The View from the Court’s 2 Live Crew: Examining the Thomas/Alito Dissent in Google v. Oracle

By Darius Gambino
April 13, 2021

“What progress have we made on the concept of fair use in 25 years? It seems maybe not very much. The Court arguably failed to appreciate the nuances of the Java API in Google v. Oracle similar to the way the Court glossed over the concept of sampling in Campbell v. Acuff-Rose Music.”

https://depositphotos.com/131825256/stock-photo-dissenting-opinion-legal-concept.htmlMost commentators agree that Google v. Oracle is the most important copyright decision of the last 25 years (since Campbell v. Acuff-Rose Music). But what if the Court got it wrong?  The Court has not always done well with issues of technology (the Sony v. Universal “Betamax” case being an exception), and the majority decision in Google v. Oracle appears to be more of the same. For many reasons, the powerful dissent from Justices Thomas and Alito may be the better opinion.

The 2 Live Crew Comparison

To provide the appropriate backdrop, let us first consider the Court’s last foray into copyright fair use. In 1994, music sampling was the topic du jour, and the Court was faced with deciding whether 2 Live Crew’s alleged parody of Roy Orbison’s “Oh, Pretty Woman” was a fair use. The Court found that it most likely was, even though 2 Live Crew’s “Pretty Woman” sampled the original song’s main guitar riff, and also used the opening lyrics and vocal hook. Prior to the song’s release, the band’s record label sought a license from Orbison’s publisher, Acuff-Rose Music, who declined. 2 Live Crew released the song anyway. Justice Souter, writing for a unanimous Court, found that the 2 Live Crew song was almost definitely a fair use parody (and thus did not infringe Orbison’s copyright in the original work), and remanded to the district court for a final determination. Justice Kennedy filed a concurring opinion. Thereafter, the case settled, with Acuff-Rose agreeing to license 2 Live Crew.

However, 2 Live Crew’s “Pretty Woman” was not really a parody in the same way that Weird Al Yankovic’s “Eat It” is a parody of Michael Jackson’s “Beat It.” Weird Al did not sample from Jackson’s hit at all and did not use any of Jackson’s lyrics. Today, there is general agreement that sampling a song, as opposed to creating a “cover” version of it, creates a derivative work and requires approval of the publisher and/or record label. The Court missed this subtle distinction in Campbell v. Acuff-Rose Music at the time, but there was always hope that the Court would provide clarification the next time it took up a fair use dispute.

Fast forward to 2005 – Google is developing a new software platform for mobile phones called “Android.” Google wants software (i.e., Apps) for the platform so that it can compete with Apple’s iPhone. It decides to ground the platform in a language called “Java”, which many programmers of the day already knew how to use. Google approaches Oracle’s predecessor-in-interest (Sun Microsystems) several times about licensing the Java Application Programming Interface (API) for Android, but ultimately decide to build its own platform. In doing so, Google copies about 11,500 lines of code from the Java API. The copied code is known as the “declaring code.”  The rest of the story you already know, Google releases the Android operating system in 2008 to huge success. Oracle eventually brings suit for copyright infringement, and the Supreme Court finds in Google’s favor. Sound familiar yet?

If you want to better understand “declaring code,” I would suggest that you go listen to the opening guitar riff in Orbison’s “Oh, Pretty Woman”; think of that as the “declaring code” for the song – it is the structure that gives the rest of the song meaning. Others might suggest that the “declaring code” is more like a musical chord (an “A” chord, or a “G” chord), to which no one person can claim exclusive rights; herein lies the crux of the dispute in Google v. Oracle.

The majority in Google v. Oracle assumed – without opining – that the “declaring code” was protected by copyright. The Court then went on to find that Google’s use of the “declaring code” in the Android operating system was a “fair use”, examining each of the factors below.

1. The Purpose and Character of the Use

The ‘purpose and character’ factor looks to whether the defendant’s use “is of a commercial nature or is for nonprofit educational purposes.” The majority sidestepped the commercial inquiry to a degree, choosing instead to focus on whether Google’s use of the “declaring code” was “transformative.” The Court found that it was, noting that “Google’s use of the Sun Java API seeks to create new products.”

