|
Evil Fluffy posted:Rebuilt and expand the courts for fucks sake. This poo poo is why people like McConnell know they're winning the long game. Demographics don't mean poo poo when the judiciary is treated as above the other two branches and gets stacked with political hacks.
|
#
?
Mar 31, 2021 20:04
|
|
|
|
| # ? May 31, 2024 21:18 |
|
|
DandyLion posted:What Bizzarro world did I just wake up in!? Isn't it expected for judges to ask devil's advocate questions? Consider all sides of the legal argument?
|
|
#
?
Mar 31, 2021 23:51
|
|
|
Raenir Salazar posted:Isn't it expected for judges to ask devil's advocate questions? Consider all sides of the legal argument? Yes. Generally, how tough a judge is to one side or the other of a case during oral arguments is not very predictive as to how they'll eventually rule, especially at the higher levels of the judiciary.
|
|
#
?
Apr 1, 2021 01:11
|
|
|
Sodomy Hussein posted:Whoa Thomas asked a question? I thought he was renowned for nodding off during arguments. I read that he's been asking tons of questions now that they're using zoom. Not sure why that makes a difference.
|
|
#
?
Apr 1, 2021 07:59
|
|
|
Charlz Guybon posted:I read that he's been asking tons of questions now that they're using zoom. Not sure why that makes a difference. It’s not that they’re using zoom, it’s that questioning is now done in rounds, rather than as a free for all.
|
|
#
?
Apr 1, 2021 14:42
|
|
|
#1 Get hosed Florida I suppose. #2 Could Biden’s FCC just put the restrictions back in place #3 How does unwanted text messages not fall under “robotext” category? All unanimous which seems a little surprising. Barrett, Kavanaugh and Sotomayor all wrote the opinions.
|
|
#
?
Apr 1, 2021 15:32
|
|
|
Bizarro Kanyon posted:#3 How does unwanted text messages not fall under “robotext” category? This almost certainly due to specifically how the specific provision was worded and how exactly the text was sent, since iirc a previous attempt to ban robocalls was worded badly enough that a human using a computer dialer could be considered running afoul of it.
|
|
#
?
Apr 1, 2021 17:07
|
|
|
Dugruid has to do entirely with the statutory definition of an ATDS, and it was correctly decided. If they had decided otherwise, every cell phone in America because an autodialer and could potentially violate the TCPA
|
|
#
?
Apr 1, 2021 18:20
|
|
|
Sotomayor lays it out pretty clearly in the decision summary.quote:The Telephone Consumer Protection Act of 1991 (TCPA) proscribes abusive telemarketing practices by, among other things, restricting certain communications made with an “automatic telephone dialing system.” The TCPA defines such “autodialers” as equipment with the The fundamental problem is that Congress wrote a bad law, that very specifically refers to the technology used by telemarketers in the early 90s but is now woefully out of date, and SCOTUS isn't going to rewrite that law just because it's impossible for anything to get through Congress these days.
|
|
#
?
Apr 1, 2021 18:45
|
|
|
Also sounds like the authors really didn’t care much about the intrusive harassment aspect of robocalling, just the aggregate affects in infrastructure. From an intrusiveness perspective, humans with an autodialers are actually pretty similar to fully automated devices.
|
|
#
?
Apr 1, 2021 18:52
|
|
|
Congress could certainly pass new legislation if it was something we all agreed on. The problem is stuff we all agree on is already legislated, and the stuff that is stalled in Congress is stuff half the country (regardless of which half) vehemently opposes (abortion rights v gun rights to show opposing views). Or is widely supported by the public but vehemently opposed to by Congress themselves (term limits).
|
|
#
?
Apr 1, 2021 18:56
|
|
|
Bizarro Kanyon posted:#2 Could Biden’s FCC just put the restrictions back in place Yes (and telecomms will sue when it happens) but we need new, strong(er), anti-trust laws so that a Republican doesn't just do it again after the Dems blow the election in 2024.
|
|
#
?
Apr 1, 2021 18:56
|
|
|
ilkhan posted:Congress could certainly pass new legislation if it was something we all agreed on. The problem is stuff we all agree on is already legislated, and the stuff that is stalled in Congress is stuff half the country (regardless of which half) vehemently opposes (abortion rights v gun rights to show opposing views). Or is widely supported by the public but vehemently opposed to by Congress themselves (term limits). Any suggestion that "congress could pass X" is pretty vacuous right now, and very much by design.
|
|
#
?
Apr 1, 2021 19:07
|
|
|
Stickman posted:Also sounds like the authors really didn’t care much about the intrusive harassment aspect of robocalling, just the aggregate affects in infrastructure. From an intrusiveness perspective, humans with an autodialers are actually pretty similar to fully automated devices. you don't solve that issue by turning the single use of speed dial into a $500-$1500 statutory fine
|
|
#
?
Apr 1, 2021 20:19
|
|
|
EwokEntourage posted:you don't solve that issue by turning the single use of speed dial into a $500-$1500 statutory fine No, for sure - I was mostly commenting stated justification for the law: "Congress found autodialer technology harmful because autodialers can dial emergency lines randomly or tie up all of the sequentially numbered phone lines at a single entity." E: We definitely do need better-written laws when we can actually get them, I just hope that when (if) we do they can find a way to clearly define and address intrusive calling practices rather than singling out specific technologies! Stickman fucked around with this message at 20:26 on Apr 1, 2021 |
|
#
?
Apr 1, 2021 20:23
|
|
|
 Opinions! (one of these is a little older, but it’s a boring per curiam the state can kill people thing) TONY MAYS, WARDEN v. ANTHONY DARRELL DUGARD HINES TLDR: A Tennessee jury found Anthony Hines guilty of murdering Katherine Jenkins at a motel. Witnesses saw Hines fleeing in the victim’s car and wearing a bloody shirt, and his family members heard him admit to stabbing someone at the motel. But almost 35 years later, the Sixth Circuit held that Hines was entitled to a new trial and sentence because his attorney should have tried harder to blame another man. In reaching its conclusion, the Sixth Circuit disregarded the overwhelming evidence of guilt that supported the contrary conclusion of a Tennessee court. This approach plainly violated Congress’ prohibition on disturbing state-court judgments on federal habeas review absent an error that lies “‘beyond any possibility for fairminded disagreement.’” We now reverse. Majority Opinion (Per Curiam): [look up, see the TLDR] The Sixth Circuit had no reason to revisit the decision of the Tennessee court, much less ignore the ample evidence supporting that court’s conclusion. We grant the petition for a writ of certiorari and respondent’s motion to proceed in forma pauperis, and we reverse the judgment of the Court of Appeals. It is so ordered. JUSTICE SOTOMAYOR dissents. Lineup: Unknown, but definitely doesn’t include Sotomayor. https://www.supremecourt.gov/opinions/20pdf/20-507_h315.pdf FACEBOOK, INC. v. DUGUID ET AL. TLDR: The Telephone Consumer Protection Act of 1991 (TCPA) proscribes abusive telemarketing practices by, among other things, restricting certain communications made with an “automatic telephone dialing system.” The TCPA defines such “autodialers” as equipment with the capacity both “to store or produce telephone numbers to be called, using a random or sequential number generator,” and to dial those numbers. … This case turns on whether the clause “using a random or sequential number generator” in §227(a)(1)(A) modifies both of the two verbs that precede it (“store” and “produce”), as Facebook contends, or only the closest one (“produce”), as maintained by Duguid. … [The Court says both, so the TCPA doesn’t include a text to a stored phone number that wasn’t generated using a random or sequential number generator, like Facebook sending a text to a number associated with an account.] Holding / Majority Opinion (Sotomayor) The Telephone Consumer Protection Act of 1991 (TCPA) proscribes abusive telemarketing practices by, among other things, imposing restrictions on making calls with an “automatic telephone dialing system.” As defined by the TCPA, an “automatic telephone dialing system” is a piece of equipment with the capacity both “to store or produce telephone numbers to be called, using a random or sequential number generator,” and to dial those numbers. 47 U. S. C. §227(a)(1). The question before the Court is whether that definition encompasses equipment that can “store” and dial telephone numbers, even if the device does not “us[e] a random or sequential number generator.” It does not. To qualify as an “automatic telephone dialing system,” a device must have the capacity either to store a telephone number using a random or sequential generator or to produce a telephone number using a random or sequential number generator. ... This case concerns “automatic telephone dialing systems” (hereinafter autodialers), which revolutionized telemarketing by allowing companies to dial random or sequential blocks of telephone numbers automatically. Congress found autodialer technology to be uniquely harmful. It threatened public safety by “seizing the telephone lines of public emergency services, dangerously preventing those lines from being utilized to receive calls from those needing emergency services.” Indeed, due to the sequential manner in which they could generate numbers, autodialers could simultaneously tie up all the lines of any business with sequentially numbered phone lines. Nor were individual consumers spared: Autodialers could reach cell phones, pagers, and unlisted numbers, inconveniencing consumers and imposing unwanted fees. Against this technological backdrop, Congress made it unlawful to make certain calls “using any automatic telephone dialing system” to “emergency telephone line[s],” to “guest room[s] or patient room[s] of a hospital,” or “to any telephone number assigned to a paging service [or] cellular telephone service” without the “prior express consent of the called party.” The TCPA creates a private right of action for persons to sue to enjoin unlawful uses of autodialers and to recover up to $1,500 per violation or three times the plaintiffs’ actual monetary losses. Petitioner Facebook, Inc., maintains a social media platform with an optional security feature that sends users “login notification” text messages when an attempt is made to access their Facebook account from an unknown device or browser. If necessary, the user can then log into Facebook and take action to secure the account. To opt in to this service, the user must provide and verify a cell phone number to which Facebook can send messages. In 2014, respondent Noah Duguid received several loginnotification text messages from Facebook, alerting him that someone had attempted to access the Facebook account associated with his phone number from an unknown browser. But