I am really going to miss Justice Breyer

His opinion in Oracle v. Google was so joyful. You can tell how much he relished writing this technical decision.


I know very little about copyright law. I have no idea whether Justice Breyer or Justice Thomas is correct about the fair use doctrine. But I absolutely loved reading Justice Breyer's majority opinion in Google v. Oracle. It was pure, unadulterated joy. Well, joy for Justice Breyer at least. I felt such bliss when reading it. He spent page after page explaining how complicated types of computer code work. He included appendixes to illustrate the structure of the software. He wound up intricate hypothetical questions, like he would in oral argument. One sentence began "Consider a comprehensive, albeit farfetched, analogy…" He quoted from one of the world's shortest stories in English and Spanish: "When he awoke, the dinosaur was still there." Everything about the case was Breyer at his peak. In the past, RBG may have been assigned a technical IP case. But now, Breyer got the cushy assignment.

Reading this opinion, I couldn't but think how much I'll miss Justice Breyer. He has grown on me over the years. His votes on affirmative action, the Establishment Clause, and the separation of powers are idiosyncratic. He has a moderate streak that pervades all aspects of his jurisprudence (except abortion–the smoke detector provision of HB2 had to be severable).

After reading Google, I can't help but wonder if Breyer has second thoughts about retiring. He is obviously up to the job, and is only now receiving cushy assignments. For the first time in his career, Breyer can actually assign some majority opinions. RBG was always his senior. Remember, he was the junior justice for more than a decade! Justice O'Connor regretted stepping down too early. So did Justice Stevens. Not Justice Souter. He got out of Dodge as quick as he could. As we speak, Justice Breyer is feeling the pressure of the entire progressive establishment on his shoulders. Will he shrug?

NEXT: My "The Hill" Article About Anti-Asian Discrimination on Left and Right

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  1. If the purpose of copyright and of patent laws is to promote innovation for the public good, which term would do so best, a 5 year term, a 20 year term or a 100 year term?

    The lawyer profession is so stupid, it does not understand that we are doing very little we did 5 years ago. They need to update and to keep up.

    1. Copyright and patents are very different and it’s unlikely that the same term would be optimal for both.

      1. If anyone can copy and use the Winnie the Pooh characters for their own profit, after 5 years, would we get more or fewer cute, wise characters from the author? Would he write more or fewer great new books?

        1. If you want to claim that copyrights last too long, I’m there with you. I’m still not going to agree that the optimal terms for patents and copyrights are the same.

          The 1906 Copyright Act called for one fixed term (IIRC: 26 years) renewable once and once only for a second term of the same length.

          I would go back to that or do something like the following: A fixed term of 20 years and after that the copyright remains live as long as the work is still in print (new copies are available for purchase). The copyright dies if it is out of print for more than 12 consecutive months.

          1. I don’t think “out of print” makes sense as a concept in a print-on-demand world. (And only applies to books anyway.) Sure, shorten the term; I’m on board with that. And make it be renewed manually to get even the benefit of the full term; that helps eliminate the orphaned work problem.

            1. “Out of print” makes more sense if you think of it as “abandonware”. That is, not merely that it’s not currently being printed but that there’s not even a way to ask for permission to print it. For example, the copyright owner dies (or just disappears) and leaves no heirs.

              But there is also an argument that just because something could be offered for print-on-demand doesn’t meant that it is being offered for print-on-demand. I could understand and maybe support an argument that not-being-currently-printed AND not-available-for-print-on-demand means that copyright is waived. I say “maybe” because that model of copyright doesn’t support limited-edition publications.

  2. Justice O’Connor regretted stepping down too early. So did Justice Stevens.

    Power, once obtained, is something not many want to give up, as the past year has been a testament to…

  3. “how much I’ll miss Justice Breyer”

    Not even his family will recall him being a justice 6 months afterwards.

    1. Do you know the names of the scientists who developed the current vaccines?

      Does your ignorance diminish those heroes to any degree?

      1. Third rate supreme court justices are not “heroes” under any definition.

        Breyer will leave less of a mark on the institution than Robert Hanson Harrison did.

        1. Over time, Breyer’s ideas will win and Thomas’ (and Scalia’s, and Alito’s, and Gorsuch’s, and Kavanaugh’s) will lose in America.

          Who are the inconsequential losers?

          1. “Breyer’s ideas”

            What “ideas”? Joining other peoples opinions doesn’t make them “his” ideas”.

            You called him a loser, not me. I just called him inconsequential. That is beyond dispute.

            1. Dude wrote a book on his ideas.

          2. Dream on broomstick cowboy

            People who think their ideas are not pathetic crap, don’t need to censor the other side

            1. Do you wish to contend that Republicans and conservatives are going to reverse the tide of the culture war, Greg J?

              In a nation that becomes less hospitable to clingers — less White, less rural, less religious, less bigoted, less backward — each day?

