The honorable chief justice of the honorable associate justices of the Supreme Court of the United States. Mr. Goldstein mr. Chief justice may please the court with that copyright ability question in this case and into the computer work that not the patent so that means the public not oracle has the right to function and oracle cannot leverage the copyright there is no copyright protection for computer code to perform those functions here Java Software developers have the right to create applications for the smart android platform but they require google to reuse the exact set of declarations it is intermittently claiming the rights not just to what the declaration says is not a copyright it is a patent right. And in the modern Interoperable Software here reusing to rewrite creative applications that are used more than 1 billion people those policy questions are almost academic not whether this court would find fair use the much narrower question they could find fair use in oracle now regrets the demand that the jury way all the evidence and decide fair use that has no subsidiary findings and no Previous Court held ever held to desire fair use no prior appellate Appellate Court overturned that verdict it should not be the first today you will hear three lawyers present legal arguments for an hour the gene on the jury heard the testimony of 200 exhibits over two. Five weeks this illustrates as they reiterated the fair use quote often cannot be resolved without a trial. Mr. Goldstein if someone copies the headings in your brief and they copy the organization in your brief of what sections you put first and organize them does your argument say that is fine as long as they write their own text . No a Computer Program is entirely different you also would have the issue of the doctrine here it is not possible to provide that functionality. Understand the murder document is different so to recreate the headings and then to recreate the structure not unless it was necessary to do s so. If you are talking about necessary to do so and because the sun and oracle product and the fact if thats what everybody used it seems like a bit much to penalize them for that. We dont intend to penalize them but in the language of section 102 b they could have come up with a novel method of operation but they dont get the rights. As your point illustrates you could have said he came up with a very innovative form of bookkeeping and others could have used a different but that wasnt enough to give a copyright. And of the new material that we provide thats copyright not patent. Im sorry but our point is we provide a functionally under section one oh two b. If there were ways for us to do it than that would be another matter then there is no copyright protection but even if you check the perspective that copyright looks at the options available to oracle to begin with fair use looks at it from the other end of the telescope and there was enormous creativity unleashed. Before you get into fair use you said that was the only way but cracking the safe is the only way to get the money that you want but that doesnt mean that you can do it thats the only way for you to get it is get a license. That analogy would help us because if you get a patent then you could keep us out that doesnt give the exclusive right to do it. All right. Can you copy that is that illegal. If you write a book how to unlock the combination of the lock that doesnt give you the exclusive right to the lock all that does is shares the knowledge of how to crack a safe and then to use that knowledge. Thank you counsel and mr. Goldstein you seem to rely quite a bit on section 102 why dont we rely on section 101 that is more specific with respect to Computer Programs . Section 101 oracle holds a copyright and section one oh two b says that copyright does not extend to any method of operation and java. Thats called the ida expression dichotomy and that the doctrine tells us if there is only one way to provide the method of operation you cannot get a copyright on that expression so it is a combination of commands by the developers and if there are no substitutes and we cannot use anything else then effectively are giving patent rights from us using the declarations. So at which point do we determine the merger whether or not there is a merger. When you copyright something and publish it disclosing the system of bookkeeping the dual entry system. Once thats published the public has the right to use it once it is published are messy they have the right to create their own versions is there any way to do that to use the expression of the original but if the team take sure best player the only way they could reformat far that levels of somebody got the playbook i dont think anybody would say that. Is not we can do at a high level but remember everyone agrees we have the right to write a Computer Program to has all the same functionality as java s ewith new and Better Options for a modern smart phone. Its not like were trying to take someones fan base or Football Players it once the people who use the developers as java s ethats not with a copy rate on the copyright gives you with the jk rowling novels. Now lets go to fair use briefly. How would you distinguish harper . That cases where the district judge made findings and then the jury will resolve fair use of the District Court in a general jury verdict there are those subsidiary findings you cannot unpack it in the same way you could was just harper row. Is that factfinding or general verdict . Both are important but with the seventh amendment you have to construe everything in our favor. And try to answer my own mind i have a computer in front of me with java. Lang. Mask. And that is did not copy. And that is setting the switches of the computer. If it does the particular thing it is a Computer Program isnt it . And you can copyright Computer Programs. So whats the difference between java. Lang which checks what is on the computer and any other program that has switches on the computer. Thats my point. I know i can understand which is pretty tough. The implementing code that provides a function and oracle agreed that theres only one way to write that theres only one way to use that implementing code but cannot explain the code that you mentioned is the calls of the developer and what appears in android and java s e eif you give someone a copyright to say that person is the only one that can make the computer do the things whether invoke or perform the function through the implementing code. Why is there just one way to do it . If you spend enough time with the most brilliant Computer Programmers dont you think they could devise a system of calling up the java program so it could be expensive and take a long time that did