Duguid has never had a Facebook account and never gave Facebook his phone number. Unable to stop the notifications, Duguid brought a putative class action against Facebook. He alleged that Facebook violated the TCPA by maintaining a database that stored phone numbers and programming its equipment to send automated text messages to those numbers each time the associated account was accessed by an unrecognized device or web browser. … We granted certiorari to resolve a conflict among the Courts of Appeals regarding whether an autodialer must have the capacity to generate random or sequential phone numbers. We now reverse the Ninth Circuit’s judgment. Section 227(a)(1) defines an autodialer as: “equipment which has the capacity— “(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and “(B) to dial such numbers.” Facebook argues the clause “using a random or sequential number generator” modifies both verbs that precede it (“store” and “produce”), while Duguid contends it modifies only the closest one (“produce”). We conclude that the clause modifies both, specifying how the equipment must either “store” or “produce” telephone numbers. Because Facebook’s notification system neither stores nor produces numbers “using a random or sequential number generator,” it is not an autodialer. We begin with the text. Congress defined an autodialer in terms of what it must do (“store or produce telephone numbers to be called”) and how it must do it (“using a random or sequential number generator”). The definition uses a familiar structure: a list of verbs followed by a modifying clause. Under conventional rules of grammar, “[w]hen there is a straightforward, parallel construction that involves all nouns or verbs in a series,” a modifier at the end of the list “normally applies to the entire series.” This canon generally reflects the most natural reading of a sentence. Imagine if a teacher announced that “students must not complete or check any homework to be turned in for a grade, using online homework-help websites.” It would be strange to read that rule as prohibiting students from completing homework altogether, with or without online support. … Congress’ definition of an autodialer requires that in all cases, whether storing or producing numbers to be called, the equipment in question must use a random or sequential number generator. This definition excludes equipment like Facebook’s login notification system, which does not use such technology. ... Duguid’s counterarguments cannot overcome the clear commands of §227(a)(1)(A)’s text and the statutory context. The crux of Duguid’s argument is that the autodialer definition calls for a construction that accords with the “sense” of the text. It makes the most “sense,” Duguid insists, to apply the phrase “using a random or sequential number generator” to modify only “produce,” which, unlike the verb “store,” is closely connected to the noun “generator.” Dictionary definitions of “generator,” for instance, regularly include the word “produce,” which carries a very different meaning than “store.” Duguid also claims that, at the time of the TCPA’s enactment, the technical meaning of a “random number generator” invoked ways of producing numbers, not means of storing them. Perhaps Duguid’s interpretive approach would have some appeal if applying the traditional tools of interpretation led to a “linguistically impossible” or contextually implausible outcome. Duguid makes a valiant effort to prove as much, but ultimately comes up short. It is true that, as a matter of ordinary parlance, it is odd to say that a piece of equipment “stores” numbers using a random number “generator.” But it is less odd as a technical matter. Indeed, as early as 1988, the U. S. Patent and Trademark Office issued patents for devices that used a random number generator to store numbers to be called later (as opposed to using a number generator for immediate dialing).At any rate, Duguid’s interpretation is contrary to the ordinary reading of the text and, by classifying almost all modern cell phones as autodialers, would produce an outcome that makes even less sense. … We hold that a necessary feature of an autodialer under §227(a)(1)(A) is the capacity to use a random or sequential number generator to either store or produce phone numbers to be called. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Lineup: Sotomayor, joined by Roberts, Thomas, Breyer, Kagan, Gorsuch, Kavanaugh and Barrett. Concurrence in the Judgement by Alito. Concurrence in the Judgement (Alito): I agree with the Court that an “automatic telephone dialing system,” as defined in the Telephone Consumer Protection Act of 1991, must have the capacity to “store . . . telephone numbers” by “using a random or sequential number generator.” I also agree with much of the Court’s analysis and the analysis in several Court of Appeals decisions on this question. I write separately to address the Court’s heavy reliance on one of the canons of interpretation that have come to play a prominent role in our statutory interpretation cases. Cataloged in a treatise written by our former colleague Antonin Scalia and Bryan A. Garner, counsel for respondents in this case, these canons are useful tools, but it is important to keep their limitations in mind. This may be especially true with respect to the particular canon at issue here, the “series-qualifier” canon. According to the majority’s recitation of this canon, “‘[w]hen there is a straightforward, parallel construction that involves all nouns or verbs in a series,’ a modifier at the end of the list ‘normally applies to the entire series.’” The Court refers to this canon as a “rul[e] of grammar.”Yet the Scalia-Garner treatise makes it clear that interpretive canons “are not ‘rules’ of interpretation in any strict sense but presumptions about what an intelligently produced text conveys.” And Reading Law goes out of its way to emphasize the limitations of the series-qualifier canon, warning: “Perhaps more than most of the other canons, [the series-qualifier canon] is highly sensitive to context. Often the sense of the matter prevails: He went forth and wept bitterly does not suggest that he went forth bitterly.” … Appellate judges spend virtually every working hour speaking, listening to, reading, or writing English prose. Statutes are written in English prose, and interpretation is not a technical exercise to be carried out by mechanically applying a set of arcane rules. Canons of interpretation can help in figuring out the meaning of troublesome statutory language, but if they are treated like rigid rules, they can lead us astray. When this Court describes canons as rules or quotes canons while omitting their caveats and limitations, we only encourage the lower courts to relegate statutory interpretation to a series of if-then computations. No reasonable reader interprets texts that way. For these reasons, I respectfully concur in the judgment. https://www.supremecourt.gov/opinions/20pdf/19-511_p86b.pdf FEDERAL COMMUNICATIONS COMMISSION ET AL. v. PROMETHEUS RADIO PROJECT ET AL. TLDR: Section 202(h) of the Telecommunications Act of 1996 directs the FCC to review its media ownership rules every four years and to repeal or modify any rules that no longer serve the public interest. In 2017, the FCC concluded that three of its ownership rules were no longer necessary to promote competition, localism, or viewpoint diversity. The Commission further concluded that the record evidence did not suggest that repealing or modifying those three rules was likely to harm minority and female ownership. Based on that analysis, the agency decided to repeal two of those three ownership rules and modify the third. Prometheus Radio Project and several other public interest and consumer advocacy groups (collectively, Prometheus) petitioned for review, arguing that the FCC’s decision to repeal or modify the three rules was arbitrary and capricious under the Administrative Procedure Act (APA). [They weren’t.] Holding / Majority Opinion (Kavanaugh) Under the Communications Act of 1934, the Federal Communications Commission possesses broad authority to regulate broadcast media in the public interest. Exercising that statutory authority, the FCC has long maintained strict ownership rules. The rules limit the number of radio stations, television stations, and newspapers that a single entity may own in a given market. Under Section 202(h) of the Telecommunications Act of 1996, the FCC must review the ownership rules every four years, and must repeal or modify any ownership rules that the agency determines are no longer in the public interest. In a 2017 order, the FCC concluded that three of its ownership rules no longer served the public interest. The FCC therefore repealed two of those rules—the Newspaper/Broadcast Cross-Ownership Rule and the Radio/Television Cross-Ownership Rule. And the Commission modified the third—the Local Television Ownership Rule. In conducting its public interest analysis under Section 202(h), the FCC considered the effects of the rules on competition, localism, viewpoint diversity, and minority and female ownership of broadcast media outlets. The FCC concluded that the three rules were no longer necessary to promote competition, localism, and viewpoint diversity, and that changing the rules was not likely to harm minority and female ownership. A non-profit advocacy group known as Prometheus Radio Project, along with several other public interest and consumer advocacy groups, petitioned for review, arguing that the FCC’s decision was arbitrary and capricious under the Administrative Procedure Act. In particular, Prometheus contended that the record evidence did not support the FCC’s predictive judgment regarding minority and female ownership...We conclude that the FCC’s 2017 order was reasonable and reasonably explained for purposes of the APA’s deferential arbitrary-and-capricious standard. We therefore reverse the judgment of the Third Circuit. The Federal Communications Commission possesses broad statutory authority to regulate broadcast media “as public convenience, interest, or necessity requires.” Exercising that authority, the FCC has historically maintained several strict ownership rules. The rules limit the number of radio stations, television stations, and newspapers that a single entity may own in a given market. The FCC has long explained that the ownership rules seek to promote competition, localism, and viewpoint diversity by ensuring that a small number of entities do not dominate a particular media market. This case concerns three of the FCC’s current ownership rules. The first is the Newspaper/Broadcast Cross-Ownership Rule. Initially adopted in 1975, that rule prohibits a single entity from owning a radio or television broadcast station and a daily print newspaper in the same media market. The second is the Radio/Television Cross-Ownership Rule. Initially adopted in 1970, that rule limits the number of combined radio stations and television stations that an entity may own in a single market. And the third is the Local Television Ownership Rule. Initially adopted in 1964, that rule restricts the number of local television stations that an entity may own in a single market. The FCC adopted those rules in an early-cable and preInternet age when media sources were more limited. By the 1990s, however, the market for news and entertainment had changed dramatically….To ensure that the FCC’s ownership rules do not remain in place simply through inertia, Section 202(h) of the [Telecommunications Act] directs the FCC to review its ownership rules every four years to determine whether those rules remain “necessary in the public interest as the result of competition.” … In its quadrennial Section 202(h) order issued in 2016, the FCC concluded that the Newspaper/Broadcast Cross-Ownership, Radio/Television Cross-Ownership, and Local Television Ownership Rules remained necessary to serve the agency’s public interest goals of promoting “competition and a diversity of viewpoints in local markets.”