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The copyright ability question in this case. Oracle has a copyright to the computer code in java. Right to the functions and oracle cannot leverage the copyright to create patent rights. Under their murder doctrine there is no copyright protection for computer code that is the only way to perform those functions. Java developers have the right to use certain commands to create applications for google, android platforms. To work the commands require google to reduce a set of declarations from java fc. Because there are no substitutes oracle is claiming the exclusive right not merely to what the declaration is saying but to what they do. That is not a copyright, it is a patent right. Reusingtice of interface is critical to commuter software. Reusing the declaration allowed developers to write billions of creative applications that are used by more than a billion people. Those policy questions are almost academic because the issue is not one this court would find fair use. The standard of review asks the narrower question of whether the jury could find fair use. Oracle obviously regrets its demand that the jury way all the evidence and decide fair use and a general verdict that contains no subsidiary findings. No Previous Court ever held only a court may decide fair use. It is so background no prior Appellate Court ever return to fair use verdict. This uniquely contested case should not be the first. Today you will hear three lawyers present legal argument for an hour. Heard thehe jury starkly conflicting testimony of almost 30 witnesses and reviewed 200 exhibits over 2. 5 weeks. This case illustrates, at this court reiterated, that fair use is notorious fact sensitive and cannot be resolved without trial. Mr. Goldstein, let us say someone copies the headings in your brief and they copied the organization in your brief, which sections you put first how you organize them. Would your argument say that is perfectly fine so long as they write their own text . No, sir. Evea Computer Program is different and you would not have the merger doctrine. It is not possible to provide the functionality we have the right to with android without recreating that structure. I understand your merger argument is different, but i do not think that was the question i asked. Sir, in terms of whether you could recreate the headings from a brief or a book and recreate the structure, not unless it was necessary to do so and that is what is true here. If you are talking about necessary to do so, and again you are forcing me back to the merger doctrine and that is fine, the only reason that there is only one way to do it is because oracles product expression was very successful. There were a lot of ways to do it when they did it. The fact that programmers really liked it and that is what everybody used, it seems a bit much to penalize them for that. We do not intend to penalize them, but our point is in the language of section 102b they could have come up with a novel model of her operation. They do not get the rights to that. That is a patent right. Just at your point illustrates elvin,ker versus s he came up with bookkeeping and other people could have used a different one. That was not enough to give him a copyright. I do not think it is a patent right. It is there particular their particular expression and the only way for you to say what you want to say in the material you provide is to copy theirs. That is not patent, that is copyright. Our point is that we can provide a certain functionality to make a computer do something. That right is given to us. If there were other ways for us to do it, that would be another matter. Because there is only one way there is no copyright protection. 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. There was enormous creativity that is unleashed the ability to reuse the declaration. Before you get into fair use you say that was the only way to do it. But cracking the safe may be the only way to get the money that you want. That does not mean you can do it. If it is the only way, the way for you to get it is get a license. Your honor, the analogy would help because if you get a patent on the safe, you may be able to keep us out. But if you write a book about the safe, about how to crack safes, that does not give you the exclusive right to do it. Well, all right. Combinationut the to the lock on the safe . That just because somebody else has it and that is the only way to get in . Certainly if you write a book about how to unlock the combination of something, unlock the combination of a lock, that does not give you the exclusive right to the lock. All it does is share the knowledge about how to crack safes or open lots. What copyright wants is for people to be able to use that knowledge and that is what we want. Thank you, counsel. Justice thomas. Thank you, mr. Chief justice. Mr. Goldstein, you seem to rely quite a bit on section 102. Why dont we rely on section 101 which is more specific with respect to compete or programs . Your honor section 101 tells us oracle holds a copyright in java as a Computer Program. Us that102b tells copyright does not extend to any method of operation in java. With the merger doctrine tells us is the idea expression dichotomy. Way toe is only one provide a method of operation of java, you cannot get a copyright on that expression. The method oft operation of java is a of command by developers, and the declarations in java. If there are no substitutes, if we cannot use anything else, you would be getting oracle patent rights by preventing us from reusing the declarations. At what point should we whether orhe merger, not there is merger . When oracle develops this program or when you decide to use it . The latter and that is the vin. Hing of baker versus selde when you copyright something you disclose it to the public. Slevin has the dual entry system. Then the public has the right to use it. Once oracle published java those in the public, developers, had the right to create the same functionality. Is there anyway to do it without using the expression of the original . When there is not there is no copyright protection. If a team could argue takes your best players, a football team, the only way those players could actually perform at a high level is if you get that team your playbook. I do not think anybody would say that