It's interesting reading Thomas' dissent. As per typical Thomas appears to be arguing that it's the letter of the law that matters, whereas it's the majority opinion that the motivations and substance of the law are primary.
Hackers and programmers tend to try and read the law like computer code to be "hacked" and exploited based on the letter of the law. So you'd expect us to be more sympathetic to Thomas' view. So this is a great example to smack hackers with when they try and "hack" the law, treating it like code rather than something more human. It's a great example because this is a case where the majority is obviously the "right" decision to any true code hacker.
No, when the code allows an exploit, that's a bug. Thomas is supposed to help us understand the intent of the code - what the Requirement was. Yes, it's better for us if the code reflects the intent perfectly. But to the degree that's not possible, we need someone to Interpret the code.
Textualists are trying to ignore the fact that there's a difference between intent and implementation.
The Legislature should do a far better job making their intent clear. But to the degree they make mistakes, leaving the intent unclear in some situation, it's good to have Case Law to inform us.
I am not a lawyer. I don't know much about the law. But I do know metaphors, and when someone talks about exploiting the law, this is what comes to my mind.
Tangent, but you said something I find really telling, in conjunction with OP's post.
Textualism to its proponents is very much like exploiting a system; figuring out the exact rules it defines and finding workarounds. It may not even be to a person's own goals (hence the individual not feeling biased when thinking this way), but is enjoyable in its own right in finding those loopholes (like the meme of the referee allowing Airbud to play, "there's nothing in the rule book!").
To its critics, it's like blindly implementing the ticket as written, rather than asking questions and making sure the intent is understood and the problem is being solved correctly.
Which explains, in a surprisingly empathetic way, why I am not a textualist, and why some of my family are, when it comes to political discussions.
My understanding of strict textualists' arguments (especially Gorsuch), is that they view it as a separation of powers issue.
By only looking at the text of the statute, the Court—which consists of unelected officials with lifetime terms—is trying to limit its power. If the text is unclear, they feel it should fall on elected officials to clarify it.
Certainly, but there's a problem with that. Because an outcome will still happen; an outcome determined by the law, -and its interpretation-. Even an interpretation of "we should (overturn lower court's decision/uphold lower court's decision) because the law is unclear" is an interpretation of the law.
After all, it is as equally fair to say "The wording of this law leads us to a clear understanding of the intent to mean X, and if the legislative body feels that to be in error they should pass new legislation to clarify it" as it is to say "The wording of this law leads us to an unclear understanding, and irrespective of intent we will decide !X until the legislative body passes new legislation to clarify it".
While the non-textualists may be explicit in trying to understand the intent of a law in accordance with their own biases, the textualists are still interpreting the law according to their own biases. There have even been some...really interesting cases of logic to try and do so (i.e., earlier generations' understanding of 'sex' matters when interpreting anti-discrimination statutes, but earlier generations' understanding of 'gun' does not matter when interpreting the 2nd amendment). It's incredibly rare (pretty much unheard of in the case of a few of them) for them to decide against their own predictable biases because a law is ambiguous, or a situation is novel.
> At least at the Supreme Court level, whether a justice professes textualism, purposivism, intentionalism, or pastafarianism as a method of statutory interpretation is likely to play less of a role in his or her decisions than ideological druthers. None of these approaches or any other is close to fully determinate, giving a good deal of room for a judge's values to play a major role. Moreover, even when a methodology appears to point reasonably clearly towards a result, judges sometimes disregard their methodological commitments in favor of their ideological ones.
> Does an ordinance that says that “no person may bring a vehicle into the park” apply to an ambulance that enters the park to save a person’s life? For Scalia and Garner, the answer is yes. After all, an ambulance is a vehicle—any dictionary will tell you that. If the authors of the ordinance wanted to make an exception for ambulances, they should have said so. And perverse results are a small price to pay for the objectivity that textual originalism offers (new dictionaries for new texts, old dictionaries for old ones). But Scalia and Garner later retreat in the ambulance case, and their retreat is consistent with a pattern of equivocation exhibited throughout their book.
