the patent trademark office the first case we will hear is oracle versus civil case number thirteen one zero the wind counsel as you know we've divided decided to divide the argument on the appeal from the argument across appeal and i understand that with respect to the appeal you want to reserve five minutes for your rebuttal is that correct yes your honor thank you that's central question is whether the creative computer code loses all copyright protections under section one hundred two b just because it also serves a function i like to spend most of can you just fill me in on some elementary background what google product contains the outline of desperations that's at issue here to whom does that go what is the activity that constitutes which of the what i was six infringements so the product is android your honor and it goes into every smartphone it goes into a wide variety of products that are each copy of android contains this seven thousand line outline of something that was lines in the structure and organization of thirty seven packages of software so where does it go it goes into these products and the one of six activity is the copying of the physical anywhere else does it go any new app writers or do app writers have their own version download from the job platform that get it for those who are writing for android because they need to download it from google or can they just use the copy that they can get  if it's the same set of declarations well one of the key factual points in this case is that if you are writing for java you have to use the job platform that is if you're writing apps for j to or go i mean i'm really at that i mean almost non legal questions about how this works when you when you get it if you're a handset using you have the handset you are not personally understanding any of the expression and then using it ok so put that aside for a minute on the apps writer side does the app writer get or have to get something from google that contains the expression that you assert as protected and use it to do something or can he use his own copy of that from his job or world well so what but here's the way it works for the developer the  then invokes the program within android and so it's interacting with android and the same for java but the developer goes to the java web site the developer who writes for one cannot read his program on the other it simply is not interoperable but then to just step back from those on the need for you step back from me just get one for the factual piece of information you pointed out or that  there's no interoperability if that's the right word between android and shout that however is because of the way you it is because of the way google developed the lower parts of the hierarchical order in their own terms in terms of the declaring code there is a similarity it's not identity isn't that correct let me answer is the second half worst there is identical with the as to the thirty seven packages with respect to the declaring current but the reason it's not interoperable your honor is not that that the so called implementing the reason is they wanted job developers to be able to easily use the android system isn't that right b the answer is that that google didn't want java users to easily transition over to android and so they took the most important the most memorable the most appealing pieces of go back to where you wanted to go but but take me here first you tell us what a method of operation it's not can you but you don't really define what that whatever method of operation is how do you define a method of operation that under honored method of operation came from the group versus filled in that that exact phrase was used in that case a method of operation is to use one of the examples beaker use if you write a book and the book is about how to design a set of drugs and then use them in the human bodies were a disease that expression is protected the protection of copyright does not extend in the words of section one  are those should we view those differently these are the the concept of a method of operation then the other packages i think not your honor they would be you i would have you them differently with respect to fair use and so let me just circle back to the question it's not that are more basic it's that there are just stop rule methods that is routines within just those three packages that are necessary in order to quote it would speak to java language question whether someone since we've conceded that it's ok to use the language ok if it's alright to use the language so there are certain things that the original developers had to say in order to use that language arguably although we still think it's really a fair use analysis but your honor brought me right to where i wanted to go with respect to the central question in this case which is where they say i would say the central rule of decision which is that computer code just like any other literary work is protectable it's copyrightable so long as the author had other means of communication other ways of expressing the same idea and the district court found this particular declaring crude to be unprotected all its it which is to say that it had zero copyright protection and it could can i just it just so and understand  that principle is one that putting the facts specific facts aside it's inconsistent with both of the opinions and voted against right that is  opinion and judge the dean's opinion at least the half of it that's not fair use say we don't actually agree with that principle that i would say that is yes the answer is that is correct there is a way to get to the result in  s say in johnson controls or an apple versus microsoft you were saying i'd like to hear the end of that our draft pick up where you were you were saying that was creativity but especially as to this code these joppa packages would