not use the word java. Lang . First why would we have a copyright system that does that with the only upshot that is to adopt to make Computer Programming incredibly efficient and the second is no we do have very good Computer Programmers and when you said instruction the language itself it is a rule of the language there is only one declaration it is a plane finding that is uncontested. Thank you. Justice alito. I am concerned that under your argument all computer code under one oh two b how do you square that position with the intent to provide intention for computer codes . That is a criticism put at the method of operation that is not fair of an argument it is strictly limited in that sense to circumstances that the function disclosed the relationship between the calls and the declaration can only be rich in one way and the principle that oracle concedes with respect to implementing code to make the shortcut programs work to produce the larger of two numbers. So with the merger argument how do you respond to oracles argument that you are arguing in a circle to declare a code like oracle . Our analysis is by reference to what the developers are trying to do it is conceded they have a right to use the command they have learned including the ones that work with the java s ewe have the right to write is command that would respond we dont have to use those declarations but the language only allows us to use those you can make that argument about the merger doctrine for anything in english every word in english if you get that specific is the only one that has the precise meaning so if the work discloses something as java s edoes then you have the right to perform that function unless somebody wants to going get a patent. Let me switch to fair use. What should i do if i think that the purpose and the market value weighed heavily on the fair use issue that it could not find in your favor on those factors . You should see it is a continuum but not with any jury verdict you have to check the box you have to recognize that a jury looking at all the evidence could reasonably conclude that the other fair use doctrine the original material the declaration is barely created and it only used millions of Computer Programs by 1 billion people that that on the whole is not that unreasonable for the jury to find fair use it is not their responsibility. I go back to the essence of the question that i think my colleagues are asking. How do you differentiate between declaring codes and implementing codes . You agree you couldnt have done the code but declaring code because there are multiple ways of declaring as well to declare the same functions they spent the same billions of dollars necessary and yet you spend so much time in your brief the implementing to declare the codes go together and they emerge how do we draw the line . We dont it is oracle trying to draw the distinction that is not recognized by the statute the legal principle to reuse computer codes only be rich in one way applies to both oracle concedes it can only be rich in one way we could reuse it but it cannot explain why given that declaring code will not function of friction another way we cannot reuse that we try to draw that line with respect to apple it is true they did use the java s edeclaration it was not using java that used it as the amicus brief. Me i stop you right there. So it gives you the right to use their original work . How do you define method of operation so there is a clean line between that and when you have to create new code . Section one oh two b says you cannot get a copyright in the functionality of the computer code like method of operation with none of the functionality that merger doctrine tells us and one way to write that computer code with that functionality then to get a copyright protection you have to get a patent protection with implementing code because there are numerous ways as the District Court found, the only reason we use that declaring code we happily would have rewritten her own and then to respond the to the developers instructions without using the set of instructions. My problem with your argument what is your definition of interoperability. To those existing thirdparty applications can run in your platform. And then on those systems that use java s e. And then to develop many different packages and platforms. They can copy any part of the code certainly the declarations and the interoperability that the developers instructions and interoperability new Software Program with an older less superior one that doesnt work as well that is incredibly important what congress would want to take the functionality of a Computer Program somebody does it better is no surprise we dont use all the one the packages. That have the gps function to them and they dont have a computer mouse theres no reason to thank you would reuse all of them and given the constraints of the smart phone. I am surprised or confused of the arguments you are making this morning maybe its just me and i understand it but im hoping you will explain it to me. When i read your brief life that you would be making a different argument principally than the one of today that that code is unprotected with the method of operation that allows java programmers to operate the computer to have a flat rule of that kind of dont hear you saying that today instead the real question is are there multiple ways to do the same thing . Are those different arguments in which one are you making . We are making both of them. The argument that you mention i dont think honestly is. We have a straight peer argument the declaring code is a method of operation because it is the instruction of the developer and then to focus on the argument if you disagree with that and then you apply the merger doctrine so one that says you cannot copyright all the ways of having the method of operation thats what they are trying to do the District Court found. Excuse me but if thats a test you are focusing on today is that what comes out of the Second Circuit . Is there any difference between what you say today and what we have to figure out to separate out those elements . They do have those obstructions and the element of that is to take those that are not subject to copyright protection. So the element of a Computer Program it doesnt just it supplanted. And also what the chief justice was asking about as im sitting in a mathematics class to do a proof. And if the 20 people were the one proof and some are elegant. How do we deal with that that is analogous to the situation and to come up with that elegant one. It is depending and then in a specific way and then they type something into the computer how is it that you write a Computer Program that recognizes what they will say to respond