. The FCC therefore chose to retain the existing rules with only “minor modifications.” A number of groups sought reconsideration of the 2016 Order. In 2017, the Commission (with a new Chair) granted reconsideration. On reconsideration, the FCC performed a new public interest analysis. The agency explained that rapidly evolving technology and the rise of new media outlets—particularly cable and Internet—had transformed how Americans obtain news and entertainment, rendering some of the ownership rules obsolete. As a result of those market changes, the FCC concluded that the three ownership rules no longer served the agency’s public interest goals of fostering competition, localism, and viewpoint diversity.The FCC explained that permitting efficient combinations among radio stations, television stations, and newspapers would benefit consumers. The Commission also considered the likely impact of any changes to its ownership rules on minority and female ownership. The FCC concluded that repealing or modifying the three ownership rules was not likely to harm minority and female ownership. Based on its analysis of the relevant factors, the FCC decided to repeal the Newspaper/Broadcast and Radio/Television Cross-Ownership Rules, and to modify the Local Television Ownership Rule. Prometheus and several other public interest and consumer advocacy groups petitioned for review, arguing that the FCC’s decision to repeal or modify those three rules was arbitrary and capricious under the APA. … The APA’s arbitrary-and-capricious standard requires that agency action be reasonable and reasonably explained. Judicial review under that standard is deferential, and a court may not substitute its own policy judgment for that of the agency. A court simply ensures that the agency has acted within a zone of reasonableness and, in particular, has reasonably considered the relevant issues and reasonably explained the decision. In its 2017 Reconsideration Order, the FCC analyzed the significant record evidence of dramatic changes in the media market over the past several decades. After thoroughly examining that record evidence, the Commission determined that the Newspaper/Broadcast Cross-Ownership, Radio/Television Cross-Ownership, and Local Television Ownership Rules were no longer necessary to serve the agency’s public interest goals of promoting competition, localism, and viewpoint diversity. The FCC therefore concluded that repealing the two cross-ownership rules and modifying the Local Television Ownership Rule would fulfill “the mandates of Section 202(h)” and “deliver on the Commission’s promise to adopt broadcast ownership rules that reflect the present, not the past.” In analyzing whether to repeal or modify those rules, the FCC also addressed the possible impact on minority and female ownership. The Commission explained that it had sought public comment on the issue of minority and female ownership during multiple Section 202(h) reviews, but “no arguments were made” that would lead the FCC to conclude that the existing rules were “necessary to protect or promote minority and female ownership.” Indeed, the FCC stated that it had received several comments suggesting the opposite—namely, comments suggesting that eliminating the Newspaper/Broadcast CrossOwnership Rule “potentially could increase minority ownership of newspapers and broadcast stations.” Based on the record, the Commission concluded that repealing or modifying the three rules was not likely to harm minority and female ownership. In challenging the 2017 Reconsideration Order in this Court, Prometheus does not seriously dispute the FCC’s conclusion that the existing rules no longer serve the agency’s public interest goals of competition, localism, and viewpoint diversity. Rather, Prometheus targets the FCC’s assessment that altering the ownership rules was not likely to harm minority and female ownership. Prometheus asserts that the FCC relied on flawed data in assessing the likely impact of changing the rules on minority and female ownership. Prometheus further argues that the FCC ignored superior data available in the record. … Prometheus insists that the FCC’s numerical comparison was overly simplistic and that the data sets were materially incomplete. But the FCC acknowledged the gaps in the data. And despite repeatedly asking for data on the issue, the Commission received no other data on minority ownership and no data at all on female ownership levels. The FCC therefore relied on the data it had (and the absence of any countervailing evidence) to predict that changing the rules was not likely to harm minority and female ownership. Prometheus also asserts that countervailing—and superior—evidence was in fact in the record, and that the FCC ignored that evidence. Prometheus identifies two studies submitted to the FCC by Free Press, a media reform group. Those studies purported to show that past relaxations of the ownership rules and increases in media market concentration had led to decreases in minority and female ownership levels. According to Prometheus, the Free Press studies undercut the FCC’s prediction that its rule changes were unlikely to harm minority and female ownership. The FCC did not ignore the Free Press studies. The FCC simply interpreted them differently. In particular, in the 2016 Order, the Commission explained that its data sets and the Free Press studies showed the same long-term increase in minority ownership after the Local Television Ownership and Local Radio Ownership Rules were relaxed. Moreover, as counsel for Prometheus forthrightly acknowledged at oral argument, the Free Press studies were purely backward-looking, and offered no statistical analysis of the likely future effects of the FCC’s proposed rule changes on minority and female ownership. In short, the FCC’s analysis was reasonable and reasonably explained for purposes of the APA’s deferential arbitrary-and-capricious standard. The FCC considered the record evidence on competition, localism, viewpoint diversity, and minority and female ownership, and reasonably concluded that the three ownership rules no longer serve the public interest. The FCC reasoned that the historical justifications for those ownership rules no longer apply in today’s media market, and that permitting efficient combinations among radio stations, television stations, and newspapers would benefit consumers. The Commission further explained that its best estimate, based on the sparse record evidence, was that repealing or modifying the three rules at issue here was not likely to harm minority and female ownership. The APA requires no more. … We reverse the judgment of the U. S. Court of Appeals for the Third Circuit. It is so ordered. Lineup: Kavanaugh, unanimous. Concurrence by Thomas. Concurrence (Thomas): As the Court correctly holds, the Federal Communications Commission’s orders were not arbitrary and capricious. Based on the record evidence available, the FCC reasonably concluded that modifying its broadcast ownership rules would not harm minority and female ownership of broadcast media. I write separately to note another, independent reason why reversal is warranted: The Third Circuit improperly imposed nonstatutory procedural requirements on the FCC by forcing it to consider ownership diversity in the first place. The FCC had no obligation to consider minority and female ownership. Nothing in §202(h) of the Telecommunications Act of 1996 directs the FCC to consider rates of minority and female ownership. See note following 47 U. S. C. §303 (requiring the FCC simply to consider “‘the public interest as the result of competition’”). Nor could any court force the FCC to consider ownership diversity: Courts have no authority to impose “judge-made procedur[es]” on agencies. Disregarding these limits, the Third Circuit imposed on the FCC a nonstatutory requirement to consider minority and female ownership. … To be sure, the FCC has sometimes considered minority and female ownership of broadcast media when discussing ownership rules. Time after time, however, it has viewed those forms of diversity not “as policy goals in and of themselves, but as proxies for viewpoint diversity.” The FCC has also said that ownership diversity “promote[s] competition.” And although the FCC has occasionally used language that, read in isolation, could suggest a freestanding goal of promoting ownership diversity, these comments must be viewed in the light of the FCC’s repeated statements that “the core Commission goal [is] maximizing the diversity of points of view available to the public” and that “promoting minority [and female] ownership of broadcasting and cable television facilities serves” this core goal. … Here, as in 2003, once the FCC determined that none of its policy objectives for ownership rules—viewpoint diversity, competition, and localism—justified retaining its rules, the FCC was free to modify or repeal them without considering ownership diversity. Indeed, the FCC has long been clear that “it would be inappropriate to retain multiple ownership regulations for the sole purpose of promoting minority ownership.” The Third Circuit had no authority to require the FCC to consider minority and female ownership. So in future reviews, the FCC is under no obligation to do so. https://www.supremecourt.gov/opinions/20pdf/19-1231_i425.pdf [This is my favorite kind of Supreme Court case, State v. State action. My father, not coincidentally a farmer in Southwest Georgia with a lot of irrigated land, sent me this opinion early this morning.] FLORIDA v. GEORGIA TLDR: This case involves a dispute between Florida and Georgia concerning the proper apportionment of interstate waters. Florida brought an original action against Georgia alleging that its upstream neighbor consumes more than its fair share of water from interstate rivers in the Apalachicola-Chattahoochee-Flint River Basin. Florida claims that Georgia’s overconsumption of Basin waters caused low flows in the Apalachicola River which seriously harmed Florida’s oyster fisheries and river ecosystem. The first Special Master appointed by the Court to assess Florida’s claims