not have been the runaway success that they became if the declaring code had not been written in organized in a way that was intuitive coherent easy to use in yes to the program or even quite beautiful in a word expressive is due to the job of language a literary novel no of course it isn't but when congress chooses to treat computer programs as a literary works it invokes this whole body of precedent in the whole body of principles that govern the literary works i read in the district court as having some problems with separating out its direction from on question and that is most literary works i well i don't want to generalize typically a literary work is not something that can be called functional but it seems to me that almost all impute a code has to have a functional purpose otherwise what's the point of putting it into the code you don't write computer code just to have some sort of pretty expressive phrasing you've got a clue as a function do i understand that correctly so that it's sort of difficult to try to find computer code that doesn't have some functionality to it that is correct your honor it is impossible i would say to find computer code that doesn't perform a function language so let me first by way of leading into the answer just challenge the premise that was invented in your earlier question your honor which is that most literary works  encyclopedias i'm talking about instruction manuals i'm talking about medical and all taxonomies they all are deeply functional and and in fact least white at least yellow pages that have a particular function and flash idea work you know method of operation slash idea on the one hand and expression on the other hand so peach twenty five is a graphic illustration of four thousand lines of code they were lines of code that describe that sort of that that implements a function of organizing so the security functions an operating system what oracle cannot do is say we came up with the idea of of organizing security functions of the computer and therefore no one not microsoft not apple can create an operating system that organizes the functions of a computer that relates to security what oracle can do is  this specific selection of three hundred sixty two methods and the manner in which they are organized and arrange that let me ask you something in between what about just the concept would you say that you could prevent someone without a license from using the package a class method structure in the abstract no no not at all and that is the concept of that's the concept of organizing methods into packages or methods into classes but not all but not all programming news is that right in formula it and we would never claim in that anyone who uses a class you know a package class method manner of classifying violates or copyright we don't know whom and every conceivable way of organizing we own only our specifics expression our specific way of name each of these three hundred sixty two methods putting them into thirty six classes and functions by putting them in any class and any method by any selection but what we can do is copyright our decision to choose three hundred sixty two specific routines and to put them in the  organization that we did with the internal lation ships among these various packages and between within packages among the various classes it's not our expression the idea is the concept of organiz using the that is the name for sub routines but each method has its own specific name and so to answer your question there are two ways to answer it one is yes these are organized in particular ways that oracle flashed sun team up with as its own unique organisation so even if any particular name has a new copyright protection bites tells us that the unique and original organization does the second answer is just so happens in the context of this case and the way that google stole the plagiarized these three hundred sixty two methods or the you know the the structure sequence in organization within the thirty seven packages was to copy the code because the structure actually turns out to here in the code and one of the things why this debate about whether you can separate the clearing language from the s s cell itself is i your view not an appropriate debate because they are essentially one of the same yeah your honor yes i mean that whole waiver question is a sideshow i mean they copied the structure sequence in organization all of the inter relationships by copying the code but it was also clearly in the case the district court thought the literal the copying of literal elements was in the case which is why that just report wrote an opinion that covered things like merger a in and separate out piece by piece things that are protected from things that aren't not protect you agree that that exercise has to occur no your honor i mean the mean the answer is no every single package has its own structure of classes and then the sub routines the methods within the class one can look at the at that proposition and say oh come on there is organization there is creativity in the organization in every package that is enough to satisfy the one zero to a one of two b relationship i did it just struck me that i never answered this the question that  extended to it extends to only the expression not to the bigger ideas not to the bigger method of operation it's not an extraction of coverage it's the it's it's a limitation on the extent i would urge the court not just to reverse on copyright ability but also to reach their use and i'll just say three very quick things related to that again you would are just left to reverse on copyright ability but in addition to giraffe whether fair use can be decided as a matter of law you agree though that fair use is predicated on underlying factual questions the ultimate conclusion yes in this case it's predicated under it's predicated on underlying