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Comment by AnimalMuppet | Hacker News Reader

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

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So in programmer speak

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

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

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

That is the order scotus considered it.

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

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

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