is right. Sir i am sorry. Go ahead. We cannot do it at a high level. Everyone agrees we have the right, as google, to write a Computer Program that provides the same functionality as java se. And android, we wrote better versions that were better for a modern smartphone. Not like we are trying to take someones fan base whether they are a Football Player or anybody else. It wants prisoners. It wants the people who used its work, the developers, only to be able to use it. That is not what i copyright gives you. You do not get a fan base with the Computer Program the way you do with j. K. Rowlings novels. My concern was having to turn over the playbook. Alsoe words i just spoke call up a particular program. A set of computers switches that will get me to the program that does the particular thing. Program,is a computer isnt it . You can copyright Computer Programs. What is the difference between ng which sets switches and any other program that sets switches on the computer . That is our point, your honor. I know that is m your point. Say it so i can understand it. There are two points to the shortcut programs. There is the implementing code that does the program and provides the function. It will produce the larger of two numbers. Oracle agrees that if there is only one way to write that, we can reuse that implement and code. But it cannot explain why the same is not true for the code you mentioned which is the combination of the calls written by developers and the declarations that appear in android and java se. If there is only one way to do it, you give someone a copyright that is exclusive, and you say that person is the only one who can make the computer do the thing whether it is invoking the implementing code through the declaration or performing the function of the program through the implement and code. I bet there are not one way to do it. If you spend enough time and you had the most brilliant 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 they did not use java. Lang . Why would we have a copyright system that does that . We are the on the upshot of the rule is that it wants you to adopt to make Computer Programming incredibly inefficient so we have fewer creative Computer Programs. The second is we actually do have good Computer Programmers. When you use that instruction, the language itself as a rule of the language. There is only one deaf declaration. Thank you. Justice alito. Mr. Goldstein, i am concerned under your argument that all computer code is at risk of losing protection. How do you square your position with congress expressive attempt to provide protection for computer codes . Your honor, i think that is a criticism levied at method of operation, but it is not a system that i think is fair about merger. Our argument is strictly limited in that sense to circumstances in which the function that is disclosed, the relationship between the calls and the declaration, can only be written one way. It is principle that oracle concedes to the implement and code that makes the shortcuts work. That produces the larger of two numbers. There are questions about the merger argument, but how do you respond to oracles argument circleu are arguing in a that there is only one way to write a declaring code like oracle did . That is not what we are trying to do. Our analysis is not circular. It is by reference to what the developers are trying to do. The developers, it conceded, have a right to use the commands they have learned in java, including the ones that work with java se. When the developers use those writeds we have the right the computer that will respond. Permits us tonly use those. You could make the same argument about anything in english. You could say every word in english, if you get that specific, is the only one that has the precise meaning. That we have abandon to the merger document. Discloses between declaration you have the right to perform that function, unless somebody wants to 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, weigh heavily against you on the fair use issue . That a jury could not reasonably find in your favor on that factor . You should recognize, i think, those factors are continuums. , i thinkre to say there are some market effect, you would have to check the box saying there is market effect. Would have to recognize that a jury looking at all the evidence could reasonably conclude that the other fair use factors, including the fact that the original material, the declarations as barely created, in the fact it unleashed millions of creative Computer Programs used by a billion people. That is not unreasonable for the jury to find fair use given it was the jerrys responsibility jurys responsibility. Thank you. Justice sotomayor. Counsel, i go back to the essence of the questions i think my colleagues are asking. How do you differentiate between declaring codes and implement an codes . That you couldee not have copied your implement and code because there are multiple ways of doing that. You fight declaring codes because there are multiple ways of declaring. Apple has a different way of declaring the same functions. They have spent billions of dollars necessary. Presumably you could have. Timeet, you spend so much in your brief convincing me implementing and declaring codes go together in this hand, they merge. How do we draw the line . You do not. It is actually oracle trying to draw the distinction 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 implementing code and declaring code. Oracle can see the implementing code can only be written one way and we can reuse it. It cannot explain, given that the declaring code will not function written another way, we cannot reuse that. They are trying to draw that line. It is true apple did not reuse the java se declarations because it was not using java. It did reuse other declarations. That is like saying mergers may i stop you there . Problem which is what gives you the right to use their original work . How to define method of operations so there was a clean line between that and when you have to create new code like implementing code . Sure. Tells you youecause cannot get a implement and code because congress wanted to be encompassing. You could copy none of the functionality. It is the merger doctrine that tells us if there was only one way to write the computer code that will provide that functionality, you cannot