Congratulations! Your Booking(.com) Is Confirmed!. Cert. Granted to Determine Whether Use of Software Interface in Program Creation Constitutes Fair Use. Application of 'No-Aid' Provision to State Program Discriminated Against Religious Schools

• Author: Oran F. Whiting
• Pages: 9-9

Published in Litigation News Volume 46, Number 1, Fall 2020. © 2 020 by the American Bar A ssociation. Repro duced with permissi on. All rights reser ved. This informati on or any portion the reof may not be copie d or disseminated in any form

or by any means or stored i n an electronic database o r retrieval syst em without the expr ess written co nsent of the American B ar Association.

Congratulations! Your Booking(.com) Is Conf‌irmed!

Cert. Granted to Determine Whether Use of Software

Interface in Program Creation Constitutes Fair Use

Application of "No-Aid" Provision to State Program

Discriminated Against Religious Schools

U.S. SUP REME COUR T/

JUDICIARY

R.I.P. R.B.G.

Ruth Bader Gin sburg, associate justice

of the Supreme Co urt of the United

States, died fro m complications

of pancreatic cancer on September

18, 2020, at ag e 87. Nominated by

President Bill C linton, she was initially

viewed as a moderate co nsensus-build-

er. She eventually beca me part of the

liberal wing of the C ourt. Ginsburg was

the second woman (and f‌irst Jewish

woman) to serve on the Cou rt, and the

f‌irst woman to be on t wo major law

reviews: the Harvar d Law Review and

Columbia Law Review. Gins burg be-

came somewhat of a p op culture icon

as her increasi ngly f‌iery dissents led to

the creation of "Th e Notorious R.B.G .,"

an internet meme comparing her to

the late rapper " The Notorious B.I.G ."

Ginsburg was bu ried beside her hus-

band in Arlingto n National Cemetery on

September 29, 2020.

Patent and Trademark

The Court a rmed the U.S. Cour t of

Appeals for the Fo urth Circuit’s ruling

that even though the word “ booking” is

an unprotectable generic term, combin-

ing that term with “.com” tr ansformed

it into a descriptive term tha t could be

protected once it ha d acquired sec-

ondary mea ning.The U.S. Patent a nd

Trademark oce previously denied a

digital travel compa ny’s attempt to reg-

ister its domai n name as a service mark

for hotel reserva tion services under a

long-standing policy that the combina-

tion of a generic ter m for goods and

services with the “.c om” sux did not

create a protectable trademark. U.S.

Patent & Trademark Oce v. Boo king.

com, No. 19-46 .

Copyrigh t

The Court gra nted certiorari to deter-

mine whether copyright protection

extends to a softwa re interface and

whether use of a sof tware interface

in the context of creatin g a new com-

puter program con stitutes fair use.

When Google implemented its

Android Oper ating System, it wrote

its own programming language

based on Oracl e’s Java and used

the same names, organization, and

functionality as Java’s Application

Programming Interfaces (APIs).

Oracle sued G oogle for copyright in-

fringement a nd two district court ju-

ries found in favor of G oogle. The

U.S. Cou rt of Appeals for the Federal

Circuit reversed both d ecisions, as-

serting APIs are copyrightable and

Google’s appli cation of them failed a

fair use defens e. Google LLC v. Oracle

America Inc., No. 18-95 6.

Constitution: First

Amendment

The Court he ld the application of the

Montana Constitution’s “no-aid” provi-

sion to a state program p roviding tuition

assistance for private school violated

the Free Exercise Cla use and discrimi-

nated against re ligious schools, their

students, and potential students .

Montana is one o f more than

three dozen states that b ar distribu-

tion of public fun ds to religious insti-

tutions under re strictions known as

“Blaine Amendments.” The Montana

Departme nt of Revenue issued a rule

barring famil ies from using funds from

the state’s tax credit sc holarship pro-

gram at religiou s schools. The Montana

Supreme Cour t held that the depart-

ment lacked the a uthority to issue

its rule—bu t the court also held that

the scholarsh ip program was invalid

AND MORE . . . BY HO N. ORAN F. WHITI NG (RET.), LITIGATION NEWS ASSOCIATE EDITOR

because it con f‌licted with the state’s

constitutional provision. Espinozaun-

equivocally determined that Montana’s

Blaine Amen dment—at least as applied

to the scholarship program—is inconsis-

tent with the Free Exercise C lause of the

Federal Constit ution.

Thisdecisionwil l shape how the

First Amendment’s religion clauses

apply to state and lo cal restrictions

on public spending, and drastical-

ly limits the scope o f one type of re-

striction emp loyed by states for more

than a century. Espinoza v. Montana

Department of Revenue, No. 18-119 5.

Fraud and Abuse/

Cybersecurity

The Court gra nted certiorari to re-

solve a long-standing circuit split

on whether a per son authorized to

access informati on on a computer

for certain pu rposes violates section

1030(a)(2) of theComputer Fra ud

and Abuse Act (CFAA)if the p erson

accesses the sam e information for an

improper purpose.

Enacted in 19 86 to combat the per-

ceived growing threat of h ackers, the

CFAA makes it a feder al crime to “ac-

cess[] a compu ter without authoriza-

tion or exceed[] au thorized access,

and thereby obtai n[] information from

any protecte d computer.” 18 U.S.C .

§ 1030(a)(2)(C). The Court ’s ini-

tial review of the CFAA will de cide

only whether the s tatute can be de-

ployed against ha ckers and unauthor-

ized users of elec tronic systems, or

also against au thorized users who use

the information for unauthorized pur-

poses. Van Bure n v. United States, No.

19 -783 .

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