under the merger doctrine there is no copyright protection for computer code that is the only way to perform those function here java software developers have the right to use certain commands to create applications for google's android smartphone platform but to work the commands required google to reuse an exact set of declarations from job at sea like a key it's into a law because there are no substitute oracle is impermissibly claiming the exclusive right not merely to what the declaration say but also to what the declarations do that is not a copyright it is a patent right with respect to fair use along several practice of reusing software interfaces is critical to modern interoperable computer software reusing the minimally creative declaration allows the developers to write millions of creative applications that are used by more than a one billion people but those policy questions are almost academic because the issue is not whether this court would find fair use the standard of review ask the much narrower question whether the jury could reasonably find fair use oracle now obviously regrets its demand that the jury weigh all the evidence and decide fair use in a general verdict that contains no subsidiary finding no previous court ever held that only a court may decide fair use it is so fact bound that no prior appellate court ever overturned a fair use for this uniquely contested case should not be the st today you'll hear three lawyers present legal arguments for an hour in two thousand and sixteen the jury heard the starkly conflicting testimony of almost thirty witnesses and reviewed roughly two hundred exhibits over two and a half weeks this case perfectly illustrates as this court recently reiterated in georgia versus public resource use quote is notoriously fact sensitive and often cannot be resolved without a trial mr goldstein let's say someone copies the headings in your brief and they copy the organization in your brief which sections you put st and how you organize them is your are would your argument say that that's perfectly fine so long as they write their own text no sir a computer program is entirely different and in addition you wouldn't have the issue of the merger doctrine the issue here is that it is not possible to provide the functionality that we have the right to leave android without recreating that structure so i understand i understand your merger doc a rgument is different but i don't think that was the question i asked that it's in terms of whether you could simply recreate the headings from add a a brief or a book and recreate the structure not unless it was necessary to do so and that's what's true here product expression was was very successful there were a lot of ways to do it when they did it and the fact that everybody programmers really liked it and that's what everybody used it seems a bit much to penalize them for that and we don't intend to penalize her but our point is that in the language of section one hundred and two b they may well have come up with a novel method of operation and they have created one but they don't get the rights to it that is a patent like right i suppose justin's as your point illustrates in baker versus seldon you could have said well mr selden came up with a very innovative form of bookkeeping and other people could have used a different one but that was not enough to give him a copyright i don't think it's a patent right i mean it's the it's their particular expression and you want to say the only way for you to say what you want to say in the  new material that you provide is to copy copy there's that's not patent that's that's copyright sorry our point is this we have the right to provide a certain functionality to make a computer do something that right is given to us under section one hundred and two b if there were other ways for us to do it that would be another matter but because there is only one way then there is no copyright protection but in all events even if you took the perspective that copyright looks at the options that were available that work well to begin with clearly fair use look at it from the other end of the telescope and there was enormous creativity that is unleashed by the ability to reuse the declaration before waiting before before you get into fair use you say that was the only way for you do it but you know cracking the safe may be the only way to get the money that you want but that doesn't mean you can do it i mean if it's the only way the way for you to get it is to you get a license well your honor i think then that analogy would help us because if you get a patent on the safe you may well be able to keep us out but if you write a book about the safe it's about how to crack safe that doesn't give you the exclusive right to do it well all right i mean you're but what about any the the combination to the lock on the safe can you copy that just because somebody else has it and that's the only way to get him well certainly if you write a book about how to you know i'm a combination of something and have unlocked the combination of a lock that doesn't give you the exclusive right to the lock all it does is it shares the knowledge about how to crack safes or open locks what copyright wants is for people to be able to use that knowledge and that's what we want you know to the developing example of how thank you counsel justice thomas thank you mr chief justice and what the merger doctrine tells us that's called the idea expression dichotomy and then what the merger doctrine tells us is that if there is only way one way to provide the method of operation of java se you cannot get a copyright on that expression so our point here the method of operation of java se is the combination of commands by the developers and the declarations in java se if there are no substitute if we cannot use anything else then you would be giving oracle effectively  program for when you decide to use the latter and that's the teaching of baker vs seldon and the text of one to be what that tells us is that when you happy write something and you publish it you disclose it to the public seldom disclosed his system of bookkeeping the dual entry system that what the court said is once that's published then the public has the right to use it so to hear once oracle published the people in the public developers big companies like google had the right to create their own versions of it that would provide the same functionality then the question was is there any way to do it without reusing the expression of the original when as here there is not that there is no copyright protection you know you could someone could argue though that look if a team of a team takes your best players a football team that the only way that those players could actually perform at a high level is if you give that even your play provides all the same functionality as job se and in android we wrote new and better versions that were more suitable for use in a modern modern smartphone so it's not like we are trying to take someone's fan base to where their football players or anything else or go doesn't want a fan base that effectively wants prisoners it wants the people who use its work the developers only to be able to use it with java se that's not what a copyright is you don't get a fanbase with a computer how would you distinguish harper harper and row is a case in which the district judge made findings and this court said when there are established findings and the court not a jury is going to resolve fair use it can be the  district court