (assuming the product --including the API isn't open source)?

3. If (2) is the case, what does that mean for incremental improvements of languages and libraries?

I'm not a java dev or a copyright expert, so pardon me if I missed an important point.

You might be right. It seems like Google's most realistic path to victory here will be based on arguing over the legal technicalities related to the standard of review.

I wonder if they win on that front if the Court will be able to dodge the question of API copyrightability in general.