recommended dismissal of Florida’s complaint….Following supplemental briefing and oral argument, the Special Master then reviewing the case produced an 81-page report recommending that the Court deny Florida relief. Relevant here, the Special Master concluded that Florida failed to prove by clear and convincing evidence that Georgia’s alleged overconsumption caused serious harm either to Florida’s oyster fisheries or to its river wildlife and plant life. … Florida has not proved by clear and convincing evidence that the collapse of its oyster fisheries was caused by Georgia’s overconsumption. … Florida also has not proved by clear and convincing evidence that Georgia’s overconsumption has harmed river wildlife and plant life by disconnecting tributaries, swamps, and sloughs from the Apalachicola River, thereby drying out important habitats for river species. Holding / Majority Opinion (Barrett) For the second time in three years, we confront a dispute between Florida and Georgia over the proper apportionment of interstate waters. Florida, the downstream State, brought this original action against Georgia, claiming that Georgia consumes more than its fair share of water from an interstate network of rivers. Florida says that Georgia’s overconsumption harms its economic and ecological interests, and it seeks a decree requiring Georgia to reduce its consumption. … This case concerns the Apalachicola-Chattahoochee-Flint River Basin, an area spanning more than 20,000 square miles in Georgia, Florida, and Alabama. The Basin contains three rivers. The Chattahoochee River and the Flint River start in Georgia and empty into Lake Seminole, which straddles the Georgia-Florida border. Both rivers are critical sources of water for Georgia. The Chattahoochee is the primary water supply for the Atlanta metropolitan area, while the Flint supplies irrigation to southwestern Georgia’s agricultural industry. [This may be the reason for my father’s intense interest.] The third river in the Basin is the Apalachicola River. It starts from the southern end of Lake Seminole and flows south through the Florida Panhandle, emptying into the Apalachicola Bay (Bay), near the Gulf of Mexico. The Apalachicola River supports a wide range of river wildlife and plant life in the Florida Panhandle, and its steady supply of fresh water makes the Bay a suitable habitat for oysters. For many years, Florida’s oyster fisheries were a cornerstone of the regional economy. Many factors influence Apalachicola River flows, including precipitation, air temperature, and Georgia’s upstream consumption of Basin waters. The U. S. Army Corps of Engineers also plays an important role. The Corps regulates Apalachicola flows by storing water in, and releasing water from, its network of reservoirs in the Basin. In recent years, low flows in the Apalachicola River have become increasingly common during the dry summer and fall months, particularly during droughts. In 2013, on the heels of the third regional drought in just over a decade, Florida brought this original action against Georgia, seeking an equitable apportionment of the Basin waters. Florida asserts that Georgia’s overconsumption of Basin waters causes sustained low flows in the Apalachicola River, which in turn harm its oyster fisheries and river ecosystem. As a remedy, Florida seeks an order requiring Georgia to reduce its consumption of Basin waters. Florida does not seek relief against the Corps. … Special Master Kelly issued an 81-page report recommending, for several independent reasons, that this deny Florida relief. Relevant here, the Special Master concluded that Florida failed to prove by clear and convincing evidence that Georgia’s alleged overconsumption caused serious harm to Florida’s oyster fisheries or its river wildlife and plant life. Florida again filed exceptions to the Special Master’s Report. We must “conduct an independent review of the record, and assume the ultimate responsibility for deciding all matters.” Having done so, we overrule Florida’s exceptions and adopt the Special Master’s recommendation. “This Court has recognized for more than a century its inherent authority, as part of the Constitution’s grant of original jurisdiction, to equitably apportion interstate streams between States.” Given the weighty and competing sovereign interests at issue in these cases, “a complaining State must bear a burden that is ‘much greater’ than the burden ordinarily shouldered by a private party seeking an injunction.” Here, Florida must make two showings to obtain an equitable apportionment. First, Florida must prove a threatened or actual injury “of serious magnitude” caused by Georgia’s upstream water consumption. Second, Florida must show that “the benefits of the [apportionment] substantially outweigh the harm that might result.” Because Florida and Georgia are both riparian States, the “guiding principle” of this analysis is that both States have “an equal right to make a reasonable use” of the Basin waters. To resolve this case, we need address only injury and causation. Florida asserts that Georgia’s overconsumption of Basin waters caused it two distinct injuries: the collapse of its oyster fisheries and harm to its river ecosystem. Florida does not dispute that it must prove injury and causation by clear and convincing evidence. To do so, Florida must “place in the ultimate factfinder an abiding conviction that the truth of its factual contentions are ‘highly probable.’” With Florida’s heavy burden in mind, we address its asserted injuries in turn. In 2012, in the midst of a severe drought, the oyster population in the Apalachicola Bay collapsed, causing commercial oyster sales to plummet. By the time of trial, the Bay’s fisheries had yet to recover. All agree that this is an injury “of serious magnitude” under our equitable-apportionment precedents. The parties, however, offer competing explanations for the cause of the collapse. Florida pins the collapse on Georgia through a multistep causal chain. It argues that Georgia’s unreasonable agricultural water consumption caused sustained low flows in the Apalachicola River; that these low flows increased the Bay’s salinity; and that higher salinity in the Bay attracted droves of saltwater oyster predators and disease, ultimately decimating the oyster population. Georgia points to a more direct cause—Florida’s mismanagement of its oyster fisheries. According to Georgia, Florida caused the collapse by overharvesting oysters and failing to replace harvested oyster shells. And even if low flows contributed at all, Georgia says, they were driven by climatic changes and other factors, not its upstream consumption. ... On this record, we agree with the Special Master that Florida has failed to carry its burden. Florida’s own documents and witnesses reveal that Florida allowed unprecedented levels of oyster harvesting in the years before the collapse. In 2011 and 2012, oyster harvests from the Bay were larger than in any other year on record...A former Florida official, one of Florida’s lead witnesses, acknowledged that these management practices “‘bent’” Florida’s fisheries “‘until [they] broke.’” The record also shows that Florida failed to adequately reshell its oyster bars. Reshelling is a century-old oyster-management practice that involves replacing harvested oyster shells with clean shells, which can serve as habitat for young oysters. Yet in the years before the collapse, while Florida was harvesting oysters at a record pace, it was simultaneously reshelling its oyster bars at a historically low rate. Georgia’s marine ecologist, Dr. Lipcius, demonstrated the stark effects of Florida’s increased harvesting and lax reshelling efforts. Analyzing data on oyster densities precollapse and postcollapse, Dr. Lipcius found that mean densities in the Bay’s most heavily harvested oyster bars dropped by an average of 78%, while mean densities increased by 3% to 13% at bars that either were not heavily harvested or had been reshelled.Dr. Lipcius also found negligible differences in salinity among the bars that he analyzed, suggesting that increased salinity did not explain the variance in oyster densities. Florida does not meaningfully rebut this evidence. Yet Florida nonetheless argues that Georgia’s overconsumption—and the consequent increased salinity and predation—was the sole cause of the collapse, or at least a substantial factor contributing to it.* But here again, Florida’s own witnesses suggest otherwise. Dr. White, one of Florida’s ecology experts, modeled how oyster biomass would have changed at two of the Bay’s major oyster bars if Georgia had consumed less water in the years leading up to the collapse. His modeling showed that reducing Georgia’s consumption by an amount “similar to the relief that Florida is requesting” in this case would have increased oyster biomass by less than 1.5% in 2012. Florida does not explain how such minor fluctuations in oyster biomass could have averted the collapse. ... Other Florida experts reinforced Dr. White’s biomass findings. One expert found that salinity reductions of greater than 10 parts per thousand are “required” in order to reduce predation by rock snails—one of the oyster’s fiercest predators. Yet according to another Florida expert, salinity throughout the Bay would have declined by substantially less than 10 parts per thousand in 2012 even if Georgia had eliminated all of its consumption from the Basin. Together, these findings further undermine the asserted link between Georgia’s consumption and decreased oyster biomass. … The fundamental problem with [Florida’s] evidence—a problem that pervades Florida’s submission in this case—is that it establishes at most that increased salinity and predation contributed to the collapse, not that Georgia’s overconsumption caused the increased salinity and predation. … Considering the record as a whole, Florida has not shown that it is “highly probable” that Georgia’s alleged overconsumption played more than a trivial role in the collapse of Florida’s oyster fisheries. Florida therefore has failed to carry its burden of proving causation by clear and convincing evidence. Florida also argues that Georgia’s overconsumption has harmed river wildlife and plant life by disconnecting tributaries, swamps, and sloughs from the Apalachicola River, thereby drying out important habitats for river species. The Special Master found “a complete lack of evidence” that any river species suffered serious injury from Georgia’s alleged overconsumption, and we agree. … In short, Florida has not met the exacting standard necessary to warrant the exercise of this Court’s extraordinary authority to control the conduct of a coequal sovereign. We emphasize that Georgia has an obligation to make reasonable use of Basin waters in order to help conserve that increasingly scarce resource. But in light of the record before us, we must overrule Florida’s exceptions to the Special Master’s Report and dismiss the case. It is so ordered. Lineup: Barrett, unanimous. https://www.supremecourt.gov/opinions/20pdf/22o142_m648.pdf
|
|
#
?