get a copyright. Patente to get a protection. With respect implementing code, because there are numerous ways to write the code, we wrote it, millions of lines. The only reason we reused the declaring code, we wouldve happily written around, but we had no other choice. We could not write a program that would respond to the developers instruction without using this limited set of instruction. My problem with your argument is what is your definition of interoperability . Theseem to define it as extent to which existing thirdparty applications can run on your platform. But not whether app develops can run on systems that use java se. It is one way. You havenow copy now developed many different packages and platforms and things like that. Can they copy yours now . They can copy any part of our code, certainly are interfaces that can only be written this way. We have interoperability in the fact that the developers instructions work with our methods, our classes, and packages. It is frequently the case that you have, and modern Computer Programming, interoperability. You have a new Software Program that comes in and supplants an older, less superior one. That is incredibly important and what congress would want. To be able to take the functionality of a Computer Program, someone else comes along it does a better. It is no surprise we do not use all of the packages because they do not have anything to do with a modern smart phone. They do not have a gps function to them. On the other hand, the smartphone does not have a computer mouse. There is no reason to think you would reuse all of them and it would be impractical given the strength of the smartphone. Thank you. Justice kagan. Mr. Goldstein, im a little confused about some of the arguments you are making. Maybe it is just me and i do not understand it, but im hoping will explain it to me. When i read your briefs i took you to be making a somewhat different argument than the one you are making today. You could be saying the declaring code is unprotected because method of operation. That is what allows job programming to operate the computer and setting forth a flat rule out that. I do not hear you saying that today. I hear you saying the real question is, are there multiple ways of doing the same thing . Are those different arguments in which one are you making . They are both different arguments. We are making both of them. I am focusing on merger. The argument you mentioned i do not think it is. A straight forward argument that the declaring code is a method of operation because it is the instructions to the developer on how to operate the shortcut, prewritten Computer Programs. Today i focused on the argument that if you disagree with that and you believe section 102b only applies to dichotomy, you say 102b said you cannot copyright all the ways of having method of operation of java se. My point is that is what they are trying to do. The District Court found excuse me, im sorry. If that is the test you are focusing on today, is that essentially the test that comes out of the Second Circuit . Is there any difference between what youre saying today and that we have to separate out the expressions of something . An element of the test you take out the elements that are not subject to copyright protection in merger is in there. That is one of the reasons an element of a Computer Program would not receive copyright protection. Effect that emerges. The fact that emerges. If i could go back to something i think the chief justice was asking, suppose i am sitting in a mathematics class and the professor says, do a proof of something or other. That 20 people in the mathematics class actually come up with more than one proof and some are better than others. Some are elegant and some are less elegant. Ofre are more than one way proving whatever proposition there is. How do we deal with that . I would think that is pretty analogous to the situation. There is more than one way and oracle happened to come up with a particularly elegant one. It depends, your honor, on what the it is. Someone, the developer, will type into the computer and that person will put in particular information. The question is how is it you are going to write a Computer Program and respond appropriately . If you say you can get a copyright for the only computer code that will understand the proof, there is only one program that will look at students proofs and understand them, if you get some a copyright, of the else can make a computer do that thing. Section 102b is granular. It does not ask the question could you generally find the larger of two numbers or prove something . It gets down into the details. You cannot get copyright protection with method of operation. This is clearly the method of operating java se. Thank you, mr. Goldstein. Justice gorsuch. Good morning, mr. Goldstein. If i understand the conversation moving pastare rapidly the primary argument in your brief. Code is not copyrightable. I think that is probably a wise move given the fact that 101 says Computer Programs, including statements or instructions, in order to bring about a result may be copyrighted. We may not think otherwise. It should be, but there it is. Normally the specific instruction in 101 would generally govern the dichotomy in 102. Mi right that we can move past that rapidly . Our main argument is the merger doctrine. I will take that as a yes, i will be honest with you. I was going to if we moving onto the merger doctrine, i guess im stuck in a similar place as Justice Kagan. The argument strikes me as i wish to share the facilities of a more successful rival because they came up with a particularly elegant or efficient or successful, highly adapted solution in the marketplace. Their innovation. What do we do about the fact the other competitors, apple, microsoft who is one of yours, have come up with phones that work just as fine without engaging in this kind of propping . Everyone agrees that every platform, including java se, does what we talk about just implement prior languages or prior platforms. Apple and microsoft use different leg which. It is like saying we cannot have merger in english because someone could write something in french. The rule that oracle wants is hasamentally something that real world analog. Patent,e rights like a but Congress Says you can have the exclusive rights to the actual code, but not