facts that are not at all in dispute this court can reach fair use and find that the use was not fair as a matter of law as the supreme court did toppy right you don't deal with it like that often so help me understand i would have thought sarah hughes was a relevant issue on infringement is that the right w of an exception to the copyright coverage whether that and an issue that goes to the question of copyright ability as i read the trial judge's  confused about how he viewed fair use because it seems to me he was merging it with the question of copyright abilities so let's right at the outset have an understanding of your invoke for example principles from say getting so many they are talking about principles that are taken from the fear use discussion very use comes after copyright ability it comes after infringement it is just to get a technical to that that was a question yes you know that i agree and to get technical the way the statue works we all we always call it an affirmative defense that comes after copyright ability ok so it's copyrightable then has it been copied if so you end up with infringement and then you talk about fair use as a defense was the use ok even though it's an act of infringement the technicality of the statute actually defining this fair use as is the court has a full record that that is the record of this trial if we go back to a fair use trial well we'll be doing is recreating that fear use record and presenting on fair use to determine as a matter of law whether is that normally a jury question it is often a jury question in the reefs in the ski saloon there are a good fifteen cases that decide fair use as a matter of law it is very common in particularly where the use of so patently unfair and subject just so i understand is that as a matter of law in the way in which will fifty talks about deciding factual questions they use simply cannot be fair and i say that for a couple of reasons i'll just a pulp give the headlines very quickly first there's no dispute that google took this code for its own commercial purposes and it did that to leverage oracle's fan base secondly there is nothing transformative about this use the android code that was taken is used in drawing for exactly the same purpose for which i android pre android oracle was the dominant force in operating systems and particularly in mobile phones mobile devices and after that enjoyed took over in completely supplant program not a novel or a piece of literature and in the ninth circuit which law controls here those functional elements of a computer program that are necessary for compatibility are not or and by the way this issue of copyright ability was given by both parties to the district court in a bench trial so the judge else occurred two weeks of testimony twenty six witnesses about java and android and how they were created what they are and how you separate is judge plague or asked how you try to separate the creative expression which might be copyrightable from the non copyrightable method of operation that's why we're giving you an extra thirteen m compatibility that the district judge found based on the facts were one that if you were writing within these thirty seven programs that these thirty seven a p i as they were in are operable in that you had to use the same of the classes methods and packages and the just report found that there were it was cold out there that had been written both experts conceded that if you're operating within these thirty seven packages the co designer operable jobs programs can run on android could have been done through different language correct he did he did that's correct and so you're saying that he found that it was necessary to use this precise language but i think you found just the opposite as a matter of fact no he did he did two things he found that developers out there in the community that were writing in job of the job free language they had developed an expectation that these functions would be called when you use these words and that that expectation is the expectation they have in using the s s o which had been out there and promoted by sun to be free for everybody to use now it's not our position that none of java is copyrightable obviously google spent two and a half years dozens of engineers and millions of dollars as a trial court found to right from scratch all of the implementing code in the java libraries all of the android implementing code fifteen million lines of it is original and we're not claiming here th declarations there were at least two other programs the appear she programmed the g n u classpath program that had used for years all of the same names declarations and packages without any complaint from sun no license no nothing apache jian you out there same s s o and that this is what the district court set he looked at how java operates and he separated out just as the atari case from this court says you must be found it was creative but he then said under want to be i have to separate out those things that are systems or methods of operation and just like in  is it was fair to copy the entire program of sega genesis or the sony play station in order to use the interfaces that that  to do it but that doesn't mean that that it wouldn't have had had the same exact function it we as it is court found you could have rewritten the whole thing but what he found was under sega sony and lotus there was no requirement to because if one were to be has any meaning one ought to be says if it's a method or a system of op a method of operation the thing that runs the program rather than the program itself or the tool that accesses the program rather than the program itself that is not copyrightable that is a method of operation a system and what the court means that that apple and microsoft for instance you could take all of their declaring if if they had a program