Reinterpreting a statute to reach a result they'd prefer, even if no one is pushing them to do so, is absolutely on-brand for SCOTUS (indeed, they did just that yesterday with Warhol v Goldsmith, reinterpreting the first factor to be about the use of the allegedly infringing work rather than the use of the allegedly infringed work within with infringing work).

But the Gonzalez v Google case taking direct aim at section 230 was just such a horrible vehicle that there was no point in even tackling the question it was supposedly raising (and which everyone was ignoring in favor of attacking or defending 230 outright). Even counsel for plaintiff there admitted that there was no point deciding anything if they didn't also win in Twitter v Taamneh, and Twitter v Taamneh was a real stretch for plaintiffs.

> indeed, they did just that yesterday with Warhol v Goldsmith

I would not argue at all that is what they did. There are remarkably few statutes about fair use specifically and as a doctrine it is a loose patchwork of precedence and principles.

If legislatures were to pass actual legislation for them to interpret that would be a different thing.

> I would not argue at all that is what they did. There are remarkably few statutes about fair use specifically and as a doctrine it is a loose patchwork of precedence and principles.

Its worth noting that the reason the fair use statutory language is the way it is is that it was largely a codification of the thn-existing case law on Fair Use as a Constitutional (stemming from the First Amendment) limit on the copyright power.

> If legislatures were to pass actual legislation for them to interpret that would be a different thing.

Congress isn’t really interested in expanding Fair Use beyond the Constitutional minimum, though.

This seemed to be a reasonable decision. The Obama Hope poster case was settled out of court but seems very similar. And the original image had been licensed previously.

Some of the dissenting opinion in these cases seems to be partly on the grounds of this is Andy Warhol (or Roy Lichtenstein, etc.) we're talking about here so their work is obviously important and transformational--in a way that my applying some Photoshop filters clearly isn't.

The decision reached the right outcome (overall, the use was not fair) for really the wrong reason. What the decision probably should have done was to rule that what Andy Warhol did was transformative, and therefore the first factor favors fair use, but wasn't transformative enough to be overall fair use, as the other factors (in particular, the fourth factor) weighed against fair use far more strongly than the first factor weighed in favor.

However, the court essentially boxed itself into weighing in only one the meaning of factor one, so it tries to reach the decision by half-importing factor four (the degree to which it substitutes the original) into factor one analysis. Furthermore, it ties itself into a knot to argue why Andy Warhol's use in the original prints was transformative and overall fair use, but the use in the newspaper article wasn't transformative.

The dissent manages to be even worse by, as you point out, essentially arguing that everything Andy Warhol does deserves to be fair use because it's Andy Warhol. Oh, and taking as many potshots at the majority opinion as is possible. As bad as the majority opinion was, the dissent is even worse.

> The dissent manages to be even worse by, as you point out, essentially arguing that everything Andy Warhol does deserves to be fair use because it's Andy Warhol.

That's not how I read it. The gist I took was that Andy Warhol deserves fair use because the art establishment has consistently viewed his works, the Prince piece included, as revolutionary. And to state the bloody obvious, if his work was not transformative, it never would have been seen as revolutionary.

It's still essentially an appeal to authority. “Good artists copy, Great artists steal” and all that. If an artist is great enough, by definition they're doing transformative things with anything they touch.

For whatever it's worth, I'd say that artists are more qualified to make that assessment than the justices on the supreme court.

>>to state the bloody obvious, if his work was not transformative, it never would have been seen as revolutionary.

that is not at all obvious to me--what is revolutionary in Warhol is not the art but the way people see it, like found art. but if you "found" the art in someone else's comic, and aren't substantially changing the actual image--the actual appearance of the work, the only part that could reasonably be described as being ripped off from someone else... it can be revolutionary without having meaningfully transformed the original, just the way people see it.

disclaimer: I don't have a lot of time for that kind of art, which no doubt biases me.

The precedent the Supreme Court actually set here is somewhat interesting. If the work had been used to advertise a magazine issue about Andy Warhol, there may have been grounds for fair use. But because it was an issue about Prince, stealing another artists' work and slapping colors on it doesn't excuse you for not crediting them.