here you have the opposite you have a general jury verdict there are no subsidiary findings whatsoever the jury was asked to and properly instructed to weigh all the evidence and the fair use factors you can unpack it in nearly the same way you could with the court in harper and row so should we is that because of the fact finder or because it was a general verdict both both of those are critically important here it's not the court that is assigned the responsibility for deciding under rule thirty nine c and the th amendment is the role instead of the jury and you would have to construe everything in our favor which federal circuit this of outdoing thank you justice  pryor i have a question for each side that i'm trying to answer in my own mind for you i would like to ask this i write down as a computer i have a computer in front of me and i put java dot lang dot mass dot mac for in for dan ok and that calls up a certain program which you did not copy ones it calls up which is setting the switches of the computer well the thing that the words i just spoke also call up a particular program i see a set of computers which is that will get me to the program that does the big you know the does a particular thing well it's a computer program isn't it and you can copyright computer programs and so what's the difference between  ok so there are two parts to these short cut programs there's what we call the implementing code that actually does the program and it provides the function there will produce the larger of two numbers workable agrees that if there's only one way to write that we can reuse that implementing code but it can't explain why the same isn't true for the code that you mention which is the combination of the calls written by the developer and the declarations that appear in android and job se if there is only one way to do it then you give someone a copyright on that that's exclusive then you are saying that person is the only one who can make the computer do the thing whether it's invoke the implementing code through the calling declaration or actually perform the function of the program through the implementing code i bet there are just one way to do it why is there just one way to do it if you spent enough time and you had the most brilliant computer programmers don't you think they could devise a system of calling up the j do to adopt is to make computer program incredibly inefficient so that we have fewer creative computer programs but the nd is no we we actually do have very good computer programmers and when you use that instruction math  the language itself it is a rule of the language that there is only one declaration that will work with it that is a plain finding of the district court that is uncontested thank you mr goldstein i'm concerned that under your argument all computer code is at risk of losing protection under ten to be square your position with congress has expressed intent to provide argument is strictly limited in that sense to circumstances in which the function that is disclosed that is here the relationship between the calls and the declarations can only be written one way and it's a it's a principle that work will concede does i mentioned with respect to the implementing code that actually make the shortcut programs work that produces for example the larger of two numbers other than an adverse questions already about the merger argument but how do you respond to or argument that your you are arguing in a circle that there is only one way to write a declare and code like oracle did well that is not what we're trying to do and we are not our analysis isn't circular it is by reference to what the developers are trying to do the developers it is conceded have a right to use the commands that they have learned in java including the ones that work with java as the when the developers use those commands we have the right to write a computer that will respond to those commands we would happily not reuse the java se declarations if we could it is that the language only permits us to use those you could make the same circularity argument about the merger doctrine for anything in english because you could say well every word in english if you get that specific is the only one that has that precise meaning we haven't abandoned the merger doctrine what we have said is if i work discloses something as job the s c discloses this relationship between calls and declarations then you have the right to perform that function unless somebody wants to go and get a patent let me let me switch to fair use  what should i do if i think that the purpose and character of the use and the effect on market value here weigh very heavily against you on the fair use issue that a jury couldn't reasonably find in your favor on those factors you should recognize i think that those factors are continuing and so if you were to say well i do think you know notwithstanding the jury verdict that there was some market effect here and you couldn't you have to check the box that say that there is a market effect where you have to act recognizes that a jury looking at all the evidence could reasonably conclude that none the less the other fair use factors including importantly the fact that the original material here the declarations is barely creative and the fact that it unleashed millions of comparative computer programs used by a one billion people that that on the whole he does not unreasonable for the jury to find fair use given that it was the jury's differentiate between the clarion codes and implementing codes because you agree you agree that you couldn't have copied fair implementing code is there are multiple ways of doing that but you fight the declaring code just because there are multiple ways of declaring as well apple has a different way of declaring the same function stay spent the billions of dollars to seri presumably you could have and yet you spend so much time in your brief convincing me that implementing and declaring coach go together in this hand they merge how do we draw the line you don't it is actually oracle that is trying to draw the distinction that you say is not recognized by the statute or common sense legal principle that you can reuse computer code that can only be written one way applies to both declaring code and implement the code works and  written one way we could reuse it it cannot explain why it is that given that the declaring code will not function if it's written another way we cannot really use that they're trying to draw that line with respect to apple it is true that apple is what gives you the right to use their original work what how do you define method of operations so that there's a clean line between that and when you have to create a new get the copyright none of the functionality it's the merger doctrine that tells us that if there is only one way to write the computer code that will provide that functionality then you can get a copyright copyright protection you have to get a pat protection with respect to the implementing code because there are numerous ways to write the implementing code as the district court found we wrote it millions of lines of it the only reason that we reuse the declaring code we would have happily rewritten our own is that we had no other choice we couldn't write a computer program that would respond to the developer's instructions without really using this limited set of instructions my problem with your argument is what's your definition of i direction you seem to define it as the extent to which existing rd