like  access the functions you'd have to rewrite all of the millions of lines of code in apple or in microsoft which is what google did in android they rewrote from scratch all of the implementing color and the the the line to answer judge flavors question the line that the district court threw was if we're talking about implementing the function the actual heart of the heavy lifting see call the work of performing these tasks that you can't copy that google didn't copy fifteen million lines of android call roll original if we're talking about the means to access those functions or the means to operate the program the so called structure sequencing organization that is just like it was organization yes because in the night circuit what what is how many computer programs don't run with that i'm not sure your honor but there's has to be some means of accessing the program and here the court found after again the trial testimony that developers out there were expecting that when they wrote those words they'd get that function and they were in iraq rable you to be in iraq  had to use those words and that google was very careful to use only those elements that were part of the structure sequencing organization and not use any of the implementing  for you acknowledging that your argument does actually rely on a shift in time that is suppose as did not occur sun and created and announced to the public for the first time all thirty seven packages of those at the same time and there was not a developer in site yet who had written anything at that point is this declaring code a method of operation i think so your honor i that can't have people i think the district court used two distinct bases or it's a felony and so how could that possibly be a method of operation if as the district court found at the time the de sun announces its thirty seven packages there way to do accounting you can copyright your book describing it but you can't copyright the system you have to patent the system and what the court found was and this is echoed in sagan sony is that if you have a method of operation for accessing a program that is potentially patentable you may get a patent on it it's a system of operation it's an organizational structure that is used to operate something it's closer to an idea write an expression get and they didn't  houses assuming none of that that's not what is being claimed as patentable it is rather the set of expressions that name all these these things and make connections between the names so that users would have a particular experience with it i don't see why a set of expressions is on the method of operation side of it because because these names they're more than just a set of expressions that's the point that the judge elsa came to after the testimony they are the way the program operates they're happening in the star trek but why is that not true of every instruction appropriate it's because of her because because in the ninth circuit following want to be following the crew you seldom that type of structure is is closer to an idea or a system or a method of operating a program than the creative expression that performs the functions of the program and you're quite right that at the beginning at the beginning you don't have a question of compatibility because let's say there's nobody out but but at the beginning you still have to do what atari did and what the courts and sega sony and lotus did which is a value a under one hundred two what aspects of this claimed copyrightable expression have to be filtered out and that was the long process the judge also point through and the line that he drew was if it's needed to operate the program to access the program if it's a tool for commanding the program and calling it out that is a method of operation or a system that's closer to a merger that you may go out and patent and let's remember this case started as a patent case was never a copyright case of the star you can patent that but you can't the thirty seven packages that issue in this case you all copied the declaring code for those thirty seven packages from job but you wrote your own implementing that's correct that's correct then earlier you said that those thirty seven packages could be used in a jab a program or maybe it's the other way around a it original java program used those same declaring code but had its own implementing code different from the end to it could be used in android that's right  perform the actual function and all the developer does is he writes java dot mass dot macs or android dot job dot mass dot max to the program the language itself does the work so it doesn't matter to the programmer whether he's whether he's in on java or any android the functions are being provided by your point not that that's that's that's exactly just just took to bring it back a little bit if you can you can see that there are any number of ways to write language that would accomplish the exact same function correct the court found that google could have written a whole new staff of s s all but wasn't required to because the s s o was not copyrighted that's right he found th  creativity was never contested we never contested and she found that there were any number of ways to accomplish the exact same functionality with different words is that right he did ok so we have and you're saying that those factual findings do not convey copyright ability that's right because what what judge else took out following sig and sony was if what you hear let's remember sega genesis didn't exist the beginning of time it was written by sega sony playstation didn't exist at the end those anywhere in sega are seventy any of the discussion that you're talking about occurs other than in the sections where they're discussing it happened you're right your honor it happens in those sections but the whole predicate is you can copy the whole thing