Some members of the supreme court need an explaination and explicit guidance in order to file forms for transactions, which in most countries on earth would constitute undefendable levels of corruption.

I think it is quite optimistic, if not even downright naive to assume the text matters at all for such protagonists.

If they were concerned about such things they would hold themselves to higher ethical standards than other courts, not lower ones. If my countries supreme court behaved that way, I would expect weeks of protest till the court takes care of that.

I am not an US citizen, but the looking at the way the SCOTUS has both been conducting itself I am very worried about the state of democracy in the US. To someone outside the US it is already stunning that you can elect governments or political leaders that have the minority of the vote, but them then filling three live time supreme court positions?

Who thought that was a good system? They must have smoked the bad stuff.

In response to the prompt, "Given the comment, please characterize the author's implicit bias in a single sentence."

> The author appears to have an implicit bias against the US Supreme Court, its ethical standards, and the overall American democratic system, particularly in terms of the process for electing government officials and lifetime Supreme Court justices.

That's seems pretty good. I should turn this into a browser widget.

Opinion != bias. If parent had said "I think this action was wrong because SCOTUS is corrupt/wrong", then sure. But reading "I think SCOTUS is corrupt/wrong because they've taken these actions" and from that concluding that the author dislikes SCOTUS isn't insight or a gotcha, it's just basic literal reading comprehension.

Congratulations, you figured out that as a friend of free societies I am "biased" against small groups of inacountable and people that excert power of powpulations that cannot vote them out of office without a bloody revolution. This has been a bias I have worked to keep alive despite having been born into a life where I would be fine without cultivating it.

Calling this a "bias" isn't the flex you think it is and probably tells more about your own world view than about mine.

They aren't unaccountable. There are mechanisms and precedents for ignoring the results of the court and for the other branches to manipulate the composition of the court through normal (e.g. nominating and confirming appointees) and extraordinary processes (e.g. increasing or decreasing the size of the court).

As an admitted non-American, writing forcefully about a branch of our government that you don't understand, and essentially advocating for dramatic changes to our constitution to reign in this branch of government that you don't understand but do not like, it is transparently obvious you have some bias such that even ChatGPT can detect and characterize it.

Why are you so hung up about the word 'bias'? Just own it. Americans almost certainly criticize your country and its government.

Despite AWFUL national and international reporting on the Supreme court, their powers are actually quite limited. Their authority is restricted to interpretation of situations where written federal laws do not already exist.

For all it's faults, I would argue the Supreme Court has worked reasonably well - because the justices do not seek elections and do not owe loyalty to their appointees. And anything they do could be relatively easily undone if the US could ever be bother to pass laws again.

In a way, you can almost think of their decisions as open-source. All of their arguments are written down and you can actually read their reasoning for yourself (as opposed to some of the dire interpretations offered by journalists). There are some notable exceptions (Alito and Thomas), but for the most part you can read their arguments for yourself and see that most of them are pretty professional and fair-minded.

> I think it is quite optimistic, if not even downright naive to assume the text matters at all for such protagonists.

If anything, the newest court is doing the opposite of what you are worried about. They are willing to throw out established precedence where there is not written law. In a way, the new court is leaning more democractic to a fault.

Their authority is restricted to interpretation of situations where the meaning of federal laws or regulations is unclear. The problem is that, ultimately, pretty much any law can be challenged and appealed all the way to SCOTUS - and if they choose to take the case and issue a ruling, there's no recourse within the system. That is an immense amount of power no matter how one looks into it - it's basically a non-overridable veto on anything the government does, not even necessarily just passed legislation, and not just on the federal level (as any action by the state government can also be challenged on the grounds of being unconstitutional wrt the federal constitution).

The SC can only rule on cases that appear before them. The SC cannot just decide to rule on whatever they want.

There are 250 million adults in the country who can sue over pretty much anything. It is not exactly difficult to arrange for a convenient case to land on SCOTUS plate - indeed, it has been done several times in history.

The SC only hears a handful of cases in a year, and only those that have managed to bubble up through the lower courts. The SC does not invent cases they can then rule on.

