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0 pointspdonis5y ago0 comments

> 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.

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dllthomas5y 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).

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