appropriately and then the only computer code that understood understands a proof. That will look at students proof and understand him because section one oh two b if you have the larger of two numbers without any method of operation. Thank you Justice Gorsuch. Good morning and then moving past rapidly the primary argument in your brief that the code is an copyrightable and that the one is as Computer Programs or those instructions to bring about a certain extent could be copyrighted and there it is and that would have the more generally idea so can we move past that rather rapidly . I take that as a yes. Moving straight on to the merger doctrine then i am stuck in a similar place as Justice Kagan the argument serves more of a more successful rifle because it comes with an elegant successful or a highly adopted solution in the marketplace and then right on the innovation. What we do about the fact that other competitors apple, microsoft have in fact been able to work just fine without engaging in this. Everyone agrees every platform actually does what we talked about witches re implement the fire language or platform apple and microsoft use different languages entirely somebody could write it in french. The rules that oracle once is and the essential facility has a real world analog and exclusive right and patent. Isnt that the essential facility type of problem to get their way around it . If this was antitrust law then perhaps. But section 102 b tells us you cannot have the exclusive right rights. It doesnt say you can get a copyright with respect to a method of operation or a system to work around. If those are emerging and others have been able to accomplish the task without a reliance then where do we stand . We are misunderstanding the task. If you say an idea of just being able to create the phone, fair enough but that is not the test. Find the methods of operation so then the relationship between the declaration and that is what you can i get a copyright with. And then still look to the junior jury fair use verdict with all these debates between the relationship between android and java that this was a fair use. Thank you. Justice kavanaugh. Thank you mr. Chief justice good morning mr. Goldstein. You are making the method of operation argument with the solicitor general as a method of operation in the same sense that Computer Programs is a whole and that would swallow the protection for Computer Programs your response to that . And that declaring codes are very distinct that tells the outside developer what to do and then how to operate the shortcut. And it tells someone else how to operate the Computer Program that is absolutely unlike any other code. And another concern for you to respond to is that it seems to define the relevant idea you cant just copy a song because thats the only way to express the song why is that principle not at play here . We are not defining merger self reflectively because we like these declarations but i have to reuse these declarations because im trying to respond to demands from other people. And Justice Breyers antithetical although not very creative i have to write a Computer Program in the sense of baker versus selden then the public can do it than that part does not get copyright protection. One of the points and the amicus briefs enormously helpful of the 83 Computer Scientist is that the sky will fall against you in this case of the significant disruption and the question i had about that the federal circuit in 2014 to deny a surge and with that ruling i know its different if we rule here but can you respond to tha that. After that it was entirely open and we did we won the fair use trial and when the federal circuit ruled against us then they granted cert i would have only representations because the premise is not in dispute interface has been reused for decades always with the understanding this purely functional noncreative code the glue that keeps the Computer Programs together could be reused and that would upend the world going the other way. Thank you. Mr. Goldstein would you like to take a minute. It is sufficient that google could write that declaration and that effectively just feeling this way of doing it. The soul of fact to make the creation of innovative Computer Programs less efficient and if anything they deserve the least copyright protection with the exclusive right of the function notably asserting to have the right to insulate itself from competition at the copyright does not extend to any method of operation that is embodied there is no exception for which there are possible substitutes and then to say there is a different method of operation with the baker case and then that proves too much applying equally and then only write their own computer code from scratch. And googles whole argument is the code is different with those principles to control the outcome of the Case Congress to find a literary work for software and copyright protection and conceded the code is original that is the end. Google asks the court to carve out the declaring code and rejected the very carveout including the definition of Computer Program and by not including the carveout among those limitations in section 117. Legal principle number two that it is always unfair as a matter of law or that it has so much valuable expression into a sql and then serve the same purpose as the original. Google conceded the purpose thats the end of question number two. No one else thought innovating required copying code without a license and as Justice Alito notes apple and microsoft did not neither did others of those computing platforms in the java language there was and still is a huge market for declaring code other Major Companies like ibm are paying a lot of money precisely because it was created throughout this litigation and google never denied this if they can conclude that copying code is fair that would encourage copying create uncertainty and decimate the Business Model that a lot of companies depend on to undermine the very incentives the copyright was designed to promote. You want to open a restaurant with a great new chef and new dishes and then you have to figure out what the menu should look like. Of course appetizers then entree then desserts you shouldnt have to worry if that organization is copyrighted. Mr. Goldstein is staying on is saying thats whats going on here. Every restaurant organizes the menu that way and you dont want to discourage people from opening it because they have to spend their own time figuring out what the menu should look like. This is a constant theme if this is a standard way of doing things it is not protected or unoriginal by your own description. What we have here is not a menu in here our dinner plates with those standard descriptions