achieving precisely what the contract exists or have it your own has the arizona law rewrites a specific provision in existing enforceable contracts in a manner that advances the parochial interests of a new arizona law countermands that and requires the plaintiffs to permit indeed to priscilla tate the authorization by the dealers of any number of rd party  this is no minimal alteration of the contractual obligation in the words of allied structural steel rather this goes to the very core of the contract in these cases namely the ability to sublease what is a multimillion dollar function in terms of data integration and collection on these systems now the district court attempted to sidestep this obvious contradiction this obvious effort at overturning a particular provision in these contract by inventing a distinction between direct and indirect access the plane of software would of course that distinction exists nowhere on the face of the contract rather as we point out including the contract provisions on pages five dollars and six dollars of our opening brief those contracts prove that prohibit an authorized access period and whether you do find that using lay dictionaries or more technological definitions as laid out in our brief all of those definitions easily encompass what's at issue here namely the exchange of information taking from and writing to our system counsel i suppose we agree with you that you know this law is a substantial impairment of your contractual interest  the supreme court has told us for for you know when you also have to show that it's not you know an appropriate and reasonable way of advancing a legitimate public purpose and that test seems to be a   on the one here and was that truly serve a broad social purpose which is the standard on the other hand it endeavoring to distinguish between the two words too big we begin with legislative bindings and identify the purpose and try to link that purpose to the end goal made up by and explain why the law dances that go well we have none of that here and so instead we're left with two things one we have the title of the statute which speaks in terms of data secrecy data privacy your honor and security but on this record it is implausible to suggest that the provisions that are challenges here provisions that require a huge number of new access points to say that mr andrew is willing to say that in the end of the day perhaps it is sort of security neutral a provision that we're talking about and there are other expert mr caster's and is willing to say knowledge is that by adding more people more entities that are accessing the system there are risks involved but he offers certain mitigation certain mitigating factors but none of that comes close to suggesting that this affirmatively advances the provisions we challenge affirmative it affirmatively advance security so then defendants say well as of this provision perhaps it can be defended not on a security basis but as pro competitive in the marketplace but here there's absolutely nothing in the record to suggest that the arizona legislature included this provision and changed the sort of level the playing field to use a word that the th circuit recently used and striking down a contract not so different in north dakota and two thousand and nineteen so level the playing field there's nothing to suggest that that that there was anything else at work indeed the only bit of evidence we have from the legislative history which frankly and candidly advances up sheerly parochial interest on the part of auto dealers that they don't want to be paying for integration or don't want their vendors to be paying for the integration as they agreed to in their existing contract so the only bit of evidence that does exist on the record points squarely in the direction of this being an effort to advance a surely parochial interest on the part of auto dealers in the state of you're on and you do think that the state needs to come up with their evidence of what the legislature is actual d motive was or is it enough to uphold the law for us to find feelers and it is as i say i think it's squarely on point in terms of this case makes very clear that and the standard itself is articulated by the supreme court in terms of a legitimate and significant public purpose that it  that is being necessarily advanced by the law is a far cry from rational basis so in answer to your honor's question the cases allow chords to infer from the base of the statute what may be the purpose but where as here there are no such findings and this was a problem encountered by the a certain in its decision as well your own whereas here there is nothing on the face all we have to go on at this point is we have a provision if vance by a narrow group that advance that is directly and i can i interrupt for just a minute but on this very point are you saying that the effect of this statute will not be to increase competition direct costs and mr gillat wrap me speak to what exactly that means which is which is a vague term but whatever it means it means we're not permitted to reap profits we would be subsidizing the market that your honor describes by providing this to the marketplace all the work having been done at cost and so that is not promoting in a special market it's actually requiring us to provide our services at drastically below market prices and i should add promoting competition and it's unclear what will happen here frankly but by requiring us to give up the restrictions on subways and that are invested in our on trends there there is no reason to believe this would be a more competitive market we would be providing these services at cost you already have other g m s providers like the plaintiffs here who are already competing with us the record in this case shows that combined the plaintiffs are about sixty five percent of auto dealers in arizona so you have other other g m s providers who may be offering and often are a differen again that is they do not put a restriction on sub licensing these these systems and so that the competition exists by requiring one party to subsidize the market  works and that's in order to effectuate purposes of the statute which are to encourage the creation of original works giving want there are certain exclusive rights in those works in protecting their economic interests