              I will welcome your identification of how Republicans are going to avoid irrelevance.

              Carry on, clinger . . . but only so far and so long as your betters approve, as always.

              1. I will welcome your identification of how Republicans are going to avoid irrelevance.

                It’s a little like the two guys camping who are woken by the sound of a bear outside their tent… One of the guys starts putting on his running shoes which prompts the other to say “Why are you putting on your running shoes, you can’t outrun a bear?” to which the other one replies I don’t have to outrun the bear, I just have to outrun you.

                All Republicans have to do to win is to be less irrelevant than Democrats are – both “parties” are ideologically irrelevant to most people. The likes of AOC make the Republicans’ task easier and easier. As do ridiculous “infrastructure” spending which is mostly a shout-out to unions and short sighted cargo cultists who think if they copy the “best of” every other culture they like while ignoring the other critical aspects of those cultures that make the “best of” possible but they don’t like will result in “uber best of”. (It’s like expecting that taking the “best of” airplanes, the “best of” F1 cars, the “best of” submarines, the “best of” tanks will result in an awesome transportation vehicle).

                Over on DailyKos, after Obama won his first term, the GOP was declared “dead” and “irrelevant” and Obama was going to play 12-dimensional chess and massacre the Republicans. Then “midterms happened”. Biden is much more susceptible to that in 18 months after disappointing results in 2020 in the House (esp.) and the Senate as the “Blue Tsunami” ended up being a “Blue Trickle” with loss of seats in the House. This even when the Republicans were tainted by the stench of Trump. In November 2022 Republican House candidates won’t have the stench of Trump on their sleeve but the Democrats will be on the defensive defending Biden’s big spending (if Manchin et al don’t stop that) that will be paid for by the voter’s children.

                1. A clinger complaining about deficit spending?

                  You guys deserve every bit of disdain and irrelevance your betters impose on you.

              2. “In a nation that becomes less hospitable to clingers — less White, less rural, less religious, less bigoted, less backward — each day?”

                So, you start with racism (that’s your racism), then demonstrate your bigoted nature, then claim we’re becoming less bigoted (which means you must be losing).

                As for “backwards”, your politics are pretty much 1920s “progressive”. Dont’ get much more backward than that.

                And the people worshiping at the feet of their guru Fauci? That’s pretty damn religious.

              3. And the point remains:

                Your ideas and policies are utter garbage. And you know it.

                Which is why your side is so desperate to censor anyone who disagrees with you, and why your Party is so desperate to make vote fraud easier. Because you can’t win an honest debate, or an honest election.

        2. He strikes me as comparable to Justice White, imo. Certainly someone known to Law Students.

  4. Google v Oracle was an excellent majority opinion (I got really annoyed at the dissent when reading it, I mean, some of Oracles arguments weren’t totally invalid but the dissent just parroted the briefs, which seemed totally cs illiterate).

    I remember listening to the oral arguments and Breyer made the analogy between an API and QWERTY and was thinking, hey, this guy gets whats going on here. Because all the other justices kept making analogies too, but most of them were very ill fitting and kinda dumb, but Breyer was perfect.

    I dont often even agree with him, but there are virtues to his pragmatism. This is one of them, he say the practicality of what was actually going on and make a legal ruling on that basis.

    1. You might enjoy his book. He’s no Keith Richards, but it was enjoyable.

    2. This was also a swipe at the Federal District which If I remember correctly overruled Alsup’s determination that the APIs weren’t copyrightable.

      As I recall the Federal Circuit because there were some patent issues in the original case.

      1. Speaking as a software engineer with more than three decades experience (and over a million lines of published code, so I keep up with copyright issues), Alsup was absolutely correct. The Federal District ruling is absolute nonsense, an abomination in the sight of God and before all Mankind. I’m glad Breyer got this mostly-correct (just as he and Thomas did (why was Thomas so wrong this time?), in their Eldred dissent.

        1. Speaking as a software engineer with matching experience, you’re wrong, and so is Breyer.

          Nothing prevented Google from doing as Apple and Microsoft did, and writing their own system. instead, they stole Sun’s system.

          That’s what Copyright exists to prevent.

          They could have followed Sun’s public license requirements, they didn’t.

          They could have bought a custom license from Sun. They didn’t.

          They stole Sun’s published work in creating the Java APIs. Because they wanted the value that Sun had created, they just didn’t want to pay for it

          How that makes them different than any other thief is beyond me

          1. Having followed the case carefully, my response is: BS!

            1. Languages are not copyrightable, and that’s exactly what an API is: a small domain-specific language.

              1. No, an API is a specific set of tools for solving a set of problems.

                They are original, not obvious, and eminently copyrightable. Which is why the stl solution is different from the Java solution which is different from the Objective C solution.