because you can use the interface functionality it's not copyrightable it's not protected why shouldn't because what's the tare i don't think that's what they're saying at all that they're so they're just saying that the method of operation is it should be looked at at a more abstract level ok but but but then but then when when would any method well outside copyright ability right and so what happened in sagan sony and in lotus and in atari was the trial judge was expected after making a finding of of creativity that's just a basic fact that that exact kinds of things that you're talking about don't filter out in atari the facts were different in the trial court made a difference in terminations and that determination was reviewed here for abuse of discretion but  study the ninth circuit said they don't filter out under one on t v no no in sagan sony the court basically said these functional elements that you need to either control a program or get through the security of a program with those files put a square peg in a round hole and second sony so i'm not going with you on that one ok i understand that love it it's probably your strongest case and in some ways it might be the only case that really holds on all fours for what you want  analysis was exactly the same as george also apply theory and they said there it is ok for more on to use those four hundred fifty six separate commands and in fifty separate menus to make a competing product that works the same way because it was an expectation in the marketplace that those would be available and it was perfectly acceptable to do that right on the other side says that in borland the district court actually made a finding that that ruled for borland and the supreme court left it alone for four years as we all know but but the the finding in lotus was that it's a command structure perhaps more basic than java although i'm not sure that's true but it's a command structure in the command structure was not protective all under one ought to be and and it was perfectly fair game for going to go out and use the entirety of that command structure to build a competing in job but they still do a want to be analysis regardless of that because we all know all the want to a creativity standard is very very low and i would point out another thing the this question of  seven thousand lines of code to the case that was tried in the district court was only about the s s so they made a tactical decision oracle did not to ask the jury about literal copying of the so called seven thousand lines of code what they asked the jury was only whether or not google's google infringed the overall s s l structure sequencing organization of copyrighted works now it was the only question the jury got on this issue that's that's the formulation that oracle so i thought they didn't object to that going to the jury and they repeatedly told the judge and the jury they were complaining about literal copying of the names declarations and phrases for doing it did they tell the jury that they were complaining about literal copying of seven phallus and the lines that made up the outline what they said  individual name is not protected gold but the names as part of the structure sequence in organization are protected and that's what they said doesn't that preserve the i'm not arguing whether i'm saying that that this idea that that somehow there's different thing we're talking about here because of seven thousand lines of code that it's only one thing we're talking about we're only talking about the structure sequence in organization of android you know john that was the document and pick out one word one phrase and say that's not copyrightable because it's a word or phrase it seemed to me the trial court spent on the word and phrase exception by deconstructing the program and that isn't really the issue i think the issue is the one that they posed which is the total structure of job and not a particular word or phrase you have misunderstand that i don't think you do your honor except for this it's true that judge also talked about the short phrases and declarations exception but but his ruling really is not based on that his ruling is based on looking at the overall structure sequence in organization and saying that there was an expectation out there among developers  mean it's talk and no longer a copyright a ball a well you know to stuff not copyrightable anymore because people like it i think i think in lotus the fact was that of course the lotus one two three spreadsheet did exist at the beginning of time and they evaluated copyright ability there as of the date of infringement so in lotus clearly they looked at what was happening at the deep moral and was accused to infringe and they found that yeah this is an expectation that the correct point in i think so i mean that's a copyright ability not fair use but that's a copyright i think i think it is it clearly is under ninth circuit law and our first circuit law that they're looking at that question both at the inception when it's clearly a method of operation cases talk about expectations in industry standards as part of what goes into this want to be analysis not just hear you say both talk about the fact that if there's an expectation or an industry standard or or  commonly understood we have doing something and here what what what was very clear to judge else it was new for years people had been using apache and these other programs using the same structure that's in java the same s s o without any complaint whatsoever from sun and that was part of why that expectation was developed of the c e o of sun testified that these were made available to people so they would buy more sun products and they were out there as a tool to access the probably wasn't the best part of the trial court's analysis what i can see your honor is just not necessary to the conclusion that