party applications can run on your platform but not whether app develops on your platform can run on systems that use j so it's one way no your honor to good people now copy your c are you now have developed many different packages and platforms and things like that can they they can copy any part of our code including certainly our interfaces our declarations that can only be written this one this way we have interoperability in the fact that the developers instructions work with our methods our classes and our packages very frequently is the case that you have in modern computer programming interoperability that means you have a new software program that comes in and supplants an older less superior eleven that doesn't work nearly as well that is actually incredibly important what congress would want and that is to be able to take the functionality of a computer program someone else comes along and does it better it's no surprise that we don't use all the packages because they don't have anything to do with a modern smartphone they don't have a g p s function to them on the other hand the smart phone doesn't have a computer mouse there's no reason in the world to think you would reuse all of them and it would be impracticable given the constraints of a smartphone thank you goldstein i have to confess to being a little bit surprised or confused about some of the arguments you're making this morning and maybe it's just me and i don't understand it but i'm hoping you'll explain it to me because when i read your briefs i took you to be making a somewhat different argument principally send the one you're making today i took you to be saying that the declare in code is unprotected because it's a method of operation but it's what allows java programmers to operate the computer and to be setting forth a pretty flat rule on that of of that kind and i don't hear you saying that today instead i hear you saying you know the real question is are there multiple ways of doing the same thing so are those different arguments and which one do you make and there are both different arguments we're making both of them i'm focusing on merger the argument that you mentioned as our lead argument i don't think honestly is we do have the straight  text st argument that the declaring code is a method of operation because it is the instructions to the developer on how to operate the shortcut pre written computer program today i have focused on the argument that if you case is there any difference between what you are saying today and what all times says which is essentially that we have to figure out how to separate out the expressive elements of something well there are that the  circuit does have the abstraction filtration test and an element of that test is that you take out the elements that are not subject to copyright protection and merger if it's in there and that is one of the reasons that something an element of a computer program would not receive copyright protection is the fact that it merges that is the only available form of expression so it fits within the nd circuit framework it doesn't it just doesn't supplanted and it had to go back to something and i think the chief justice was asking about i mean suppose i'm i'm sitting in a mathematics class and the professor says you do what proof of a something or other and you know it turns out that twenty people in this mathematics class actually come up with more than one fruit and some are better than others some are elegant and some are less elegant so there are more than one way is of proving whatever propositions there is how do we deal with that and i would think that and that is someone here the developer will type something into the computer it will put in that person will fit in particular information and the question is how is it that you're going to write a computer program that recognizes what they're going to say and appropriately and if you say that you can get a copyright over the only computer code that will listen to that will understand the proof right if there's only one computer program that will look at students proof and understand them if you give someone a copyright on that you've given them a patent on that because no one else can make a computer do that particular thing and section want to be extremely granular it doesn't a the big picture question who do you generally find the larger of two numbers or prove something  gets way down into the details if you can not to copyright protection with respect to any method of operation this is plainly the method of operating job of the thank you mr johnston justice gorsuch good morning mr code just simply isn't copyrightable and i think that's probably a wise move given the fact that one to one says computer programs including statements or instructions in order to bring about a certain result may be copyrighted and we might not take on the wise that it should be but there it is and normally that the specific instruction there and one hundred and one dollars would govern the more general idea expression dichotomy and one of two so am i right that we can move doctrine and there i guess i'm stuck in a similar place is justice kagan which is the argument strikes me very much as i wish to share the facilities of a more successful rival because they've come up with a particularly elegant or efficient or successful or highly adopted solution in the marketplace and and to ride on on their innovation what do we do about the fact that the other competitors  appel microsoft and i know as one of your miki have in fact been able to come up with phones that work just fine without engaging in this kind of topic for everyone agrees that every platform including job at the actually does what we talk about which is really implemented prior languages or prior platforms apple and microsoft use different languages entirely is like saying we can't have a merger in english because someone could write something in french the rules that oracle wants is fundamentally you talk about an essential facility is something that has a real world analog again and a new exclusive right like a patent congress that is that you can have the exclusive rights to the words on the page the actual computer code but not to what the computer doesn't want isn't it isn't it pretty difficult to say this is an essential facility type problem when when others have managed to innovate their way  without reliance on what you might claim to be it essential to solicit where do we stand we were misunderstanding then what the task is if the task is at a high level of generality as you say an idea of just being able to create a command that is something a function in a computer program that you cannot get a copyright with in any event you would still look to the jury's fair use verdict i think very very very plainly given that the jury heard all of these debates about the relationship between an android and concluded on the whole as with its responsibility that this was a fair use thank you justice kavanagh thank you mr chief justice and good morning  goldstein to the extent you are still making the method of operation argument the other side and the solicitor general say that declaring code is a method of operation only in the same sense that computer programs as a whole are methods of operation and that therefore your method of operation argument would swallow the protection for computer programs your response to that is that declaring code does something very distinct in computer code and that is it hels and this is oracle's own point it is