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No Legal Advice

The information on Groklaw is not intended to constitute legal advice. While Mark is a lawyer and he has asked other lawyers and law students to contribute articles, all of these articles are offered to help educate, not to provide specific legal advice. They are not your lawyers.

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I'm just saying | 81 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
I'm just saying
Authored by: Anonymous on Thursday, May 03 2012 @ 05:36 PM EDT
You'd be no worse off than you are right now.

You might even be better off in that you'd have a defence to avail yourself of.

Also, you're assuming that if the jury returns "fair use" that the
judge won't also rule that APIs are not copyrightable per se. I don't think
that you can (in general) tell how a judge is going to rule from the questions
he asks or puts to the jury - and this judge seems to me to be more of the
belt-and-suspenders type.

Although some posters might want to talk about "judges not making law from
the bench" that is a red herring - they always "make law" when
they interpret the law and apply it to the facts at hand. Period. That's how a
common law system works. The fact that the outcome of this case does not have
significant weight as precedent also doesn't matter - one way or the other an
appeals court will rule on some aspect of it - and that's the decision that
matters.

Additionally, if this judge decides that APIs are not copyrigthtable, it gives
just as much justification for someone to sue you as if he does hold them to be
so: if they are copyrightable then they can attempt to rely on the decision, if
not copyrightable they will have a decision to study for weaknesses that can be
used to argue that the holdings actually support a finding of copyrightability
on their set of facts (which they can attempt to tailor to the argument).

If someone is out to set a precedent, they are not likely to sue you anyway if
(as you say) you don't have the cash to fight it far enough to matter. If they
are suing you for a quick buck then they can do so today and will do so anyway.

So you might as well relax until the appeals are heard. :)

[ Reply to This | Parent | # ]

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