he reached what and they said they fact we conceded too because they told the jury you can't you can't copyright a name or a phrase and let's face it sort of out of place i don't think it was out of place but it wasn't necessary to the ultimate result that's what i would say your honor yes and it was not really an issue yeah it is that the end of the day that's right so what he said about it an appeal like any other fact question i'm not sure which case is that your honor but i think there are a number of them and obviously as we've been talking about sagan sony and other cases also  are fair use cases in this case both parties agreed that should be submitted to the jury the factors to say there were no dispute disarray right there i mean as as as you know because you do patent for a lot of questions that are ultimately legal questions on their bottom line get submitted to the jury and what i'm trying to figure out is the usual standard of review question because if there are genuinely no  underlying facts questions what happened who did what when what dollars or are involved that cetera to the determine the navy all that's left is a legal a valuation only those facts in which case the question would be why remapped i think i don't think that we're in that position because as we know there are four factors that apply to fair use they were all contested and if i can have just  the purpose and character of use goes to whether or not you're transformed in many of these cases mere commercial use doesn't mean it's not fair use obviously lotus and the rest were all commercial use cases what the jury was presented with a ton of evidence were how was android used what did android do and was oracle in a position to to have created any sort of smart phone product using java had anyone done it we called several witnesses from oracle to say they were unable to do it they tried to do it no one was able to do it excuse me to do what use java to create a smartphone platform like android and others use job java language was used in computers laptops but it never been used in a smartphone before and there was a lot of evidence back and forth about what android was and how broadly it was used and what products it was used in and that's a material question fact that a jury has to resolve and they didn't resolve it and as to the amount used that's another that's another one of the factors the amount and the scheme that's well the question is was it to minimize was it a lot was copyrighted work was used and that's a question that's closely related to infringement and substantial we know exactly how much it was right we but compared to what i mean the question is are we going to compare it to just the thirty seven packages are we going to compare it to java as a whole the work as a whole this is boils down to the cross appeal that that's a jury question of whether what was used was substantial or not ok effect on the market that you picked on the market is another fact issue that was disputed the effect on the market they were arguing well we've got a licensing program and our licensing program lost money that was dispute whether they'd lost a penny in the licensing they said well we could've launched a smartphone that was disputed because the evidence was that they looked at launching a smartphone and cited they couldn't do it they didn't have the technical capability so our point on effect on the market was we expanded the market not only for other developers but for java developers and for  a itself and their argument was no you took away our ability to enter the market that was a hotly disputed question of fact on which engineers and business people from both companies were called and testifying and that has got to factor you look at was it transformative was it just a copy that was where you're trading on their name obviously android was a lot more than that didn't use the java name and fifteen million lines of independently developed code and our whole point was this is transformed and create a whole new market that no one else was able to create before now that they're disputing that and they did dispute it in the in the jury trial and as you know the jury the jury did not reach of a result  those those questions are closely related fair use means there's no infringement and because you're looking at things like the amount used the nature of the use and the like if this case goes back those issues should be left to the district court to figure out what a retrial looks like our view is the district court got the law right he followed the atari case he followed the sega sony and lotus cases he applied that to the facts that he found after a two week trial in which he heard twenty six witnesses and looked thoroughly a job upside down he got the law right he got the facts right he properly applied one circuit law to find that there's no copyright ability it's basically says top the right does not quote extend to any idea skipping over concepts principle relieve that discovery because that the make any sense at all any idea concept or principle well that's pretty clear as a demarcation tom cept for what i've always understood poorly of what happy write is about but then they put in the middle of those phrases the following procedure process system mesut of operation those words must have some meaning other than ideas concepts or principle so why doesn't job fall under one of those one of those labels so your honor if if as mr van ness says one zero to be is a series of exceptions to one or two way then just to start reading the statute the way you did that means expression is protected under one dual entry accounting or you can call the dual entry accounting a method of operation big overselling calls it both things and it distinguishes that from what it refers to a method of statement which was the expression of the author but i'd like to if i may just