that everyone uses. We fill in the blanks 30000 times over and each had its own description that no one else was using. You said they did have a choice it didnt leave them with no option what choice did they have to spend billions of dollars to be wasteful and impede the development of the hightech business . Oh my goodness your honor. Without spending the billions of dollars microsoft and apple both spent billions of dollars with their competing platform thats exactly what the copyright act requires. It does not give google a pass just because its expensive to recreate our expression. Mr. Goldstein says the best way to do it to keep programmers doing new things instead of old things is to use java. But in no other context would it be appropriate to be asking if there is one of the work is unprotected or their use to say the audience has learned the words by heart. If someone wanted to write a book that reproduce the 11000 best lines of seinfeld they could not do it by claiming it but those are the lines that everyone knows. Thank you justice thomas. Mr. Rosenkranz, you seem to be arguing for more than declaring code. If i am right, do we need to decide more than that . Know your honor. All the courthouse to decide is if the declaring code for purposes of copyright ability if it was original. It was. And for purposes of fair use of it was fair to copy the declaring code is a point that several justices you cannot distinguish that declaring code from implementing code not in the way that congress defines the code there is no distinction that the courts the one that they are capable code is code both consist of words, numbers and other numerical symbols and both operate a computer. Mr. Goldstein says thats what they would have wanted and proposing when it defines Computer Programs in section 101 as code to be used in directly to bring about a result. You argue or you seem t to, that googles use was not transformative because the use of declaring code operates the android the same way and java so what does that look like in the context of the computer code . The ninth circuit is a great example of transformative use. It was never incorporated into a competing product and instead to figure out how the machine worked and that was the transformative use. To preserve the statutory right to have derivative work it has held a transformative use of that expression. Google did not do that they all serve the same purpose that is the same thing for the environment and does not change the meaning and is no more transformative putting that short story into a movie but what is described as using work to get attention or avoiding the drudgery of working up something fresh. Justice breyer. Please assume that you read the Computer Program that we should do something that they are copyrightable but then methods of operation are not. So they said the accounting is not a method of operation or like an ordinary Computer Program what i got out of this is look so they divided the universe of tasks in a certain way all the things that tell the computer to do one of those things. But that which tells the computer which to do is the declaration and heres what it is like that they said the qwerty keyboard you dont have to have it in the beginning but my god if you let have somebody on a copyright that now they would control all typewriters which has nothing to do with copyright or a switchboard the oldfashioned telephone system you could have done it a thousand ways but once you did all those operators learned that system and you dont want to give the Copyright Holder a monopoly. Telephone systems to use the chief justice example a chef who figures out a brilliant way to make space and then write something to tell you which shelf to go to in which to take out in which spice to pick out for which dish. All of those things are a program but they do something they give you and instruction as to how to call up those programs that have the java organization and at this point in time its really tough just like the qwerty keyboard to go backwards in very bad consequences were will flow otherwise. Long question but thats what i got out of the method of operation argument and i want you to say what you want about that. Thank you your honor. I think i will answer is to answers. The first is this is not like the qwerty keyboard there was never anything expressive and qwerty j k l h doesnt mean anything to anyone its mechanical thats true of all of your examples but in baker they publish the book with the bookkeeping system and then to extends the copyright to block everyone else for using that system and the book those points are necessary for the system they were not even the same but for Copyright Infringement because baker uses that system to say they just depicted on a single page in the court says you cannot monopolize one paper. Justice alito. Mr. Rosenkranz what about the review of fair use . The jury returned a verdict on fair use in oracle move for judgment as a matter of law the federal circuit required to apply the rules and ask if the evidence presented in trial is sufficient as a matter of law with the court of appeals and no reasonable juror with the appendix 42, 46, 51 and 52 having found those factors strongly favored oracle for that use to supersede there is no other reasonable conclusion that googles use was unfair. So to circle back to the first half of the question the standard half is denoted by which i mean it respects the juries of historical fact summary on his some on Summary Judgment for what legal conclusions to draw from the facts it has primarily legal work and as a precedent of matter and it illustrates and with those Legal Standard so those that are submitted to juries is that an error . Know your honor harper was the case that the Appellate Court as a matter of law there were numerous disputes and harper including weighing various factors and questioners on questions like the original author derivative. Because it has constitutional implications. Thank you counsel Justice Sotomayor your. Counsel, in the beginning statement in of the Second Circuit case and the 11th circuit case and the First Circuit case and then that has developed in the case law. Earlier in the 1980s the other circuits moved away from that they and the entire computerworld have not tried to analogize computer code or other methods of expression because its too generous. The api Application Program interferes to declare the put code is a part is not copyrightable implementing the codes are. With that understanding industries have built up around applications only for what is to run on the application that is what google did here. So i guess, thats the way the world has run in every other system whether apple desktop or web services