> it's basically a non-overridable veto on anything the government does

The Legislature and Executive can pass a new law that overrides a decision that ruled on existing law.

Not if the ruling was on constitutional grounds. Well, they can pass a new law and claim that it's constitutional, of course - but it would be likely to blocked right away in the lower courts if it is in blatant contradiction with the earlier ruling, regardless of whether those courts agree with the ruling itself. Worst case, it just gets appealed all the way back to SCOTUS which strikes it down again, so it's not at all like the usual 2/3 supermajority legislative override of the executive veto.

Congress can change the Constitution.

Congress can submit an amendment for ratification. 3/4 of state legislatures would have to ratify it for constitution to actually change. But yes, you're right, that is the one and only check there is ... although even that one is weak, because no matter what the constitution actually says, the court can interpret it however it wants in practice - there's no shortage of examples.

> Despite AWFUL national and international reporting on the Supreme court, their powers are actually quite limited. Their authority is restricted to interpretation of situations where written federal laws do not already exist.

This is pretty directly refuted by Dobbs. Roe v. Wade was not ambiguous and was a settled matter of constitutional law until the new court decided they didn't like it.

> This is pretty directly refuted by Dobbs. Roe v. Wade was not ambiguous and was a settled matter of constitutional law until the new court decided they didn't like it.

I don’t like the decision here as well for political reasons, but if you read the arguments the Supreme Court is just saying that abortion law is a state issue not a federal one. Which limits the power of the federal government. Which is good.

The part where women have to register their periods and have them tracked and might get arrested if they miss a cycle, or put in jail for buying contraceptives, or for googling the wrong things, or are forced to carry a dead fetus to term - which actually happened because in some states the ban on abortion is absolute, with fifteen states not even having exceptions for rape or incest - is not good. The part where doctors are afraid to perform procedures on pregnant women for fear of committing a felony? Not good. The part where Americans don't seem to care about the actual human cost of rights being taken away as long as it weakens the federal government is not good.

Looking at how Southern states seem to be competing to out-fascist each other right now, devolving everything to states' rights seems like a bad idea. If it were entirely left up to the states, half of them would be hunting gays for sport. Having common standards as a culture enshrined in law and a central government strong enough to protect and enforce those standards also seems good. It's weird that this isn't even up for debate where gun rights are concerned but bodily autonomy, rights to privacy and free speech are all up in the air.

There is no such thing as "settled" constitutional law for the Supreme Court. They are not bound by their own precedents and always have the authority to revisit prior decisions.

I don't like the results of the Dobbs decision either. But the root cause of the problem was always legislative, not judicial. When the legislature fails to make the laws clear, anything that ends up in front of the Supreme Court is going to be a toss-up. Tell your members of Congress to do better.

Thanks, this doesn't address what I said at all. What I said is that Dobbs refutes the idea that the Supreme Court's authority is limited to "interpreting situations where federal law does not already exist". There's no question that prior to Dobbs, Roe existed, was not ambiguous, and was the legally operative interpretation of the constitution.

This comment highlights why you shouldn't get legal opinions from tech discussion sites. I don't think you demonstrated any knowledge of why the supreme court exists in practical or theoretical terms, but you are quite confident in your view.

It's kinda weird that the people worried about supreme court ethics are worried about a guy with rich friends who has no business before the court, but not worried about someone with large book deals who does have business before the court.

The US is a republic, not a democracy. The Executive, Legislature, and Judicial branches form a triumvirate, which is a stable form of government. Their powers are complementary, and consist of numerous checks and balances.

One feature of the system, not a bug, is the protections against the majority riding roughshod over the minority.

> They must have smoked the bad stuff.

They did an incredibly good job. It's still the best Constitution.

I say this while still disagreeing with a lot of the decisions of the Supreme Court.

> The US is a republic, not a democracy.

At the risk of sounding snarky, this line has become a major eye roller for me. Are there any democracies on Earth, by this definition?

It's a democratic republic in the sense that we have a direct election of leaders and lawmakers. It's a bit pedantic because nowadays people use them interchangeably but we don't really have direct elections over the laws themselves (not at the federal level anyways, some states do allow for direct votes on amendments at the state and local level).