The dissent argued that Google’s use of the code was entirely commercial; it made $18 billion from the Android operating system in 2015 alone. The dissent also pointed to the majority’s comment that “Google used the copied declaring code ‘for the same reason’ Oracle did.” This begs the question: if Oracle’s use was not transformative, why was Google’s? On this point, Justice Thomas noted that the Android operating system was a derivative work, not a transformative one (much like the guitar riff sample of “Oh, Pretty Woman” in 2 Live Crew’s “Pretty Woman”). Because Google’s use of the “declaring code” was clearly commercial in nature, the dissent argued, this factor should have favored Oracle.

2. The Nature of the Copyrighted Work

In a somewhat strange turn, the majority found that the “declaring code” was more functional in nature than other types of software code, and therefore should be given lesser protection. With this backdrop, the majority held that Google should be given more leeway in copying.

The dissent made two excellent points in response. First, Justice Thomas noted that Congress rejected “categorical distinction[s]” regarding software in the Copyright Act, and the majority’s classification of “declaring code” as being inferior to other types of code was improper. Second, the dissent remarked that the “declaring code” is inextricably bound with corresponding “implementing code” in the Java API, a point which the majority conceded. Justice Thomas argued that since one cannot exist without the other, the “implementing code” and “declaring code” should be treated exactly the same. The dissent contended that the majority should have treated the “declaring code” the same as any other piece of software, and if it had, this factor would have favored Oracle.

3. The Amount Used

The majority went for simple arithmetic here – the Court found that the entire Java API was 2.86 million lines of code, and that Google only used 11,500 lines, or less than one percent (1%).

Justice Thomas criticized the majority’s math, positing that the “the proper denominator is declaring code, not all code.” On this point he is arguably correct – Google sought the functionality provided by the “declaring code,” not the entire Java API. So, it would have been more appropriate to compare only the declaring code. The majority conceded that Google copied “virtually all the declaring code…” from the Java API. Hence, the Court should have held that this factor favored Oracle.

4. The Market Effects

The majority was quick to dismiss the effect that Google’s use of the “declaring code” in the Android operating system had on the smartphone market.

The dissent pointed out that Google’s use of the code damaged Oracle in at least two significant ways. First, it devalued Oracle’s existing Java licenses with third party smartphone and tablet manufacturers like Amazon and Samsung. For example, after the release of Android, Oracle’s license agreement with Samsung “dropped from $40 million to about $1 million.”  Second, Google eliminated Oracle’s ability to further license the Java API for use in the smartphone market. In short, no one wanted the Java API after Android became available. Justice Thomas concluded his comments with the observation that “Google decimated Oracle’s market” in copying the code, and that if this factor indeed favored Google “something is very wrong with our fair-use analysis.”

Have We Learned Anything?

So, at the end of the day, what progress have we made on the concept of fair use in 25 years? It seems maybe not very much. The Court arguably failed to appreciate the nuances of the Java API in Google v. Oracle similar to the way the Court glossed over the concept of sampling in Campbell v. Acuff-Rose Music. The decisions share many parallels, most notably, a defendant that sought to license the plaintiff’s work was denied and proceeded with copying anyway. 2 Live Crew copied the main guitar riff (and other elements) from “Oh, Pretty Woman” much the same as Google copied the “declaring code” from the Java API. In both cases, however, the Court found in favor of the copier. If the Court in Google v. Oracle had found that the “declaring code” was not protectable by copyright (because it is entirely functional), that might have been easier to swallow, but that is not what happened.

It is possible we will have to wait another 25 years for additional enlightenment from the Court on the concept of fair use, which would be unfortunate given the important role that computer software plays in all of our everyday lives. Hopefully, the decision does not discourage software developers from continuing to innovate APIs, Software Development Kits (SDKs), and similar platforms. For the time being at least, Google v. Oracle is the law of land, despite some pretty convincing arguments from Justices Thomas and Alito.

Image Source: Deposit Photos
Author: Premium_shots
Image ID: 131825256 

This article was edited on April 15 to correct the author of the Court’s opinion in Campbell v. Acuff-Rose Music.

