An Update On The Pretty Crummy Supreme Court Term So Far On Issues We Care About

from the bad-beginnings dept

As the Senate hearings continue over what the future United States Supreme Court may do, it's worth taking a moment to talk about what the current Court has already just done. The RBG-less Supreme Court is now back in session, and in view of the actions it's taken in at least four separate cases, it has not been an auspicious beginning.

Even some of the best news still managed to be awful. For instance, cert was denied the Enigma Software v. Malwarebytes case. Denial is bad news because it leaves a terrible Ninth Circuit Section 230 decision on the books. On the other hand, having it denied may have dodged a bullet. Section 230 is already in the cross-hairs of Congress and the Executive Branch; inviting the Supreme Court to go to town on it too seemed like a risky proposition, and Justice Thomas's unprompted dissent ripping Section 230 jurisprudence to shreds makes clear how much damage the Court could do to this critically important law if it took on this case.

And the risk of cert being granted here just might not have been worth it. For one thing, the case may continue. The Ninth Circuit had overturned the original granting of defendant Malwarebytes' motion to dismiss, which sent the case back to the district court. Which means there could be another opportunity at some point later in the litigation for Malwarebytes to challenge the lousy reasoning the Ninth Circuit employed to revive the case. Of course, it's possible that the parties might settle and leave the Ninth Circuit decision on the books, unchallenged. However, even if that happens, it's a precedent already called into question by the more recent Supreme Court decision in Bostock v. Clayton County, Ga.. So it's not great that future defendants will have to argue around the Ninth Circuit's ruling, and by no means a certainty that the Bostock statutory construction argument would prevail, but at least there is something of substance to enable future defendants to make a good run at it.

Meanwhile, at least two other cert denials left us with even more bad news. One of these cases was Austin v. Illinois. Supreme Court review was sought after the Illinois Supreme Court left in place Illinois's revenge porn law. As we pointed out at the time – and the lower court in Illinois had recognized – the Illinois revenge porn law is not a content neutral law, and as such it's also not one sufficiently narrowly-tailored to meet the strict scrutiny the First Amendment requires. The law also doesn't take the intent of the defendant into account. Unfortunately the Illinois Supreme Court did not seem bothered by these constitutional infirmities and upheld the law. We were hoping the United States Supreme Court would recognize the problems and grant review to address them – but it didn't. The law now remains on the books. And while it might indeed punish some of the deserving people that a constitutional revenge porn law would also catch, the problem with unconstitutional laws is that they also tend to catch other people too, even those whose speech should have been constitutionally protected.

The other cert denial of note is in G&M Realty v. Castillo. This cert petition sought review of the shockingly awful Second Circuit decision doubling-down on the terribly troubling EDNY decision awarding a multi-million dollar judgement ostensibly for violating the Visual Artists Rights Act (VARA). Never mind that, despite its apparent policy intent, VARA will actually lead to less public art and thus actually hurt artists, and ignore for the moment the short shrift the law gives to real property rights, these decisions managed to offend the constitution in several other outrageous ways. As we explained previously, there were multiple due process issues raised by how this particular case was adjudicated and the extraordinarily punitive penalty awarded against the defendant property owner, who had simply painted over his own building after the district court told him he could.

But the problem isn't just that this particular case was a travesty; what this case also illustrated is how badly VARA offends both the First Amendment and the equal protection clause of the Constitution. It gratuitously awards an extra benefit to only certain expression based in some way on the content of that expression, which is not supposed to happen. (Put another way: it also denies a benefit to certain expression based on its content.) It is an utterly irredeemable law, and it is a great shame that the Supreme Court refused to grant review, not just to overturn the Second Circuit's galling miscarriage of justice but to free us all from this law's unconstitutional reach. Assuming Congress will refuse to repeal it, we will have to await a new victim of the law with the means and ability to challenge their injury before we will have any chance of being rid of it.

The reality is that Supreme Court jurisprudence is always at best a mixed bag when it comes to copyright. Earlier this year it did produce a good decision in Georgia v., but it missed a rare opportunity to restore sanity when it comes to the VARA amendment to the copyright statute. Now the question is whether it will restore sanity when it comes to how copyright in software works.

Oral argument at the Supreme Court was finally held last week in Google v. Oracle, after having been postponed from its original March hearing date due to the pandemic. It's impossible to read the tealeaves and know how the court will rule, but it was hard to come away with too much optimism. What was concerning about the hearing is the undercurrent reflected in the justices' questions that if the Court rules in Google's favor it is somehow doing Google a favor and diminishing Oracle's copyright. When in actuality it is Oracle's copyright claim that is much broader than the law has ever allowed.

