Are admonished to give their attention. The court is now sitting. God save the United States and this honorable court. We will her argument for this morning in case 18 956, google versus oracle. Mister goldstein. Mister chief justice and may it please the court. The murder doctrine resolved the copyright issue in this case. Oracle has a copyright to the computer code in java sd but not a patent read that means the public not oracle has the right to its function and oral cannot create patent yrlike rights specifically under the murder doctrine there is no copyright protection for computer code that is theonly way to perform those functions. Your Java Software developers have the right to use certain commands to create applications for googles android smartphone platform but to work, the commands require google to reuse an exact set ofdeclarations from java sd like he fits into a lot. Because there are no substitutes, oracle is impermissibly claiming the exclusive right not merely to what the declaration is saying but also to what the declarations do. That is not copyright. It is a patentright. With respect to fair use the long severed practice of Reading Software interfaces is critical to modern interoperable computer software. Here reusing the minimally crated declaration allows the developers to write millions of creativeapplications that are used by moha are almost academic as the issue is not whether this court would find fair use. The standard of review asks the narrower question whether the jury could reasonably find fair use. Oracle regrets its demand that the jury way all the evidence and decides in the generalverdict. No Previous Court ever held that only a court may decide fair use that no Appellate Court ever overturned a fair use verdict. This contested case should not be the first area today you will hear three lawyers present legal arguments for an hour. In 2016 the jury heard the testimony of almost 30 witnesses and reviewed 200 exhibits over two and half weeks. This case perfectly illustrates as this court recently reiterated in georgia versus public resource at fair use is notoriously sensitive and often cannot be resolved without a trial. Mister goldstein lets say someone copies the headings in your brief and they copied the organization in your brief, which sections you put first and how you organize them. Is your, would your argument say thats perfectly fine so long as you write their own text . Closer, a Computer Program is entirely different and in addition you wouldnt have the issue of the murder 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. I understand your merger argument is different but i dont think that was the question i asked. In terms of whether you could simply recreate the headings from a brief or a book and recreate the structure, not unless it was necessary to do so and thats whats true here. If youre talking about necessary to do so and forcing me back to the merger doctrine and thats fine area but the only reason that theres only one way to do it is because some of oracles product expression was very successful. There were a lot of ways to do it when they did. And the fact that everybody, the program really like it and thats what everybody used, it seems a bit much to penalize themfor that. We dont intend to penalize them serve but in the language of section 102b they may well have come up with a novel method of operation. A may have created one that they dont get the rights to it. That is a patent right. I suppose just as your point illustrates, in baker versus selwyn you could have said when Mister Selwyn came up with an innovative form of bookkeeping and other people could have used the different one but that was not enough to give him a copyright. I dont think its a patent right. Its their particular expression e. And you want to use a the only way for you to say what you want to say in the new material that you provide is to copy they are. Thats not a patent. Thats copyright. 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 10 to be. If there were other ways for us to do it thatwould be another matter but because there is only one way , there is no copyright protection but in all events even if you took the perspective copyright looks at the options that were available to oracle to begin with clearly fair use look at it from the other end of the telescope toand there was enormous creativity that is unleashed by the ability to reuse the declaration. Before you get into fair use you say that was only way for you to do it but cracking the state may be the only way to get the money that you want. But that doesnt mean you can do it. If its the only way, the way for you toget it is to get a license. I think 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 cracksafes that doesnt give you the exclusive right to do it. All right, what about the combination to the lock on the safe. Can you copy that just because somebody else has it and thats the only way to get in and mark. Certainly if you write a book about how to you know, unlock the combination of something, unlock the commendation of a lot doesnt give you the exclusive right to the lock area and 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 thats what we want. Thank you counsel. Justice thomas. Yes, thank you mister chief justice. Mister goldstein, you seem to rely quite a bit on section 102 area why dont we rely on section 101 which is more specific with respect to Computer Programs western mark. Your honor, section 101 tells us oracle holds a copyright in java and Computer Programs. Then section 102b, what it tells us is that copyright does not extend to any method of operation in