Everybody Knows the api declaring codes are not copyrightable implementing the codes are. So please explain to me why we should now append up and as those elements summer methods of operation and some are expressions why should we change that understanding . And in those lower court cases and then to copy this vast amount of code to use for the same purpose the First Circuit, the ninth circuit the tenth circuit, they all agree with that. Nobody withdrew that distinctio distinction. You would not find a single place that does this. Google wants the Software Industry on unlicensed copying Major Corporate entities are paying a lot of money and for those examples licensed copying or those elements that no one would say they were protectable. Thank you Justice Kagan. Mr. Rosenkranz there are two features of your declaring code you think merit copyright i want to make sure i am right. The first feature is we need a way to connect a program with whatever they happen to be connecting those inputs to implementing code. The second feature is a way to organize those inputs into various classes and packages what is the trigger and one is the method of organization is that right that merits copyright . Know your honor. There are two things that we save merit copyright protection. The first is the manner in which we describe each function or method each line teaches the user what that method does, how it is used how it relates to others and what the results will be. The second piece is the overall structures sequence and organization. Those are the two things. Lets start with that if we have time we can get back to the other. I will give you an example similar to the chief justice but you will not be able to answer in quite the same way. If i come up with a terrific way of organizing my Fresh Produce and fruits and vegetables which is very intuitive for the shopper , this is not the standard. Its novel and it is great and a rifle Grocery Store want to copy it to i have a copyright claim . You have a copyright claim and anything that is not set down in writing so you are hypothesizing in outline form to organize. There are some fair use questions about that. Why is that different . All kinds of organization whether it is the qwerty keyboard or the periodic table or kingdoms and classes the animals are organized into there is a thousand ways to organize things which the first person who develop them has a copyright and then preventing anyone else from using them. First, lets not forget the declaring code itself will take up 600 pages in the appendix but the answer is the relationship is not the most intricate hierarchy you have ever seen but multiple pages of the supplemental appendix but the relationships cross it is extraordinarily intricate in a way that does deserve copyright protection. Justice gorsuch. Good morning counsel. Your colleagues on the other side suggest the federal circuit did not give sufficient difference and with those that are multi factor balancing and for that substantial evidence for the record and particularly when the questions are novel and the legal rules have yet to crystallize, why should the federal circuit not use that traditional standard . My first answer is the same to Justice Gorsuch it actually did when conducting the analysi analysis. Im sorry to interrupt does not have a read the federal Circuit Decision lets say that i agree with you and that why shouldnt we remand the case . The difference bes and google is only history can balance the factors. That would mean even if the parties stipulate on the facts the court cannot grant the judges when the courts do, the professor identifies the judgment in a 30 year time span. Google could find only five cases that even went to a jury in a similar span and some rejection would be nearly impossible because it would be a fact question for every jury. Thank you, counsel. Justice cavanaugh. Thank you, chief justice and welcome back, i want to follow up on two of my colleagues questions. First, anymore you want to say about Justice Breyers qwarty keyboard question and to Justice Sotomayors questions and the 83 Computer Scientists concern about threatening significant disruption. If you could follow up on those and i have no further questions after that. Thank you, justice kavanaugh. The states would be like baker. From using their own structure to organize their own prewritten programs but some wrote its own specific layout and filled in the blanks 30,000 times over. We seek to protect the expression and others are free to write and organize their own program however they see fit as long as they do not call the hours. To answer the second half of the settled expectations since the 1980s because of the copyright protection. As you pointed out earlier, justice, the sky hasnt fallen since the court of appeals first decision we have seen the explosion of the interoperability on the Machine Learning and autonomous vehicles. I can tell you two things that will kill software innovation, first they change the rules under which the industry has thrived for 40 years and substitute a role that is fair to copy what every jury describes as a matter of public policy. And to take away the incentive to write the original code. Thank you, counsel. Do you want to take a minute to wrap up . Let me say two things. First, the ruling for google will decimat decimated the inceo create high quality user facing code that on both sides insisted the industry to decide. The developers and the industry in the long run because who will invest the excruciating time it takes from the passable if all that can be stolen are paying lots of money right now. Its simply not true. Congress passed of the copyright act through the long term not shortterm expedience to copy the rule that the code can be copied whenever necessary for a user to bring about the result is defined and will do more in the decades of uncertainty. Thank you, counsel. Thank you, mr. Chief justice. In the mid1970s, congress established the commission to study problems related to the copyright law and computer code if eligible for copyright protection and the central justification was and consequentially of potential authors are and economic incentives to create the justification for having copyright protection in the first place. Here the core argument is once the developers have learned it would be inefficient for the calls in order to invoke new declarations but in a wide variety of circumstances its been created to focus on that work. Representing the United States of course the Tech Industry and the United States why is that not true we havent seen the deleterious effects from that. A lot of things that might be called interfaces would be segments of code that are so short they dont exhibit necessary creativity