Apr 1, 2021 22:00
|
|
|
Stickman posted:No, for sure - I was mostly commenting stated justification for the law: "Congress found autodialer technology harmful because autodialers can dial emergency lines randomly or tie up all of the sequentially numbered phone lines at a single entity." Yea, you can't really target the technology alone. The old ATDS "call random numbers" method aren't really used that much anymore anyways. First they switched to predictive dialers, now they're switching to click to dial systems. Dialing campaigns are also much more targeted then before. The people that run the old school random number campaigns probably aren't complying with the law anyways. There's a ton of other issues in the industry as well, like how far consent actually goes, what happens when a phone number gets reassigned and no one is informed of it and is it really fair to punish a caller in that situation, categorizing direct drop voicemails and text messages, etc. I do enjoy that Garner signed on to argue for Duguid and then lost a canon of statutory construction argument. give me back my $20 for your book you hack
|
|
#
?
Apr 1, 2021 23:01
|
|
|
That oyster case is fascinating. Florida has spent ten years trying to scapegoat Georgia for its oyster collapse when their own witnesses can't even back up that argument. Why were they even bothering to waste the money at that point?
|
|
#
?
Apr 2, 2021 01:59
|
|
|
Some Guy TT posted:That oyster case is fascinating. Florida has spent ten years trying to scapegoat Georgia for its oyster collapse when their own witnesses can't even back up that argument. Why were they even bothering to waste the money at that point?
|
|
#
?
Apr 2, 2021 02:05
|
|
|
https://mobile.twitter.com/RichSchragger/status/1377609995949326337
|
|
#
?
Apr 2, 2021 17:25
|
|
|
Apparently this judge is terrible on every topic with the exception of police accountability, where he's great. It's always weird when that happens. If they can see the light on one topic, why not anything else? https://slate.com/news-and-politics/2021/04/don-willett-qualified-immunity-police-accountability.html
|
|
#
?
Apr 3, 2021 05:27
|
|
|
Charlz Guybon posted:Apparently this judge is terrible on every topic with the exception of police accountability, where he's great. I can't speak for this guy but usually it's because they had some personal experience in that one area and didn't think past it. Probably a cop was mean to him once.
|
|
#
?
Apr 3, 2021 05:37
|
|
|
Judges are often stupid as poo poo
|
|
#
?
Apr 3, 2021 19:46
|
|
|
Grip it and rip it posted:Judges are ftfy
|
|
#
?
Apr 3, 2021 21:12
|
|
|
Judges get terminal cases of engineer brain except it's with words instead of math/systems/whatever.
|
|
#
?
Apr 4, 2021 04:43
|
|
|
Dameius posted:Judges get terminal cases of engineer brain except it's with words instead of math/systems/whatever. Eh they put a lot of work into creatively interpreting the writings of several other past courts and are trying to make sure it's drat hard for the next joker to do that to them.
|
|
#
?
Apr 4, 2021 08:47
|
|
|
https://twitter.com/fordm/status/1379067654502252549?s=20
|
|
#
?
Apr 5, 2021 15:01
|
|
|
I thought Thomas hated regulation but he’s essentially calling Twitter a common carrier
|
|
#
?
Apr 5, 2021 15:48
|
|
|
https://twitter.com/charles_duan/status/1379074836073488391 Google v. Oracle ended in close to the best possible outcome: Established a fair use doctrine for copying API. edit: It is also a good day any day that Oracle eats poo poo. OneEightHundred fucked around with this message at 17:15 on Apr 5, 2021 |
|
#
?
Apr 5, 2021 16:22
|
|
|
OneEightHundred posted:https://twitter.com/charles_duan/status/1379074836073488391 The thread is an interesting read—Duan seems to think this could have major positive implications for fair use in general, as applied to stuff like fan works. https://twitter.com/charles_duan/status/1379083562041888773
|
|
#
?
Apr 5, 2021 16:39
|
|
|
Opinion! GOOGLE LLC v. ORACLE AMERICA, INC. The forces of Good (or at least not Oracle) prevail, and the forces of Evil are rebuffed! TLDR: Oracle owns Java. Google built Android to use Java, and copied around 12k lines of code from Java SE, primarily API definitions. Google’s copying of the Java SE API, which included only those lines of code that were needed to allow programmers to put their accrued talents to work in a new and transformative program, was a fair use of that material as a matter of law.. Holding / Majority Opinion (Breyer) Oracle America, Inc., is the current owner of a copyright in Java SE, a computer program that uses the popular Java computer programming language. Google, without permission, has copied a portion of that program, a portion that enables a programmer to call up prewritten software that, together with the computer’s hardware, will carry out a large number of specific tasks. The lower courts have considered (1) whether Java SE’s owner could copyright the portion that Google copied, and (2) if so, whether Google’s copying nonetheless constituted a “fair use” of that material, thereby freeing Google from copyright liability. The Federal Circuit held in Oracle’s favor (i.e., that the portion is copyrightable and Google’s copying did not constitute a “fair use”). In reviewing that decision, we assume, for argument’s sake, that the material was copyrightable. But we hold that the copying here at issue nonetheless constituted a fair use. Hence, Google’s copying did not violate the copyright law. In 2005, Google acquired Android, Inc., a startup firm that hoped to become involved in smartphone software. Google sought, through Android, to develop a software platform for mobile devices like smartphones...Google envisioned an Android platform that was free and open, such that software developers could use the tools found there free of charge. Its idea was that more and more developers using its Android platform would develop ever more Android-based applications, all of which would make Google’s Android-based smartphones more attractive to ultimate consumers. Consumers would then buy and use ever more of those phones. That vision required attracting a sizeable number of skilled programmers. At that time, many software developers understood and wrote programs using the Java programming language, a language invented by Sun Microsystems (Oracle’s predecessor)...Many of those programmers used Sun’s own popular Java SE platform to develop new programs primarily for use in desktop and laptop computers. That platform allowed developers using the Java language to write programs that were able to run on any desktop or laptop computer, regardless of the underlying hardware (i.e., the programs were in large part “interoperable”). ... Shortly after acquiring the Android firm, Google began talks with Sun about the possibility of licensing the entire Java platform for its new smartphone technology. But Google did not want to insist that all programs written on the Android platform be interoperable...Apparently, for reasons related to this disagreement, Google’s negotiations with Sun broke down. Google then built its own platform. The record indicates that roughly 100 Google engineers worked for more than three years to create Google’s Android platform software. In doing so, Google tailored the Android platform to smartphone technology, which differs from desktop and laptop computers in important ways...To build the platform, Google wrote millions of lines of new code. Because Google wanted millions of programmers, familiar with Java, to be able easily to work with its new Android platform, it also copied roughly 11,500 lines of code from the Java SE program. The copied lines of code are part of a tool called an Application Programming Interface, or API. What is an API? The Federal Circuit described an API as a tool that “allow[s] programmers to use . . . prewritten code to build certain functions into their own programs, rather than write their own code to perform those functions from scratch.” Through an API, a programmer can draw upon a vast library of prewritten code to carry out complex tasks. … The [code declaring the name of a method and its location] therefore performs at least two important functions in the Sun Java API. The first, more obvious, function is that the declaring code enables a set of shortcuts for programmers. By connecting complex implementing code with method calls, it allows a programmer to pick out from the API’s task library a particular task without having to learn anything more than a simple command....In this way, the declaring code’s shortcut function is similar to a gas pedal in a car that tells the car to move faster or the QWERTY keyboard on a typewriter that calls up a certain letter when you press a particular key. … The second, less obvious, function is to reflect the way in which Java’s creators have divided the potential world of different tasks into an actual world, i.e., precisely which set of potentially millions of different tasks we want to have our Java-based computer systems perform and how we want those tasks arranged and grouped. In this sense, the declaring code performs an organizational function. It determines the structure of the task library that Java’s creators have decided to build. To understand this organizational system, think of the Dewey Decimal System that categorizes books into an accessible system or a travel guide that arranges a city’s attractions into different categories. Language itself provides a rough analogy to the declaring code’s organizational feature, for language itself divides into sets of concepts a world that in certain respects other languages might have divided differently. The developers of Java, for example, decided to place a method called “draw image” inside of a class called “graphics.” … Now we can return to the copying at issue in this case. Google did not copy the task-implementing programs, or implementing code, from the Sun Java API. It wrote its own task-implementing programs, such as those that would determine which of two integers is the greater or carry out any other desired (normally far more complex) task. This implementing code constitutes the vast majority of both the Sun Java API and the API that Google created for Android. For most of the packages in its new API, Google also wrote its own declaring code. For 37 packages, however, Google copied the declaring code from the Sun Java API. As just explained, that means that, for those 37 packages, Google necessarily