java sd and what the merger doctrine tells us, thats called the ida action dichotomy and what the merger doctrine tells us if there is only one way to provide the method of operation of java sd, you cannot get a copyright on that expression so our point here is that the method of operation of java sd is the combination of commands by the developers and declarations in java sd. If there are no substitutes. If we cannot use anything else you would be giving oracle effectively patent rights for preventing us from reusing declarations. At what point should we determine tsthe merger, whether or notthere is merger . When oracle or someone developed this program or when you decide touse it . The ladder and that the teaching of baker versus selden and the text of 102b. What that tells us is when you copyright something and you publish it you disclose it to the public rid selden disclosed a system of bookkeeping, the dual entry system but what the court said is once best published the published book has the right to use it so you hear, once oracle published java sd people in the public, developers and Companies Like google have the right to create their own versions of it that would provide the same functionality to read and 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. Someone could argue though that if a team, if a team takesyour best players in football , that the only way that those players actually perform at a high level is if you give that team your ey playbook. I dont think anybody would say that is right. Our point isnt that we cant do it at a high level. Remember, everyone agrees you have the right as google to write a Computer Program that provides all the same functionality as java sd and in android we wrote new and better versions were more suitable for use in a modern smart phone so its not like we are trying to take someones fan base or their Football Players or anything else. Oracle doesnt want a fan base to read it effectively wants prisoners. It once people who use its work, the developers only to be able to use it with java sd. Thats not what copyright gives you. You tdont get a fan base with a Computer Program the way you do with jk rowlings novels. My concern was having to turn over the playbook bullets go to fair use briefly in the time that i have. How would you distinguish harper . Harper and rose is a case in which the district judge made findings and this court said when there are established findings and the court , not the jury is going to resolve their use it can be the Appellate Court or the District Court. Here you have a general jury verdict. There are no subsidiary findings whatsoever rid the jury was asked to him improperly extract instructed to weigh all the evidence and fair use factors. You cant unpack it in the same way you could with the court in harper and row. Is that because of the fact or because it was a general verdict . Both of those are critically important here. Its not the court thats designed the responsibility. The seventh amendment is the role of the jury and you would have to construe everything in our favor which the federal circuit disavowed doing. Thank you. Justice breyer. I have a question for each side. Im trying to answer in myown mind. For you, id like to ask this. I write down as the computer, i have a computer in front of me and i put java. Lang dot 410. And that calls up a certain program. Which you did not copy once he calls up which is setting the switches of a computer. The words i just spoke also call up a particular program. I. E. , a set of computers which is that will get me to the program that does a particular thing. Well, its a Computer Program isnt it . And you can copyrightComputer Programs. And so whats the difference between java. Lang which sets switches on the computer and any other program thatsets switches on the computer . That our point your honor. I know thats your point, thats why i wanted you to see it clearly enough that i can understand which is pretty tough. Are two parts to these shortcut programs. Theres what we call the implementing code that does the program and it provides the function will produce a larger two numbers. Oracle agrees if theres only one way to write that we can reuse that implementing code but it cant explain why the same isnt true for the code that you mentioned just a combination of the calls written by the developer and the declarations that appear in android java sd area there is only one way to do it then you give someone a copyright on that an exclusive, then you are saying that person is the only one who can make the computer do the thing whether its evoked implementing code through the call and declaration or perform the function of the program through the implementing code. Why is there just one way to do it . If you spend enough time and you have the most brilliant Computer Programmers , dont you think they could devise a system of calling up the java program so it might be expensive to do and take a long time that didnt use the word java. Lang. Now. Two things, why would we have a copyright system that does that where the only upshot of oracles rule that it wants you to adopt is to make Computer Programming credibly inefficient so that we have fewer creative computer grams but the second is known, we do have very good Computer Programmers and when you use that instruction , math, nextb java. Lang , the language itself, it is a rule of the language that there is only one declaration that willwork with it. That is a plain finding of the District Court that is uncontested. Thank you. Justice alito. Mister goldstein, im concerned under your argument all computer code is at risk of