The Author

Darius Gambino

Darius Gambino is a partner with Saul Ewing Arnstein & Lehr LLP. He has over 20 years of experience helping clients protect their intellectual property under the patent, trademark and copyright laws in the United States and abroad. Clients in industries ranging from technology and manufacturing to consumer goods and professional services rely on Darius to represent them in high stakes patent and trademark litigation. In addition to litigation, Darius also assists clients with managing global patent and trademark portfolios, while at the same time counseling on enforcement strategies. He also represents clients in connection with intellectual property licensing, trade secret and copyright disputes, and corporate diligence investigations.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author as of the time of publication and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 24 Comments comments. Join the discussion.

  1. Anon April 13, 2021 5:35 pm

    Excellent and detailed (actual) Factor analysis that removes the MUCH TOO depended on (even as what it actually means remains a bit murky) ‘transformative’ element, and instead treats the Factors on their own merits.

    Those that actually DO understand copyright law – and a Factors analysis that is done NOT so blindly with a desired Ends as a de facto conclusion – can understand the legal sense of this post.

    If the legal sense troubles you, then you might want to see if you are of the mind that the desired Ends had to be reached by any Means possible – or that if you think that there could NOT possibly be a (justifiable) Means to reach any other Ends. If so – then you are likely not engaging in the Rule of Law.

  2. George April 13, 2021 6:22 pm

    What we need are laws against ‘plagiarism’ in addition to copyright infringement! That could also cover ‘ideas’ that can’t be patented or haven’t yet been patented, but have been published. Some other countries have these laws. It’s high time the Congress passed a plagiarism law too. That would supersede just extremely limited and restrictive copyright law. That’s what those affected by the copying or ‘borrowing’ of their work (without permission or attribution) really need. Copyright alone just doesn’t work well enough at punishing those who like to steal IP and patents can’t protect everything. Don’t know why the U.S. is so far behind on making this a legal issue and not just one of ‘ethics’ that the courts and many in the public, just don’t give a damn about.

    In particular, lawyers should push for such laws (since they don’t get very far asserting copyright law)!

  3. Pro Say April 13, 2021 7:58 pm

    Google’s was an unfair use . . . of “fair use.”

    Plain. And. Simple.

  4. Anon April 13, 2021 8:07 pm

    George,

    Let’s hear more of your suggestion.

    But how is something both more limited and more restrictive?
    What do you mean by “supersede?” Do you mean replace?

    How would you establish who did what? How would you handle parallel development that is NOT plagiarism? How would you “prove” plagiarism, who would carry what burden, and on whose dime would these contests occur on?

    Why would you think that lawyers should be pushing these (in contrast to EVERYONE to their respective congressional representative?

  5. BP April 14, 2021 12:26 pm

    Maybe a clarification: “Justice Breyer, writing for a unanimous Court, found that the 2 Live Crew song was almost definitely a fair use parody (and thus did not infringe Orbison’s copyright in the original work), and remanded to the district court for a final determination.”

    SOUTER, J., delivered the opinion for a unanimous Court. KENNEDY, J., filed a concurring opinion, p. 596.

  6. George April 14, 2021 5:26 pm

    “If you want to better understand “declaring code,” I would suggest that you go listen to the opening guitar riff in Orbison’s “Oh, Pretty Woman”; think of that as the “declaring code” for the song – it is the structure that gives the rest of the song meaning. ” – Darius

    LOL! Terrible analogy! Instead, actually learn something about computers and how they’re programmed and how the ‘opening lines’ don’t really mean anything and could even ‘sound’ boring and very similar or even identical to other ‘songs’ (until you hear the entire song)!

  7. George April 14, 2021 5:41 pm

    @Anon,

    “What do you mean by “supersede?” Do you mean replace?”

    I mean to ‘go above and beyond’ (copyright) and have a greater reach and ‘breadth’ (than copyright). Basically would expand what it means to STEAL ‘ideas’ with the aim of profiting from someone else’s ‘original’ thoughts and contributions to discourse and/or future usage (without at least providing attribution and/or compensation in exchange for those original thoughts and ideas). For instance movie plots should be protected against being ‘plagiarized’, even though many of them can be very similar (which means almost nothing under current copyright law). What we need is a ‘I’ll know it when I see it (or saw it)’ law against doing that!

  8. Anon April 14, 2021 7:22 pm

    Well George, your answer to one question is a start.

    This might sound like an odd question, but under what Constitutional authority would you trace your new set of laws back to?

