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."