losingprotection under 102b. Use granular physician congresses content to provide protection for computer codes . I think that the criticism thats been living out our pure textual argument about the method of operation but its not a criticism i think thats fair of argument about merger and that is argument is limited in that sense to circumstances in which the function that is disclosed, that is here, the relationship between the calls and the declaration can only be written one way and its a principle that oracle conceived as i mentioned with respect to the implementing codes that actually makes the shortcut programs work that produces for examplelarger of two numbers. There are larger questions argument but how do you respond to oracles argument that you are arguing in a circle. That theres only one way to write a declaring code like oracle did . Thats not what were trying to do. Our analysis is by reference to what the developers are trying to do the developers, it is conceded have a right to use the commands they have learned in java including the ones that work with java sd. 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 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 every word in english if you get that specific is the only one that on has that precise meaning. We havent abandoned the bird merger doctrine, what we said is if they were distanced close something as java sd to closes its relationship between declarations, and you have the right to perform that function unless you want to go and get a patent. 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 way very heavily against you on the fair use issue, that a jury couldnt reasonably find in your favor on those factors. You should recognize i think those factors are continuums so if you were to say i do think not with any of the jury verdict that there was some market effect here and youd have to check the box that there is a market effect, you have to recognize that if the 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 unleashedmillions of creative Computer Programs used by 1 billion people , that on the whole did not unreasonable for the jury to find fair use giventhat it was the jurys responsibility. Thank you. Justice sotomayor. I go back to the questions i think my colleagues are asking is how do you differentiate between the declaring codes and implementing codes because you agree, you agree that you couldnt have copy ever implementing code are there 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 sames functions. They spent billions of dollars necessary, presumably you could have. And yet, you spend so much time in your brief convincing me that in lamenting and declaring codes go together in this hand, they merge. Out do we draw the line area. You dont. It is actually oracle that is trying to draw the distinction that you say is not recognized a statute or common sense read the legal principle you can reuse computer code i can only be written one way applies to both the planning code and implement an code red oracle concedes that its implement an code could only be written one way we can reuse it. It cannot explain why it is a given that the declaring code will not function if its written another way we cannot reuse that theyre trying to draw that line. With respect to apple its true apple didnt reuse a java sd declarations because it wasnt using java t. It did reuse other declarations but thats like saying the merger doesnt apply to something new. May i stop you right there. Thats the nub of the problem which is what gives you the right to use their original work. How do you define method of operation so that theres a clean line between that and when you have to create new code. Like an implementing code. So section 102b, what it tells you is you cant get a copyright in the functionality of the computer code and theres so many things listed in section 102b like method of operation because Congress Wanted to be encompassing. You get the copyright none of the functionality. Its the merger doctrine that tells us that if theres only one way to write the computer code that will provide that functionality, then you cant get a copyright protection. You have to get a patent protection. With respect to the implement code because there are numerous ways to write implement an code as the district work find we wrote millions of lines of it. The only reason that we reuse the declaring code, we would have only known is that we have no other choice. With a Computer Program that would respond to the developers instructions without reusing this limited set of instructions read. My problem with your argument is whats your definition of interoperability. It seems one directional. You seem to tdefine it as the extent to which existing or Party Applications can run on your platform. But not whether develops on your platform canrun on systems that use java sd so its one way. So the people now copy, you now have developed many different packages and platforms and things like that. Can they copy yours now and mark. They can copy any part of our code including our interfaces, our declarations can only be written this way e. We have interoperability in the fact that the developers instructions work with our methods, our classes and our packages. It which 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 doesnt work nearly as well. Thats actually incredibly important and what congress would want and that is to be able to take the functionality of the Computer Program, someone else comes along and does it better. Its no surprise we dont use all the packages because they dont have anything to do with the modern smartphone gri