    But the start does not get us very far.

    The reason why I put another question to you is that last sentence of yours sounds like something that is untethered to any proper basis of law. Sure, if you have a dictatorship and give supreme power to the government, you might be able to obtain what it appears that you seek (but the host of other problems that you incur makes it not likely you would be any happier).

  9. George April 14, 2021 11:05 pm

    @Anon

    Obscenity and Pornography aren’t covered by ‘subjective’ laws???? Those aren’t ‘I know it when I see it’ laws???! None of that is not governed by laws in the US? What law school did you attend and what country was that in? LOL! How about child pornography? Can’t go to jail for that, Anon? Yikes!!!

    https://www.mass.gov/info-details/massachusetts-law-about-obscenity-and-pornography

    https://endsexualexploitation.org/wp-content/uploads/Kentucky-Obscenity-Laws.pdf

    https://www.fcc.gov/consumers/guides/obscene-indecent-and-profane-broadcasts

  10. George April 14, 2021 11:28 pm

    “How would you establish who did what? How would you handle parallel development that is NOT plagiarism? How would you “prove” plagiarism, who would carry what burden, and on whose dime would these contests occur on?”

    See what other countries are doing about it, as a start, even if they may not have specific laws against it – yet. In India and some other countries including Indonesia, plagiarism has become a huge problem!

    There’s actually a journal about plagiarism and of course there’s ‘retractionwatch.org’ that also covers cases of plagiarism in academia and science. The damages that plagiarism can cause are just as significant as those stemming from copyright infringement.

    https://www.plagiarismtoday.com/2006/06/12/us-vs-europe-moral-rights/

  11. George April 14, 2021 11:52 pm

    “Why would you think that lawyers should be pushing these (in contrast to EVERYONE to their respective congressional representative?” – Anon

    Because they almost never win copyright cases – that’s why!!! copyright is just to hard to win! It’s in their best interest to try to broaden the ‘limited’ protections offered by copyright law! Don’t have to be a genius to see that and to also see that plagiarism is a huge problem in all countries now, since it’s so easy to now find material (and ideas) to plagiarize. And forget about ‘old’ patents, they’re easy pick’ens, since almost no one ever checks those out! We had that happen to us! I guess what’s ‘old’ can become ‘new’ again, if someone just wants to claim it as such! Even the news media won’t find out! LOL!

    Indeed I was just in contact with someone overseas today, about their not knowing that someone else here in the U.S. was claiming to be the originator of their ‘now patented’ technology! They had no idea that was happening, even in our internet age!

    But since the other party just got a large award for that ‘idea’ and wasn’t trying to make it , or sell it, under our current and ‘limited’ IP-theft laws that would just be a case of plagiarism, and there are no legal consequences for doing that here and the contest administrators did even bother checking on that and also didn’t really care. There was no statement required of contestants ‘swearing’ that all submitted ideas were original! LOL!

    You can lie all you want in the U.S., and it almost never matters or gets in trouble (or Trump would have been impeached the first time around)! Company executives (like the Sacklers) get away with it all the time too.

    So, how much was that contest prize worth, that the actual patent holders didn’t know about??? Would you believe $1.5M? Who awarded that very nice prize? Our government of course (i.e. taxpayers). Guess they didn’t learn anything from the Solyndra debacle!

    Also, the public doesn’t care about copyright or plagiarism, so why would they pressure Congress to do anything about either?

  12. Anon April 15, 2021 7:55 am

    George,

    You are not answering my questions – and instead, what you are writing is in conflict with your assertions.

    To wit: “ But since the other party just got a large award for that ‘idea’ and wasn’t trying to make it , or sell it, under our current and ‘limited’ IP-theft laws that would just be a case of plagiarism

    Why would this just be a case of plagiarism? You stipulated that the “offender” did not even know of the other source, so on that point alone, plagiarism could not stick.

    You seem to be throwing words about, but have not done the groundwork on the legal framework that would provide a working system.

    Your posts lack structure and are coming across as bare rants. You may have some concepts worth exploring, but when you end a post with a proclamation like, “Also, the public doesn’t care about copyright or plagiarism, so why would they pressure Congress to do anything about either?” you paint a “no path forward” nihilist view. If as you profess, “the people” AND the current government just don’t care, what is your path forward? A new and different government not built on the premise of “We the People”? It appears that you want a totalitarian system built on your ideals.

