jamie unfair use which i will get to you in a moment the second is the one two punch of the district court's decision to cut key evidence of key markets out of the case followed by google misrepresentation which together left the jury with less than half the story on the two most important very use factors to start with j model there is no case upholding fair an infringer copied so much put it in a competing commercial product admitted that the whole point of the use was to appeal to the fan base and in particular what was familiar to the fanbase and then succeeded in barring the original author from a lucrative new market in any other context a competitor simply cannot do what google did you can't take the most recognizable portion of a short story adopt it into a fail him and then defend by saying you were in books we were in films different context or you could not have made a good movie anyway so where's your production facility for example did you yeah i mean there were there were all sorts of fair use transformative use instructions that we raised to that just record and the district court went with sort of a montage of this court's instructions but i would h add what matters for under ninth circuit law for purposes jay moll is what the law is not what the jury instructions were in and the question of transformative use is a pure issue of law there is release questions on the historical facts are to be reviewed with deference like the ultimate legal conclusion is review you know most of the question is what are the historical maximum amount of blackrock verdict it's difficult for fair amount well your honor so first i'll preface by pointing out that fair use cases almost never get to jury is in the ninth circuit actually or anywhere else and precisely because of what you said your honor should say there is no dispute of material fact which this court focused on last time around no dispute that would change the answer to any theory or use factor much less the balance among the question whether it was a potential market the answer is no it is the question whether is a potential market is something you answer based upon other historical facts like where were you  where were you intending to had i mean a very good example is worldwide church there was a potential market there it was a market for taking this literature liturgy and in providing commentary on it it was a decision that was made by worldwide church not to go ahead and do that for nine years they didn't do it but the fact that they considered it made it a potential market stewart's another great example earlier so there it's a short story that turns into a film there was no way that publishing company had the capability to actually turn it into a film they were a publishing company that's come back to this case mr  we will get i'm a little confused now by your discussion between facts and law and what the ultimate truth is let let's look at the jury instructions let's look at what the jury facts from all the evidence in the case to those facts you will apply the law as i give it to you that's on page two of his instructions and on page twenty of his instructions he said for ages nineteen he said it is up to you to do talking to the jury again it is record both oracle google participated in the development of these instructions and in fact i gather there was quite a bit of going back and forth until finally the charging conference when you all we agreed to give the whole case to the jury that was the ninth circuit pattern the struction is but that means all that means is that there is a black box verdict to which is this court applies its role  quote from reeves as the guardian of the law and determine the consequence of a black box verdict is that this court takes all of the facts that are undisputed lawyers on top of them ever any material dispute of historical fact that is the universe of facts to which this court applies the law that is the ninth circuit law when there is a summary judgment that the ninth circuit law when there is a jury verdict even when you have told the fantasize about what the jury as well as you get that yes of course and as to any historical fact this court can assume the jury decided against us so let me give you an example so i do think your obviousness analogy is actually a good one because as we said in kinetic concepts you take the jury very few you have to assume that every fact that's that's relevant to every underlying historical fact was found in favor of google and then determine whether there's sufficient evidence to support them as facts and then finally on the specs is is is fair use able to be determined based on those facts and so what i trying to understand is you say transformative and whether something's transformative is a question of law not a question of fact you know what yes we see that discussed a lot of times that way but it does seem to have a lot of  actual components to it so what's your authority for the proposition that it's always a question of law or the authority for the proposition that's always a question of the law is so first there's harker that fair use is a mix question of law in fact fisher versus decent statutory factors are legal in nature mattel versus walking mountain says transformative use there was a parity quote is a question of law but let me explain how this works in the context of transformative use so last time we were here this court concluded that there was a disputed fact on whether google's use of the declaring code serves a different function s o is to communicate to app writers how you use this platform in order to create an app know that fact alone the fact that it is the expression means the same thing  both there is no other disputed fact that can override the fact that the expression means the same thing in both but there was an additional undisputed fact google concedes that it used oracle's work to attract j programmers to android so that they would have not have to quote learn something completely new you put those two together you can ask google what if this shuttle historical fact is relevant to transformative use don't it don't they assert as part of this element made probably others too but at least this element that they transformed it into a wireless program you wonder they make a that is their amazon false because we were in smartphones as a matter of undisputed fact we were in danger danger sidekicks of any yes dangerous psychic was a smartphone their chief of android at that time android wasn't android and now it is but we were in so basically the transformative use argument is look at this transformation we took something that was suitable for portable mobile laptops so one type of small