turn to fair use which consumes a lot of the court's time and just to correct one thing that i may have mis generally factual questions might be relegated to the jury but how do you weigh it all is a legal question i will emphasize though that google's brief says nothing at all about subsidiary factual questions in responding to fair use it is all about how courts should be applying the fear you spector's the question whether something is transformative is a legal question there's no dispute about android being used in competing products there's no dispute that it's being used for the same purpose we're arguing about whether the fact that they did of were smartphones when we were already selling to every major of a smartphone manufacturer whether that's transformative but that's not what transformative means transformative means that you have completely changed the character of the use of the use of change even if we were to accept that that on that topic there is it's arguable that that's let's laugh at the legal conclusion there was a lot of conflicting testimony about effect on the market it was a lot of conflicting testimony about the amount of the use in connection with the overall structure of the job as a whole so so why shouldn't we allow the jury to assess as well your honor so first they say the the factual disputes really be no relation to the big picture how do you analyze the fear use factor so for example look back in the marketplace there's no dispute that under the law or i should say at least it is clear that under the law even taking someone else opportunity and there is no question that oracle was poignant to be the big player in smartphones if its product did not been taken by android incorporated and replaced it in the marketplace there is no dispute at all about that that alone is an enormous market in fact there's no dispute for example that there were products in which for example kindle in which java with used and then it was re placed by android in the kindle fire it's the same exact use of this code but to point to a slightly different market but in fact it's the same players in the marketplace can i just as i mean i'm not the law that depend on underlying facts which is to assume that because we have no other choice that the jury reaches out all the facts in favor of whatever supports that bottom line so the question i think on this re mand assuming that we get to it get to fair use is whether there really are any underlying facts as to which you could decide it either way and i don't ultimate well your honor let me let me answer it in this way my answer is no that no there aren't because the factors waste so heavily when you put them together in our favor but if a corner is any doubt about that i would urge the court not to just send it back and let the court figure it out but descended back with very clear directions on how you for example analyze transformative use and how you analyze market substitution the effect on the market because those are things that the district of other material in this case but the district court now going forward if we get the court remains to the district court it should analyze transformative use and say here's what it is it has to be a completely different character you can't counter the morals president you can't compete with free that is that that counts very use what what's your very short distinction between this case on fair use and less thought out if you think of lotus as a fair use case that way have a judge say look borland actually came up with its own at best of so to speak its own command structure really did the work all it did was to create an alternative for those who'd already written for that first platform so they could use their macros and because loaded with never going to be replaced by borland by boral in the platform unless borland really was superior in i got to get these guys under control key points on the cross appeal there is a diminished exception to copyright infringement in the ninth circuit even when copying is admitted the holding of newton was quote even where the fact of copying is conceded there is no legal consequence from it unless the copying was substantial unquote the newton case is good law on the ninth circuit it's not in conflict with norse which was decided earlier even if we agree that there's a demand and a exception which i i know that but even if we agree with that is it to minimize as as in relation to what so are we supposed to say that at this for instance that range check which is a you know it has its own those we argued that the trial judge didn't give us the right instruction because he didn't require the jury to compare raincheck to the work as a whole but the judge properly said to the jury you have to look at it quantitatively and you have to look at a quality solicitors take range check first where where the the jury found against us and we argued for jam all should we assume that they made a qualitative determination but but was there evidence to support it because because of the falling on the on the quantitative side pretty clear nine lines of code whatever measure you use that is to minimize against the rest of it right because there are something like three thousand lines of code just in the little tiny file raincheck is in and there are thousands of lines of code hundreds of thousands in the thirty seven job of packages and there are millions of lines of code in jobs so qualitatively there was no evidence morning was that this was these nine lines of code were very simple comparing one range to another they could have been written by a high school programmer that was the evidence and the only evidence they cite two is testimony from their expert that the range check function within a raised job was called by the program twenty six hundred times and our point is that is meaningless unless there's context