    You might want to study history, as it is replete with totalitarian systems built on the ideals of the leaders of those systems.

  13. Anon April 15, 2021 8:03 am

    George,

    I do thank you for the “moral rights” link.

    In particular, this caught my eye:

    Moral rights include the rights to:…

    Publish a work anonymously or pseudononymously

    I am curious though – does this mean that your ad hominem attacks on me (instead of my message) make you immoral? Are you impugning my moral rights with such attacks?

    Or are you just picking and choosing bits and pieces that you want to assemble for your totalitarian regime?

    It appears that some may be more equal in your “moral” regime.

  14. Eileen McDermott April 15, 2021 8:36 am

    Thanks BP, I’ve corrected that.

  15. Anon April 15, 2021 8:47 am

    George,

    Further in your article that you linked to:

    Fortunately, the cases in which moral rights would be the critical or even useful are very rare. Even in countries that honor moral rights, such suits usually are usually filed alongside copyright infringement torts, not in lieu of them.

    So much for “superseding”…

    By the way, there is nothing currently (other than the nature itself of the free market) to prevent anyone that is in the business of selling their creative work to write their own contract provisions sounding in “moral rights.” Of course, buyers – especially in the US – retain their right to buy from someone else who does not attempt to include such ‘soundings in moral rights’ and chances are very high that competition alone will defeat such “equity” efforts.

    Maybe you want to control that too… remove ‘freedom to contract.’

    What could go wrong with that?

  16. Anon April 15, 2021 1:00 pm

    George,

    Your post with three links was delayed, and I did not see it when I posted my earlier replies.

    That being said, you open and appear to challenge a statement that I never made.

    That’s called strawmanning. Please actually stick to the points as I have provided.

    (In particular, your statement, “Obscenity and Pornography aren’t covered by ‘subjective’ laws????“ appears at random and is not connected to any points that I have put to you.

    It is quite vapid to assert a position that I have not made and then engage in ad hominem over this ghost position. I am more than sure that such tactics would not fly for you were you to ever attend any law school (leastwise, an accredited one).

    As this comment of yours was released late, I would also include it in my comment tied to your “moral rights” link. Do you think that by engaging in such false accusations that I would have an action against you (under moral rights or any other related law)?

  17. George April 15, 2021 1:29 pm

    Anon!!!

    What kind of lawyer are you?! I never said that! I said the company I contacted was aware of the contest winner and what they were claiming (which wasn’t true)! I said the contest organizers didn’t know about the plagiarism (or likely plagiarism) and they DIDN’T REALLY CARE!

    If you lie about who had an idea first and never acknowledge that ‘fact’ – it’s plagiarism – period.

    I don’t see much point about debating things with you since you don’t even try to understand the issues at hand. I also have ‘real work’ to do, so don’t really have the time for some of your nonsense. Yes, plagiarism isn’t again the law in the U.S. and most countries, but it’s still a big problem! We have lots of problems for which we don’t have laws to deal with them yet. That’s why new laws are created all the time. I try to answer ALL your questions, but what’s the point – you don’t care anyway! You just ask more questions and then don’t care about the answers – just like lawyers at trial who ask what they think are very clever questions but then don’t anticipate the answers they get. Makes you look bad (before a jury)!

  18. George April 15, 2021 2:38 pm

    Anon-

    False accusations??? LOL! What ‘accusations’ that weren’t clearly facetious??? You know what ‘lol’ means, right? You know what ‘opinions’ are, right? You know how to tell the difference right? Sure hope so!

    It is YOU, from the start, who have engaged in clear (unfunny) insults, put-downs and statements ‘presented as fact’ (that weren’t true), about not just my character, but my background, profession and company (even though you actually know nothing about ANY of these things).

    For instance I have never said you WEREN’T a ‘lawyer’, I merely questioned how good a lawyer you were and stated that you would never be my lawyer (which is just a statement of fact). Because why would I want a lawyer who doesn’t even know what plagiarism is (something that bothers me a lot), how serious a problem it is around the world and how it’s ‘currently’ treated in other countries and what ‘new’ laws some of those countries are now considering to ‘combat it’? Why should I or anyone want to listen to someone who doesn’t seem to know much about the technologies he is sometimes talking about (especially computers, software, AI, and ‘logical thinking’ needed to program them) and who is unlikely to be an expert in computer coding, because as a lawyer that’s not what you would be doing all day long.

