GOOGLE LLC, Petitioner, v. ORACLE AMERICA, INC., Respondent
Interviewer(s): Clarence Thomas, Samuel A. Alito, Jr., Stephen G. Breyer, Elena Kagan, John G. Roberts, Jr., Neil Gorsuch, Brett M. Kavanaugh, Sonia Sotomayor
Interviewee(s): Malcolm L. Stewart, E. Joshua Rosenkranz, Thomas C. Goldstein

John G. Roberts, Jr.: We will hear argument first this morning in Case 18-956, Google versus Oracle. Mr. Goldstein.

Thomas C. Goldstein: Mr. Chief Justice, and may it please the Court: The merger doctrine resolved the copyrightability question in this case.

Oracle has a copyright to the computer code in Java SE but not a patent.

That means that the public, not Oracle, has the right to Java SE's function, and Oracle cannot leverage its copyright to create patent-like rights.

Specifically, under the merger doctrine, there is no copyright protection for computer code that is the only way to perform those functions. Here, Java software developers have the right to use certain commands to create applications for Google's Android smartphone platform, but, to work, the commands require Google to reuse an exact set of declarations from Java SE, like a key that fits into a lock. Because there are no substitutes, Oracle is impermissibly claiming the exclusive right not merely to what the declarations say but also to what the declarations do.

That is not a copyright; it is a patent right. With respect to fair use, the long-settled practice of reusing software interfaces is critical to modern interoperable computer software.

Here, reusing the minimally creative declarations allowed the developers to write millions of creative applications that are used by more than a billion people. But those policy questions are almost academic because the issue is not whether this Court would find fair use.

The standard of review asks the much narrower question whether the jury could reasonably find fair use.

Oracle now obviously regrets its demand that the jury weigh all the evidence and decide fair use in a general verdict that contains no subsidiary findings. No previous court ever held that only a court may decide fair use.

It is so fact-bound that no prior appellate court ever overturned a fair use verdict.

This uniquely contested case should not be the first. Today, you will hear three lawyers present legal arguments for an hour.

In 2016, the jury heard the starkly conflicting testimony of almost 30 witnesses and reviewed roughly 200 exhibits over two-and-a-half weeks.

This case perfectly illustrates, as this Court recently reiterated in Georgia versus Public.Resource, that fair use "is notoriously fact-sensitive and often cannot be resolved without a trial."

John G. Roberts, Jr.: Mr. Goldstein, let's say someone copies the headings in your -- your brief and they copy the organization in your brief, which sections you put first and how you organized them. Is your argument -- would your argument say that that's perfectly fine so long as they write their own text?

Thomas C. Goldstein: No, sir.

A computer program is entirely different.

And, in addition, you wouldn't have the issue of the merger doctrine.

The issue here is that it is not possible to provide the functionality that we have the right to with Android without recreating that structure --

John G. Roberts, Jr.: No, I understand --

Thomas C. Goldstein: -- in this structure.

John G. Roberts, Jr.: -- I understand your merger doctrine -- argument is different, but I -- I don't think that was the question I asked.

Thomas C. Goldstein: That -- sir, in terms of whether you could simply recreate the headings from a -- a -- a brief or a book and recreate the structure, not unless it was necessary to do so, and that's what's true here.

John G. Roberts, Jr.: Well, if you're talking about necessary to do so, and, again, you're force -- forcing me back to the merger -- to the merger doctrine, and that's -- that's fine, but the only reason that there's only one way to do it is because Sun and Oracle's product expression was -- was very successful. There were a lot of ways to do it when they did it.

And the fact that everybody -- programmers really liked it and that's what everybody used, it seems a bit much to penalize them for that.

Thomas C. Goldstein: Well, we don't intend to penalize them, sir.

But our point is that in the language of Section 102(b), they may well have come up with a novel method of operation. They may have created one.

But they don't get the rights to it.

That is a patent-like right. I suppose, just as in -- as your point illustrates, in Baker versus Selden, you could have said, well, Mr. Selden came up with a very innovative form of bookkeeping, and other people could have used a different one.

But that was not enough to -- to give him a copyright.

John G. Roberts, Jr.: I don't think it's a patent right.

I mean, it's the -- it's their particular expression.

And you want to -- you say the only way for you to say what you want to say in the -- the new material that you provide is to copy -- copy theirs.

That's not a -- a patent.

That's -- that's copyright.

Thomas C. Goldstein: Ah.

Sorry.

Our point is this: We have the right to provide a certain functionality to make a computer do something. That right is given to us under Section 102(b). If there were other ways for us to do it, that would be another matter.

But, because there is only one way, then there is no copyright protection.

But, in all events, even if you took the perspective that copyright looks at the options that were available to Oracle to begin with, clearly, fair use looks at it from the other end of the telescope. And there was enormous creativity that is unleashed by the ability to reuse the declarations --

John G. Roberts, Jr.: Well, before we --

Thomas C. Goldstein: -- that only --

John G. Roberts, Jr.: -- before -- before you get into fair use, you say that was the only way for you to do it.

But, you know, cracking the safe may be the only way to get the money that you want, but that doesn't mean you can do it.

I mean, if it's the only way, the way for you to get it is to get a license.

Thomas C. Goldstein: Well, Your Honor, I think then that analogy would help us because, if you get a patent on the safe, you may well be able to keep us out.

But, if you write a book about the safe, that is about how to crack safes, that doesn't give you the exclusive right to do it.

John G. Roberts, Jr.: Well, all right.

I mean, you're -- but what about the -- the -- the combination to the lock on the safe? Can you copy that just because somebody else has it and that's the only way to get in?

Thomas C. Goldstein: Well, certainly, if you write a book about how to, you know, unlock the combination of something, unlock the combination of a lock, that doesn't give you the exclusive right to the lock. All it does is it shares the knowledge about how to crack safes or open locks.

What copyright wants is for people to be able to use that knowledge.

And that's what we want here too.

The developers --

John G. Roberts, Jr.: Thank --

Thomas C. Goldstein: -- the developers --

John G. Roberts, Jr.: -- thank you, counsel.

Thank you, counsel. Justice Thomas.

Clarence Thomas: Yes.

Thank you, Mr. Chief Justice. Mr. Goldstein, you seem to rely quite a bit on Section 102.

Why don't we rely on Section 101, which is more specific with respect to computer programs?

Thomas C. Goldstein: So, Your Honor, Section 101 tells us that Oracle holds a copyright in Java SE as a computer program. Then Section 102(b), what it tells us is that, okay, that copyright does not extend to any method of operation in Java SE. And what the merger doctrine tells us -- that's called the idea-expression dichotomy -- and then what the merger doctrine tells us is that if there is only way -- one way to provide the method of operation of Java SE, you cannot get a copyright on that expression. So our point here is that the method of operation of Java SE is the combination of commands by the developers and the declarations in Java SE.

If there are no substitutes, if we cannot use anything else, then you would be giving Oracle effectively patent rights by preventing us from reusing the declarations.

Clarence Thomas: So at what -- at what point should we determine the merger, whether or not there is merger? When Oracle or Sun develops this program or when you decide to use it?

Thomas C. Goldstein: The latter.

And that's the teaching of Baker versus Selden and the text of 102(b).

What that tells us is that when you copyright something and you publish it, you disclose it to the public.

Selden disclosed his system of bookkeeping, the dual entry system.

What the Court said is once that's published, then the public has the right to use it. So too here.

Once Oracle published Java SE, people in the public, developers, companies like Google, had the right to create their own versions of it that would provide the same functionality. Then the question was, is there any way to do it without reusing the expression of the original? When, as here, there is not, there is no copyright protection.

Clarence Thomas: You know, you could -- someone could argue, though, that, look, if a -- a team -- if a team takes your best players, a football team, that the only way that those players could actually perform at a high level is if you give that team your playbook.

I don't think anybody would say that is -- is right.

Thomas C. Goldstein: Yes, sir -- oh, I'm sorry.

Clarence Thomas: No, go on.

Thomas C. Goldstein: Yeah, our point isn't that we can't do it at a high level.

Remember, everyone agrees that we have the right as Google to write a computer program that provides all the same functionality as Java SE. And in Android, we wrote new and better versions that were more suitable for use in a modern -- modern smartphone.

So it's not like we are trying to take someone's fan base or their football players or anything else. Oracle doesn't want a fan base.

It -- it effectively wants prisoners.

It wants the people who used its work, the developers, only to be able to use it with Java SE.

That's not what a copyright gives you.

You don't get a fan base with a computer program the way you do with J.K. Rowling's novels.

Clarence Thomas: Well, actually, my concern was having to turn over the playbook. But let's go to fair use briefly in -- in -- in the time that I have. How would you distinguish Harper?

Thomas C. Goldstein: Harper & Row is a case in which the district judge made findings, and this Court said when there are established findings and the court, not a jury, is going to resolve fair use.

It can be the appellate court or the district court. Here, you have the opposite.

You have a general jury verdict.

There are no subsidiary findings whatsoever.

The jury was asked to and properly instructed to weigh all the evidence and the fair use factors. You can't unpack it in nearly the same way you could with a court in Harper & Row.

Clarence Thomas: So should we -- is that because of the fact-finder or because it was a general verdict?

Thomas C. Goldstein: Both.

Both of those are critically important here.