mobile computer and moved it over to tablets a different type of mobile computer that's not a transformation of the sort that courts reckon that is one of the factors that the that the trial court cited too like that throughout part also cited to the fact that they that they combined it with a whole different package of programming code that that effectively changed the nature of the work what's your response to that well you ought to just they they combined it with an operating system that they got from someone else that's not transformative ours was always combined with someone's operating system and the fact i mean this court said it last time around the fact that you add more material to that which you've copied if what you copied is not transformative adding more material doesn't make it transformative if you take  take stuart stewart's a great example twenty percent of the of the movie was from the book the other eighty percent was added on top of that that didn't make it transformative you have to look at it in  is clear on this dr seuss says it very clearly you have to look at that which is taken and ask does it express something different that code means the same thing it was conceded by google it means the same thing  time is up but i did have to i did want to talk about the new trial yes will give you one minute to do that and then i'll give you five minute rebuttal back some talk about the new trial ok so if this court not resolve this case as a matter of law there has to at least be a new trial and to understand both new trial arguments you have to understand one key fact the same exact copyrighted work that is our  is in the same versions of android say android marshmallow which is in both of all devices smartphones tablets cars now p c s and laptops when section one hundred seven says you have to consider the effect of the use you have to consider the entire effect not some of it that just reports decision to silo different sorts of harm into different cases was based upon a fundamentally mis of fundamental misunderstanding of law it misunderstood what infringed the act of infringement was the copying of our a p i is into the google platform into marshmallows for example the fact that various manufacturers event took that and put it into different devices that just means it's different markets but wasn't was there clear evidence that that what caused the android system that was the reason those additional as a supplemental complaint challenging all of the additional versions of enjoyed up through lollipop google then stipulated that marshmallow also had the same e p o you did you ask that those other devices be included for purposes of seeking damages with respect to that infringement or simply be that you be permitted to introduce evidence with respect to those other devices with it so that you could argue that that evidence is relevant to factors one in for both your honor but certainly the latter by the time the district court was saying those devices are out of the case we were saying wait a minute you can't atomize market harm you can say well for this case on marshmallow we will consider these markets and not look at other markets where we clearly were overlapping i mean we were in autos we were in t v to the tune of one hundred twenty five million t v s and there is no way google could have made the argument to the jury that it made to the jury no big deal where in this market oracle is in that market never the twain shall meet when in fact there were markets that were overlapping and both complain plain supplemental complaint if you file your honor the point was like any supplemental complaint was to update the case after two and a half years of being away and the district court accepted the complaint we issues in that case before that were they not brought up and the infringement part of the litigation well you want i think that the most important thing to understand legally about this issue is that we accused the platforms of infringement not particular devices those other devices didn't exist the first time around so the first time around android was new and it was only in smartphones and tablets but we updated the case that update was accepted we did discovery about it there were expert reports about it and then ten days before the trial the district court announced i am locking off these markets and this evidence even to the exten on purpose and again and that if you if you listen to google's argument about their purpose they say their purpose was about adopting to smartphones and our purpose was about p c s i'm puzzle because i would have thought that this last discussion or having would be in your main point of argument that you didn't get a fair trial because all of this material never got to the jury and useful way  that's not your point i take it well no you are you and had to be your point when you brought in that so a mental plane this was devastating this is our main new trial argument we have a chain mail argument that says we don't even need a new trial because as a matter of law google did not demonstrate fair use on any particular factor much less this struggle this court's job is clearly to analyze the factors i necessary for programmers to use the job of language i thought there was at least the stipulation about some very small portion was there further evidence that you put on the trial that quite a lot of or even all of the thirty seven packages and their structure was sensually necessary for programmers to use the language right all the distinctions between technically and practically necessary the stipulation so that at least some of them were technically necessary and oracle agreed that those were were necessary oracle for those or for use as a matter of law with respect to others there was evidence that if the evidence with google's argument has always been that they're practically necessary because if you read that they're not creating a programming language correct we use this as part of the new operating system and part of creating the new operating system creating a programming language for the new operating system or the programming languages java  type of storage medium i move it to another type of storage medium that's not going to be very rest if you take a short story and make a movie out of that that's got to be a different context and that's classically something that you can do and just say oh on the computer side it can be different the jury heard a lot of evidence that's that operate system for smartphones was an entirely different context from an operating system for computers for personal computers or for example t v that into your transformation  you all were engaged in smart phones they were