unique in that it tells the outside developer what to do the developer looks at the declaring code and then knows how to operate the shortcut pre written programs that is it tells someone else how to operate the computer program that is absolutely unlike any other code on your merger argument one concern that has been raised already is the timing issue another concern that i want you to respond to is that it seems to define the relevant idea in terms of what you copy you're not allowed to copy a song just because it's the only way to express that song and why is that principle not a play here because we're not defining merger self reflectively we're not saying i want to copy these again not very creative inspired by the declarations and when they do write that i have to be able to write a computer program and oracle concedes i can write a computer program that does those things so it is in the sense of baker vers seldon teaches that if you have a copyrighted work and it shows the public how to do something then the public can do it and if they can only do it using part of the copyrighted work that part does not get copyright protection one of the points in some of the amicus briefs and i want to compliment the briefing of the parties and all the amicus briefs which have been enormously helpful to the eighty three computer scientists is that the sky will fall in essence if we rule against you in this case threaten significant disruption one question i had about that though is the federal circuit ruled in two thousand and fourteen this court denied certain two thousand and fifteen on the st issue not aware that the sky is falling in the last five or six years with that ruling on the books i know it's different if we rule here but can you respond to that absolutely after their copyright ability ruling it was entirely open that we would prevail on fair use and we did we won the fair use trial and that went up to the federal circuit and then when the federal circuit rule again and the court granted cert i would not going to say the representations of not only the country leaving computer scientists but the software industry itself because the premise is not in dispute interfaces have been reused for decades it has always been the understanding that this you know purely functional noncreative code that is essentially the glue that keeps computer programs together could be reuse and it would up and that world to rule the other way thank you mr goldstein would you like to take a minute to wrap up thank you sir i want to address the argument that it is efficient for that google could write new declarations that would require developers to learn new instructions and that we're effectively just feeling this efficient way of doing it the sole effect of oracle's rule would to be to make the creation of innovative computer programs less efficient that would turn the copyright act on its head if anything the declarations so that creativity that they deserve the least copyright protection there's no practical or textual basis for that theory connecting the developers command's is essential to the method without which they're worthless by claiming exclusive right to declarations unction oracle is inevitably asserting as i said a patent rights in order to insulate itself from competition extremely section wanted to be provides the copyright does not extend to any method of operation that is embodied in java se there's no exception for the methods for which there are possible substitute  that the developers could use different commands is just another way of saying they could use a different method of operation and that would be in conflict with baker vs seldon finally the argument proves too much because it would apply equally to the implementing code developers don't have to use the proven programs at the court rules whole argument this morning is code is different now a few basic legal principles and concession control the outcome of this case legal principle one congress to find literary the congress rejected the very card in multiple ways including its definition of computer program and by not including google's carve out among the limitations in section one hundred and seventeen legal principle to this a competing commercial sequel to mean the same thing and serve the same purpose as the original google conceded the purpose and the meaning are the same that's the end of question to no  else thought that intervening required copying son's code without a license as justice alito notes apple and microsoft did not copy to create their completing class happened or miss neither did others who wrote competing platforms in the java language there was and still is a huge market for declaring code other major companies like i b m and s e p were paying a lot of money to license just the sun declaring code precisely because it was created then throughout this litigation google never denied this if this court holds that a jury may conclude that copying declaring code is failure it will encourage copying create  uncertainty and decimate the model which a lot of companies depend on undermining the very incentives copyright was designed to promote a mission rosencrantz let's say you want to open a restaurant you've got a great new chef he's got great new dishes and you say well we've got to figure out what the menu should look like you know of course you're going to have you know appetizers st and entrees and then desserts so you shouldn't have to worry about whether your own description what we've got here is very different it's not a menu just saying here are apps and here are dinner plates with standard descriptions that everyone uses of those apps and dinner plates we f blanks thirty thousand dollars times over and each item had his own description that no one else was using well you say that they did have a choice in other words your work did not leave them with no no option what choice did they have without having to spend billions of dollars which would be wasteful and impede the development of high tech business oh my goodness your honor so so without spending the billions of dollars microsoft and and apple both spent billions of dollars creating their competing platform that's exactly what the copyright act requires the copyright act does not give google a pass just because it would be expensive to recreate  expression well mr goldstein mr goldstein says the most efficient the best way to do it the way to keep programmers doing new things rather than old things is to use job there's fear use by saying that the audience has learned the words by heart i mean if if if someone wanted to write a book that preserved their reproduce eleven thousand best lines of seinfeld they couldn't do it by claiming but but we had to do it because those are the lines that everyone knows thank you mt so thank you justice thomas  yes thank you mr chief justice mr rosen cramps in your grief you seem to be arguing for more than the declaring code if i'm right there do we need to decide more than that no your honor we all this court has to decide is whether the declaring code for purposes of copyright ability with the declaring code was original it was and for  purposes of fair use whether was they are to copy the declaring code or point i think that your noting in the brief is the point that several justices made this morning you can't distinguish declaring code from implementing co both consist of quoted words numbers or other numerical symbols within the definition of literary work both operate a computer mr goldstein says that his