It's not the court that is assigned the responsibility for deciding fair use under Rule 39(c) and the Seventh Amendment.

It is the role, instead, of the jury, and you would have to construe everything in our favor, which the Federal Circuit disavowed doing.

Clarence Thomas: Thank you.

John G. Roberts, Jr.: Justice Breyer.

Stephen G. Breyer: Well, I have a question for each side that I'm trying to answer in my own mind.

For you, I'd -- I'd like to ask this: I write down at the computer, I have a computer in front of me, and I put java.lang.math.max(410), okay? And that calls up a certain program, which you did not copy, the one it calls up, which is setting the switches of a computer. Well, the thing I -- the words I just spoke also call up a particular program, i.e., a set of computer switches that will get me to the program that does the -- you know, that does a particular thing. Well, it's a computer program, isn't it? And you can copyright computer programs. And so what's the difference between java.lang, et cetera, which sets switches on the computer, and any other program that sets switches on the computer?

Thomas C. Goldstein: That's our point, Your Honor.

And that is --

Stephen G. Breyer: I know that's your point.

That's why I wanted you to say it clearly enough so I can understand it, which is pretty tough.

Thomas C. Goldstein: Sure.

Okay.

So there are two parts to these shortcut programs.

There is what we call the implementing code that actually does the program.

It -- it provides the function there.

It will produce the larger of two numbers. Oracle agrees that if there's only one way to write that, we can reuse that implementing code.

But it can't explain why the same isn't true for the code that you mentioned, which is the combination of the calls written by the developer and the declarations that appear in Android and Java SE. If there is only one way to do it, and you give someone a copyright on that that's exclusive, then you are saying that person is the only one who can make the computer do the thing, whether it's invoke the implementing code through the call and declaration or actually perform the function of the program through the implementing code.

Stephen G. Breyer: I bet there aren't --

Thomas C. Goldstein: Principally --

Stephen G. Breyer: -- just one way to do it.

Why is there just one way to do it? If you spent enough time and you had the most brilliant computer programmers, don't you think they could devise a system of calling up the Java program, though it might be expensive to do and take a long time, that didn't use the word java.lang.math?

Thomas C. Goldstein: Well, two things: First, why would we have a copyright system that does that, where the only upshot of Oracle's rule that it wants you to -- to adopt is to make computer programming credibly inefficient so that we have fewer creative computer programs? But the second is, no, we -- we actually do have very good computer programmers. And when you use that instruction, math dot -- max.math.java.lang, the language itself -- it is a rule of the language that there is only one declaration that will work with it.

That is a plain finding of the district court that is uncontested.

Stephen G. Breyer: Okay.

Thank you.

John G. Roberts, Jr.: Justice Alito.

Samuel A. Alito, Jr.: Mr. Goldstein, I -- I'm concerned that, under your argument, all computer code is at risk of losing protection under 102(b).

How do you square your position with Congress's express intent to provide protection for computer codes?

Thomas C. Goldstein: So, Your Honor, I think that that is a criticism that's been levied at our kind of pure textualist argument about a method of operation, but it is not a criticism, I think, that's fair of our argument about merger. And that is our argument is strictly limited in that sense to circumstances in which the function that is disclosed, that is here the relationship between the calls and the declarations, can only be written one way.

And it's a -- it's a principle that Oracle concedes, as I mentioned, with respect to the implementing code that actually makes the shortcut programs work, that produces, for example, the larger of two numbers.

Samuel A. Alito, Jr.: Well, there have been --

Thomas C. Goldstein: In that --

Samuel A. Alito, Jr.: -- a lot of questions already about the merger argument, but how do you respond to Oracle's argument that you're -- you are arguing in a circle, that there is only one way to write a declaring code like Oracle did?

Thomas C. Goldstein: Well, that is not what we're trying to do.

We are not -- our analysis isn't circular.

It is by reference to what the developers are trying to do. The developers, it is conceded, have a right to use the commands that they have learned in Java, including the ones that work with Java SE.

When the developers use those commands, we have the right to write a computer that will respond to those commands.

We would happily not reuse the Java SE declarations if we could.

It is that the language only permits us to use those. You could make the same circularity argument about the merger doctrine for anything in English because you could say, well, every word in English, if you get that specific, is the only one that has that precise meaning. But we haven't abandoned the merger doctrine.

What we have said is, if a work discloses something, as Java SE discloses this relationship between calls and declarations, then you have the right to perform that function, unless somebody wants to go and get a patent.

Samuel A. Alito, Jr.: All right.

Let me -- let me switch to fair use.

What should I do if I think that the purpose and character of the use and the effect on market value here weigh very heavily against you on the fair use issue, that a jury couldn't reasonably find in your favor on those factors?

Thomas C. Goldstein: You should recognize, I think, that those factors are continuums.

And so, if you were to say, well, I do think, you know, notwithstanding the jury verdict, that there was some market effect here, and you couldn't -- you'd have to check the box that's saying that there is a market effect, what you have to recognize is that a jury, looking at all the evidence, could reasonably conclude that nonetheless the other fair use factors, including, importantly, the fact that the original material here, the declarations, is barely creative and the fact that it unleashed millions of creative computer programs used by a billion people, that that on the whole, it is not unreasonable for the jury to find fair use, given that it was the jury's responsibility.

Samuel A. Alito, Jr.: All right.

Thank you.

John G. Roberts, Jr.: Justice Sotomayor.

Sonia Sotomayor: Counsel, I -- I -- I go back to the essence of the question that I think my colleagues are asking, is how do you differentiate between declaring codes and implementing codes? Because you agree -- you agree that you couldn't have copied their implementing code because there are multiple ways of doing that. But you fight the declaring codes because there are multiple ways of declaring as well.

Apple has a different way of declaring the same functions.

They spent the billions of dollars necessary.

Presumably, you could have. And yet, you spent so much time in your brief convincing me that implementing and declaring codes go together in this hand.

They merge.

How do we draw the line?

Thomas C. Goldstein: You don't.

It is actually Oracle that is trying to draw the distinction that you say is not recognized by the statute or common sense. The legal principle that you can reuse computer codes that can only be written one way applies to both declaring code and implementing code.

Oracle concedes that if the implementing code could only be written one way, we could reuse it. It cannot explain why it is that -- that given that the declaring code will not function if it's written another way, we cannot reuse that.

They are trying to draw that line. With respect to Apple, it is true that Apple didn't reuse the Java SE declarations because it wasn't using Java.

It did reuse other declarations, as the amicus briefs say. That's like saying merger doesn't apply --

Sonia Sotomayor: Could I --

Thomas C. Goldstein: -- to something in --

Sonia Sotomayor: May I -- may I stop you right there? That's the nub of the problem, which is, what gives you the right to use their original work? What -- how do you define "method of operation" so that there's a clean line between that and when you have to create new code?

Thomas C. Goldstein: So --

Sonia Sotomayor: Like an implementing code.

Thomas C. Goldstein: Sure.

So Section 102(b), what it tells you is that you can't get a copyright in the functionality of a computer code.

And there are so many things listed in Section 102(b), like method of operation, because Congress wanted to be encompassing.

You get to copyright none of the functionality. It's the merger doctrine that tells us that if there is only one way to write the computer code that will provide that functionality, then you can't get a copyright, copyright protection.

You have to get patent protection. With respect to the implementing code, because there are numerous ways to write the implementing code, as the district court found, we wrote it, millions of lines of it.

The only reason that we reused the declaring code -- we would have happily rewritten our own -- is that we had no other choice.

We couldn't write a computer program that would respond to the developers' instructions without reusing this limited set of instructions.

Sonia Sotomayor: My problem with your argument is, what's your definition of "interoperability"? It seems one-directional. You seem to define it as the extent to which existing third-party applications can run on your platform, but not whether apps developed on your platform can run on systems that use Java SE.

So it's one way.

Thomas C. Goldstein: No, Your Honor.

The --

Sonia Sotomayor: So could people now copy your -- your -- you now have developed many different packages and platforms and things like that.

Can they copy yours now?

Thomas C. Goldstein: They can copy any part of our code, including certainly our interfaces, our declarations, that can only be written this one -- this way. We have interoperability in the fact that the developers' instructions work with our methods, our classes, and our packages.

It very frequently is the case that you have, in modern computer programming, interoperability that means you have a new software program that comes in and supplants an older, less superior one, one that doesn't work nearly as well. That is actually incredibly important and what Congress would want, and that is to be able to take the functionality of a computer program, someone else comes along and does it better.

It's no surprise that we don't use all of the packages because they don't have anything to do with a modern smartphone.

They don't have a GPS function to them. On the other hand, the smartphone doesn't have a computer mouse.

There's no reason in the world to think you would reuse all of them.

And it would be impracticable given the constraints of a smartphone.

Sonia Sotomayor: Thank you, counsel.

John G. Roberts, Jr.: Justice Kagan.

Elena Kagan: Mr. Goldstein, I have to confess to being a little bit surprised or confused about some of the arguments you're making this morning.

And maybe it's just me and I don't understand it, but I'm hoping you'll explain it to me, because, when I read your briefs, I took you to be making a somewhat different argument, principally, than the one you're making today. I took you to be saying that the declaring code is unprotected because it's a method of operation, that it's what allows Java programmers to operate the computer, and to be setting forth a pretty flat rule on that -- of -- of that kind. And -- and I don't hear you saying that today.