there are three separate and independent it is there anything on the record of the characters how long a copy exists is no your honor there is nothing in the record that speaks of that that was not an issue that was raised below by defendants may i does hold to that aspect that where you're talking about the copying of into rand as we are here that the th circuit has held that that is sufficient to constitute a sufficient amount of time for an infringement without having that discussion of the temp n so there's no there's no specific discussion of the record but as a matter of basic computer science i think you could argue that there is a significant amount of time that would be involved even for the most basic of queries that certainly allowable under the law major honor and the others were i barely legal errors and what the district court did your honor was i think apply the long standard so one of the three ways in which we are alleging that copying would take place and instructions on how the computer is operating and what the court did your honor was i believe that only with that the issue of whether there would be visibility to the rd party integrator rather than looking on whether a copy would be made which is really the salient issue under the google oracle case and this is very similar to that while google oracle spoke specifically about it's a clearing code in the structure sequencing organization the type of information that would need to be copied is very similar here if you give a concrete example your honor i put a call on it and i'm to great or wanted to do a poll of all c d s that were purchased in phoenix  serviced at a dealership had the tires rotated and oil change it would need to copy the field names which are a creative element that were captured by rebels or is he k along with instruction could be copy that has to be made environment seems like what's happening here is not copying the whole declaring code it's just using elements of it that are basically functional elements like your have to use them in order to ask for those particular pieces of information that you're asking think you're right to a certain extent your honor in that the elements that are copied are used as part of the access to the through the a p i but there's still a copy being made and that's really the salient point under google in oracle is there a protective all copyrightable interest in is there a copying me and i think it's the case that that's factually correct and as a matter of law google talks about are there alternative choices available in the sort of organizations made and the type of declarations that that's really function only exactly what you would be doing here is a query and then a series of identifiers or field names you call it syntax as mr has descended you can call it sequence structure and organization i think it's close to  the declarations that were at issue in in oracle but is there a copy being made of those elements are there for you to choice that's really keys whether the purpose of why that's why it's being accomplished is not really anything and let me speak briefly said the rd category your honour's and that is the company of the data compilation that's being made and it's inherent in that it brought nature of the definition of protected dealer data that data compilations are available to the authorised integrator and mr andrei you describe the definition as a catch all which means that all of the data that goes in can come out creative choices made and how that information is compiled it includes potentially data that's put in actually rejected scientists facial pre enforcement attempt to use implying preemption and the constitution to shield themselves from classic economic legislation i was trying to take th not a possibility preemption this is implied preemption so the and its official challenge so the very limited inquiry that this court has to engage in is is there anything on the basis of the arizona that prevents states from acting what is ordinary economic legislation into data portability and interoperability legislation nothing and looking at it from the other side nothing in the the law might be implemented and then to try to ask the negative in other words is there some way that we can can are all of the ways that these can conceive of what is that would require an act of infringement  one is the d m s software which they say they would have to load into their internal ram on their own systems in order to respond to an a v r request there are three reasons that that proof software into ram he did not say or even to attempt to prove that the only way one could design any guy is to have a new copy be uploaded into rare and to the contrary defend volitional act doctrine that they cite in their reply brief the question of who makes the copy is a question of who selects the content and we didn't have a chance to respond to this point because copyrighted work or not copyrighted work here even evidence at the hearing was absolutely clear that the user of an a p i has no ability to dictate what whether the a p i says that you have to make a copy of your own work does not violate the exclusive rights but the copyright act confers copyright lawyers as a matter of federal law because that right  lie has nothing to say about that because it was undisputed there the repairmen were the ones who were making the copy not and i did sell so there was no question i'm not sure i totally agree with that one  even if it is the plaintiffs who are making the copy if as they allege they are making the copy because they are required to do so and they are making a copy for the benefit of others that sounds as though they're not just making the comedy because they want to have their own purposes so i'm not sure that the fact that they're making the copy themselves is biased self determinative well judge pleasure i think that with respect to law to make such a copy that excludes a right is not being infringed maybe that the making of the comic they're making of the copy does have benefit economic benefits for other people but the copyright act doesn't protect copyright owners against all potentially uses of copyrighted works even uses that might have economic benefits to the user it limits the protection to the numerated exclusive rights copying reproduction i'm sorry