> 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."
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.