Instead, I hear you saying, you know, the real question is, are there multiple ways of doing the same thing? So are those different arguments? And which one are you making?

Thomas C. Goldstein: They're both different arguments.

We're making both of them.

I'm focusing on merger.

The argument that you mentioned as our lead argument I don't think honestly is. We do have a straight, pure textualist argument that the declaring code is a method of operation because it is the instructions to the developer on how to operate the shortcut pre-written computer program. Today, I have focused on the argument that if you disagree with that and you believe that Section 102(b) instead embodies only the idea-expression dichotomy, then you apply the merger doctrine and you say: Okay, 102(b) says that you can't copyright all the ways of having the method of operation of Java SE. And my point is that's what they're trying to do here.

The district court found --

Elena Kagan: And when you say --

Thomas C. Goldstein: -- that the only --

Elena Kagan: Excuse me.

Sorry, Mr. Goldstein.

But, if -- if -- if -- if that's your test that you're focusing on today, is that essentially the test that comes out of the Second Circuit Altai case? Is there any difference between what you're saying today and -- and -- and what Altai says, which is essentially that we have to figure out how to separate out the expressive elements of something?

Thomas C. Goldstein: Well, that -- that -- the Second Circuit does have the abstraction filtration test, and an element of that test is that you take out the elements that are not subject to copyright protection.

And merger fits in there. And that is one of the reasons that something, an element of a computer program, would not receive copyright protection is the fact that it merges, that it's the only available form of expression.

So it fits within the Second Circuit framework.

It just -- it just doesn't supplant it.

Elena Kagan: And if I could go back to something that I think the Chief Justice was asking about, I mean, suppose I'm -- I'm -- I'm sitting in a mathematics class and the professor says: Do a proof of -- of -- of something or other.

And, you know, it turns out that 20 people in this mathematics class actually come up with more than one proof, and some are better than others, you know, some are elegant and some are less elegant. So there are more than one way of proving whatever proposition there is.

How do we deal with that? I would think that that's pretty analogous to the situation here, that there are more than one way and Oracle happened to come up with a particularly elegant one.

Thomas C. Goldstein: It just depends, Your Honor, on what the "it" is.

A computer program works in a very technical and specific way, and that is someone, here, the developer, will type something into the computer.

It will put in -- that person will put in particular information. And the question is, how is it that you are going to write a computer program that recognizes what they're going to say and responds appropriately? And if you say that you can get a copyright over the only computer code that will listen to -- that will understand the proof, right, if there's only one computer program that will look at students' proofs and understand them, if you give someone a copyright on that, you've given them a patent on it because no one else can make a computer do that particular thing. And Section 102(b) is extremely granular.

It doesn't ask the big picture question: Could you generally find the larger of two numbers or prove something? It gets way down into the details. You cannot get copyright protection with respect to any method of operation.

This is plainly the method of operating Java SE.

Elena Kagan: Thank you, Mr. Goldstein.

John G. Roberts, Jr.: Justice Gorsuch.

Neil Gorsuch: Good morning, Mr. Goldstein.

If -- if I understand the conversation so far, you are moving past, rather rapidly, the -- the primary argument in your brief that the code just simply isn't copyrightable. And I -- I -- I think that's probably a wise move given the fact that 101 says computer programs, including statements or instructions, in order to bring about a certain result, may be copyrighted. We might not think otherwise that it should be, but there it is.

And, normally, the -- the specific instruction there in 101 would govern the more general idea-expression dichotomy in 102. So am I right, that we can move past that rather rapidly?

Thomas C. Goldstein: Well, our main argument actually is the merger doctrine, but it's not the case that --

Neil Gorsuch: So I take that as a yes.

I'll be honest with you.

Thomas C. Goldstein: Well, I was going to -- sorry.

Neil Gorsuch: So, if we're moving straight on to the merger doctrine, there, I guess I'm stuck in a similar place as Justice Kagan, which is the argument strikes me very much me as I wish to share the facilities of a more successful rival because they've come up with a particularly elegant or efficient or successful or highly adopted solution in the marketplace, and -- and ride on -- on -- on their innovation. What do we do about the -- the fact that the other competitors, Apple, Microsoft, who I know is one of your amici, have, in fact, been able to come up with phones that work just fine without engaging in this kind of copying?

Thomas C. Goldstein: Well, everyone agrees that every platform, including Java SE, actually does what we talk about, which is re-implement prior languages or prior platforms. Apple and Microsoft use different languages entirely.

It's like saying we can't have merger in English because someone could write something in French. The rule that Oracle wants is fundamentally, you talk about an essential facility, is something that has a real-world analog, again, in an exclusive right like a patent. What Congress said is that you can have the exclusive right to the words on the page, the actual computer code, but not to what the computer does.

Neil Gorsuch: Isn't it --

Thomas C. Goldstein: Oracle wants to --

Neil Gorsuch: -- isn't it -- isn't it pretty difficult to say that this is an essential facility-type problem when -- when others have managed to -- to innovate their way around it?

Thomas C. Goldstein: Ah, if -- if this was antitrust law and an essential facility test, then perhaps.

What Section 102(b) tells us is that you get the -- you can't have an exclusive right to inessential facilities.

It doesn't say you can get a copyright with respect to a method of operation so long as it's really unimportant or a system that's, you know, easy to work around.

Neil Gorsuch: I accept that, but if -- if -- if -- if we're worried about ideas and expressions merging, and -- and others have been able to accomplish the task without reliance on what -- what you might claim to be the essential facility, where -- where do we stand?

Thomas C. Goldstein: We -- we -- we're misunderstanding then what the task is.

If the task is at a high level of generality, as you say, an idea of just being able to create a phone, fair enough.

But that is not the test. The test is look at the actual copyrighted work and find its methods of operation.

Inside there, in Java SE, you will find this relationship between the declarations and the developers' commands. That is something, a function in the computer program, that you cannot get a copyright with.

In any event, you would still look to the jury's fair use verdict, I think, very, very, very plainly, given that the jury heard all these debates about the relationship between Java SE and Android and concluded on the whole, as was its responsibility, that this was a fair use.

Neil Gorsuch: Thank you.

John G. Roberts, Jr.: Justice Kavanaugh.

Brett M. Kavanaugh: Thank you, Mr. Chief Justice. And good morning, Mr. Goldstein. To the extent you're still making the method of operation argument, the other side and the solicitor general say that declaring code is a method of operation only in the same sense that computer programs as a whole are methods of operation and that, therefore, your method of operation argument would swallow the protection for computer programs. Your response to that?

Thomas C. Goldstein: Is that declaring code does something very distinct in computer code, and that is it tells -- and this is Oracle's own point -- it is unique in that it tells the outside developer what to do. The developer looks at the declaring code and then knows how to operate the shortcut pre-written programs.

That is, it tells someone else how to operate the computer program.

That is absolutely unlike any other code.

Brett M. Kavanaugh: On your merger argument, one concern that has been raised already is the timing issue.

Another concern that I want you to respond to is that it seems to define the relevant idea in terms of what you copy.

You're not allowed to copy a song just because it's the only way to express that song. Why is that principle not at play here?

Thomas C. Goldstein: Because we're not defining merger self-reflectively.

We are not saying, I want to copy these declarations because I like these declarations. We're saying, I have to reuse these declarations because I'm trying to respond to commands from other people.

The developers are writing something, in Justice Breyer's hypothetical, max, math, java.lang, again, not very creative, inspired by the declarations. And when they do write that, I have to be able to write a computer program, and Oracle concedes I can write a computer program that does those things.

So I -- it is, in the sense of Baker versus Selden teaches that if you have a copyrighted work and it shows the public how to do something, then the public can do it. And if they can only do it by using part of a copyrighted work, that part does not get copyright protection.

Brett M. Kavanaugh: One of the points in some of the amicus briefs, and I want to compliment the briefing of the parties and all the amicus briefs, which have been enormously helpful, of the 83 computer scientists is that the sky will fall, in essence, if we rule against you in this case, threaten significant disruption. One question I had about that, though, is the Federal Circuit ruled in 2014, this Court denied cert in 2015 on the first issue.

I'm not aware that the sky has fallen in the last five or six years with that ruling on the books. I know it's different if we rule here, but can you respond to that?

Thomas C. Goldstein: Absolutely.

After the copyrightability ruling, it was entirely open that we would prevail on fair use, and we did. We won the fair use trial. And that went up to the Federal Circuit.

And when the Federal Circuit did rule against us, then the Court granted cert.

I would not then say the representations of not only the country's leading computer scientists but the software industry itself, because the premise is not in dispute. Interfaces have been reused for decades.

It has always been the understanding that this, you know, purely functional, non-creative code that is essentially the glue that keeps computer programs together could be reused, and it would upend that world to rule the other way.

Brett M. Kavanaugh: Thank you.

John G. Roberts, Jr.: Mr. Goldstein, would you like to take a minute to wrap up?

Thomas C. Goldstein: Thank you, sir. I want to address the argument that it is sufficient that Google could write new declarations that would require developers to learn new instructions and that we're effectively just stealing this efficient way of doing it. The sole effect of Oracle's rule would be to make the creation of innovative computer programs less efficient.