rule is what congress would have wanted but congress rejected the exact line in the google proposed when it defined computer programs in section one hundred and one as code to be used to quote directly or indirectly to bring about a result you argue example of transformative use the code was never incorporated into a competing product instead it was used to study the here abhor the machine work and that was a transformative use in order to preserve the author statutory right to create derivative works this court is held in transformative use must alter the original works expression meaning or message google did not do that you can see every line of code it copies copied serves the same purpose and communicates the same thing adapting our code for the supposedly new smartphone environment does not change the meaning and is no more transformative than adapting a short story into a movie with google did is the epitome of commercial to proceed to use what campbell describes as quote using a work to get attention or to avoid the drudgery of working up something fresh thank you counsel and justice bri r please assume with me the following assume that the would you rather be computing computer programs we can do something after all are copyrightable but then it says methods of operation are not whether their computer programs are not the problem for us is is this more like they could be salvaged if they said the accounting is it's a method of operation or is it more like an ordinary computer program right now what i got out of reading through this very good briefing is look job is people divided the universe of tasks of which they are billions in a certain way all of the things that tell the computer to do one of those things will do that which tells the computer which to do that the declaration here is what it's like it's like as judge routine said the courty keyboard you didn't have to have acquired the keyboard on typewriters at the beginning but my god if you let somebody have a copyright on that now they would control all typewriters which really has nothing to do with copyright one or it's like switchboards on old fashioned telephone systems you could have done it a one thousand ways but once you did it all those operators across the world learned that system and you don't want to give a copyright holder a monopoly of telephone systems or it's like to use a chief justice is example a chef who figures out a brilliant ways mixing spices and then putting the spices for this and that in a certain order on a shelf and then you write something that tells you which shelf to go to and which shelf to pick out and which by the takeout for which dish now all those things are somewhat ordinary programs but they also are doing something they are giving you an instruction as to how to call up those programs that reflect jabbers organisation and at this point in time it's a really tough just like the cory keyboard you go backwards and very bad consequences will flow if you don't see that this action ok long question but that's what i got out of their method of operation argument and i in baker the author seldon published a book describing the bookkeeping system doesn't try to extend his copyright in the description to block everyone else from using that system his book attached some ledger forms that of law why wasn't the federal circuit required to apply that will standard and ask whether the evidence presented at trial viewed in the light most favorable to google would have been  circle back to the st half of your question the standard route of review is do no by which i mean it respects the jury's findings of historical fact but then doing for decades usually on summary judgment to decide what legal conclusions to draw from those facts and no one with the right standard because revolve resulting fair use require that there are some next questions of fact in law that are submitted to juries and that was that is what was done here wasn't it under fair use so was that an error no your honor i think with this court is done counsel at the big year and you're beginning statement to you had the sky falling if we ruled in favor of kugel the problem with that argument for me is that it seems that since  until the federal circuit's decision i know there was a rd circuit decision earlier on in the s the is the other circuits moved away from that they and the entire computer world have not tried to  computer code out there of method expression because it's too generous they've looked at its functions and they've said the a p i the application programming interface of which the declaring code is a part is not copyrightable implementing coat on and on that understanding industries have built up around applications that know they can they can copy only what's necessary to run on the application but they have to change everything else that's what google did here that's why it took less than one percent of the java code so i guess that's the way the world has run in every other system whether it's apple's desktop or admin saans web services everybody knows that a p declaring codes are not copyrightable implementing codes are so please explain to me why we should now and what the industry has  as the copyrightable elements and has declared that some are methods of operation and some are expressions why should we change that understanding your honor is i beg to differ with the find a single case that does this movie is just wrong that the success of the store for industry depends on unlicensed copying major corporate entities we're paying a lot of money just to license our declaring  some way of connecting the programmers and plus whatever they happen to be some way of connecting those implies to implementing code and then the nd feature is that there needs to be a way to organize those  cold into various classes and packages so one is like the trigger and one is the method of organisation is that right is that the thing that you're saying merits copyright no your honor there are two you an example that's similar to one that the chief justice used but i think you won't be and you won't be able to answer it in quite the same way i suppose i own a grocery store and i come up with a really terrific way of organizing all my fresh produce all my fr vegetables into these categories and subcategories very intuitive for the shopper and this is not the standard way it's different from the chief justice is hypothetical and that way it's novel and it's the world's different i mean it seems to me that there are all kinds of methods of organization in the world you know whether it's the charity keyboard or whether it's the periodic table or whether it's the system of  classes and feel of and so forth that animals are organized into i mean there are a one thousand ways and organize and say things which the st person who developed them you're saying could have a copyright  jury's finding of fair use and i'd like to follow up on that and some of justice alito questions often you know facts specific questions like fair use that are multi factor balancing kind of inquiries are reviewed for substantial evidence in the record and that is not what the federal circuit here did and particularly when when the questions are kind of novel and yet and legal rules have yet to crystallize and form around them 't leave the best not with the federal circuit but i would say in addition to the point that i made earlier about the need for your love for the business i would also say in terms of institutional competent question span who could find only