engaged in computers is was and that there was absolutely the transformative purpose that was your whole key to the transformation ashton and but aren't transforming the work not just the well this was my this was going to be one of my key points so that when i went to question as they talk about that a lot of computer code have the same purpose in two programs that's not the right level of which to look at it is just to transfer the question is whether you transformed one original work into another work and so that is you know campbell to as it talks about transformation of the work soldier of the riginal of the original work and that's the transformation here you start off with you start off with with dates u s c you take less than one half of one percent of it which stuck the races which are predominately functional you then add all of these new decorations for the mobile environment you then it all of this new implementing code for the new one for this new environment and come up with what the witnesses consistently testify to couldn't job as witnesses was an incredible new creation in terms of me even if you mean for argument's sake that that's transformative the difference between after that supplemental complaint was filed that distinction disappear in that case is that not true well no you all didn't object to the filing of the supplemental district court here and unexpectedly fifty five fifty eight was worried about your confusion from blowing the scope wide open relative what it already had but even apart from that it's not the case because users have to be assessed you have to look at the snow work or work basis on a use by use basis and there are two key just failures of proof here one is the notion of the camp before that there's just one android operating system anything that's got the name android in it it's got that in it one is false but two there's also no evidence of an oracle shortage or the court could do that quickly they never even put in an offer of proof so there's no evidence that any product of android in the name has that same android operating system in it and going a little bit off the record here it's not the case can i take you back to jamie and focusing particular on on this you don't dispute that for a few years or over the course of a few years or will was voluntarily and good and in good faith negotiating with google that didn't work out but that was happening there were negotiations with sun over a much broader development partnership i mean over a lot else but specifically i thought it was was rejecting the argument that failed licensing on the part of the defendant tells you something about about you know they kind of knew they had to do it and they went ahead and did it i'm talking about the question of whether these wireless devices that the it doesn't that price the hapless that they were interested in that market not of the not not perhaps not to do it themselves but the guy in brooklyn with the story isn't going to make the move either the potential market is a was not able to do this itself is the job of to see her job it generally was not situated to be moved into the mobile environment and the jury heard a lot of evidence that could have agreed on that son's internal documents said it had quote no solution for smartphones unprecedented or oracle's earth formerly eric schmidt testified he never said anything like android was completely different from any other approach oracle's part testified that android embodied a major shift in the market to transform the status quo in significant ways and the reason was know the movies were invented or talkies were invented or technicolor or streaming you know so this video and i would the story right if it's wow you can put this on the screen and people can it's on television you get two different concepts in the same case that's two different concepts impending and after that it was on television was not relevant in other words the fact that it was shown on television or shown in a movie theater that wasn't relevant to why the ninth circuit is there was a transformation for the material that's what they were doing with it and hear what a group it was doing what it was again it was a surviving after writers a fission way for them to write programs to do to perform functions and that's what the java version to accept the same purpose so that for transformation we are supposed to be looking to the transformation of the original work as a whole to the new work as a whole not just merely whether the defined portion of it will do the same thing do you agree that transformation is a question of law not in this case i mean the summary judgment cases everything is questionable but your every truck transformation i mean whether whether you're going to take that so when you were here last time and you argued that that if we found a copyrightable it had to get reminded when google was here that had to be reminded because there were disputed historical facts and so what i'm trying to determine is what do you think the historical facts are right it's not helpful for either side can just say well whether it was transformative or not because it's the facts that undermine that conclusion that are the important tasks and what  it's right i mean it wasn't for lack of ability it was somewhat a system brunner for example said he tried and failed to build a mobile platform using these a p i as ellison testified that oracle never had a product  writer in the book on apartment who tries his hand at writing a screenplay and tries it several times and everybody in the movie business you knows anything about it looks at the screenplay and says you are in the wrong medium great story you don't know how to do dialogue here on how to do pacing does he lose his right to prevent somebody else from robert towne or somebody from writing a screenplay i have not if it's a traditional reasonable or likely to be developed market for the original work but two things which is important because that's the seltzer standard it's not just anything you might do with that it's too broad i mean if someone does something incredibly transformative you know to be given credit for the fair use you can say well it's a market that it's you know in a and laptops as well is using it in smartphones church so the through the art program is what is what's discussed here is the application runtime for chrome where you have the from operating system and then there's this ad on that allows them to run some arc went back to sorry not sure exactly the important thing about arc though is that it was sort of front of discovery kind misconduct issue google disclosed arc throughout fact discovery it was so this isn't this is five six