That would turn the Copyright Act on its head.

If anything, the declarations so lack creativity that they deserve the least copyright protection. There's no practical or textual basis for that theory.

Connecting the developers' commands is essential to the method, without which they're worthless.

By claiming the exclusive right to the declarations function, Oracle is inevitably asserting, as I said, a patent right in order to insulate itself from competition. Textually, Section 102(b) provides that copyright does not extend to any method of operation that is embodied in Java SE.

There's no exception for the methods for which there are possible substitutes. Saying that the developers could use different commands is just another way of saying they could use a different method of operation, and that would be in conflict with Baker versus Selden. Finally, the argument proves too much because it would apply equally to the implementing code.

Developers don't have to use the pre-written programs at all.

They could just write their own computer code from scratch. It would just be less efficient and no one would be --

John G. Roberts, Jr.: Thank you, Mr. Goldstein. Mr. Rosenkranz.

E. Joshua Rosenkranz: Thank you, Mr. Chief Justice, and may it please the Court: Google's whole argument this morning is code is different. Now a few basic legal principles and concessions control the outcome of this case. Legal principle 1: Congress defined literary work to include software and granted copyright protection as long as the code is original.

Google conceded Oracle's code is original.

That's the end of the question. Google asks this Court to carve out declaring code, but Congress rejected the very carveout in multiple ways, including in its definition of computer program and by not including Google's carveout among the limitations in Section 117. Legal principle 2: This Court held in Harper and in Stewart that a superseding use is always unfair as a matter of law.

No court has found fair use or upheld a fair use verdict where a copyist copied so much valuable expression into a competing commercial sequel to mean the same thing and serve the same purpose as the original.

Google conceded the purpose and the meaning are the same.

That's the end of Question 2. No one else thought that innovating required copying Sun's code without a license. As Justice Alito notes, Apple and Microsoft did not copy to create their competing platforms. Neither did others who wrote competing platforms in the Java language. There was and still is a huge market for declaring code.

Other major companies like IBM and SAP were paying a lot of money to license just the Sun declaring code precisely because it was created.

And throughout this litigation, Google never denied this. If this Court holds that a jury may conclude that copying declaring code is fair, it will encourage copying, create legal uncertainty, and decimate the business model which a lot of companies depend on, undermining the very incentives copyright was designed to promote.

John G. Roberts, Jr.: Mr. Rosenkranz, let's say you want to open a restaurant.

You've got a great new chef.

He's got great new dishes.

And you say: Well, we've got to figure out what the menu should look like.

You know, of course, you're going to have, you know, appetizers first, then entrees, and then desserts.

Now you shouldn't have to worry about whether that organization is copyrighted. And I think Mr. Goldstein is saying that that's what's going on -- on here.

Every restaurant organizes its menu that way, and you don't want to discourage people from opening it because they're going to have to spend their own time trying to figure out what the menu should look like. Why isn't that exactly what Google is saying here?

E. Joshua Rosenkranz: Well, Your Honor, this will be a constant theme, I think.

It's like there's an app for that.

There's a doctrine for that, two, actually. First, for the -- for the menu, there's standard fare.

If it's a standard way of doing things, it is not protected, or it's unoriginal by your own description. What we've got here is very different. It's not a menu just saying here are apps and here are dinner plates with standard descriptions that everyone uses of those apps and dinner plates.

We fill the blanks in 30,000 times over, and each item had its own description that no one else was using.

John G. Roberts, Jr.: Well, you say that they did have a choice; in other words, your work did not leave them with no -- no option.

Well, what choice did they have without having to spend billions of dollars, which would be wasteful and impede the development of the high-tech business?

E. Joshua Rosenkranz: Oh, my goodness, Your Honor, so -- so without spending the billions of dollars? Microsoft and -- and Apple both spent billions of dollars creating their competing platform.

That's exactly what the Copyright Act requires. The Copyright Act does not give Google a pass just because it would be expensive to recreate our expression.

John G. Roberts, Jr.: Well, Mr. Goldstein --

E. Joshua Rosenkranz: The Copyright --

John G. Roberts, Jr.: -- Mr. Goldstein says the most efficient, the best way to do it, the way to keep programmers doing new things, rather than old things, is to use Java.

E. Joshua Rosenkranz: Right, Your Honor. In -- in -- in no other context would it be appropriate to be asking whether there's either unprotected -- whether the work is unprotected or whether there's fair use by saying that the audience has learned the words by heart. I mean, if -- if -- if someone wanted to write a book that preserved -- that reproduced the 11,000 best lines of Seinfeld, they couldn't do it by claiming but -- but we had to do it because those are the lines that everyone knows.

And the --

John G. Roberts, Jr.: Thank you, counsel.

Thank you. Justice Thomas.

Clarence Thomas: Yes, thank you, Mr. Chief Justice. Mr. Rosenkranz, in your brief, you seem to be arguing for more than the declaring code.

If I'm right there, do we need to decide more than that?

E. Joshua Rosenkranz: No, Your Honor.

All this Court has to decide is whether the declaring code, for purposes of copyrightability, whether the declaring code was original -- it was -- and for purposes of fair use, whether it was fair to copy the declaring code. Our point, I think, that you're noting in the brief is the point that several Justices made this morning.

You can't distinguish declaring code from implementing code, certainly not in the way that Congress defined the code. There's no principle distinguished -- distinction and -- and no distinction that courts are capable of drawing.

As Justice Breyer noted, code is code.

Declaring and implementing code both consist of "words, numbers, or other numerical symbols within the definition of literary work." Both operate a computer. Mr. Goldstein says that his rule is what Congress would have wanted, but Congress rejected the exact line that Google proposed when it defined "computer programs" in Section 101 as code to be used "directly or indirectly" to bring about a result.

Clarence Thomas: You argue that -- you seem to argue, in any case, that Google's use was not transformative because the use of declaring code operates in Android the same way it operates in Java. What would, in your way of thinking, transformative look like in the context of a computer code?

E. Joshua Rosenkranz: Well, Your Honor, in -- in the context of computer code, the Ninth Circuit in both Sega and Sony versus Connectix gave a great example of transformative use. The code was never incorporated into a competing product.

Instead, it was used to study, to figure out how the machine worked, and that was a transformative use. In order to preserve the author's statutory right to create derivative works, this Court has held a transformative use must alter the original work's expression, meaning, or message.

Google did not do that. It concedes that every line of code it copies -- copied serves the same purpose and communicates the same thing.

And adapting our code for the supposedly new smartphone environment does not change the meaning and is no more transformative than adapting a short story into a movie. What Google did is the epitome of commercial superseding use, what Campbell describes as "using a work to get attention or to avoid the drudgery of working up something fresh."

John G. Roberts, Jr.: Thank you, counsel. Justice Breyer.

Stephen G. Breyer: All right.

Please assume with me the following: Assume that the -- what you read, the computer -- computer programs which do something, after all, are copyrightable, but then it says methods of operation are not, whether they're computer programs or not. The problem for us is, is this more like Baker v. Selden, where they said the accounting is not, it's a method of operation? Or is it more like an ordinary computer program? All right.

Now what I got out of reading through this very good briefing is, look, Java's people divided the universe of tasks, of which there are billions, in a certain way.

All the things that tell the computer to do one of those things, we'll do.

But that which tells the computer which to do, that's the declaration. Here is what it's like.

It's like, as Judge Boudin said, the QWERTY keyboard.

You didn't have to have a QWERTY keyboard on typewriters at the beginning, but, my God, if you let somebody have a copyright on that now, they would control all typewriters, which really has nothing to do with copyright. Or it's like switchboards on old-fashioned telephone systems.

You could have done it in 1,000 ways.

But, once you did it, all those operators across the world learned that system, and you don't want to give a copyright holder a monopoly of -- hmm -- telephone systems. Or it's like, to use the Chief Justice's example, a chef who figures out brilliant ways of mixing spices and then putting the spices for this and that in a certain order on a shelf, and then he writes something that tells you which shelf to go to and which shelf to pick out and which spice to pick out for which dish. Now all those things are somewhat ordinary programs, but they also are doing something.

They're giving you an instruction as to how to call up those programs that reflect Java's organization. And at this point in time, it's really tough, just like the QWERTY keyboard, to go backwards, and very bad consequences will flow if you don't see that distinction.

Okay? Long question, but that's what I got out of their method of operation argument.

And I wanted you to say what you want about that.

E. Joshua Rosenkranz: Thank you, Your Honor.

So I'll -- I'll answer your several questions, I think, with really two answers. The first is this is not like the QWERTY keyboard.

There was never anything expressive in QWERTY.

Semi, L, K, J, H doesn't mean anything to anyone.

It was purely mechanical.

That is true of all of your examples. But -- but you're -- you get -- you got right to the nub of it, Justice Breyer, by asking about Baker.

In Baker, the author Selden published a book describing a bookkeeping system.

Selden tried to extend his copyright in the description to block everyone else from using that system. His book attached some ledger forms that were necessary to use the system.

Baker's forms were not even the same as Selden's, but Selden sued for copyright infringement because Baker's forms used Selden's system, which was to say they just depicted debits and credits on a single page, and this Court said you can't monopolize lined paper.

John G. Roberts, Jr.: Thank you, counsel. Justice Alito?