five cases that even went to a jury in a similar thirty years and under who's pro choice approach summary judgment would be nearly impossible because wayne would be a fact question for every any more you want to say about justice briar's quality keyboard question and nd just to sort of my oars question about settled expectations and i would add the eighty three computer scientists concern about threatening significant disruption if you could just follow up on those two and i have no further questions after that thank you just as kavanagh yes i let me just finish the answer on paper i was saying the case would you like baker if we were trying to lock there is from using their own package class method structure to organize their own pre written programs but sun broke its own specifically have instilled in the blanks thirty thousand dollars times over we seek to protect only that only realized expression and others are free to write and organize their own pre written program however they see fit as long as they don't be ours and to answer the nd half about settled expectations and we've heard dire predictions from google about the future of software innovation but two different explosion of interoperability cloud computing i see machine learning and mr vehicles i can tell you two things that will kill software innovation the st is change the rules under which the industry can stay alive for forty years and substitute a rule that what is fair to copy is what every jury decides as a matter of public policy and the nd is to waive the incentive for writ original code thank you counsel you want to take a minute to wrap up run because who will invest the excruciating time it takes to refine code from the past simple to the masterful it's all that can be stolen the companies are paying lots of money right now a license declaring code no and just to set up my art is simply not true that they're all paying for nothing because it's all unprotected the whole market apple market will be gone with the stroke of a pen congress passed the copyright act to further the long term incentive to create not short term expedients to property ruling from google will also destabilize copyright law our rule protects original code and it's a industry to decades of uncertainty  issued its report which is known as the contour report recommended that computer codes continue to be eligible for copyright protection and the central justification he gave was that computer code is much more expensive to draft than it is to copy and consequently if potential authors of computer code of knew that their works could be freely copied there are the a pronounced disincentive to creation and of course it's the creation it's the preservation of those economic incentives to create it is the core justification for having copyright protection in the st place here google's core argument is that once the app developers of have learned the calls it would be inefficient to make them learn new calls in order to invoke new represent the united states of course and we're told that if we agree with oracle will ruin the tech industry in the united states why why is that not true if we why is it not true pretty i give three or four reasons but the st has been explored already that the federal circuit issued its copyright ability opinion and two thousand and fourteen and we haven't seen deleterious effects from that the nd is that the briefs talk about the practice of copying interfaces for a pianist but those terms are very vague and potentially expansive and a lot of things that might be called interfaces would be segments of code that are so short that they they don't exhibit necessary creativity segments of code that are necessary to preserve interoperability it may be that in particular circumstances particular interfaces can be copied without authorization but that's not a basis for a general rule and the rd thing is there is a prevalent practice of licensed copying of declarations and often that is done through what is called open source licensing what one way it can be done is that the copyright holder can simply announce to the world you are free to copy this proper reviews standard we do and we agreed that the rule fifty standard applies could any reasonable jury have reached this verdict but in litigation it's obviously very common but there can be disputed questions both of fact and law and even when the questions of law are close and reasonable judges could disagree the district court is supposed to just say what is the right answer to those legal questions and so when we asked could a reasonable jury have  court with respect to the same questions the one final question the congresses and the fair use analysis congress's provided for factors and we've said that those were non exhaustive can you think of anything else that should be added to in that analysis i think i can think of it anything else that there may be other factors in particular cases that the only thing i would emphasize is that in deciding questions of fair use the court shouldn't just be asking how would consumers potentially benefit from widespread copying with respect to this particular work the court should also be asking what incentives to future innovation of would rule of a particular sort create and give justice briar's i'm curious as to why the government thinks the balance of harms lies the way you do i do think of the courty keyboard cordy the keyboard calls up the metal rods that make an impression on a piece of paper and then that's how you write were this system calls up a system of dividing the world typewriting and nothing here they say if in fact you give them a monopoly of this the millions of people who have learned this is just a so tomorrow says we'll have to spend vast amounts of money when we get all kinds of a new method for using computers turning on heaters stoves etc and a one million others and teaching them is unbelievable it will give the owner of the declaration monopoly power over all those uses that i think is roughly what they're arguing why does the government reject that well i think there are all sorts of things like like the forty keyboard that have become standard but that wouldn't have been eligible for copyright protection in the st instance because for instance they're not sufficiently create it your google has conceded that the large volume of individual declarations and the  organization that is reflected in the s s o are sufficiently creative to qualify for the right protection in the st place that the nd thing is when we talk about the people who will have to learn new calls in order to invoke the declaration we're not talking about consumers we're not talking about the people who actually use the smartphones we're talking about at the bell uppers and these are economic actors their interests happen to align with google's because if they can create popular  have anything you want to add on that point that the only thing i would flush out a little bit was the the last point that i've gotten to towards the end which is that there is this phenomenon of license copying and sometimes often the license terms don't include the payment of money they simply include a requirement like whatever improvements to the code you make have to be given back to the programming community have to be made known to other potential programmers but the copyright holders authority to impose them and enforce those licenses obviously depends upon the proposition that the code is copyrightable to begin with and so those licenses would be a pointless just