months before trial december the documents about technically tales and goals it wasn't finished though the code wasn't finished and soul of month after the trial in june of two thousand and sixteen which then is when  it was first roll out to developers and a month after the trial was working out and they knew only sixteen google announced that this was where announced that it would was was it was going to be that arthur plus plus the new version was going to be coming out it would be releasing through developer channels a month later it actually finish programs for end users are going to stick with one two three things the theory obviously the compatibility issue here is this difference is compatibility for programmers of programmers you know java said go use java encourage everyone to use the use of the language and also repeatedly said that the dr races are free for anyone to use without a license there's tremendous testimony about that in the record which is also important but the point is that once that once or booksellers did that once they develop their fluency with java then they should be able to sit down and use those language and the familiar shorthand commands in programming in this new context and that's what google was looking to allow them to do for the for the packages that did have overlap but also be relevant to this new context just remember the smart ones have tremendous amounts of functionality you don't get in a g c phone camera flashlight g p s all those things similarly p c s have all sorts of issues that the mobiles don't so have different packages but for those up for that overlap the point is just that is it in order to you know encourage first consistent with sun's repeated business model but just make the declarations free and i could get on of lamentations and services but then too in terms of running the progress of the sciences and the useful arts the idea is well should be able to use their acquired alyeska i think a really important question that asking for the help of a lawyer is identifying the facts that control the outcomes so if you give me one minute i can tell you the undisputed facts on the faces of which each factor has to be decided ricard lists of any additional historical fact that google might point out factor one google made forty two billion dollars on android that makes it commercial the declaring code has the same purpose in both platforms that makes it nine transformative java ran tablets that's amazon smartphones in danger and a full stack mobile platform that's savage before android so google's view of transformation is wrong as a matter of law anyway for all intended to license in smartphones that means it's a potential market and it is a natural reasonable market for us to look at factor two there is a vast number of ways to write and organize the a p i is that makes it creative only  hundred seventy lines of code were necessary to write android in the java language that makes everything else technically technically but this court already addressed the relevance of that the techno the non technically piece to creativity still one factor to google did not need to copy the a p i is in order to write the platform in the jabal language to your point about technically versus i mean the fact that it was created doesn't mean that it doesn't also have some on some math absolutely and the law in the ninth circuit and for the from the supreme court is clear the question is whether it's creative if it also serves a function that does not withdraw the creativity i mean that is stopping the maser factor three google copied a hundred percent of the s s o from those thirty seven packages google copied quotes to leverage the exist e sense did they copy a large or small amount of the copyrighted works as alleged in the complaint the answer is small quantitatively correct small as to the declaring  huge has to be s s so it was everything in those thirty seven packages and look at look at harper and row that was three hundred words out of six hundred fifty five pages quantitative is not the end all and be all just to  continue the litany i'm still on factor three the declaring code was valuable even if google says it was not the most important factor for and this is really really important because we did not talk about either actual harm war we talked a little bit about potential harm five facts amazon cited android as the basis for demanding a ninety seven and a half percent discount that was since the last case on the kindle and we went from this is undisputed jobby infin generation of kindle one to android in the next generation of kindle to this ninety seven percent discount on job doesn't get to say i plagiarized your work because you were going to make a lousy film or i did a better sequel of the new fourth fact samsung cited in trying to extract a thirty nine million dollar discount java any i've not even talked about java any which was that all the other mobile devices with which makes it so obvious that we were in any position to either license for or create another mobile platform j popular smartphones of its day it was psychic so mr joseph for identifies let's go to transformative use factual disputes he calls them on transformative use the smart phone was a new context that's not a factual dispute that's a legal question of whether it's relative sun failed to develop smartphones we just agree on whether the fact has been established as a matter of what doesn't matter if you're if you did not make a very good sequel or your don't have a film company to make your movie for you that does not mean that you don't have a potential licensing market we work in the licensing business to the tune of one hundred million dollars with  and that was the market that was the potential for the smartphone and to judge to run to this point you are absolutely right our negotiations with google for google to create the next big job  to license to anyone else which was exactly the savage and we need to run ok thank you your honor so let me i'll just close with this if copyright protection for code is going to mean anything it must mean that a competitor cannot use copyrighted code for the identical purpose in competition with the copyright holder such a competitive use fares no resemblance to the sorts of fair uses that are described in the statute it doesn't look like criticism it doesn't look like comment it doesn't look like research all of those things do not substitute for you in the market this does now remember how pathbreaking java was and remember that without job it there'd be no enjoy no software company is ever going to invest the hundreds of billions of dollars that it takes to create the next round breaking five