Samuel A. Alito, Jr.: Mr. Rosenkranz, can I ask you about the -- the standard of review question on fair use? The jury returned a verdict on fair use, and Oracle moved for judgment as a matter of law. Why wasn't the Federal Circuit required to apply the Rule 50 standard and ask whether the evidence presented at trial viewed in the light most favorable to Google would have been sufficient as a matter of law to support the jury's fair use verdict?

E. Joshua Rosenkranz: Well, Your Honor, so I'll -- I'll -- I'll first say that that is, in fact, what the Federal Circuit did.

The court of appeals performed the "no reasonable jury standard" that Google now urges. The court said "no reasonable juror" five times, at Petition Appendix 27 to 28, 42, 46, 51, and 52.

Having found that Factors 1 and 4 strongly favored Oracle and that Google's use was superseding, there was no other reasonable conclusion but that Google's use was an unfair use. So -- so -- but then I'll circle back to the first half of your question.

The standard of review is de novo, by which I mean it respects the jury's findings of historical fact but then allows the courts, as courts have been doing for decades, usually on summary judgment, to decide what legal conclusions to draw from those facts. De novo is the right standard because resolving fair use requires primarily legal work.

In an area of law where stability is paramount and where precedents matter, as this Court's fair use precedents illustrate, fair use cases typically turn on disputes about the legal standard.

Samuel A. Alito, Jr.: There are some --

E. Joshua Rosenkranz: What it didn't --

Samuel A. Alito, Jr.: -- there are some mixed questions of fact and law that are submitted to juries, and -- and that was -- that is what was done here, wasn't it, under fair use, so was that an error?

E. Joshua Rosenkranz: No, Your Honor.

I -- I -- I think what this Court has done under fair use is de novo review.

Harper was a -- was a de novo case.

This Court said explicitly that it was not sending it back to the district court to resolve anything, that this Court could decide, "an appellate" -- and I'll quote here, "an appellate court may conclude, as a matter of law, that the challenged use does not qualify as fair use once it has the factual record and resolves all factual -- subsidiary factual questions in favor of the fact-finder." Now note there were numerous disputes in Harper, including how you weigh various factors, questions like the value of news reporting weighed against the original author's derivative work rights. I grant you that a lot of mixed questions are more factual.

But the stability the judicial review provides is essential for fair use because it has constitutional implications.

John G. Roberts, Jr.: Thank you, counsel. Justice Sotomayor.

Sonia Sotomayor: Counsel, at the -- in your beginning statement, you had the sky falling if we ruled in favor of Google. The problem with that argument for me is that it seems that since 1992, and Justice Kagan mentioned the case, the Second Circuit case, a Ninth Circuit case, an Eleventh Circuit case, a First Circuit case, that a basic principle has developed in the case law, up until the Federal Circuit's decision. I know there was a Third Circuit decision earlier on in the 1980s.

But the other circuits moved away from that.

They and the entire computer world have not tried to analogize computer codes to other methods of expression because it's sui generis. They've looked at its functions, and they've said the API, the Application Programming Interface, of which the declaring code is a part, is not copyrightable. Implementing codes are. And on that understanding, industries have built up around applications that know they can -- they can copy only what's necessary to run on the application, but they have to change everything else.

That's what Google did here. That's why it took less than 1 percent of the Java code. So I guess that's the way the world has run in every other system, whether it's Apple's desktop or Amazon's web services, everybody knows that APIs are not -- declaring codes are not copyrightable.

Implementing codes are. So please explain to me why we should now upend what the industry has viewed as the copyrightable elements and has declared that some are methods of operation and some are expressions.

Why should we change that understanding?

E. Joshua Rosenkranz: Well, Your Honor, I -- I beg to differ with the understanding in -- of the lower court cases.

Not a single case has ever said that you can copy this vast amount of code into a competing platform to use for the same purpose. The Third Circuit, the First Circuit, the Ninth Circuit, the Tenth Circuit, they all agree with that.

No one draw that -- drew that distinction between implementing code and declaring code.

You will not find a single case that does this. Google is just wrong that the success of the software industry depends on unlicensed copying.

Major corporate entities were paying a lot of money just to license our declaring code. Google and its amici point to non-record examples that involved either no copying at all, licensed copying, or copying of elements that were so uncreative that no one would say they were protectable.

John G. Roberts, Jr.: Thank you, counsel. Justice Kagan.

Elena Kagan: Mr. Rosenkranz, as -- as I understand it, there are two features of your declaring code that you think merit copyright.

And I want to make sure I'm -- I'm -- I'm right on this first. The -- the first feature, and this is pretty basic, is that we need some way of connecting a programmer's inputs, whatever they happen to be, some way of connecting those inputs to implementing code. And then the second feature is that there needs to be a way to organize those inputs, those calls, into various classes and packages. So one is like the trigger and one is the method of organization.

Is that right? Is that the thing that you're saying merits copyright?

E. Joshua Rosenkranz: No, Your Honor. There are two things that we say merit copyright protection. The first is the manner in which we describe each function, each -- each method. That is itself creative.

And it's -- each line of declaring code actually teaches the user what that method does, how it's used, how it relates to others, and what the result will be. The second piece is the overall structure, sequence, and organization.

Those are the two things that --

Elena Kagan: Okay.

So let's start with that, the taxonomy, the structure, the organization, and we can, if we have time, get back to the other. I'll give you an example that's similar to one that the Chief Justice used, but I think you won't be -- you won't be able to answer in quite the same way. Suppose I own a grocery store and I come up with a really terrific way of organizing all my fresh produce, all my fruits and vegetables, into these categories and sub-categories, very intuitive for the shopper. And this is not the standard way.

So it's different from the Chief Justice's hypothetical in that way.

It's novel.

And it's great.

And a rival grocery store, all rival grocery stores want to copy it. Do I have a copyright claim?

E. Joshua Rosenkranz: Your Honor, you don't have a copyright claim in anything that isn't set down in writing.

So your hypothesizing that you've put down, let's say, in outline form the way of organizing. I'd say maybe.

I mean, there -- there would be a lot of fair use questions about that, but this is worlds different from what --

Elena Kagan: So why is it worlds different? I mean, it seems to me that there are all kinds of methods of organization in the world.

You know, whether it's the QWERTY keyboard or whether it's the periodic table or whether the system of kingdoms and classes and phyla and so forth that animals are organized into. I mean, there are a thousand ways of organizing things, which the first person who developed them, you're saying, could have a copyright and then prevent anybody else from using them.

E. Joshua Rosenkranz: Well, so, Your Honor, two answers.

First, let's not forget that the declaring code itself would be -- is -- is enough volume to take up 600 pages in the Joint Appendix.

So the declaring code itself gets protection. But the answer is the relationships of the methods, classes, and packages, it's not -- it's not just the most intricate hierarchy you've ever seen.

If you look at one package on page 9, you will see it, and multiple pages of the supplemental appendix.

But the relationships cross from one package to the next, from one class to the next. It is extraordinarily intricate in a way that does deserve copyright protection, the same way the plot of a novel --

Elena Kagan: Thank you, Mr. Rosenkranz.

John G. Roberts, Jr.: Justice Gorsuch.

Neil Gorsuch: Good morning, counsel. Your -- your colleagues on the other side suggest that the Federal Circuit did not give sufficient deference to the jury's finding of fair use.

And I'd like to follow up on that and some of Justice Alito's questions. Often, you know, fact-specific questions like fair use that are multifactor balancing kind of inquiries are -- are reviewed for substantial evidence in the record, and that is not what the Federal Circuit here did, particularly when -- when the questions are kind of novel and yet -- and legal rules have yet to crystalize and form around them.

Why -- why -- why should the Federal Circuit not have used that traditional standard of review?

E. Joshua Rosenkranz: Well, Your Honor, so -- so my first answer is the same as the answer to Justice Gorsuch.

It actually did when it was conducting its analysis at those page numbers that I mentioned.

Neil Gorsuch: Well, then -- then -- I'm sorry to interrupt, but let's just suppose that's not how I read the Federal Circuit's decision.

Let's suppose I -- I agree with you -- I think you've said elsewhere that it properly reviewed it de novo. Why -- why should -- why shouldn't we remand the case for consideration of it under -- under a more deferential standard of review normally applied to jury findings and general verdicts?

E. Joshua Rosenkranz: Well, Your Honor, this Court certainly could if it believes that that's not what the Federal Circuit did.

But I would say, in addition to the point that I made earlier about the need for clear rules for the business, I would also say in terms of institutional confidence, this is a question that courts have primacy. I mean, the key difference between us and -- and Google is that it thinks that only a jury can balance the factors.

Now, that can't be right.

That would mean that even if parties stipulate on all the historical facts, a court cannot grant summary judgment. But granting summary judgment is what courts do all the time.

Professor Beebe identifies over -- over a hundred fair use cases decided by courts on summary judgment in a 30-year time span.

Google could find only five cases that even went to a jury in a similar 30-year span. Under Google's approach -- approach, summary judgment would be nearly impossible because weighing would be a fact question for every jury.

Neil Gorsuch: Thank you, counsel.

John G. Roberts, Jr.: Justice Kavanaugh.

Brett M. Kavanaugh: Thank you, Chief Justice. And welcome back, Mr. Rosenkranz.

