[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.