Copyrights have always (or at least until recently) been understood as limited monopolies granting their owners a limited set of exclusive rights for limited periods. Over the years these periods have become less limited, and interpretations of what these exclusive rights cover have tended to get broader. But the basic monopoly has still always been curtailed by the subject-matter limitation of Section 102(b) of the statute, which limits what can actually be subject to copyright in the first place, and fair use, which limits what uses of the work the copyright owner can exclude.

Both of these limitations are at issue before the Court: whether Oracle could even claim a copyright monopoly over the API in the first place, and, even if it could, whether that copyright could allow it to prevent other people from freely using the software's API to make their own interoperable software, or if that would be fair use. The complication in this case is that there's a special section in the copyright statute – Section 117 – that enunciates other exceptions to the reach of software copyright's, due to their unique nature that makes them different than other sorts of copyrightable works. Oracle argued that this section exhaustively articulated the limits to its software copyright, but if this view were correct it would mean that software copyright would not be subject to any of the other limitations that have always applied to any other form of copyright.

Worse, not only would such a conclusion be bad policy that would deter future software development – the sort of authorship a software copyright is supposed to incentivize – but it would also constitute a significant change from the status quo.

The one bit of good news to report is that at least Justice Sotomayor recognized this issue. In particular she observed how out of step the Federal Circuit's decisions had been from those of most other courts that had considered whether APIs could be subject to copyright. Their consensus had been no, and the freedom this view afforded software developers to make their software interoperable has enabled an entire industry to take root. In her questioning Justice Sotomayor appeared to recognize how badly it would threaten that industry if the Supreme Court adopted the Federal Circuit's decisions in favor of Oracle's copyright claims because of how much it represented a significant change in the previously understood reach of a software copyright.

JUSTICE SOTOMAYOR: Counsel, at the --in your beginning statement, you had the sky falling if we ruled in favor of Google. The problem with that argument for me is that it seems that since 1992, and Justice Kagan mentioned the case, the Second Circuit case, a Ninth Circuit case, an Eleventh Circuit case, a First Circuit case, that a basic principle has developed in the case law, up until the Federal Circuit's decision. I know there was a Third Circuit decision earlier on in the 1980s. But the other circuits moved away from that. They and the entire computer world have not tried to analogize computer codes to other methods of expression because it's sui generis. They've looked at its functions, and they've said the API, the Application Programming Interface, of which the declaring code is a part, is not copyrightable. Implementing codes are. And on that understanding, industries have built up around applications that know they can -- they can copy only what's necessary to run on the application, but they have to change everything else. That's what Google did here. That's why it took less than 1 percent of the Java code. So I guess that's the way the world has run in every other system. Whether it's Apple's desktop or Amazon's web services, everybody knows that APIs are not -- declaring codes are not copyrightable. Implementing codes are. So please explain to me why we should now upend what the industry has viewed as the copyrightable elements and has declared that some are methods of operation and some are expressions. Why should we change that understanding? [transcript p. 52-53.]

The question is whether her skepticism about Oracle's copyright claim is one that will be adopted by the rest of the justices, or whether sometime later this term we'll be writing even more posts about how the Supreme Court has let everyone down on this front too.

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Filed Under: 1st amendment, api, copyright, revenge porn, section 230, supreme court, vara

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  1. icon
    TKnarr (profile), 14 Oct 2020 @ 2:37pm

    When it comes to the Oracle case, I think Oracle better hope they lose their appeal. Remember that they published their own implementation of the AWS S3 APIs when they started offering their own S3-compatible service, so if they win against Google then Amazon can sue them on the same grounds and ask the judge to block any Oracle arguments that are contrary to the ruling against Google.

    reply to this | link to this | view in thread ]

  2. icon
    Thad (profile), 14 Oct 2020 @ 2:56pm


    I wouldn't be surprised to see a non-precedential ruling in the Oracle case -- either a tie (in which case the lower court ruling stands in its district, but sets no precedent in other districts) or a narrow ruling that only makes a determination on the specific details of the Oracle/Google case and makes no judgement on the broader issues raised in the case, because that's the way the Roberts Court rolls.

    reply to this | link to this | view in thread ]

  3. This comment has been flagged by the community. Click here to show it
    F. U. Marole, volcano designer, 14 Oct 2020 @ 3:18pm

    GOOD that cert was denied the Enigma Software v. Malwarebytes.

    VERY GOOD. You corporatists who believe The Public isn't to be beneficiary of our own Laws at all times should read that decision and try to grasp how wrong you are.

