[bobbyi_settv]

> One of the big open questions is "are APIs copyrightable?" The court skirted that question, and instead focused on whether it was fair use:

Doesn't deciding that it's fair use specifically mean that they think it is copyrightable? The fair use doctrine specifically refers to the use of copyrighted material.

[dragonwriter]

> Doesn't deciding that it's fair use specifically mean that they think it is copyrightable?

No, deciding it would be Fair Use even if it was copyrightable means you can cutoff the process considering copyright.

(Its perhaps useful to think of legal cases as consisting of a set of parallel questions connected by logic operators—once enough of them are resolved to reach a decision which no resolution on the others will change, the process is free to conclude without waiting for the others to be resolved.)

[AnimalMuppet]

No. "Assume it's copyrightable. It's still fair use." That means you don't have to answer "Is it copyrightable?" The Supreme Court generally prefers to not answer questions that they don't have to answer.

[shemnon42]

So in programmer speak

    if (!isFairUse(workUnderInvestigation) && copyrightable(originalWork)) {
      bigCopyrightPayout();
    }

Short circuit on the and operator. It's fair use, so copyrightable will not be evaluated. Evaluating copyrightable has an obervable side effect of creating a precedent.

[AnimalMuppet]

Yes, exactly that. Why do the && in that order? Because isFairUse(workUnderInvestigation) was a much less expensive operation than copyrightable(originalWork) for this particular value of originalWork.

[shemnon42]

That is the order scotus considered it.

[AnimalMuppet]

Right, and that's why SCOTUS considered it in that order. Deciding API copyright was a much bigger decision than deciding fair use.

[sjwright]

A shame, because as test cases go that wouldn’t have been a terrible one.