to preserve interoperability. It may be in particular circumstances they cannot be copied without authorization but that isnt the basis for the general rule. There is a prevalent practice on the declarations and often that is done through opensource licensing or of the Copyright Holder can announce to the world you are free to copy the code as long as you comply. Justice thomas. Thank you. A couple quick questions. Do you think the federal circuit applies the proper review standards . We do. And the standard could have reached the verdict but its common that there could be disputed questions the fact and the law and when the questions are close and reasonable, judges could disagree that its supposed to say what is the right answer to those legal questions so when we ask we should be asking should they try and accurate balance of the law so we assume they are favorable but then what is the right answer and was this transformative and i think that is the way the federal circuit did it is to say we assume the version of the facts but then we will determine as a matter of law whether this is transformative. Thats the way they did it but theres no reason the resolution of questions like was this transformative or how do we balance the relevant factors. The one final question in the Fair Use Analysis we hav weve d that those were non exhausted. Can you think of anything else that should be added to that analysis . I cant think of anything else. There may be factors in other cases. Deciding the questions the court shouldnt just be asking how would consumers potentially benefit from widespread copying. The court should also be asking what incentives. Justice breyer. I am curious to why the government thinks the balance of harm lies the way you do. I do think of the qwarty keyboard. They make an impression and then that is how you write words. The system is dividing the world into a variety of tasks which then will be done. Nothing copyright is meant to give a monopoly of typewriting and nothing here if in fact you give them a monopoly of this, the millions of people that have learned this will have to spend vast amounts of money when we get new methods for using computers, turning on heaters to stoves and a million others. Teaching them is unbelievable. It would give the owner of the declaration monopoly power over all of those uses. I think that is roughly what they are arguing. Why does the government reject that . Theres all sorts of things that have become standard but wouldnt have been eligible for copyright protection in the first instance because they are not sufficiently created. Here google conceded the large volume of declarations and intricate method of our sufficiently created to qualify. The second thing is when we talk about the people who will have to learn in order to invoke the declarations we are not talking about consumers or the people that actually use this. We are talking about App Developers and these are economic actors, their interests happen to align because they can create popular applications and they will gain money and advertising revenue because the platform would become more popular. Justice alito. My question theres been some elaboration. There is an argument that the sky is going to fall if we do not rule for google so do you have anything you want to add onto that . The only thing i would add is the last point that i got to towards the end that there is a phenomena of the licensed copy and sometimes often the licensed terms dont include the payment of money but a requirement whatever improvements to the code have to be given back to the Programming Community and other potential programmers. But the Copyright Holders authority to impose and enforce the licenses obviously depends upon the proposition that the code is copyrightable to begin with and so then the very fact that those licenses are offered with such frequency tends to dispel the idea that theres a common understanding in the community that this material isnt copyrighted at all. Counsel, can you tell me why you think googles work was transformative . It moved the platform from a pc essentially to mobile phones. Why wasnt that a transformative step . The answer is all fair use involves copying so you have to copy something and create something new from it. So why wasnt that a giant step . Three or four things why this wasnt transformative. When google explains the particular declarations and not others in the platform, the explanation it gives is that these are the declarations and functionalities that will carry over. These are the declarations that will be useful in the new technological environment, so even though a lot of the code oracle had written my not be useful, this code is. Thats the only way to make what they copied it was only that that would function in the new environment. Its not the only way they could do it. They are very careful about this. Its the only way that would allow the developers to use the preexisting calls to call up the established methods. The second thing i would say is that whole argument about allowing the developers to use their knowledge. The only way it works is if they have confidence when they use the call with which they are familiar it will trigger the same functionality and so it isnt transformative in that sense. Its performing in the same function that it performed. The third thing, if you imagine a Motion Picture thats only been released in theaters and somebody gets depressed and offers to live stream it over the internet, its the same thats being used on a different platform. No one would think of that as transformative. Suppose i come up with a new and very useful keyboard, not qwarty but something better. Its so useful everybody starts using it. Lets assume for the purpose of my question that its copyrightable, which it might be or it might not but lets assume that it is and go to the fair use question. When a cell phone, smart phone manufacturer takes that layout, takes that keyboard and uses it for its next phone, is that fair use and why or why not . The Fair Use Analysis would depend on a lot of factors but, yes, i think that you could take into account the kind of developing expectations, concerns about interoperability. We are assuming for these purposes as you asked that this is copyrightable, so that would be a factor to consider in the Fair Use Analysis. In the proposition of serving interoperability can be a purpose why is it any different here that they took the interface so the programmers wouldnt have to learn a whole new system just as the cell phone manufacturer took my keyboard so that people could rely on something familiar . The developers are in a fundamentally different position from the consumers. If they tasked their own employees with creating