    Here the link again. Most important decision of last year. FULL of good quotes that exactly refute Masnick and this lawyer's legalistic corporate-serving anti-Americanassertions.

    reply to this | link to this | view in thread ]

  4. This comment has been flagged by the community. Click here to show it
    F. U. Marole, volcano designer, 14 Oct 2020 @ 3:19pm

    Now, the "defendant property owner,...

    "who had simply painted over his own building". -- No, according to Maz's report, you are whitewashing facts:

    would be a few years before the time would be right. So in the meantime he let some graffiti artists use the building for their aerosol paintings.

    I highlight the crucial word. "Letting" someone use "your" property makes it at least partly theirs. That's nailed down in Common Law since forever: if you "let" someone improve your land which is just literally lying around (as by farming it, putting up a building), then they can come to OWN it. -- So as usual, this lawyer fiend is arguing against ancient Common Law.

    reply to this | link to this | view in thread ]

  5. This comment has been flagged by the community. Click here to show it
    F. U. Marole, volcano designer, 14 Oct 2020 @ 3:19pm

    MORE assertions from the re-phrasing fiend:

    Copyrights have always (or at least until recently) been understood as limited monopolies granting their owners a limited set of exclusive rights for limited periods.

    FLATLY WRONG. Copyright/Patents were originally understood as Common Law Rights that existed before the Constitution, proved by the word "CopyRIGHT" itself, not "copyMONOPOLY", and that the gov't is explicitly directed to "secure" those rights. If the right didn't exist prior to the Constitution, it could not "secure" them, now could it?

    2nd point: Copyrights are worth MORE these days with gadgets to easily reproduce and spread the content, NOT LESS. Therefore terms should be longer. I'm not harmed by FOREVER copyright, neither are you. -- NO, the LACK of someone else's work CANNOT harm you. Techdirt is just grifters and couch pumpkins who think they're entitled to the work-products of the creative.

    On the Oracle case: API is itself creative, often KEY, didn't just arrange itself. Google could have licensed very cheaply, but its practice is to just take, lawyer up -- and hire PR flacks like Maz and this shill to defend it. Leave the decision alone and BURN IT GOOD.

    reply to this | link to this | view in thread ]

  6. This comment has been flagged by the community. Click here to show it
    F. U. Marole, volcano designer, 14 Oct 2020 @ 3:24pm

    Re: "their own implementation of the AWS S3 APIs"

    is different! Google infringed copyright by NOT doing "their own", but simply COPYING the API text verbatim. -- NOT the API, but the very text.

    Also, who says Oracle can't quickly and reasonably come to terms with Amazon if challenged? Just LICENSE it! -- As GOOGLE should have done, instead of lawyering this out to the bitter end.

    I hope that the end is BITTER indeed for Google.

    reply to this | link to this | view in thread ]

  7. identicon
    Anonymous Coward, 14 Oct 2020 @ 3:30pm

    Re: Re: "their own implementation of the AWS S3 APIs"

    There is this property of API's, they define an interface used at a source code level, and therefore names of routines and types have to be the same, otherwise it is not compatible with the original API.

    Also, just license it, if APIs are protected will not work, as that means a company enables competition, while refusing keep customer lock in.

    reply to this | link to this | view in thread ]

  8. icon
    Toom1275 (profile), 14 Oct 2020 @ 5:49pm

    Re: Re: "their own implementation of the AWS S3 APIs"

    [Asserts facts not in evidence]

    reply to this | link to this | view in thread ]

  9. icon
    Stephen T. Stone (profile), 14 Oct 2020 @ 5:59pm

    how do you function in the real world

    reply to this | link to this | view in thread ]

  10. identicon
    Anonymous Coward, 14 Oct 2020 @ 9:11pm


    The same way every conservative functions:

    Like they are fighting the Cold War. And you saw how that was.

    reply to this | link to this | view in thread ]

  11. icon
    Brainulator9 (profile), 15 Oct 2020 @ 4:48am

    Two notes

    1. I think the Supreme Court, in times where they only have 8 members, try to review fewer cases in hopes that they don't deadlock on anything controversial.
    2. I imagine others have asked this before, but is it even possible to repeal VARA, given that its provisions are mandated by the Berne Convention?

    reply to this | link to this | view in thread ]

  12. identicon
    Anonymous Coward, 15 Oct 2020 @ 10:49am

    Re: Two notes

    The US could always walk back following the Berne Convention just like we've walked back all sorts of international laws and treaties that we find "inconvenient". Could it possibly hurt our reputation abroad any more than it is already suffering?

    reply to this | link to this | view in thread ]

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