obviously these systems are performing the ends of operations a he said twenty six hundred times during some operation of a program he took took some periods of time he said and added twenty six hour ing on but again but again millions of operations were performed in power on and power off and he provided no context and that's the only evidence they cited in their brief to support the verdict whereas the trial judge said in consequential innocuous very simple could have been done by a high school programmer that can't possibly i was trying to translate that into something that was other that of tennis that level intuitive appeal so i was thinking is it something like the following simple function there are only so many ways you can write a program for this  function they use or calls expression of that they could just as easily use created their own expressions to do the same thing completely insignificant difference between yes feeling up to yes russian and performing the function some other yes your honor all of the above and so simple almost anybody with any programming ability to do that was that was the point of high school programmer may have been in that phrase for somebody who's incompetent to do programming devote this whole thing back to java the community and in the course of doing that inadvertently left in this piece that you didn't really need and wasn't really significant could have rewritten anyway and that's why the judge part of their copyright infringement case and they want to argue to the jury that this was literal copying and i guess i'm asking what is all that it is an article three question they're not entitle are they and if so sets of programs and it was more than dimon in this that the jury was right as to range check in this record was right as to the eight security files good will concede that we prevail even if it's qualit different there was certainly testimony supporting the proposition that when you use the program twenty six hundred times upon start up that's qualitatively significant as to the security files importance of the security files at twenty one five zero one two zero two and the district court said that google said nothing in response now let me respond to judge alex the innocence factor i mean the fact that that's what the mistake is that go use it doesn't well we're now talking not about fair use because there's no if you're used to events here we're talking about to minimize the motive has no bearing on the qualitative importance for if there is a diminished de minimus exception minimus the it was the motives to do your honors question not the significance you found that it wasn't significant a significant and as a matter of law and as to the high school program or the point that judge  at least it seems to have said that there is at the minimum that's fun well yes right so let me just premise my answer by pointing out it doesn't matter whether we're right or wrong and whether there is a diminished exception if we've there is there is a way to distinguish newton and we do it in our free put the most important point is to make is that newton was after the ninth circuit already concluded that there is no diminished exception newton came later and under ninth circuit law the earlier panel controls it didn't even acknowledge the existence of that earlier panel to answer the the course of the year honest question about what you compare it to when you compare it to for copyright or good overall fair use purposes may well be i would say at least the one hundred sixty six or one hundred sixty eight packages but when you're talking about it's a minimalist exception you can compare it is that as the ninth circuit did in hostler to the subset of the work they conclude stands totally alone and these files certainly the eight security files did stand alone they weren't even part of the hundred sixty eight packages and the consequence of flu including of concluding otherwise are really profound it means that in a program that has it google is right to fifteen million lines of code we are freeing people to copy entire programs just because the denominator is so big and that's simply not the world and that the de minimus exception if it does exist is designed to encourage and why so why is this relevant to the retrial is this just something that if there were to be a breach of this just something that you want to use to taint the jury judgment here we do indeed have a final judge me your honor there's nothing further for the district court to do it's no different from i know this court doesn't do a lot of criminal cases but a conditional plea premised on you know winning on the suppression  briefly thank you your honor i did want to correct my answer to judge toronto's question counsel did i guess there's a damage claim still an issue and that's what's happening i didn't get a chance to talk briefly about the a test files where the jury found them in a mess and judge perverse that all we need to show is that there was substantial evidence to support that and the evidence was overwhelming that there was a test files were both qualitatively and quantitatively de minimus they were there was no showing they were ever placed on a smart phone there was no showing they ever did anything or ever used to test anything that existed in the android platform but there was no testimony that they had ever been used to do any thing and if that is what is done think of the actual  absolutely and and and the other part of it on the quantitative part the same point i made before if you compare these eight test files to the fifteen million lines of code in the android they are truly minimus and there was really no evidence to the contrary so with respect to the a test files and the range check neither one should be placed before the jury but again we appreciate the court's time and attention this morning we ask that the