I understand the intuition you're getting at: logically, the first question could make the second irrelevant. But if the second question resolves the issue even when the first is construed in favor of the other party, what's the rationale for demanding the court focus on the first question?
A. We decide this is fair use based on the small number of LOC used and call it a day
B. OR we can decide that APIs are not copyrightable even though they're self-evidently creative works because of the importance of interoperability based on something something related to Borland v. Lotus, a case that we couldn't agree on the last time it came up.
Hey folks. Let's do A.
Avoiding the temptation to set bigger and more far-reaching precedents than is strictly necessary for the case at hand avoids giving the impression that the judicial branch is doing the job of the legislative branch.
In an earlier concurring opinion when he was on the D.C. Circuit — i.e., before joining the Supreme Court as Chief Justice of the United States (his official title) — John Roberts referred to "... the cardinal principle of judicial restraint — if it is not necessary to decide more, it is necessary not to decide more ...." [0]
[0] https://scholar.google.com/scholar_case?case=192785774326304...
The main influence of the Supreme Court is in setting precedent. In the absence of a ruling from the Supreme Court, the previous ruling from the Court of Appeals for the Federal Circuit is binding precedent on the whole country that APIs are copyrightable. That means that the most important precedents set in this case are still an issue for the software industry.
This is not true - other circuit courts are free to set their own, conflicting precedent. Each circuit's decisions are binding only on its own judges, and suggestive but not binding on other circuits.
Circuits deciding differently (a "circuit split") is uncommon, and considered urgent grounds for the Supreme Court to take up a test case to resolve the ambiguity; but it's not considered a "breaking" of precedent by either circuit, just a difference of interpretation for the Supreme Court to resolve
No, its not.
The CAFC’s interpretation of Ninth Amendment case law on copyrightability in this case (before and after the Supreme Court sidestepped it) is binding on no one except future courts hearing cases on issues and between parties so closely related to those in Oracle v. Google that res judicata rather than rules of precedent is the deciding factor
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.
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.
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.
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.
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.
If they shouldn't be copyrightable because the world would be better off, interoperability between business is harmed, it is up to congress to change the law. Historically legislation like this harms smaller companies mostly, larger companies can better afford to deal with the requirement to license or the cost/work required to stick to fair use or litigate over it, so the larger companies that can afford to lobby to change the law aren't going to want them changed.
This case certainly sets precedent that API re-implementation can be fair use, not that it always is. Fair use is very fact specific, based on a four part test where having one part in favor can be fair use, and having three parts in your favor can still be infringement. A future case with products that would have a more substantial effect on the market of the original work, or had more of the original work reused than was strictly necessary could very well be infringement. With regards to "the amount and substantiality of the portion used" in this case less than 1% of the original code was copied just measuring the lines of code. Substantiality is harder to put a number on, but arguably it was only a small portion of the original product. This is a very low and for many other APIs a more substantial portion would need to be copied to be useful. The precedential value of this case is unclear without either the law changing, or further litigation.
If presence and order of keywords was sufficient, such legal precedence would create collateral damage at levels that is beyond absurd - outside of software, this would extend to atypical calendar formats, plenty of paper forms, automatic telephone voice menus, map projections, and so much more. Calling it "destructive" wouldn't suffice. Entire industries would be leveled by uncooperative rent seekers that hold old copyrights.
Paper forms are often protected by copyright, as long as they have creative non functional elements. And they are licensed much like stock photos in some industries.
There would be some APIs or code that only contain functional elements and aren't eligible for copyright protection, but in most cases there is a substantial amount that is not only functional.
Copyright protects works fixed in a physical media, not the underlying idea. Many people can create similar works based on the same underlying ideas. Like with a map projection a specific implementation can be protected by copyright. But the idea of a map projection where a constant bearing in the real world corresponds to a straight line on a map cannot be protected by copyright, someone else could create their own version that does the same thing without infringement.
Copyright only protects against copying, not against independent creation of the same work. With something like a calendar, or in some cases an API that only has a few creative elements, multiple people could make the same choices and create the exact same thing without there being any infringement.