copied both the names given to particular tasks and the grouping of those tasks into classes and packages. In doing so, Google copied that portion of the Sun Java API that allowed programmers expert in the Java programming language to use the “task calling” system that they had already learned. As Google saw it, the 37 packages at issue included those tasks that were likely to prove most useful to programmers working on applications for mobile devices. In fact, “three of these packages were . . . fundamental to being able to use the Java language at all.” … We add that the Android platform has been successful. Within five years of its release in 2007, Android-based devices claimed a large share of the United States market. The case has a complex and lengthy history. At the outset Oracle complained that Google’s use of the Sun Java API violated both copyright and patent laws. For its copyright claim, Oracle alleged that Google infringed its copyright by copying, for 37 packages, both the literal declaring code and the nonliteral organizational structure (or SSO) of the API, i.e., the grouping of certain methods into classes and certain classes into packages. [To sum up, Google kept winning at the trial court level and losing at the Federal Circuit, but ultimately the case ends up at the Supreme Court on the questions of 1) can you copyright the API Google copied and 2) is it fair use to copy that API even if it is copyrightable?] Copyright statutes and case law have made clear that copyright has practical objectives. It grants an author an exclusive right to produce his work (sometimes for a hundred years or more), not as a special reward, but in order to encourage the production of works that others might reproduce more cheaply. At the same time, copyright has negative features. Protection can raise prices to consumers. It can impose special costs, such as the cost of contacting owners to obtain reproduction permission. And the exclusive rights it awards can sometimes stand in the way of others exercising their own creative powers. Four provisions of the current Copyright Act are of particular relevance in this case. First, a definitional provision sets forth three basic conditions for obtaining a copyright. There must be a “wor[k] of authorship,” that work must be “original,” and the work must be “fixed in any tangible medium of expression.” Second, the statute lists certain kinds of works that copyright can protect. They include “literary,” “musical,” “dramatic,” “motion pictur[e],” “architectural,” and certain other works [including “‘a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result.’”, aka a computer program.] Third, the statute sets forth limitations on the works that can be copyrighted, including works that the definitional provisions might otherwise include. It says, for example, that copyright protection cannot be extended to “any idea, procedure, process, system, method of operation, concept, principle, or discovery . . . .” These limitations, along with the need to “fix” a work in a “tangible medium of expression,” have often led courts to say, in shorthand form, that, unlike patents, which protect novel and useful ideas, copyrights protect “expression” but not the “ideas” that lie behind it. Fourth, Congress, together with the courts, has imposed limitations upon the scope of copyright protection even in respect to works that are entitled to a copyright...And directly relevant here, a copyright holder cannot prevent another person from making a “fair use” of copyrighted material. We have described the “fair use” doctrine, originating in the courts, as an “equitable rule of reason” that “permits courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster.” ... In applying this [fair use] provision, we, like other courts, have understood that the provision’s list of factors [commercial/noncommercial use, nature of the copyrighted work, amount and substantiality of the copied portion, and effect on the potential market] is not exhaustive..., and that some factors may prove more important in some contexts than in others … Given the rapidly changing technological, economic, and business-related circumstances, we believe we should not answer more than is necessary to resolve the parties’ dispute. We shall assume, but purely for argument’s sake, that the entire Sun Java API falls within the definition of that which can be copyrighted. We shall ask instead whether Google’s use of part of that API was a “fair use.” Unlike the Federal Circuit, we conclude that it was. … The upshot [of the problems of computer programs being always somewhat functional], in our view, is that fair use can play an important role in determining the lawful scope of a computer program copyright, such as the copyright at issue here. It can help to distinguish among technologies. It can distinguish between expressive and functional features of computer code where those features are mixed. It can focus on the legitimate need to provide incentives to produce copyrighted material while examining the extent to which yet further protection creates unrelated or illegitimate harms in other markets or to the development of other products. In a word, it can carry out its basic purpose of providing a context-based check that can help to keep a copyright monopoly within its lawful bounds. … JUSTICE THOMAS’ thoughtful dissent offers a very different view of how (and perhaps whether) fair use has any role to play for computer programs….We do not understand Congress, however, to have shielded computer programs from the ordinary application of copyright’s limiting doctrines in this way. By defining computer programs in §101, Congress chose to place this subject matter within the copyright regime. Like other protected works, that means that the owners of computer programs enjoy the exclusive rights set forth in the Act, including the right to “reproduce [a] copyrighted work” or to “prepare derivative works.” But that also means that exclusive rights in computer programs are limited like any other works. ... At the outset, Google argues that “fair use” is a question for a jury to decide; here the jury decided the question in Google’s favor; and we should limit our review to determining whether “substantial evidence” justified the jury’s decision. The Federal Circuit disagreed. It thought that the “fair use” question was a mixed question of fact and law; that reviewing courts should appropriately defer to the jury’s findings of underlying facts; but that the ultimate question whether those facts showed a “fair use” is a legal question for judges to decide de novo. We agree with the Federal Circuit’s answer to this question. We have said, “[f]air use is a mixed question of law and fact.” We have explained that a reviewing court should try to break such a question into its separate factual and legal parts, reviewing each according to the appropriate legal standard. But when a question can be reduced no further, we have added that “the standard of review for a mixed question all depends— on whether answering it entails primarily legal or factual work.” In this case, the ultimate “fair use” question primarily involves legal work….Applying a legal “fair use” conclusion may, of course, involve determination of subsidiary factual questions, such as “whether there was harm to the actual or potential markets for the copyrighted work” or “how much of the copyrighted work was copied.” … In this case the Federal Circuit carefully applied the fact/law principles we set forth in U. S. Bank, leaving factual determinations to the jury and reviewing the ultimate question, a legal question, de novo. Next, Google argues that the Federal Circuit’s approach violates the Seventh Amendment...It does not violate the Reexamination Clause for a court to determine the controlling law in resolving a challenge to a jury verdict, as happens any time a court resolves a motion for judgment as a matter of law. Nor is Google correct that “the right of trial by jury” includes the right to have a jury resolve a fair use defense. That Clause is concerned with “the particular trial decision” at issue. Even though it is possible to find pre-Revolutionary English cases in which a judge sent related questions like fair abridgment to a jury, those questions were significantly different from the “fair use” doctrine as courts apply it today….As far as contemporary fair use is concerned, we have described the doctrine as an “equitable,” not a “legal,” doctrine. We turn now to the basic legal question before us: Was Google’s copying of the Sun Java API, specifically its use of the declaring code and organizational structure for 37 packages of that API, a “fair use.” In answering this question, we shall consider the four factors set forth in the fair use statute as we find them applicable to the kind of computer programs before us. For expository purposes, we begin with the second. “The Nature of the Copyrighted Work” The Sun Java API is a “user interface.” It provides a way through which users (here the programmers) can “manipulate and control” task-performing computer programs “via a series of menu commands.” The API reflects Sun’s division of possible tasks that a computer might perform into a set of actual tasks that certain kinds of computers actually will perform….No one claims that the decisions about what counts as a task are themselves copyrightable—although one might argue about decisions as to how to label and organize such tasks (e.g., the decision to name a certain task “max” or to place it in a class called “Math.”