It's a spectrum, but the more weight the popular vote carries, the further towards that end it is.

People today think of the US as one "country" but when its Constitution was written it was much closer to the EU: an alliance and economic free trade and free movement area with basic shared rules.

The vote to create the United States was done by unanimity of Member States not by a popular vote.

Is the EU a "democracy"?

Athens was.

It is an eye roller for me as well.

Democracy is not something you are, it's something you do. That means it is not a black and white state, but a summation of the spectrum or beliefs, actions, and culture held by a population. When there are cultural changes that has an effect on the degree of democracy.

Here Timothy Snyder explains what the politics of inevitability is and how Walter is likely a practitioner of it and how that leads him to wrong conclusions (and there are other videos that explain Walter's American exceptionalism and why it's wrong):

https://www.youtube.com/watch?v=Eghl19elKk8

This use of republic is particular to the US. Recently, it has became particular to the Republican Party. Some of it is from the earlier usage, but I suspect it is really to contrast the Republican and Democratic parties.

Citizens have a huge amount of power within the government, being able to vote in elections and pursue ballot initiatives. How is that not a democracy?

Citizens don’t. Because of two senators per state, people in sparsely populated states have far more power than people living in larger states.

Even within states since people are concentrated in urban areas, it’s easy for the minority to engage in gerrymandering so that the rural population voting power is more than urban voters.

That’s not to mention the fact that even in conservative states, on singular issues like abortion, drug legalization and the right for felons to vote, the population runs to the left of the legislation. When those initiatives are put on the ballot, they win. So the legislators in those states are making it harder for initiatives to get on the ballots.

You can look at states like Texas that are taking more power out of the hands of the city.

https://thehill.com/homenews/state-watch/4007362-texas-passe...

We don't have ballot initiatives at the federal level. The US is a democratic republic, so it's a bit pedantic, but if you had to classify as one or the other the U.S. is a republic.

Republic means not having a monarch. The US is a representative democracy. So is the United Kingdom, but they are a monarchy.

No, that's not what a republic means. The U.S. is a republic. It is mentioned explicitly in the U.S. Constitution in Article 4, Section 4:

"The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence."

As mentioned, the definitions of republics and democracies have blurred over the years as people often use them interchangeably. Republics have representatives. Just as the ancient Roman Republic did, with its famous Senate. Pure democracies run on majority rule and direct voting on laws.

https://constitution.congress.gov/browse/essay/artIV-S4-1/AL...']

https://constitution.congress.gov/search/republic

> It's still the best Constitution.

[citation needed]

It’s like 8 times older than the average age of most constitutions. So it has longevity and staying power.

It has lasted longer than every other constitution for every other country.

Doesn't make it the "best" but on the other hand you can't achieve that kind of longevity by "smoking the bad stuff."

> It has lasted longer than every other constitution for every other country.

No it hasn't. The oldest written national constitution in continuous effect is that of San Marino, from 1600 (unless you count some charters that usually aren't treated that way, like Magna Carta). And plenty of nations survive just fine with traditional rather than integrated written constitutions, which are something of a modern fad, which is why none of the longest continuous constitutional systems have a written constitution in the first place.

I make no claim that a country has to have a written constitution.

Okay, oldest constitution for a country bigger than a football stadium.

Like I said, doesn't make it "best" but clearly has something going for it.

> I make no claim that a country has to have a written constitution.

The claim that the US has the oldest constitution, even with the caveats necessary to exclude older written constitutions, is simply false; countries without single integrated written constitutions still have constitutions, and many of those are much older in continuous operation than the US constitution (or the US).

The US is the most prosperous and free'est country ever.

> The US is a republic, not a democracy.

The Islamic Republic of Iran is a republic, not a denocracy.

The US is a republic that notionally is both democratic and federal.

> The Executive, Legislature, and Judicial branches form a triumvirate, which is a stable form of government.

No, they don't, because a tirumvirate consists of three people, and triumvirates are notoriously unstable. (The two ruling Roman triumvirates from which the term is generalized having lasted less than 15 years combined.)