                The point of copyright is to give people benefit from their work.

                The point of this decision was to let Google rob Sun and deny them any benefit for their work.

          2. I’ve not met a working software engineer without some sort of strong relationship with Oracle that agrees with you, and I know a lot of them. That’s not to say that they don’t exist, but as the amicus briefs demonstrate, your position is definitely the minority view in the industry.

            1. My only relationship with Oracle is that they charged too much and their support sucked

              My relationship with Sun was that I’ve been programming in Java since the late 90s

              Nevertheless, Sun created Java, Sun created the APIs, Sun generously released them to the public for free, if you followed their license agreement, and charged if you didn’t want to follow their public agreement.

              Google didn’t want to follow their agreement, didn’t want to pay, and didn’t want to have to make their own.

              So they simply took Sun’s product and used it without paying for it.

              While making billions of dollars off their theft from Sun.

              That’s only “fair use” if the term has no meaning. The only “transformation” they did was they transformed a Sun money making product into a much less money making product, for Sun.

        2. Yes, Alsup’s analysis was better than Breyer’s. The SC stopped the stupid, but Alsup’s ruling was exactly right in the first place.

      2. We should just get rid of the Federal Circuit. It seems to serve no purpose other than to give the Supreme Court material to overrule. It might be more useful to have a Federal District or something along those lines to adjudicate specific topic under existing precedent, but the Federal Circuit seems to make bad decision after bad decision when it comes to actually establishing precedent.

        1. It suffers from a lack of perspective since no other appeals court looks at the issues where it has jurisdiction. The Supreme Court gets the benefit of multiple Circuits looking at similar issues. It only gets one view from the Federal Circuit.

  5. I guess this is the future of conservative legal academia.

    This isn’t going to be much of a contest.

    1. The Left are screaming for Breyer to retire, before he pulls an RBG / Scalia, and before the GOP takes back the Senate.

      Me? I hope he hangs around for another 22 months. Then his replacement can face a GOP Senate that does not contain Murkowski

      1. Have you checked the lineups for the next set of senatorial elections?

        I know, I know . . . reality-based world, facts, mathematics, reasoning . . . you don’t want to hear it . . .

        Enjoy your delusions. Are you superstitious, too?

        1. Yep, I’ve checked.

          Dems won’t be able to steal GA in 2022. The AZ Astronaut has been a hard core Democrat footsoldier, we’ll see how well that sells.

          PA, Toomey replacement will be interesting.

          Exactly where else do you think the Democrats are going to pick up a Senate seat?

  6. Breyer strike me as weird AF.

  7. This is the second post (at least) where you’re praising Breyer while pushing him out the door. You make it sound like he’s announced his retirement. He hasn’t.

    1. But when he does, whenever it is, you can be sure Blackman will be crowing about having called it.

      1. Yes that has occurred to me.

  8. I’m not sure I’d call an IP case like this, with a fair amount of technical details, a “cushy” assignment for most judges, either on SCOTUS or in the lower courts (CAFC aside, of course). Thomas gets stuck with a lot of the routine, uncontroversial 9-0 patent decisions, and I doubt he particularly relishes those. Likewise Sotomayor. I think Breyer and RBG were exceptions. (RBG’s daughter is also into copyright, so it must run in the family a little.)

    1. Funny how Thomas, by virtue of him having such an idiosyncratic view, pretty much ended up writing a lot of the technical patent decisions over the past 2 decades. He wrote Alice, which was extremely important, and Oil States (and there were even dissent in oil states!), as well as a few others I think.

      1. It sure is ironic! Although, I would debate whether Alice was that much of a “technical” case, given that the patents at issue were for goofy business methods. Those aren’t exactly difficult to understand. In contrast, Myriad, another 9-0 Thomas decision, was deep in the technical weeds (Scalia even complained about that). Oil States again wasn’t technical at all; it just dealt with procedure.

  9. I know very little about copyright law. I have no idea whether Justice Breyer or Justice Thomas is correct about the fair use doctrine.

    But the important thing is that you got to start the headline and first two sentences with your favorite pronoun!

  10. The guy treats the 2nd Amendment like toilet paper.

  11. Reading this opinion, I couldn’t but think how much I’ll miss Justice Breyer.

    A long time ago in these parts, Orin counseled everyone to assume good faith. You have repeatedly proven you aren’t entitled to that assumption in the slightest.

    In that spirit, I offer the following: I hope the law school (or copyright infringement factory?) that pays your salary by stealing money from students keeps you employed.

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