> One senses a certain defensiveness in Justice Scalia’s advocacy of a textualism so rigid as to make the ambulance driver a lawbreaker. He is one of the most politically conservative Supreme Court justices of the modern era and the intellectual leader of the conservative justices on the Supreme Court. Yet the book claims that his judicial votes are generated by an “objective” interpretive methodology, and that, since it is objective, ideology plays no role. It is true, as Scalia and Garner say, that statutory text is not inherently liberal or inherently conservative; it can be either, depending on who wrote it. Their premise is correct, but their conclusion does not follow: text as such may be politically neutral, but textualism is conservative.
Oh, 100%. I shared Thousand Year Old Vampire with a relative that matches this, thinking his love of history would make it an interesting thing, and his response was "I can already think of ways to beat the system", even before he actually read the system. It's like...yeah, it's a single player pen and paper RPG. You probably can. Why...why would you though?
But that's what I mean; exploiting perceived flaws in the system is a greater goal -even when it ruins the game for themselves-. Because there is a greater sense of satisfaction in finding loopholes. And I understand that sense; I just find more value in understanding the underlying goal and intent and delivering on that.
Textualism invariably turns out to be a shuck: people who claim to be textualists are textual only when they can find a way to make textualism produce the answer they wanted.
Legal language is slippery enough that this is almost always possible. On the few occasions when it is not possible, we learn the truth. Scalia famously revealed his true colors on occasion.
>The Legislature should do a far better job making their intent clear.
That would require a wholesale redesign of creator's monopolies in software; CONTU basically said "oh yeah, judges can just use fair use to wriggle out of any market harms software copyright might cause" and Congress went with that.
Furthermore, Congress's actions over the past few decades have generally not squared with any sort of actual copyright reform. The last major actions I can think of were:
- Implementing the EU's reciprocal copyright extension so that Mickey Mouse could get more copyright protection in France (Sonny Bonno CTEA)
- Implementing an overbroad and policy-laundered set of protections for DRM that companies took to mean "all you have to do is put software in a thing and you can sue anyone for making parts for it" (DMCA 1201)
- Extending criminal copyright liability to filesharers (NET Act)
- Granting more copyright term extensions to old music recordings that weren't federally copyrighted until the 70s (CLASSICS Act/MMA)
The last thing I would ever want is to hear Congress's intent on any of these, as I would imagine it would sound something like "Fuck you, pay me". Australia, the EU, and the UK get a lot more shit these days for overbroad copyright laws, but this is mainly because doing so lets them rein in foreign tech companies. The US doesn't do that anymore because tech companies gained enough clout here to stop even more misguided copyright nonsense like SOPA/PIPA. However, with tech companies falling out of favor I wouldn't be surprised if Congress decides to start busting kneecaps again.
> Textualists are trying to ignore the fact that there's a difference between intent and implementation.
I would say that they are not so much trying to ignore the fact as acknowledging the fact but taking the position that it the court's role to interpret the implementation, not to guess at the intent.
Lower courts: "Wait, did you mean LESS THAN, or LESS THAN OR EQUAL?"
Supreme Court: "For now, we'll presume LESS THAN OR EQUAL."
Legislature: "Wait, we meant LESS THAN."
We need a decision NOW. The Supreme Court supplies a decision NOW. The Legislature can change it.
Interpreting the implementation demands guessing at the intent on the edge cases. It can't not. Even if your preference is to always pretend the language is absolute.
> Textualists are trying to ignore the fact that there's a difference between intent and implementation.
It is actually the opposite. Textualists say that intent doesn't mean squat. Originalists will consider intent. Textualists say that intent is unknowable and therefore you must exclusively use the text of the law, regardless of how stupid that might seem.
> Textualists say that intent doesn't mean squat. Originalists will consider intent.