I just want you to follow up on two of my colleagues' questions. First, any more you want to say about Justice Breyer's QWERTY keyboard question? And, second, Justice Sotomayor's question about settled expectations and -- and I would add the 83 computer scientists' concern about threatening significant disruption.

If you could just follow up on those two, and I have no further questions after that.

E. Joshua Rosenkranz: Thank you, Justice Kavanaugh. Yes, I -- let me just finish the answer on Baker.

I was saying that this case would be like Baker if we were trying to block others from using their own package, class, method, structure, to organize their own prewritten programs. But Sun wrote its own specific layout and filled in the blanks 30,000 times over.

We seek to protect only that fully realized expression.

And others are free to write and organize their own prewritten programs however they see fit, as long as they don't copy ours. And to answer the second half about settled expectations -- and we've heard dire predictions from Google about the future of software innovation, but two different administrations would not be supporting us if our position were a threat to innovation. The software industry rose to world dominance since the 1980s because of copyright protection, not unlicensed copying.

And as -- as you pointed out earlier, Justice Kavanaugh, the -- the sky hasn't fallen in six years since the court of appeals' first decision have brought new bursts of innovation and interoperability.

In that time frame, we've seen the explosion of interoperability, cloud computing, 5G, machine -- machine learning, and autonomous vehicles. I can tell you two things that will kill software innovation.

The first is change the rules under which the industry has thrived for 40 years and substitute a rule that what is fair to copy is what every jury decides as a matter of public policy.

And the second is take away the incentive to write original code.

John G. Roberts, Jr.: Thank you, counsel.

Do you want to take a minute to wrap up?

E. Joshua Rosenkranz: Yes, Mr. Chief Justice.

Thank you. Let me -- let me just say -- say two things.

The first is that ruling for Google will decimate the incentive to create high-quality user-facing declaring code, close the code that the amici on both sides insist is essential for the industry to survive. That will hurt app developers and the industry in the long run because who will invest the excruciating time it takes to refine code from the passable to the masterful if all of it can be stolen? Big companies are paying lots of money right now to license declaring code.

No, Justice Sotomayor, it is simply not true that they're all paying for nothing because it's all unprotected. The whole market, that whole market, will be gone with the stroke of a pen.

Congress passed the Copyright Act to further the long-term incentive to create, not short-term expedience to copy. Ruling for Google will also destabilize copyright law.

Our rule protects original code.

It's a simple rule.

It comports with traditional copyright principles. Google's rule that code can be copied whenever necessary for a user to bring about a result is poorly defined and will doom courts and the industry to decades of uncertainty.

John G. Roberts, Jr.: Thank you, counsel.

E. Joshua Rosenkranz: For this reason, this Court should affirm.

John G. Roberts, Jr.: Mr. Stewart.

Malcolm L. Stewart: Thank you, Mr. Chief Justice, and may it please the Court: In the mid 1970s, Congress established a national commission to study problems related to copyright law and computer code.

And in 1978 the Commission issued its report which is known as the CON2 report.

It recommended that computer code continue to be eligible for copyright protection. And the central justification it gave was that computer code is much more expensive to draft than it is to copy.

And, consequently, if potential authors of computer code knew that their works could be freely copied, there would be a pronounced disincentive to creation. And, of course, it's the creation -- it's the preservation of those economic incentives to create that is the core justification for having copyright protection in the first place. Here Google's core argument is that once the app developers have -- have learned the calls, it would be inefficient to make them learn new calls in order to invoke new declarations. But in a wide variety of circumstances, once a work has been created, if you focus exclusively on that work, it will often seem more efficient to allow indiscriminate copying.

The part of --

John G. Roberts, Jr.: Thank you, counsel.

Mr. Stewart, you represent the United States, of course, and we're told that if we agree with Oracle, we will ruin our tech industry in the United States. Why -- why is that not true, if we -- why is that not true, if you think it is?

Malcolm L. Stewart: I think three or four reasons.

The first has been explored already that the Federal Circuit issued its copyrightability opinion in 2014 and we haven't seen deleterious effects from that. The -- the second is that the briefs talk about the practice of copying interfaces or APIs, but those terms are very vague and potentially expansive.

And a -- a lot of things that might be called interfaces would be segments of code that are so short that they -- they don't exhibit necessary creativity, segments of code that are necessary to preserve interoperability. It may be that in particular circumstances, particular interfaces can be copied without authorization, but that's not a basis for a general rule. And the third thing is there's a prevalent practice of licensed copying of declarations. And often that is done through what is called open source licensing.

One way it can be done is that the copyright holder can simply announce to the world: You are free to copy this code as long as you comply with the following conditions, a common --

John G. Roberts, Jr.: Thank -- thank you, Mr. Stewart. Justice Thomas.

Clarence Thomas: Thank you, Chief Justice. Mr. Stewart, a couple of quick questions.

One, do you think the Federal Circuit applied the proper review standard?

Malcolm L. Stewart: We do.

And we agree that the Rule 50 standard applies, could any reasonable jury have reached this verdict, but in litigation it's obviously very common that there can be disputed questions both of fact and of law. And even when the questions of law are close and reasonable, judges could disagree, the district court is supposed to say what is the right answer to those legal questions. And so when we ask could a reasonable jury have found use here, fair use here, we should be asking could a reasonable jury applying an accurate version of the law have found fair use? And so we assume that the jury made the factual findings that are most favorable to Google, but then we ask: What is the right answer? Was this transformative? And I think that's the way that the Federal Circuit did it. The Federal Circuit said: We'll assume the version of the facts that is most in Google's favor, but then we will determine as a matter of law whether this is transformative. And that's the way that the Court did it in Harper & Row. That was a bench trial.

But there's no reason that a lay jury's resolution of questions like was this use transformative or how do we balance the relevant factors should be given greater weight than the view of the district court with respect to the same questions.

Clarence Thomas: The one final question.

The -- Congress's -- in the fair use analysis, Congress has provided four factors. And we've said that those were non-exhaustive. Can you think of anything else that should be added to -- in that analysis?

Malcolm L. Stewart: I -- I -- I can't think of any -- anything else.

There -- there may be other factors in particular cases.

The -- the only thing I would emphasize is that in deciding questions of fair use, the Court shouldn't just be asking how would consumers potentially benefit from widespread copying with respect to this particular work. The Court should also be asking: What incentives to future innovation would a rule of a particular sort create?

Clarence Thomas: Thank you.

John G. Roberts, Jr.: Justice Breyer.

Stephen G. Breyer: I'm curious as to why the government thinks the balance of harms lies the way you do.

I do think of the QWERTY keyboard.

The QWERTY, the keyboard, calls up the metal rods that make an impression on a piece of paper and then that's how you write words. This system calls up a system of dividing the world into a variety of tasks, which then will be done. Now, nothing in copyright is meant to give the owner of the QWERTY, whoever thought of that beginning, QWERTY, a copy -- a monopoly of typewriting. And nothing here, they say, if, in fact, you give them a monopoly of this, the millions of people who have learned this, as Justice Sotomayor says, will have to spend vast amounts of money when we get all kinds of new methods for using computers turning on heaters, stoves, et cetera, and a million others. And teaching them is unbelievable.

It will give the owner of the declaration monopoly power over all those uses. Now, that, I think, is roughly what they're arguing.

Why does the government reject that?

Malcolm L. Stewart: Well, I think there are all sorts of things like -- like the QWERTY keyboard that have become standard but that wouldn't have been eligible for copyright protection in the first instance because, for instance, they're not sufficiently creative. Here Google has conceded that the -- the large volume of individual declarations and the intricate method of organization that's reflected in the SSO are sufficiently creative to qualify for copyright protection in the first place. The -- the second thing is, when we talk about the people who will have to learn new calls in order to invoke the declarations, we're -- we're not talking about consumers.

We're not talking about people who actually use the Smartphones. We're talking about app developers. And these are economic actors.

Their interests happen to align with Google's, because if they can create popular apps, then the app developers will gain money and Google will gain advertising revenue because the Android platform will become more popular. But if Google --

John G. Roberts, Jr.: Thank you, counsel. Justice Alito.

Samuel A. Alito, Jr.: Well, my question for the government is essentially the one the Chief Justice asked them.

There has been some elaboration on it. And obviously there is this argument that the sky is going to fall if we do not rule for Google, so unless you have -- do you have anything you want to add on that, on that point?

Malcolm L. Stewart: The only thing I would flesh out a little bit was the last point that I had gotten to towards the end, which is that there is this phenomenon of licensed copying. And sometimes, often, the license terms don't include the payment of money.

They simply include a requirement, like whatever improvements to the code you make have to be given back to the programming community, have to be made known to other potential programmers. But the copyright holders' authority to impose and enforce those licenses obviously depends upon the proposition that the code is copyrightable to begin with.

And so those licenses would be a pointless gesture otherwise. And the very fact that those licenses are offered with such frequency, I think tends to dispel the idea that there is a common understanding in the relevant community that this material is not copyrightable at all.

Samuel A. Alito, Jr.: Thank you.

John G. Roberts, Jr.: Justice Sotomayor.

Sonia Sotomayor: Counsel, could you tell me why you think that Google's work was not transformative? It moved Java's platform from a PC, essentially, to mobile phones. Why wasn't that a transformative step? I mean, the -- the answer is that all -- that all fair use involves copying.