    Also, why should I trust someone who ‘probably’ doesn’t have any patents at all, to tell me about patents and how to best get them and what the difference between a ‘good’ and ‘enforceable’ patent is, and what is merely (legally) worthless verbiage?

    And just to set the record straight and out of curiously – you have any inventions in your name, Anon? Have you ever invented anything? Just answer Yes, or No, here to that question. No patent numbers required (to protect your identity), we’ll just take your word for it, since as a lawyer you’re bound by ‘ethical rules’ as well. In any case, I can easily answer YES to that question! I can also ‘truthfully’ say I have gotten more than one BROAD patent that I have prosecuted myself and have several more pending (and pending, and pending, and . . . pending), Which is OK, in accordance with my (post AIA) ‘system’ for getting strong IP protections! I also know how to effectively deal with plagiarism (even without the laws we may need to do that better)!

    By the way, if anyone has to worry about legal challenges regarding ‘insults’ (either perceived or real) it is you – since by impugning my credentials and ‘expertise’ on multiple occasions (in one or more technical areas in which I do have expertise – including AI) and in so doing also insulted and perhaps harmed the reputation of my company (of 40 YEARS), it is YOU and not me, who may have engaged in willful ‘business disparagement’. While I don’t know why in the US it’s far worse to lie and/or insult a ‘company’ (like Dominion) than it is a person, I guess it may be because in a capitalist system companies are considered to be much more important and valuable than people are!

    In any case, it’s OK for you to insult me (and I don’t even mind), just don’t let that ‘spill over’ to my company or any of the people I work with, OK (moral rights, or not, it’s not a good idea)! LOL!

    Also, I don’t ‘think’ I’ll be responding to any of your further posts (and insults) unless they directly involve me or say things of a technical nature which are just incorrect or ‘ill-informed’.

    In summary, Anon, as John Bainer (and maybe Gerry Spence) would say, ‘Go F yourself’! LOL!

  19. Anon April 15, 2021 3:10 pm

    You really think that by appending “LOL” you are cleared from any of the aspects that may arise under moral rights?

    Come now George, even you are not that much of a moron ([lol]).

    By the way, NONE of what you posted in your last post address or moves our conversation forward, as you seem too enamored with your own background, and don’t seem to have any clue as to how to engage in a discussion on law, and the fact that you are not willing to provide support to your views, or clear the very apparent contradictions actually says more about you than you probably realize.

    From your own assertion (because as [NOT] a lawyer that’s not what you would be doing all day long) – should I project this to you? add an ‘lol?’

    Do you really think that I need to be worried about legal challenges regarding insults? In the ‘hypothetical’ world in which your version of law would be set forth (which is the CONTEXT of the post above) – or is “context” another thing that you simply do not bother with?

    What “credentials” of yours have I actually impugned? How? With what words and in what context? And how in the world have you been “impugned,” as your identity is NOT known? I do not ‘quake’ that you are so brave as to use your first name – do you quake when you disregard Moral Rights in attacking me for using a pseudonym?

    Of course, as always, you can chose to respond or not respond. I have never said or indicated otherwise. I HAVE hoped though that you would actually respond with some thought and provide some cognitive support for what appears to be rants (since I do see some specks of thoughts that could be interesting to have a legitimate discussion about). For example, I provided an honest “thank you” for the link to Moral Rights. That you appear to not abide by the tenets of that article is interesting, and I thought it worth exploring as you have not been shy about having some (very) different system of law.

    Again – if (and how) you may choose to respond is up to you.

  20. George April 16, 2021 12:28 pm

    @Anon – No response since pointless!

  21. Anon April 16, 2021 1:08 pm

    No response since your items have been pointless, and you simply don’t care enough to make them cogent.