apps so that the platform would become more popular to consumers, nobody would think that by not referring them to learn more calls. They have been to align with google and employees. Thank you, counsel. Justice. The government can see that this work is copyrightable. If it gives one hand and takes away with another the Fair Use Analysis of the factors that need to be weighed, why couldnt no reasonable jury have concluded that it was fair usage, arent you saying code is copyrightable, but really its subject to fair use. We are saying that its subject to the analysis but we argued in the brief that it wasnt there. The District Court or the primary error is that it created as a factual question what it should have treated as a subsidiary legal judgment that is on the question of transformative mass. Oracle argued its the same code for the same purposes and it isnt transformative. The District Court didnt decide which was right. It said a reasonable jury could have cited with google. That would be fine if this had been factual, but the question is that sufficient to make for transformative use is fundamentally a legal question, the court of appeals quoted of thathatdetermination and found correctly that it wasnt transformative. If we disagree with you on the standard of review that should apply here, what should we do . If you disagreed and thought that questions about is this transformative or not given the stable body of facts, if that is a question to which it is probably the appropriate course. I would point out that its not only going to affect jury practice but the summary practice because a lot of the use questions are decided on Summary Judgment. That wont seem plausible and longer if issues like putting it on a new platform or transformative are regarded. Thank you, counsel. Justice kavanaugh. Thank you mr. Chief justice and good morning. One question on the merger doctrine and then the operation. The fact in the case is that the declarations cannot be written any other way and still properly respond to the calls used by the programmers. Are they wrong in saying that . I dont think they are wrong in saying that bu they are invog the proposition applied if its the only way of getting the computer to perform a function but they are defining it as. It says copyright protection from the works creation and at the time the work was created there were no calls going to developers. The argument wouldnt have flown as a justification. Second, as the chief justice pointed out at an earlier part, that would have analyzed the marketplace success and the fact that the calls were wellknown is a fact that it was popular and a lot of people had written a lot of apps for it. And the method of operation says its for the developers to use while implementing the code instructs the computer. Your response to that . The term method of operation and what the court said 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 no exclusive rights in the performance of the task. The report discussed the way in which section 102 would have compared and i think the clear expression was on page 21 of the report where it said one is always free to make the machine may you and the same thing as it would have if it had the copyright workplace tenet. If you would like to take a minute to wrap up. Thank you mr. Chief justice. The fundamental line for the merger and analysis is if a particular line of code is without regard to the expertise of other actors, the only way to make the computer perform a particular function then the code is not copyrightable. Even undisputed google could have written new declarations that coulcould have been used te the methods so long as the developers were willing to learn and thats analyzing the case to give appropriate weight to the copyright incentives for the creation of the new works of author ownership. Thank you mr. Chief justice. Thank you. Mr. Goldstein, to even out the time i think we will go through another round of questioning if thats all right. Thank you mr. Chief justice. I guess i will start. I wondered if you had any further response to the representation about the effects of the case on the Technology Market if we rule in favor of oracle. A. Yes mr. Chief justice. I dont think mr. Stewart is accurately reflecting how they operate. We have the Computer Scientists and Software Industry saying that nonlicensed reimplementation of the interface is widespread. Thats the concern about how the industry operates, but i would pay close attention to the wisdom of what he says when he says categorical rules are bad in response to example the question of how this would play out with other kinds of interfaces and hypothetical that there are lots of factors involved and thats why deferring to the verdict which is fact bound about the record in the case is a sensible way to resolve the case. I wondered if you wanted to take a bit more time to respond to my question about why the merger argument doesnt make the sun or oracle a victim of its own success. Mr. Rosenkranz mentioned several Tech Companies did in fact find a way to develop the programs without. The reason they didnt use these interfaces is the as they were a different language as if it were french rather than english. Oracle doesnt get to claim exclusive right to a highly functional Computer Program without the patent. It gets to claim the words on the page and of those are the only ones that will produce the result in the computer, they dont get that exclusive copyright. Justice thomas, do you have further questions . I have no further questions. Justice breyer . Ive heard from the other side of that, yes, that may be true, but the result is simply calling up a few programs written by java and may be at the beginning you could have done this in different ways and different divisions and different call up numbers. There were people trained during that time and you quoted from the beginning. What do you do about that . I am not talking about the fair use, but the merger argument and lets say the method of operation argument. There is a difference between the fact they have a copyright work that ran from the point of publication to where the merger applies. When he published his book the dual column accounting on that day he was the person who created that and said what about a liter use leader user that wae the system, can they do it without part of the work the court said no and that meant theres no copyright protection for that particular piece of expression. No further questions. Mr. Goldstein, is this your answer to the transformative use argument, and what is your best argument on fair use . With respect to transformative, it cant be the transformative use if it only exists when computer code does something different. It does one