Yeah, but 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; 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.
> 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.
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.
> 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.
>> Not if it ignores additional information that is not consistent with information used in the argument
That is your assumption. You assume the majority ignored that additional information. You say the court is failing to consider the facts that would indicate it copyrightable; that is -assumption- on your part. The court had the same set of facts in front of it (read: the entire body of relevant law); the majority chose to apply them to a different problem than the one Thomas wanted them to be applied to, and came to a different outcome than the one Thomas wanted.
The court can totally "assume for the sake of argument"; it does not reduce the surface of the law, it does not take facts out of the equation. It just makes arguing one part of it moot.
> You assume the majority ignored that additional information.
If they didn't, why is it never even mentioned in the opinion? Why does the majority not even acknowledge the fact that there are other facts involved, which do not support their conclusion?
Of course any answer I might propose would also be an "assumption" to you, but I'll propose one anyway: because the majority knew quite well that if they did mention or acknowledge any of those other facts, it would be obvious to anyone reading the opinion that their argument was not cogent. My reading of many, many other Supreme Court opinions over the years tells me that that kind of thing happens all the time. At least dissenting opinions are available, though it seems like the ones that really point out fundamental flaws, like this one by Thomas, never actually get any traction.
> The court can totally "assume for the sake of argument"
The court can of course do whatever it pleases; there is no higher court of appeal to overrule them, and the Justices serve for life so they can simply not care what anyone else thinks of their rulings.
That doesn't make it right when they twist the law, or outright ignore it, to produce rulings that are in accordance with their ideological preconceptions. Which, again, is something that happens all the time.
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".
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.
Majority Opinion: "We do not presently wish to venture an opinion on how this person died, but we can say authoritatively that the accused was not at the location the death took place at the time it took place. Therefore, even if a murder took place, the accused is innocent of murder"
Thomas' Dissent: "We can not decide the person is innocent of murder unless we decide whether a murder took place or not. Further, here are all the reasons I think the accused murdered the victim."
Majority Opinion: "We assume for the sake of argument that the deceased was murdered; we then argue that the accused did not do it, and rule that the accused is innocent."
Thomas's Dissent: "The facts of the case that support a conclusion that the deceased was murdered also support a conclusion that the accused did it. So if you are assuming that the deceased was murdered, you should also conclude that the accused is guilty."
The thing is that fair use is a defense to infringement -- so saying this is fair use implies they would have been infringing if not for that factor.
"I didn't commit murder at all" doesn't have the same relationship to some hypothetical murder, rather it's claiming there's no link there at all.
The analysis does feel like it puts the cart before the horse and possibly ends up implying or easily being argued as implying a statement I think they were trying to avoid opining on absent developments in the lower courts.
I get why they would do that, but it doesn't make it less strange and I would worry that this could be analyzed to say, in effect, that APIs should all be subject to copyright.
It wouldn't even be the first time a Supreme Court ruling one way on IP had been turned on its head, either. That has happened a lot with software patents, for example.
> 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.
> 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.
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.
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.
> 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.
> ...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).
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."
Over the years, the STEM professional in me has become increasingly intrigued by the ways in which law progresses because it is so fundamentally different from my preferred method of making sense of the world.
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.
Interesting. In my very limited understanding I have a very opposite view, specifically around Justice Thomas.
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.
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.