...In our view...the declaring code [having java.lang.Math.max call that method, etc.] is, if copyrightable at all, further than are most computer programs (such as the implementing code) from the core of copyright. That fact diminishes the fear, expressed by both the dissent and the Federal Circuit, that application of “fair use” here would seriously undermine the general copyright protection that Congress provided for computer programs. And it means that this factor, “the nature of the copyrighted work,” points in the direction of fair use. B. “The Purpose and Character of the Use” In the context of fair use, we have considered whether the copier’s use “adds something new, with a further purpose or different character, altering” the copyrighted work “with new expression, meaning or message.” Id., at 579. Commentators have put the matter more broadly, asking whether the copier’s use “fulfill[s] the objective of copyright law to stimulate creativity for public illumination.” Leval 1111. In answering this question, we have used the word “transformative” to describe a copying use that adds something new and important. … Google copied portions of the Sun Java API precisely, and it did so in part for the same reason that Sun created those portions, namely, to enable programmers to call up implementing programs that would accomplish particular tasks. But since virtually any unauthorized use of a copyrighted computer program (say, for teaching or research) would do the same, to stop here would severely limit the scope of fair use in the functional context of computer programs. Rather, in determining whether a use is “transformative,” we must go further and examine the copying’s more specifically described “purpose[s]” and “character.” Here Google’s use of the Sun Java API seeks to create new products. It seeks to expand the use and usefulness of Android-based smartphones. Its new product offers programmers a highly creative and innovative tool for a smartphone environment. To the extent that Google used parts of the Sun Java API to create a new platform that could be readily used by programmers, its use was consistent with that creative “progress” that is the basic constitutional objective of copyright itself.The jury heard that Google limited its use of the Sun Java API to tasks and specific programming demands related to Android. It copied the API (which Sun created for use in desktop and laptop computers) only insofar as needed to include tasks that would be useful in smartphone programs.And it did so only insofar as needed to allow programmers to call upon those tasks without discarding a portion of a familiar programming language and learning a new one. ... These and related facts convince us that the “purpose and character” of Google’s copying was transformative—to the point where this factor too weighs in favor of fair use. There are two other considerations that are often taken up under the first factor: commerciality and good faith. [Many common fair uses are indisputably commercial, and the Court doesn’t find good faith useful here.] C. “The Amount and Substantiality of the Portion Used” If one considers the declaring code in isolation, the quantitative amount of what Google copied was large. Google copied the declaring code for 37 packages of the Sun Java API, totaling approximately 11,500 lines of code. Those lines of code amount to virtually all the declaring code needed to call up hundreds of different tasks. On the other hand, if one considers the entire set of software material in the Sun Java API, the quantitative amount copied was small. The total set of Sun Java API computer code, including implementing code, amounted to 2.86 million lines, of which the copied 11,500 lines were only 0.4 percent. The question here is whether those 11,500 lines of code should be viewed in isolation or as one part of the considerably greater whole. We have said that even a small amount of copying may fall outside of the scope of fair use where the excerpt copied consists of the “‘heart’” of the original work’s creative expression. … Several features of Google’s copying suggest that the better way to look at the numbers is to take into account the several million lines that Google did not copy. For one thing, the Sun Java API is inseparably bound to those taskimplementing lines. Its purpose is to call them up. For another, Google copied those lines not because of their creativity, their beauty, or even (in a sense) because of their purpose. It copied them because programmers had already learned to work with the Sun Java API’s system, and it would have been difficult, perhaps prohibitively so, to attract programmers to build its Android smartphone system without them. Further, Google’s basic purpose was to create a different task-related system for a different computing environment (smartphones) and to create a platform—the Android platform—that would help achieve and popularize that objective. The “substantiality” factor will generally weigh in favor of fair use where, as here, the amount of copying was tethered to a valid, and transformative, purpose. We do not agree with the Federal Circuit’s conclusion that Google could have achieved its Java-compatibility objective by copying only the 170 lines of code that are “necessary to write in the Java language.” In our view, that conclusion views Google’s legitimate objectives too narrowly. Google’s basic objective was not simply to make the Java programming language usable on its Android systems. It was to permit programmers to make use of their knowledge and experience using the Sun Java API when they wrote new programs for smartphones with the Android platform. In principle, Google might have created its own, different system of declaring code. But the jury could have found that its doing so would not have achieved that basic objective. In a sense, the declaring code was the key that it needed to unlock the programmers’ creative energies. And it needed those energies to create and to improve its own innovative Android systems. We consequently believe that this “substantiality” factor weighs in favor of fair use. D. Market Effects The fourth statutory factor focuses upon the “effect” of the copying in the “market for or value of the copyrighted work.” Consideration of this factor, at least where computer programs are at issue, can prove more complex than at first it may seem. It can require a court to consider the amount of money that the copyright owner might lose. As we pointed out in Campbell, “verbatim copying of the original in its entirety for commercial purposes” may well produce a market substitute for an author’s work. Making a film of an author’s book may similarly mean potential or presumed losses to the copyright owner. Those losses normally conflict with copyright’s basic objective: providing authors with exclusive rights that will spur creative expression. But a potential loss of revenue is not the whole story. We here must consider not just the amount but also the source of the loss. As we pointed out in Campbell, a “lethal parody, like a scathing theatre review,” may “kil[l] demand for the original.” Yet this kind of harm, even if directly translated into foregone dollars, is not “cognizable under the Copyright Act.” … The uncertain nature of Sun’s ability to compete in Android’s market place, the sources of its lost revenue, and the risk of creativity-related harms to the public, when taken together, convince that this fourth factor—market effects— also weighs in favor of fair use. … We reach the conclusion that in this case, where Google reimplemented a user interface, taking only what was needed to allow users to put their accrued talents to work in a new and transformative program, Google’s copying of the Sun Java API was a fair use of that material as a matter of law. The Federal Circuit’s contrary judgment is reversed, and the case is remanded for further proceedings in conformity with this opinion. It is so ordered. Lineup: Breyer, joined by Roberts, Sotomayor, Kagan, Gorsuch, and Kavanaugh. Dissent by Thomas, joined by Alito. Barett took no part. Dissent (Thomas, joined by Alito): Oracle spent years developing a programming library that successfully attracted software developers, thus enhancing the value of Oracle’s products.1 Google sought a license to use the library in Android, the operating system it was developing for mobile phones. But when the companies could not agree on terms, Google simply copied verbatim 11,500 lines of code from the library. As a result, it erased 97.5% of the value of Oracle’s partnership with Amazon, made tens of billions of dollars, and established its position as the owner of the largest mobile operating system in the world. Despite this, the majority holds that this copying was fair use. The Court reaches this unlikely result in large part because it bypasses the antecedent question clearly before us: Is the software code at issue here protected by the Copyright Act? The majority purports to assume, without deciding, that the code is protected. But its fair-use analysis is wholly inconsistent with the substantial protection Congress gave to computer code. By skipping over the copyrightability question, the majority disregards half the relevant statutory text and distorts its fair-use analysis. Properly considering that statutory text, Oracle’s code at issue here is copyrightable, and Google’s use of that copyrighted code was anything but fair. In the 1990s, [Sun, later bought by Oracle] created a programming language called Java. Like many programming languages, Java allows developers to prewrite small subprograms called “methods.” Methods form the building blocks of more complex programs. This process is not unlike what legislatures do with statutes. To save space and time, legislatures define terms and then use those definitions as a shorthand. For example, the legal definition for “refugee” is more than 300 words long.Rather than repeat all those words every time they are relevant, the U. S. Code encapsulates them all with a single term that it then inserts into each relevant section. … To create Java methods, developers use two kinds of code. The first, “declaring code,” names the method, defines what information it can process, and defines what kind of data it can output. It is like the defined term in a statute. The second, “implementing code,” includes the step-by-step instructions that make those methods run. It is like the detailed definition in a statute. … Oracle’s declaring code was central to its business model. Oracle profited financially by encouraging developers to create programs written in Java and then charging manufacturers a fee to embed in their devices the Java software platform needed to run those programs. To this end, Oracle created a work called Java 2 Platform, Standard Edition, which included a highly organized library containing about 30,000 methods. Oracle gave developers free access to these methods to encourage them to write programs for the Java platform. In return, developers were required to make their programs compatible with the Java platform on any device. Developers were encouraged to make improvements to the platform, but they were required to release beneficial modifications to the public. If a company wanted to customize the platform and keep those customizations secret for business purposes, it had to pay for a separate