for otherwise and the very fact that those licenses are offered with such frequency i think tends to dispel the idea that there is a common understanding in the relevant community that this material is not copyrightable at all  essentially to mo bio phones why wasn't that a transformative step i mean the the answer is that all that all fair use involves copy things as to why this wasn't transformative the st is when google explains why it copied these particular declarations and not others within the java platform the explanation that it gives these is these are the decorations these are the functionalit that will carry over to a smartphone own platform these are the declarations that will be useful in the new technological environment so even though a lot of the code that oracle had written might not be useful as this co it's not the only way they could do it that would make it function in the new environment it's the they're very careful about this it's the only way that would do it that would allow the developers the app developers to use the preexisting calls in order to call up  the nd thing i would say about transformative ness is that that whole argument about allowing app developers to use their knowledge the only way it works is that at developer can have confidence that when they use the call with which they are  is if you imagine a motion picture that has only been released in theaters and somebody gets the print and offers to lifespring that over the internet it's the same content that has been simply being used on a different  and it's so useful that everybody starts using it now let's assume for the purposes of my question that this is copyrightable which it might be or it might not be but let's assume it is and and go it is a fair use question when when  a cell phone a smartphone manufacturer it takes that layout takes that keyboard and uses it for its next phone is that fair use and why or why not analysis would depend upon a lot of factors but yes i think in their use analysis you could take into account kind of developing expectations concerns about interoperability we don't we're assuming for these purposes as you asked that this is copyrightable and so that would be a factor to consider in their use analysis we don't have a quarrel for instance with the proposition that serving interoperability can be a f any any different here in other words that google took this interface to the programmers wouldn't have to learn a whole new system for colliton just as the self that's the cellphone manufacturer took my keyboard so that people could rely on concedes that this work is copyrightable but then says the fair use analysis has to feel hermitic the copying here and i wonder whether it it gives with one hand and takes away with another essentially saying that yes code is copyrightable but really it's always subject to fair use i mean we're certainly saying it's subject to fair use analysis but we've argued in our brief that used here was not there and the reason we think that the error we think the district court made or at least the primary error was that it treated as a factual question what it should have created as a subsidiary legal judgment that is on the question of transformative ness have sided with google that that would be fine if this had been a factual determination but the question is that sufficient to make a transformative use is fundamentally a legal question and the court of appeals appropriately reviewed that determination valid and correctly found that it was not transformative if we disagree with you on the standard of review that should ply here what should we do i think if you disagreed and you thought that questions going to affect jury trial practice it's going to affect summary judgment practice because a lot of fair use questions are decided on summary judgment that that won't be possible any longer if issues like this putting it on a new platform or transformative best are regarded as during and thank you counsel justice kavanagh thank you chief justice good morning mr stewart one question merger doctrine and one question on method of operation st google says in its reply brief that the dispositive undisputed fact in this case is that the declarations could not be written in any other way and still properly respond to th if there's only way of getting the computer to perform a particular function but they are defining the function as invoking the implementing code in response to calls that are known to developers and that's wrong for two or three reasons the st is section three o two a says copyright protections subsists from the works creation and at the time that the work was created there were no calls no one to developers that the argument wouldn't have flown as a justification for copying at that time the  is as the chief justice pointed out in an earlier part of the argument that would effectively penalize oracle for its marketplace success the fact that the calls were well known was simply a function of the fact that the java platform was popular and a lot of people had written a lot of apps for it and the method of operation google says that the declarations are a method of operation because they are for the developers to use while the implementing code instructs the computer do the same thing as it would have if it had the copyright work copyrighted work placed in it but likewise stuart if you'd like to take a minute to wrap up but thank you mr chief justice i think the fundamental line that should be drawn for purposes of merger analysis for purposes of one hundred and two b is if a particular line of code is without regard to the the acquired expertise of other actors the only way to make the computer perform a particular function then the code is not copyrightable here it's really undisputed that google could have written new declarations and they could have been used to invoke the relevant methods so long as the developers were free were willing to learn new calls and that is a analyzing the case that way gives appropriate weight to the copyright policy of creating adequate incentives for the creation i'll start i wonder if you had any further response to mr stewart's representation about the facts of the case on the technology market if we ruled in favor of oracle yes mr chief justice i don't think that mr stewart is accurately reflecting how the industry operates you have these from the country's leading computer scientists and the software industry that say that the n licensed really implementation of interfaces is widespread that's the concern about decimating how the industry operates but i would pay very close attention to the wisdom of what he says when he says categorical rules in this area are bad in response to example your question about how would this play out with other kinds of interfaces and justice kagan's restaurant hypothetically says there are lots of factors involved that's why deferring to the jury is fair use verdict which is an extremely fact bound about the record in this case isn't perfectly appropriate and sensible way to resolve the case and i wonder if you want to take a bit more time to respond further to my question about why your merger argument doesn't make find a way to develop their programs without relying on the job of coding so why shouldn't we impose that that same obligation  oracle but i wouldn't of course resolve whether we have fair use rights to reuse the code but in any event i think that's an optical illusion the computer scientists believe that page eighteen the microsoft leave at fourteen