distribution creation of the derivative works so i think it is correct that if nobody else if all that happens  and that is that any copying and internal ram would have to be again necessarily in order for them for below it necessarily have to be non transitory there was no proof of that whatsoever no no effort  ven to prove that and so for all three of those reasons the district court or even on the assumption that you can analyze the official implied preemption challenge in this way did not abused its discretion in a holding originality requirement nd even if they did have to use their own code if they don't have to use creative code as the street moral argument and google creativity the analogy it was raised of the use their wonderful creative are in code that they correctly use in their crap if they want to they can use the equivalent of an a b c d e f g keyboard and there are lots of bugs are enclosed out there like the star declaring for both of those reasons again the players just did not prove that they could not comply that nobody could comply with the law without without conflicting with the purposes of the copyright act contract and the reason that he found that was the evidence was crystal clear at the hearing that an a p i allows a user to obtain data without ever obtaining access to  construed more broadly but clearly access can be can construed in that narrow way and i think the district court was correct again a facial challenge where there is a presumption of constitutionality to law and the law of the circuit so the a circuit case they rely on so heavily just isn't good law in this circuit but at any rate there was ample precedent site ample evidence presented to the district court of that purpose we had an expert that had decades in the industry explaining how important it was to make sure that d m s companies could not monopolize this data as they tried to do after decades of acknowledging that anybody should be able to do it and it's really we had a fact witness from from another v m s company that explained how what all the negative consequences of this kind of data hostage taking findings is really neither here nor there at any rate your panel has and am because really from the state of montana which has a parallel law they did have legislative findings precisely the states have a strong interest in passing laws such as the dealer data law to regulate their marketplaces and protect their consumers in data privacy to other states in this circuit montana and oregon have been active their own dealer data laws and this fine arizona passed unanimously in both our house and senate nd the pre enforcement challenge is particularly inappropriate here because there are many lawful ways that the state can force this all appellant time to cut off any to regulate their respective marketplaces as we transition to a digital economy for example of how he's read the c f a as for living any sort of consumer protection or data privacy regulation by the state it requires a system to interact  our ability to regulate a distinct system we're not going inside the system we're simply saying allow the system to be interoperable with a separate system i don't think any of their constitutional going to challenge is your i think district or was correct ruling on the p r because they had already been dismissed and you say we don't have jurisdiction to consider them but the they were they were in the motion for a p r and the order is one thing that motion  to two minutes thank you very much your honor let me just address a couple of the points raised by your honor and also by mr ho there is nothing to be clear there is nothing pro competitive indeed it into a competitive to require someone who a party who has invested tens hundreds of millions of dollars in a system in a method of organization only to require them to provide it into the marketplace at cost without a return on their investment and that's what's being demanded here when i said i think mr o as a backwards when i said we don't know what will happen the fact the matter is what i meant is there is no there are no legislative findings even identifying a market meeting rectifying under these circumstances we don't know whether it's going to be the rd party vendors who will simply take this at cost whether it will there be other integrators the fact the matter is to the extent there is a need for any competition in this space it already exists the competition is between v m s providers like plaintiffs here who choose not to permit subways to sing and charge accordingly of their dealer clients and those other merely have the market in arizona that do the opposite and that take a different approach and charge accordingly because they do provide a sub license it would be as if it were a state lower past such that my on the investment in organizing the data in the manner that we have invested to do so here on top of all this as i said there are no findings by the legislature when counsel was asked for the defendants by the district court what evidence is there th my apologies thank you ron or just three quick points st john right think the legal standard d urged by my friend mr ho and apparently undertaken by the court below falls into precisely the issue and problem identified in us the arizona and that is that they assume that the law is not preempted on its face and then point out allegedly constitutional applications of a statute that conflicts with convinced congressional intent and therefore is preempted by this honestly cause i think it's a fundamental causes the copy to be made as i believe judge what's your point that out there is someone causing this copy to be made reynolds has no interest ceded has no interest in making this copy for a rd party integrator causing it to happen so i think the  president as well established that it's the individual or the entity that's causing the copy to be made that matters the final notion that i would bring up your honor is the creativity and originality of the a p i as there is testimony in the record it's think what he said is it insufficient to prove a point that was not a point that should have been at issue that was of legal error by the judge in assessing the wrong point so i think your honor we believe our copyright claim is strong in the three separate independent areas that i've identified