So to do fair use you have to copy something and create something new from it. So why wasn't that a giant step of fair use?

Malcolm L. Stewart: I guess I'd say three or four things as to why this wasn't transformative. The first is when Google explains why it copied these particular declarations and not others within the Java platform, the explanation that it gives is -- is these are the declarations, these are the functionalities that will carry over to a smartphone platform. These are the declarations that will be useful in the new technological environment. So even though a lot of the code that Oracle had written might not be useful, this -- this code is. The second is when they talk about --

Sonia Sotomayor: That's the only way to make -- I mean, what they copied in terms of the declaring code was only that that would function in the new environment, that needed to function in the new environment.

Malcolm L. Stewart: It's not the only way they could do it that would make it function in the new environment.

It's the -- they're very careful about this.

It's the only way that would do it that would allow the developers, the app developers, to use the preexisting calls in order to call up the established methods. The second thing I would say about transformativeness is that whole argument about allowing app developers to use their knowledge, the only way it works is that app developers can have confidence that when they use a call with which they are familiar, it will trigger the same functionality that it has triggered on the Java platform.

And so it's not transformative in that sense.

The code is performing exactly the same function that it performed on Java. The third thing I would say is, if you imagine a motion picture that has only been released in theaters and somebody gets the print and offers to live stream it over the Internet. It's the same content that has been -- being -- simply being used on a different platform.

No one would think of that as transformative. Similarly --

John G. Roberts, Jr.: Thank you, counsel. Justice Kagan.

Elena Kagan: Mr. Stewart, suppose that I come up with a new and very useful keyboard, you know, not QWERTY, but something better than QWERTY.

And it's so useful that everybody starts using it. Now let's assume, for the purposes of my question, that this is copyrightable, which it might be or it might not be.

But let's assume it is and -- and go to the fair use question.

When -- when a -- a -- a -- a cell phone, a smartphone manufacturer takes that layout, takes that keyboard, and uses it for its next phone, is that fair use and why or why not?

Malcolm L. Stewart: Well, the fair use analysis would depend upon a lot of factors, but, yes, I think, in fair use analysis, you could take into account kind of developing expectations, concerns about interoperability. We don't -- we're assuming, for -- for these purposes, as -- as you asked, that this is copyrightable, and so that would be a factor to consider in fair use analysis. We -- we don't have a quarrel, for instance, with the proposition that preserving interoperability can be a favored purpose for fair use analysis.

It's just that they're --

Elena Kagan: So why -- why is it any -- any different here; in other words, that Google took Java's interface so the programmers wouldn't have to learn a whole new system for coding, just as the cell -- the cell phone manufacturer took my keyboard so that people could rely on something familiar?

Malcolm L. Stewart: One of the differences is that the app developers are in a fundamentally different position from the -- the consumers, the smartphone users.

And if Google had tasked its own employees with creating new apps so that the Google platform -- that the Android platform would become more popular to consumers, nobody would think that the desire to make it easier on those employees by not requiring them to learn new calls would be the basis for finding fair use.

As -- as the Court said in Campbell, that was the paradigmatic example of copying in order to avoid the drudgery of working up something new. And the analysis shouldn't be different simply because the app developers are independent economic actors whose interests happen to align with Google's rather than Google employees.

Those -- those people are a defined --

John G. Roberts, Jr.: Thank you, counsel. Justice Gorsuch.

Neil Gorsuch: Mr. Stewart, the government concedes that this work is copyrightable but then says the fair use analysis has to -- to permit the -- the copying here. And I wonder whether it -- it -- it gives with one hand and takes away with another. The -- the fair use analysis for incommensurable factors that need to be weighed, why could no reasonable jury have concluded that it was fair use here? Aren't you essentially saying that, yes, code, is copyrightable, but, really, it -- it -- it's always subject to fair use?

Malcolm L. Stewart: I mean, we're certainly saying it's subject to fair use analysis, but we've argued in our brief that the use here was not fair. And the reason we think that the -- the error we think the district court made, or at least the primary error, was that it treated as a factual question what it should have treated as a subsidiary legal judgment; that is, on the question of transformativeness, Google argued this is transformative because it's being used in a new platform.

Oracle argued it's the same code being used for the same purposes. It's not transformative. The district court didn't decide which of those views was right.

It simply said a reasonable jury could have sided with Google. That -- that would be fine if this had been a factual determination, but the question is that sufficient to make for a transformative use is fundamentally a legal question.

The court of appeals appropriately reviewed that determination de novo and found -- and correctly found that it was not transformative.

Neil Gorsuch: If we disagree with you on -- on the standard of review that should apply here, what should we do?

Malcolm L. Stewart: I -- I think, if you disagreed and you thought that questions about is this transformative or not, given a stable body of facts, if you think that is a question as to which the view of a reasonable jury should be deferred to, then a remand probably is the -- the appropriate course. I'd point out that is not only going to affect jury trial practice; it's going to affect summary judgment practice because a lot of fair use questions are decided on summary judgment.

That -- that won't be possible any longer if issues like does putting it on a new platform make for transformativeness are regarded as jury questions.

John G. Roberts, Jr.: Thank you, counsel. Justice Kavanaugh.

Brett M. Kavanaugh: Thank you, Chief Justice. Good morning, Mr. Stewart.

One question on merger doctrine and one question on method of operation. First, Google says in its reply brief that the dispositive undisputed fact in this case is that the declarations could not be written in any other way and still properly respond to the calls used by Java programmers. Are they wrong in saying that?

Malcolm L. Stewart: I don't think that they are wrong in saying that, but that argument is circular; that is, they are invoking the correct proposition that merger applies if there's only a way of getting the computer to perform a particular function.

But they are defining the function as invoking the implementing code in response to calls that are known to developers. And that's wrong for two or three reasons.

The first is Section 302(a) says copyright protection subsists from the work's creation.

And at the time that the work was created, there were no calls known to developers.

The argument wouldn't have flown as a justification for copying at that time. The second is, as the Chief Justice pointed out in -- in an earlier part of the argument, that would effectively penalize Oracle for its marketplace success.

The fact that the calls were well known was simply a function of the fact that the Java platform was popular and a lot of people had written a lot of apps for it.

Brett M. Kavanaugh: And the method of operation, Google says that the declarations are a method of operation because they are for the developers to use, while the implementing code instructs the computer. Your response to that?

Malcolm L. Stewart: I think the -- the CONTU report -- the term "method of operation" comes from Baker versus Selden, and what the Court said in Baker versus Selden -- and it was a long list of examples of, if you write a book about how to do a useful task, you can get a copyright on the book but no exclusive rights in the performance of a task.

And the Court said a mathematician who propounded -- who -- who wrote a treatise couldn't get an exclusive right to his methods of operation. The CONTU report discussed the way in which Section 102(b) would apply to computer code.

And I think the -- the -- the clearest expression was on page 21 of the CONTU report where it said one is always free to make the machine do the same thing as it would have if it had the copyright work -- copyrighted work placed in it but only by one --

John G. Roberts, Jr.: Mr. Stewart, if you'd like to take a minute to wrap up.

Malcolm L. Stewart: Thank you, Mr. Chief Justice. I think that the fundamental line that should be drawn for purposes of merger analysis, for purposes of 102(b), is, if a particular line of code is, without regard to the -- the acquired expertise of other actors, the only way to make the computer perform a particular function, then the code is not copyrightable. Here, it's really undisputed that Google could have written new declarations and they could have been used to invoke the relevant methods so long as the developers were -- were willing to -- to learn new calls. And that is a -- analyzing the case that way gives appropriate weight to the copyright policy of creating adequate incentives for the creation of new works of author -- authorship. Thank you, Mr. Chief Justice.

John G. Roberts, Jr.: Thank you. Mr. Goldstein, to even out the time a little bit here, I think we'll go through another round of questioning for you if that's all right.

Thomas C. Goldstein: Thank you, Mr. Chief Justice.

John G. Roberts, Jr.: Okay.

I guess I'll -- I'll start. I wonder if you had any further response to Mr. Stewart's representation about the effects of the case on the technology market if we rule in favor of Oracle.

Thomas C. Goldstein: Yes, Mr. Chief Justice.

I don't think that Mr. Stewart is accurately reflecting how the industry operates. You have briefs from the country's leading computer scientists and the software industry that say that the non-licensed re-implementation of interfaces is widespread.

That's the concern about decimating how the industry operates. But I would pay very close attention to the wisdom of what he says, when he says categorical rules in this area are bad in response to, example, your question about how would this play out with other kinds of interfaces, and Justice Kagan's restaurant hypothetical, he says there are lots of factors involved. That's why deferring to the jury's fair use verdict, which is extremely fact-bound about the record in this case, is a perfectly appropriate and sensible way to resolve the case.

John G. Roberts, Jr.: I wonder if you wanted to take a bit more time to respond further to my question about why your merger argument doesn't make Sun and Oracle a -- a victim of its -- of its own success. The -- the -- Mr. Rosenkranz mentioned that several tech companies did, in fact, find a way to develop their programs without relying on the Java coding.

So why shouldn't we impose that -- that same obligation on Oracle?