license. … The Court wrongly sidesteps the principal question that we were asked to answer: Is declaring code protected by copyright? I would hold that it is. Computer code occupies a unique space in intellectual property. Copyright law generally protects works of authorship. Patent law generally protects inventions or discoveries. A library of code straddles these two categories. It is highly functional like an invention; yet as a writing, it is also a work of authorship. Faced with something that could fit in either space, Congress chose copyright, and it included declaring code in that protection. The Copyright Act expressly protects computer code. It recognizes that a “computer program” is protected by copyright. And it defines “‘computer program’” as “a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result.” That definition clearly covers declaring code—sets of statements that indirectly perform computer functions by triggering prewritten implementing code. … The Court inexplicably declines to address copyrightability. Its sole stated reason is that “technological, economic, and business-related circumstances” are “rapidly changing.” ... Rather than address this principal question, the Court simply assumes that declaring code is protected and then concludes that every fair-use factor favors Google. I agree with the majority that Congress did not “shiel[d] computer programs from the ordinary application” of fair use. But the majority’s application of fair use is far from ordinary. By skipping copyrightability, the majority gets the methodology backward, causing the Court to sidestep a key conclusion that ineluctably affects the fair-use analysis: Congress rejected categorical distinctions between declaring and implementing code. But the majority creates just such a distinction. The result of this distorting analysis is an opinion that makes it difficult to imagine any circumstance in which declaring code will remain protected by copyright. … Congress has established four statutory fair-use factors for courts to weigh. Three decisively favor Oracle. And even assuming that the remaining factor favors Google, that factor, without more, cannot legally establish fair use in this context. The majority holds otherwise—concluding that every factor favors Google—by relying, in large part, on a distinction it draws between declaring and implementing code, a distinction that the statute rejects. Tellingly, the majority evaluates the factors neither in sequential order nor in order of importance (at least two factors are more important under our precedent5). Instead, it starts with the second factor: the nature of the copyrighted work. It proceeds in this manner in order to create a distinction between declaring and implementing code that renders the former less worthy of protection than the latter. Because the majority’s mistaken analysis rests so heavily on this factor, I begin with it as well. A. The Nature of the Copyrighted Work ... The majority...uses this factor to create a distinction between declaring and implementing code that in effect removes copyright protection from declaring code. It concludes that, unlike implementing code, declaring code is far “from the core of copyright” because it becomes valuable only when third parties (computer programmers) value it and because it is “inherently bound together with uncopyrightable ideas.” Congress, however, rejected this sort of categorical distinction that would make declaring code less worthy of protection. The Copyright Act protects code that operates “in a computer in order to bring about a certain result” both “directly” (implementing code) and “indirectly” (declaring code). And if anything, declaring code is closer to the “core of copyright.” Developers cannot even see implementing code. Implementing code thus conveys no expression to developers. Declaring code, in contrast, is user facing. It must be designed and organized in a way that is intuitive and understandable to developers so that they can invoke it. … The majority correctly recognizes that declaring code “is inextricably bound up with implementing code,” but it overlooks the implications of its own conclusion. Only after wrongly concluding that the nature of declaring code makes that code generally unworthy of protection does the Court move on to consider the other factors. This opening mistake taints the Court’s entire analysis. B. Market Effects “[U]ndoubtedly the single most important element of fair use” is the effect of Google’s copying “‘upon the potential market for or value of [Oracle’s] copyrighted work.’”As the Federal Circuit correctly determined, “evidence of actual and potential harm stemming from Google’s copying was ‘overwhelming.’” By copying Oracle’s code to develop and release Android, Google ruined Oracle’s potential market in at least two ways. First, Google eliminated the reason manufacturers were willing to pay to install the Java platform. … Second, Google interfered with opportunities for Oracle to license the Java platform to developers of smartphone operating systems. … By copying Oracle’s work, Google decimated Oracle’s market and created a mobile operating system now in over 2.5 billion actively used devices, earning tens of billions of dollars every year. If these effects on Oracle’s potential market favor Google, something is very wrong with our fair-use analysis. C. The Purpose and Character of the Use The second-most important factor—“the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes,” §107(1)—requires us to consider whether use was “commercial” and whether it was “transformative.” Both aspects heavily favor Oracle. Begin with the overwhelming commercial nature of Google’s copying. … Ultimately, the majority wrongly conflates transformative use with derivative use. To be transformative, a work must do something fundamentally different from the original. A work that simply serves the same purpose in a new context—which the majority concedes is true here—is derivative, not transformative. Congress made clear that Oracle holds “the exclusive rights . . . to prepare derivative works.”Rather than create a transformative product, Google “profit[ed] from exploitation of the copyrighted material without paying the customary price.” D. The Amount and Substantiality of the Portion Used The statutory fair-use factors also instruct us to consider “the amount and substantiality of the portion used in relation to the copyrighted work as a whole.” In general, the greater the amount of use, the more likely the copying is unfair. Ibid. But even if the copier takes only a small amount, copying the “‘heart’” or “focal points” of a work weighs against fair use, unless “‘no more was taken than necessary’” for the copier to achieve transformative use. … Google does not dispute the Federal Circuit’s conclusion that it copied the heart or focal points of Oracle’s work. The declaring code is what attracted programmers to the Java platform and why Google was so interested in that code. And Google copied that code “verbatim,” which weighs against fair use. … In sum, three of the four statutory fair-use factors weigh decidedly against Google. The nature of the copyrighted work—the sole factor possibly favoring Google—cannot by itself support a determination of fair use because holding otherwise would improperly override Congress’ determination that declaring code is copyrightable. The majority purports to save for another day the question whether declaring code is copyrightable. The only apparent reason for doing so is because the majority cannot square its fundamentally flawed fair-use analysis with a finding that declaring code is copyrightable. The majority has used fair use to eviscerate Congress’ considered policy judgment. I respectfully dissent. https://www.supremecourt.gov/opinions/20pdf/18-956_d18f.pdf
|
|
#
?
Apr 5, 2021 16:50
|
|
|
Wow, that's a huge win. Doubly nice in particular that Breyer seemed to use the opportunity to go to bat for Fair Use in general, and not just within the specific context of the the case at hand.
|
|
#
?
Apr 5, 2021 17:48
|
|
|
So I'll be a little more pessimistic on this - I think it's a good ruling for the present situation, but have concerns about whether it'll apply as broadly as people think it will. There's a lot of emphasis in there on Google using the declaring code in a new context; it won't necessarily extend to API reimplementation for competing products, which is where a bunch of issues arise. And while there's good language in there about competing concerns and creativity and competition, there's no guarantee the next fair use case goes the same way. Wish they'd just dealt with it by non-copyrightability, though they probably didn't have 6 (and maybe not even 5) for that decision.
|
|
#
?
Apr 5, 2021 17:54
|
|
|
Kalman posted:So I'll be a little more pessimistic on this - I think it's a good ruling for the present situation, but have concerns about whether it'll apply as broadly as people think it will. There's a lot of emphasis in there on Google using the declaring code in a new context; it won't necessarily extend to API reimplementation for competing products, which is where a bunch of issues arise. It's congress' job to deal with this, though. Too bad we do not have a functioning legislative branch.
|
|
#
?
Apr 5, 2021 17:58
|
|
|
Mr. Nice! posted:It's congress' job to deal with this, though. Too bad we do not have a functioning legislative branch.
|
|
#
?
Apr 5, 2021 18:27
|
|
|
FlamingLiberal posted:I thought Thomas hated regulation but he’s essentially calling Twitter a common carrier "Freedom for the things I like and regulation for the rest" is pretty much the GOP's mantra.
|
|
#
?
Apr 5, 2021 18:29
|
|
|
FlamingLiberal posted:I thought Thomas hated regulation but he’s essentially calling Twitter a common carrier It feels like Thomas has become something of a Fox News Geezer lately (by osmosis from Ginni Thomas?). He always had weird views, but they used to be more his own weird views.
|
|
#
?
Apr 5, 2021 19:03
|
|
|
The idea of an internet-enabled platform for public speech being a common carrier which cannot in any way regulate who uses it or what they use it to say is horrifying in ways I can't even conceive.
|
|
#
?
Apr 6, 2021 06:54
|
|
|
|
| # ? May 31, 2024 21:18 |
|
|
So you're not a fan of free speech then? Or is your issue rather that you think corporations are better stewards as to what constitutes criminal speech than the government?
|
|
#
?
Apr 6, 2021 11:40
|
|