In practice, textualism and originalism aren’t all that different, because most of the same indicia that originalists will look to for signs of “original intent” textualists will look to for signs of what the words of the text mean in their original context (textualists are not, as a class, blind to context). While different observers will weight the individual indicia differently, the variation within the textualist and originalist camps on this is more significant than that between the camps. The camps really mostly differ in how they tend to frame arguments from the same facts to the same conclusions.
I blame Textualists for the existence of legalese.
Laws and contracts are so damn hard to read because they need to close every possible conceivable loophole. You get sentences that use multiple synonyms of the same verb because someone is going to come up with some strange incredibly-specific difference between them.
Imagine some parent telling their kid to not jump on the bed, and the kid says "I'm not jumping, I'm hopping!". That's a kid that's going to grow up being a Textualist.
> Textualists say that intent is unknowable
I think Textualists are claiming this in bad faith, knowing damn well that intent is very well knowable, but argue otherwise to advance their agenda.
Thomas's analysis pretty much starts from the conclusion that Google made billions off of Android, so therefore how could anything it be copied be fair use? He cloaks this analysis somewhat by arguing that the distinction between declaring and implementing code must be meaningless because Congress didn't lay it out explicitly in law, but for the person who actually broached the question of what other factors might influence fair use during oral arguments, it's pretty unintrospective about the analysis itself.
Thomas doesn't understand basic computer programming, so I wouldn't put much weight on that nuanced view.
"Indirect" here just means calling a function or jumping to some address, rather than directly inlining some statements.
For the purpose of copyright, the term "computer code" does not include the signature of that function, or the address you jump to, only the actual code statements at that destination.
Thomas didn't recuse himself when ruling on court cases filed by the advocacy group his wife is a leader of. It's all voluntary, if a Supreme Court justice chooses not to recuse themselves there is no higher court to force them.
Thomas aggressively refuses to recuse himself from cases that other justices consider an obvious conflict of interest.
But they have no authority to enforce their opinion, and Thomas absolutely doesn't care. He didn't become a judge to rule on things he has no opinion on. For him, conflicting interest makes it that much more important to keep his hands in.
If I were attributing bad faith to Thomas - and given that he ignores court norms on recusing himself, that doesn't seem like too much of a stretch - I would be more likely to ascribe to him a desire to see "liberal Silicon Valley" punished than anything else.
Thomas is an incredibly political beast, to the point that Scalia wrote him off as an unprincipled nutjob.
I'm normally with the textualists on the court on the question of how we interpret the law, but in the case of copyright, the concept of "fair use" is specifically intended as an "extension point" where the courts could do what seemed right in changing circumstances. I like strongly typed languages too, but there are legitimate uses for void*.
That's a very good summary. This is a case where there probably is no legally "correct" decision based on the law/precedent. It comes down to fair use and to what degree you can reasonably extend it to this case. For most people reading this, the decision is the "right" one. But I'm not sure to what degree one side or the other is better supported as a matter of law/precedent.
I strongly agree with the outcome but the cost in the other direction is good API design is a creative process. If you sit down and design a kick-ass API for a year, another person who re-implements is inheriting that design, and its benefits, for free. I do wonder if another case will wind its way up one day where the defendant lifted the API not for interoperability but because it was a clean or clever interface. (Seems a bit far fetched but would round out fair use further I think.)
The majority opinion cited precedent (Feist) that copyright is not intended to profit the creator. It's to advance the progress of arts and sciences. If someone copies your amazing API, that sucks for you, but it's not stopping the progress of arts and sciences.
Yes fair point I misread the OP that they were strictly talking about the legal tradeoffs. I was more thinking what was the actual cost to creators under this version of fair use.
They kind of intentionally danced around that question with 'are APIs copyrightable'.
Because here it's allowable for a product that isn't competing, and is being leveraged for interoperability/ease of users to adopt (rather than for how clean/clever it is).
What if someone had copied Stripe early on, though? Stripe's big claim at launch was "payment processing in 7 lines of Javascript" or similar. Obviously there were other barriers to entry, but what if someone else entered the market at that time with a similar (or even identical) interface? That question was left unanswered.