> triumvirates are notoriously unstable

It works for the US. Also the Soviet Union - the Party, the KGB, and the Army. The reason for stability is one can block the other two. The Constitution is full of checks and balances to this end.

> It works for the US.

No, it doesn’t, because, again, the US doesn’t have one.

Republic means not having a monarchy. You can have a democratic monarchy like United Kingdom. Or you can have democratic republic like most of the countries on the planet including the US.

Some people try to distinguish between representative democracy and direct democracy but since the latter is rare, democracy usually just means the former.

Edit: I guess republic is particular from of democracy, plus non-monarch.

> file forms for transactions

Which forms? What transactions?

I'm sure you're referencing something real, but my search isn't turning up anything https://www.google.com/search?q=supreme+court+forms+transact...

Offbrand site for me to link, but the coverage for the Kagan dissent on the Warhol case is epic. https://www.nationalreview.com/bench-memos/kagans-blistering...

It's so shitty that the court has so persistently been such IP maximalist, in so so many ways.

Yeah, I'm not saying it couldn't have happened, just that what did happen seems like the most normal possible outcome.

> This isn’t all that surprising; for all the tsuris regarding 230, the statute and the intent behind it seem quite clear; the drama is that opponents of big tech companies don’t like the statute, not that there’s a real claim that it’s been misinterpreted.

While Section 230 was asserted among the defenses in the case, the Supreme Court decision didn’t address it at all, instead finding the underlying claim failed as a matter of law, making Section 230 immunity irrelevant. The headline saying that it left 230 protections unchanged is technically true, in the same sense as one saying that it left, say, the scope of liability under the Espionage Act in place would be.

But its also misleading clickbait, for much the same reason as one saying that it left, say, the scope of liability under the Espionage Act in place would be.

That's always the structure of such a case, though. Courts don't in general make big pronouncements where they don't need to, they find as narrowly as they can. Nonetheless, this case was an arrow fired directly at section 230. And the court didn't take the bait.

It's true the finding wasn't "about" section 230, but to say the case wasn't about 230 is missing the point.

Yeah but you can't pretend this case had nothing to do with section 230. The question in the petition before the court was "Does section 230(c)(1) immunize interactive computer services when they make targeted recommendations".

I for one appreciate the Yiddish, but for those unfamiliar with tsuris[1].

[1]: https://en.wiktionary.org/wiki/tsuris

The original intention of 230 was to insulate providers from the consequences of their user's content. It was never meant to protect them from their own content.

When YouTube says "You may like this terrorist recruitment video" that is undeniably their own speech and shouldn't fall under 230.

I can buy this argument. But in practice how much does it matter? It's not illegal to say "you may like this terrorist recruitment video", especially when its just a generic recommendation algorithm making that recommendation.

That “generic recommendation algorithm” is anything but. It’s proprietary and serves their interests and completely opaque. Who knows if it’s an algorithm or actually being hand picked?

It's not illegal but they're civilly liable for the harm they cause.

I don't think so. 230 protects them from liability for the video, and 1A protects them from liability for the recommendation. It would be hard to argue that a recommendation isn't speech.

How is this any more their speech than company employed moderators picking and choosing which content users can view or pinning posts?

That's certainly an interpretation of things, but it runs afoul of an issue where you'd force the Supreme Court to legislate acceptable types of content suggestion.

Is a forum showing you the most upvoted (reddit's /top) or the most recently commented (phpBB), or some combination (HN and reddit's /hot) and saying "you may like {{most popular thing}}" the site's speech or the user's? Is it only the site's speech if the recommendation is personalized? Or if the recommendation is a single item, and not a list?

The court's 230 interpretation today[*] seems to be that suggesting or promoting user-content isn't itself site content, which is fairly in-line with the original intent of the law (that showing, and even ordering user-content isn't site-content).

[*]: Which as others mentioned, is totally independent of this ruling.

I agree with that.

However... Isn't it a little bit of the same thing when a tech company says "This isn't a illegal in any way, but we're going to use our intentionally ambiguous TOS to remove it".

Aren't the things you say similar to the things you chose to prevent from being said?

No, because Section 230 specifically and extremely explicitly protects one of those things and not the other.