Thomas C. Goldstein: Well, that wouldn't, of course, resolve whether we had the fair use right to reuse the code, but, in any event, I think that's an optical illusion. The computer scientists' brief at page 18, the Microsoft brief at 14, explain that both Apple and Microsoft, Oracle's examples, did re-implement prior interfaces.

The reason that they didn't use these interfaces is they were using a different language, as if they were writing in French, rather than English. We are not -- Oracle does not get to claim as -- the exclusive right to a highly functional computer program without a patent. It gets to claim the words on the page. And if those are the only words on the page that will produce this result in the computer, they don't get that exclusive copyright.

John G. Roberts, Jr.: Justice Thomas, do you have further questions?

Clarence Thomas: I have no further questions, Chief Justice.

John G. Roberts, Jr.: Justice Breyer?

Stephen G. Breyer: I -- I have heard from the other side, yes, that may be true, but this result is simply calling up a set of programs that were written by Java.

And maybe at the beginning you could have done this in different ways, with different divisions of tasks in a world with different call-up numbers. And there weren't people trained at that time. And copyright, you just heard quoted, runs from the beginning. What do you do about that?

Thomas C. Goldstein: Well, fair use certainly runs from the end.

Stephen G. Breyer: I'm not talking about fair use.

I'm talking about --

Thomas C. Goldstein: Okay.

Stephen G. Breyer: -- your merger argument and let's say the -- the method of operation argument.

Thomas C. Goldstein: Sure.

So there's the difference between the fact that they have a copyrighted work, which ran from the point of publication, from whether merger applies.

This is Baker versus Selden. Selden, when he published his book of dual column accounting, on that day he was the person who had created that.

But the Court said what about a later user that wants to use this system, can they do it without part of the work? This Court said no, and that meant that there is no copyright protection within the copyrighted work for that particular piece of expression.

Stephen G. Breyer: All right.

Thank you.

John G. Roberts, Jr.: Justice Alito.

Samuel A. Alito, Jr.: No further questions.

John G. Roberts, Jr.: Justice Sotomayor.

Sonia Sotomayor: Mr. Goldstein, is this your answer to Mr. Malcolm's transformative use argument, and what's your best argument on fair use?

Thomas C. Goldstein: Our answer with respect to transformative uses, it cannot be that transformative use only exists when computer code does something different. Computer code only does one thing.

There is no parity of computer code. That would mean ironically that this highly and functional expression is less susceptible of fair use than a highly creative novel.

That cannot be right. And, in any event, even if -- if the jury was entitled to conclude based on the record evidence that this was an entirely new context, the Java SE was not useable in this particular -- in a smartphone, with respect to fair use, more broadly, our best argument is about the standard of review. Under Rule 39(c) this mixed question of fact and law was put to the jury at Oracle's insistence.

The question is could the jury have balanced these factors? I know that the other side is concerned about providing legal guidance.

That's why we have jury instructions. But the Court in Georgia versus Public Resource and in other cases has made quite clear this is incredibly fact-bound.

It will depend on the circumstances.

And Mr. Stewart has only reinforced that point. In that context, you cannot say that the jury couldn't reasonably find that this massive creativity with a million applications and a new, entirely new way of computing on the smartphone is not fair use.

Sonia Sotomayor: Thank you, counsel.

John G. Roberts, Jr.: Justice Kagan.

Elena Kagan: I -- I'm wondering, Mr. Goldstein, whether the first part of the answer that you gave to Justice Sotomayor, whether that suggests that transformative use isn't the right question here, although it is in other contexts. I mean, as -- as I understand it, you're using this for the exact same purpose. It's just that the purpose, to make sure that users are dealing with a familiar interface, is one that should favor fair use. So is that right? Is the transformative use question really a mismatch in this context?

Thomas C. Goldstein: As articulated by Oracle, it is.

Call it what you will.

The statute doesn't say transformative.

It asks about the nature of the use. What we're doing here is using an interface, which is connective tissue between computer programs.

It is at the most barely creative.

Even the Federal Circuit acknowledged that's the only inference that's possible from the jury verdict. And then you ask: Well, what comes of it? What is the nature of this use? Are we using on a desktop computer any more? No, we're using it in an entirely different environment. And there was extensive evidence before the jury.

The nature of the use here is quite significantly different from the original use.

I think that's the statutory question. And, of course, the jury's question was, balancing that and all the other factors, is it fair use?

Elena Kagan: Thank you, Mr. Goldstein.

John G. Roberts, Jr.: Justice Gorsuch.

Neil Gorsuch: Briefly, just to follow up on -- on that, Justice Sotomayor's question. Mr. Stewart argued that if -- if we were to uphold the jury verdict or send it back on fair use, that we would be negatively impacting summary judgment practice and that most district courts take these questions up as a matter of law in summary judgment.

Thomas C. Goldstein: Yes, this is the exact argument that was made and rejected in the Court's Hana Financial decision and, that is, sure, some issues are decided very frequently on summary judgment, but that doesn't deem that there aren't other incredibly, highly contested facts -- cases that arise in new environments, as I believe you pointed out earlier. This is that kind of case.

It went to the jury under Rule 39(c).

Oracle didn't move for summary judgment in this case. When you have such a case, the fact that others are resolved on summary judgment, isn't a license to just throw out the actual standard of review that applies.

Courts have had no problem reaching summary judgment where it's appropriate because generally there, you don't have anything like a factual fight, did Android supplant Java SE in the marketplace? How is it that they were technically different? Classical fair use cases are things like parities or news reporting in which we have established legal rules.

Mr. Stewart is cautioning you against writing an opinion that articulates categorical rules.

And I don't understand how he wants to do that and adopt a categorical rule against the reuse here.

Neil Gorsuch: Thank you.

John G. Roberts, Jr.: Justice Kavanaugh.

Brett M. Kavanaugh: Thank you.

Mr. Stewart responded to my question quoting page 7 of your reply brief about the merger doctrine. And I wanted to see if you had anything further you wanted to add on the merger doctrine to help us understand that.

Thomas C. Goldstein: Sure.

So Mr. Stewart's answer is effectively we are -- we are asking the wrong question.

He agrees with the district court's factual findings that the only way to respond to these developers' calls is with these instructions. That's a very important point.

His point is: Well, so what? The developers can write other calls.

That is a way of saying that we can use a different method of operation. It also is nonsensical as a matter of copyright law.

Why would Congress want a rule that says: Okay, these developers are extremely familiar with these commands.

They are used to write creative computer programs.

Let's just make it as inefficient as possible for them. That's not trying to create a fan base for Oracle.

It's trying to create a set of prisoners.

They want to lock the developers only into using Java SE.

That is not a right that you can get from copyright or that Congress would want to confer.

Brett M. Kavanaugh: All right.

Thank you, Mr. Goldstein.

John G. Roberts, Jr.: Mr. Goldstein, you have got three minutes left, if you want to shift to rebuttal.

Thomas C. Goldstein: Thank you, Mr. Chief Justice. I do want to focus on the question of fair use and the fair use jury verdict because I do think that Mr. Stewart's argument that categorical rules are inappropriate is point that different kinds of interfaces might call for different kinds of results, as might different kinds of uses, is the exact reason why the Rule 50 standard should be applied with such vigor here, because the jury heard testimony on a variety of points that Mr. Rosenkranz is just attempting to deny and assert the opposite as a factual matter. I don't think there is actual debate about the expectations of the industry.

And they have nothing to do with licensed reuse of interfaces.

The -- there is a widespread consensus in the industry and among computer scientists that this has been the practice. So what do you do if you are asked to adopt a categorical rule that all those people say will upend the industry's expectations and how it's operated? I think what you realize is that, of course, the jury's fair use verdict was reasonable here.

It is ultimately, in fair use, an inquiry would this be a reasonable application of copyright or would it, on net, reduce expression? Here you have minimally creative declarations and they are being invoked to block the publication of millions of programs on an innovative smartphone platform. Now, I do think that there was no traction to Mr. Rosenkranz and Mr. Stewart's argument that the Federal Circuit had correctly applied the right standard of review.

When, at page 24a of the petition appendix, they say the ultimate question of fair use will be decided fair -- de novo, at page 53a they say, well, they will decide it as a matter of law and the same at page 54a. The Federal Circuit made the point they deemed the jury verdict advisory and said, well, we'll take it from here.

That is not appropriate. Under rule 39(c), Oracle made the choice to litigate this case in a particular way.

It is impossible to unpack the supposed factual findings that they are relying on. And I just want to point out how many times Mr. Rosenkranz is contradicting the jury evidence.

The evidence at trial, for example JA 56, is the former CEO of Oracle saying that the APIs were never licensed or sold separately from the language, in contrast to his just base assertion that IBM was paying for it. Mr. Rosenkranz says that Android supplanted and superseded Java SE, page JA 255. The market harm expert says expressly Android has not superseded Java SE.

They say that the declarations were so important to developers using Oracle's product, but at JA 125, again, the former CEO says the strategy, which has been the strategy long before I joined Sun, was that we agree on the APIs, these declarations, we share them, and then we compete on implementations. The evidence at the trial is certainly sufficient, easily, to reasonably conclude that there was fair use. Thank you very much.

John G. Roberts, Jr.: Thank you, Mr. Goldstein. Mr. Rosenkranz, Mr. Stewart, thank you. The case is submitted.