Note that the questions presented were different in the earlier appeal, particularly, because the District Court had ruled against copyrightability, fair use was not a developed argument.
OK, I looked it up. These are pretty different briefs. The Holder DoJ petition asked the supreme court not to take the case, in a situation where the Federal Circuit had reversed a previous win at trial for Google by saying that "APIs can be copyrighted", something the trial court had assumed not to be the case. So the DoJ was basically taking a position on copyright law here. The supreme court agreed, refused to hear the case, and the net effect was that the Federal Circuit sent it back for another trial on whether or not the court-declared copyright infringement was fair use or not.
The situation now is that Google won at court again. The jury found the API reimplementation was fair use. And the Federal Circuit overturned the trial court again, saying (I'm not making this up, though obviously I'm paraphrasing) "The jury trial we demanded before was invalid because this infringement cannot be fair use as a matter of law, we just forgot to tell you that earlier."
That is, the Federal Circuit is behaving badly here, effectively shopping around for a basis to force a trial court to find for Oracle. The time for principled legal arguments was literally six years ago, this is just partisan hackery.
So obviously Google is appealing to SCOTUS (they took the case this time, for obvious reasons), and the DoJ is jumping in to pick a side in the substance of the actual case, something they really didn't do earlier by requesting that the appelate victory stand.
Whataboutism does not in any way dismiss the fact that Ellison's fundraising efforts for the current administration could play into this. Especially given the behavior of the justice department over the past few months.
It's not whataboutism. I am demonstrating that two politically opposed administrations came to the same decision. This implies that the basis of the decision may not be campaign contributions.
> It's not whataboutism. I am demonstrating that two politically opposed administrations came to the same decision.
Except you didn't actually demonstrate that, since they involve different appeals which did not present the exact same questions to the Court.
To demonstrate what you are trying to demonstrate you need to look at the two petitions and the briefs submitted by the two administrations, and see how much the two administrations agreed on whatever questions, if any, were common to the two petitions.