explained that both apple  microsoft oracle's example didn't we implemented prior interfaces the reason that they didn't use these interfaces is they were using a different language as if they were writing in french rather than english we're not local does not get the claim and that exclusive right to a highly functional computer program without a patent it gets the claim the words on the page and if those are the only words on the page that will produce this result in the computer they don't get that exclusive copyright up a set of programs written by java and maybe at the beginning you could have done this in different ways with different divisions of tasks in the world with different call up numbers and there weren't people trained at that time in copyright you just turn quoted runs from the beginning what you do about the welfare you certainly runs from the and i'm not talking about a fair use i'm talking about your merger argument and let's say  the method of operation argument so there's a difference between the fact that they have a copyrighted work which ran from the point of publication from whether merger applies this is baker versus seldon seldon when he published his book of dual column accounting on that day he was the person who had created that but the th said what about a later user that wants to use this system and they do it without part of the work that this court said no and that meant that there was no copyright protection we mr goldstein is this your answer to mr malcolm strengths formative used arguments and what's your best argument on fair use our answer with respect to transformative use is it cannot be a transformative use only exists when computer code does something different computer code only does one thing there is no parody of computer code that would mean ironically that this highly in functional expression is less susceptible of fair use then a highly creative novel that cannot be right and in any event even if the jury was entitled to conclude based on the record evidence that this was an entirely new context the java sea was not usable in this particular in a smartphone with respect to  more broadly our best argument is about the standard of review under rule thirty nine c this mixed question of fact and law was put to the jury at oracle's institution the question is could the jury have balance these factors i know that are other side is concerned about providing legal guidance that's why we have jury instructions but the court in georgia versus public resource and in other cases has made quite clear this is incredibly fact bound it will depend on the circumstances and mr stewart has only reinforced that point in that context you cannot say that the jury couldn't reasonably find that this mass of creativity with a one million applications and a new entirely new way of computing on a smartphone is not  question here although it is in other contexts i mean as as i understand it you're using this for the exact same purpose it's just that the purpose to make sure that users are dealing with familiar interface is one that should favor use so is that right is the transformative use question really a mismatch in this context as articulated by oracle it is call it really what you will the statute doesn't say transformative it asks about the nature of  what we're doing here is using an interface which is connective tissue between computer programs it is at the most barely creative even the federal circuit acknowledged that's the only inference that's possible from the jury verdict and then you ask well what comes of it what is the nature of this use are we using on a desktop computer anymore no we're using it in an entirely different environment and there was extensive evidence before the jury the nature of the use here is quite significantly different from the original use i think that's the statutory question that if if we were to hold true for it or send it back on fair use that we would be negatively impacting summary judgment practice and that most district courts take these questions up as a matter of law at summary judgment yes this is the exact argument that was made and rejected in the courts had a financial decision and that is sure some issues are decided very frequently on summary judgment but that doesn't mean that there aren't o case when you have such a case the fact that others are resolved on summary judgment isn't a license to just throw out the actual standard of review that applies courts have had no problem reaching a summary judgment where it's appropriate because generally there you don't have anything like a factual fight did android supplant java ethie in the marketplace how is it that they were technically different classical fair use cases are things like parodies or news reporting in which we have established legal rules this trick to just cautioning you against writing an opinion that articulate categorical rules and i don't understand how he wants to do that and adopt a categorical rule against the read here thank you justice cavanaugh thank you mr stewart you responded to my question putting that page seven of your reply brief about the merger doctrine and i wanted to see if you had anything further developers calls is with these instructions that's a very important point his point is well so what the developers can write other call that is a way of saying it we can use a different method of operation it also is nonsensical as a matter of copyright law why would congress want a rule that says ok this is the helpers are extremely familiar with these commands they're used to write creative computer programs let's just make it is inefficient as possible for them that's not trying to create  rules are inappropriate is point that different kinds of interfaces might call for different kinds of result as might different kinds of uses is the exact reason why the rule fifty standard should be applied with such a bigger here because the jury heard testimony on a variety of points that mr rosenkranz is just attempting to then i and assert the opposite is a factual matter i don't think there is actual debate about the expectations of the industry and they have nothing to do  industries expectations and how it operated i think what you realize is that of course the jury spare us verdict was reasonable here it is relatively in fair use an inquiry would this be a reasonable application of copyright or would it on that reduced expression here you have minimally creative declarations and they're being invoked to bach the publication of millions of programs on an innovative smartphone platform now i do think that there was no traction to mr ro and mr stewart's argument that the federal circuit had correctly applied the right standard of review when i page twenty four a have the petition appendix they say the ultimate question of fair use will be decided fair dunno though at page fifty three a they say well they will decide colorway it is impossible to unprotect the supposed factual findings that they are relying on and i just want to point out how many times mr rosenkranz is contradicting the jury evidence the evidence of trial for example j fifty six is the and twenty five again the former c e o says the strategy which has been the strategy long before i joined sun was that we agree on the a p i declarations we share them and then we compete on implementations the evidence at the trial is certainly sufficient easily to reasonably conclude that there was fair use thank you very much thank you mr goldstein mr rosenkranz mr stewart thank you the case