    (I fixed that for you)

  22. George April 17, 2021 5:38 pm

    To wit: “ But since the other party just got a large award for that ‘idea’ and wasn’t trying to make it , or sell it, under our current and ‘limited’ IP-theft laws that would just be a case of plagiarism” – George

    “Why would this just be a case of plagiarism? You stipulated that the “offender” did not even know of the other source, so on that point alone, plagiarism could not stick.” – Anon

    Well to ‘half-wit’, don’t know how to read (correctly), eh, Anon?! I don’t have time to teach you right now! I said the ‘victim’ of the plagiarism didn’t know it – NOT the perpetrator of it!

    And, plagiarism doesn’t really matter whether you ‘admit to doing it’, or not! A plaintiff would only have to prove that to beyond any reasonable doubt, it’s plagiarism! And in the 21st century it’s REALLY hard to come up with the identical same ‘original idea’ independently, without knowing or quickly finding out that someone else has already come up with it (though in the past that was not entirely impossible, given much more limited and much slower communication capabilities), especially in the internet age and especially if ‘experts’ are involved in reviewing entries to a contest, and especially if the entries are claiming to represent a brilliant ‘new idea’. In fact, it’s almost impossible to do that in the 21st century unless maybe you live in a cave. Do you live in a cave , Anon? You have heard about the ‘Interweb’ and Google, right?

    If I can find ‘anything’ on my computer in a few minutes, so can a judge and jury, and certainly contest ‘administrators’ could (if they actually cared and wanted to)! Most people would know plagiarism when they see it (just as a court would when it comes to obscenity)!

    And, since plagiarism will probably never be made a criminal offense (except maybe in certain countries) – a plaintiff would be able to introduce circumstantial evidence too (as to what’s generally known and not yet known) and wouldn’t need to get a unanimous jury decision to win at trial, unlike they’d need to get in criminal court!

    Don’t you KNOW all this, Anon (if you’re really a lawyer)?! Maybe it’s time for a refresher course (or first one), eh? By the way ARE you a lawyer???! Remember I wasn’t afraid to answer that question, like you appear to be! LOL!!!

    I’m NOT a lawyer! Just an avid student of it (and the history of science and invention). See, unlike maybe you and others, I like to know what’s really ‘new’ and what’s not, so I don’t just re-invent the wheel (and fool myself and others)! I have too much respect for people like Nikola Tesla to do that!

  23. Anon April 17, 2021 6:19 pm

    Post hoc similarity check is not proof of the copying aspect.

    Cave or no cave.

    You are again using legal terms without foundation.

    Take some time to establish a cogent position first. Do the legwork. You are not there yet.

    As to “I’m NOT a lawyer! Just an avid student of it (and the history of science and invention)” – well we do have some things in common then. I have a minor in the history of science and technology. I also have three degrees — and as noted on another thread – have in fact already answered the question as to my being in fact an attorney.

    I have no idea what slight you may mean to intend with “ See, unlike maybe you and others, I like to know what’s really ‘new’ and what’s not” – is it at all pertinent to any point that I have provided to you, or is it like many other or your rambling thoughts, a free-flow of insult?

  24. George April 19, 2021 10:53 am

    @Anon #23

    Unlike me (who actually IS an inventor of ‘new’ and ‘significant’ things and also an entrepreneur who puts those invention to work) I don’t have a long (and easily proven) track record of being a JERK!!! Were your parents really that mean to you? LOL!

    I now feel better knowing that you seem to insult almost everyone, especially if you know nothing about them – EXCEPT of course ‘attorneys’, who use their real names! LOL! Apparently you don’t have the balls to do THAT, do you Anon?! Maybe that’s because you’ve also never had the guts (or experience) necessary to walk into a courtroom and actually defend any of your Much-Better-Than-SCOTUS legal opinions (LOL!!!) before an actual judge (much less a jury)!

    Like I said, I’m pretty sure that ‘EVEN I’ could kick your butt when it really counts, with both ‘my superior logic’ and more extensive knowledge of history (going back 1000’s of years)! Do you have a collection of the most ‘important’ and ‘significant’ inventions of all time, or do you just consider all ideas to be ‘equal’ in their significance and value? Do you lump the ‘junk’ together with the ‘gold’, Anon? Do you consider every piece of software to be ‘deserving’ of a patent? Would the Founders have?

    If ‘everything’s valuable’ – then NOTHING is! Most inventions have little or no value, Anon, and you must know that! If you don’t, then you need help (and a course in economics too)!

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