thing. There is no parody of the computer code. That would mean ironically this expression is less susceptible than a highly creative novel that cannot be right. In any event if it were based on the record evidence that this was an entirely new context it wasnt used with respect more broadly its about the standard of review under the rule the question of the fact and law was put to the jury and the question is could the jury have balanced the factors. I know the other side is concerned about providing legal guidance and thats why we have jury instructions. But the court in georgia versus public resource made it clear that this is fact bound in the circumstances and hes only reinforced that point. In that context you cannot say that the jury couldnt reasonably find this massive creativity with a million applications and an entirely new way of commuting on the smart phone is not fair use. Thank you, counselors. I am wondering the first part of the answer that you gave, does that suggest the transformative use if it isnt the right question here although it is in other contexts. As i understand it if you are using this for the exact same purpose to make sure that they are dealing with familiar interface for the one that should favor fair use. So is that right, the transformative use question is a mismatch in this context . I have articulated, call it what you will it doesnt say transformative. Ask about the nature of the use. We are using an interface which is between Computer Programs and the most barely created in the federal circuit that the only inference possible from the jury verdict and then you ask what is the nature of it, are we using it on a desktop computer anymore, no, an entirely different environment and theres evidence its quite significantly different from the original use. I think thats the statutory question and of course it was balancing that and all the other factors. To follow up on that question, mr. Stewart argued that if we were to uphold or send it back on fair use we would be negatively impacting the practice and at most, District Courts take these questions as a matter of law in the judgments. This was rejected in the courts financial decision and that is sure, some have decided on Summary Judgment, but that doesnt mean there are not other highly contested cases that arise in the new environments and as you pointed out earlier in that kind of case it went to the jury under the rule. It isnt a license to just throw out the actual standard of review that applies. Theyve had no problem reaching the judgment where it is appropriate because there wont be anything like a factual finding. How is it that they were technically different for things like parities or news reporting in which we have established legal rules. Hes cautioning you against writing an opinion and i dont know how he wants to do that and adopt a categorical rule. Thank you. Mr. Stewart, you responded to my question on the brief about the merger doctrine and i wanted to see if you had anything further you wanted to add to help us understand that. He agrees with the fact findings that the only way to respond to the developers calls. That is a very important point. His point is so what, the developers can write other calls. Thats a way of saying he can use a different method of operation. Also nonsensical is a matter of copyright law. Why would Congress Want a rule that says okay, these developers are extremely familiar with these Computer Programs. Lets make it as inefficient as possible for them. That isnt trying to create a fan base oracle but the prisoners. They want to lock the developers into only using java that isnt a right you can get from copyright or the congress would want to confirm. Thank you, mr. Goldstein. You have three minutes left if you want to shift to rebuttal. Thank you mr. Chief justice. I want to focus on the question of the fair use and the jury verdict because i do think that the argument, the categorical rules are the different kinds of interfaces might call for different kinds of results and different kinds of uses is the exact reason why the rule 50 standards should be applied here because the jury heard testimony on a variety of points that mr. Rosenkranz is attempting to deny and assert the opposite as a factual matter. I dont think theres actual debate about the expectations and they have nothing to do with licensed interfaces. There is a widespread consensus in the industry and among the Computer Scientists that have been the practice. So what do you do if you are asked to adopt a categorical rule that the people say will upend the industries expectations on how its operated i think what you realize is of course the fair use verdict was reasonable here. It is openly an application of copyright or would it reduce expression here you have minimally created declarations invoked to the publication of millions of programs on an innovative smart phone platform. I do think there was no traction to the argument the federal circuit correctly applied the right standard of review. Page 24 of the petition says the ultimate question of the fair use and page 53 they say they will decide it as a matter of law and the same on page 54. The circuit made the point that it was deemed advisory and said we will take it from here. Thats not appropriate. Under rule 39 ce, they made the choice to litigate in a particular way. Its impossible the fact findings they are relying on and i just want to point out how many times hes contradicting the jury evidence. The evidence for example 56 a former ceo of oracle saying they were never licensed or sold separately from the language. In contrast it is a based assertion ibm was paying for it. They say that they supplanted and superseded 255, the market experts say expressly they havent superseded. They say that the declarations were so important to the Developers Using the product but again the former ceo says the strategy which has been the strategy long before i joined and whether we agree on these declarations we share them and then compete on the implementations made evidence at that the trial is certainly sufficient to conclude that there was fair use. Thank you mr. Goldstein. Mr. Rosenkranz and mr. Stewart, thank you. The case is submitted. Will democrats need to pick up four seats in the election to win a majority in the senate. And according to the political report, 15 of the 35 senate races are considered competitive including the contest in arizona. The great canyon state former astronaut mark kelly challenging incumbent senator Martha Mcsally. Good evening and welcome to the special election 2020 debate with u. S. Senate candidates republican senator Martha Mcsally and democratic challenger mark kelly. This is the only live debate between the two candidates. It