Even if that happens, we'll still get beautiful APIs made. Copyright is a means to an end. Fonts, for example, are not subject to copyright, but we still see beautiful typefaces made.
I think you're reading a different argument. Thomas's argument is circular dreck. It basically says:
1. An important fair use test is market effects.
2. Amazon and others used to give Oracle huge gobs of money because they feared that APIs might be copyrightable and not covered by fair use.
3. After Google called Oracle on this, Amazon and others also started believing it was likely fair use and stopped paying Oracle tens of billions per year.
4. Therefore, Google copying the API was a major adverse market effect.
5. Therefore, copying wasn't fair use.
That's a shit argument. Watch me do a similar analysis in a more obvious way.
1. An important fair use test is market effects.
2. People used to pay gobs of money to watch the movie Transformers 2.
3. In a widely watched review of the film, I showed a 4 second clip of the movie where someone said "I am standing directly beneath the robot's testicles."
4. After this, nobody wanted to pay any money at all to watch Transformers 2.
5. Therefore, there was a major adverse market effect from my copying.
6. Therefore, copying wasn't fair use.
Have you spoken to any professional language or API designers about this case? Would all "true code hackers" agree that copyright shouldn't apply to software at all?
Obviously, I cannot say anything about "all" API designers, but I've read the opinions of a good few of them, including some who wrote the APIs in question here (i.e. the Java SE APIs), and they were unanimous that making APIs copyrightable would be a horrible idea.
There is a massive difference in interpreting law vs code. Code can be patched immediately. New laws or changes to an existing law can take months, even years or decades to pass.
He simultaneously says that corporations have First Amendment rights to donate unlimited money to politicians, but have no First Amendment rights to moderate content on their social networks.
He's a hack that just does whatever is best for conservatives.
I explained very clearly what the contradiction in Thomas' rulings is which leads me to my conclusion.
You can have an opinion about whether that's right ... but its hardly simplistic.
Being simplistic would be having the view that he's a hack without any evidence.
I don't say he's a hack lightly. If you look at his decisions he uses one path of reasoning in one set of decisions and then uses the opposite path of reasoning to come to a different conclusion in a different set of decisions, depending on how the outcome needs to come out. And then he claims he's being textual. Its nonsensical.
Edit: TBF you're being very simplistic assuming my comment illustrates a worldview. What worldview is that? Look at my comment history. I'm generally free-market and maximal-corporate rights ... aligned with Thomas. I just think his reasoning is flawed.
No, not generally. Congress is 545 different people, who definitely don't have a coherent collective intent. The only thing they did collectively was pass the text of the law.
So any coherent notion of "congressional intent" has to mean the intent a person reading the text would infer about a hypothetical coherent author. I don't know anything about this particular case, but it is not at all true in general that there are more ways for a reader to interpret the explicit meaning of the written words than there are ways for a reader to interpret the intent of the written words.
You can of course try to infer intent of individual drafters, or by looking at the transcripts of debates on the congressional floor, or by reading emails, or whatever. (I don't think this justified because these discussions aren't voted on, only the text of the law is, but I'm happy to put that aside as not everyone agrees with that perspective.) My point is that this needn't, and indeed generally isn't, a single coherent position, but rather is an incoherent mishmash of many competing interests. It will almost never be less ambiguous than the literal meaning of the words written on the paper, which is the claim I'm responding to. (You can certainly argue that it is better to follow this intent than the literal meaning, but that's different than the claim that the intent is less ambiguous.)
And to be clear: intent definitely can be in the raw text. If the whole text of a statute is trying to outlaw a certain kind of activity but one sentence undermines it all under a literal reading (e.g., by excluding all possible people it might apply to), that sentence will be re-interpretted to what it needs to mean for the law to be applied.
Hackers and programmers tend to try and read the law like computer code to be "hacked" and exploited based on the letter of the law. So you'd expect us to be more sympathetic to Thomas' view. So this is a great example to smack hackers with when they try and "hack" the law, treating it like code rather than something more human. It's a great example because this is a case where the majority is obviously the "right" decision to any true code hacker.