to what the computer does. Saysnt it difficult to this is a problem when others have managed to innovate their way around it . If this was any such law, then perhaps. But section 102b tells us you cannot have an exclusive right to inessential facilities. It does not say you can get a copyright with respect to method of operation so long as it is unimportant. If we are worried about ideas and expressions merging, and others have been able to accomplish the task without reliance on what you might claim is essential, where do we stand . We are misunderstanding with the task is that. En. An idea of crating a phone, fair enough. The test is looking at the actual copyrighted work and find the method of operation. In java se, you will find this relationship between the declarations and the developers commands. That is something that functions in the Computer Program you cannot get a copyright with. In any event, it would look to the jurys fair use verdict. Given that the jury heard these debates about the relationship between java se and android and concluded on the whole, as was its responsibility, this was fair use. Thank you. Justice kavanaugh. Thank you, mr. Chief justice and good morning, mr. Goldstein. To the extent you are still making the method of operation argument the other side and solicitor general say declaring code as a method of operation only in the sense Computer Programs as a whole are methods of operation, and that therefore your method of operation argument would swallow protection for Computer Programs. Your response to that . Declaring codes or something very distinct. It tells, and this is oracles point, it is unique in that it tells outside developers what to do. The developer looks at the declaring code and knows how to operate the shortcut, prewritten programs. It tells us someone else how to operate the Computer Program. That is absolutely unlike any other code. On your merger argument one concern that has been raised already is the timing issue. Another concern i want you to topond to is that it seems define the relevant idea in terms of what you copy. You are not allowed to copy a song just because it is the only way to express that song. Wise that principal not apply here . Because we are not defining merger self reflectively. We are not saying, i want you to copy these declarations because i like them. We say we have to reuse them because im try to respond to commands from other people. Not very creative and when they write that i have to be able to write a Computer Program. Oracle can see that. In the sense of baker versus selden it teaches that if you have a copyrighted work, and shows the public how to do something, the republican do it. If they can only do it using part of the copyrighted work, that part is not to copyright protection. Points in the briefs, and i want to couple met the briefing of the parties which have been enormously helpful, of the 83 computer scientists is that the sky will you in we rule against this case. Threaten significant disruption. That istion i had about the federal circuit ruled on the first issue. I am not aware the sky has fallen in the last five or six years with that ruling. I know it is different if we rule here, but can you respond to that . Absolutely. After the copyrighted ruling it was entirely open that we would prevail on fair use and we did. We won the fair use trial. When the federal circuit ruled against us the Court Granted search. I would not gainsay the , of the Software Industry itself. The premise is not in dispute. Interfaces have been reused for decades. It has always been the understanding this purely functional, noncreative code that is the glue that keeps Computer Programs together could be reused. It would append that world to rule the other way. Thank you. Mr. Goldstein, would you like to take a minute to wrap up . Thank you, sir. I want to address the argument it is sufficient that google could write declarations that would require developers to learn new instructions and we are just stealing this efficient way of doing it. Would make the creation of innovative Computer Programming less efficient. That would turn the copyright act on its head. Declaration deserve the least copyright protection. There is no textual basis for that. Connecting developer commands is essential to the method. Without that they are worthless. By claiming the exclusive right to the declarations function oracle is asserting a patent right in order to inflate itself and competition. B to any method of operation that is in java se. There is no exception for possible substitutes. Saying developers could use different commands is another way of saying they could use a different method of operation and that would be in conflict with baker versus selden. The argument proves too much because it would apply equally to the implement in code. Developers do not have to use prewritten at all. They correct their own code from scratch. It would just be less efficient. Thank you, mr. Goldstein. Mr. Rosenkranz. And you, mr. Chief justice in may please the court, googles whole argument is the code is different. A few basic legal principles and concessions control the outcome of this case. Legal principle 1 congress defined literary work to include software and grant copyright protection as long as the code is original. Google can see the code is original. That is the end of the question. Google asks this court to carveout declaring code, but congress rejected the very carveout in multiple ways including its definition to Computer Program, and by not including googles clock out among the limitations in section 117. Legal principle 2 this court held that a superseding use is always unfair in matter of law. No court has found fair use or upheld that verdict. They have copied so much in a competing sequel to mean the same thing and serve the same purpose as the original. Google conceded the purpose and the meaning are the same. No one else thought innovating required copying some code without a license. Copy and microsoft did not their competing platforms. Neither did others with competing platforms in the java language. There was, and still is, a huge market for declaring code. Ibmr Major Companies like and sap were paying a lot of money to license just some declaring code precisely because it was created. Throughout this litigation google never denied this. If this court holds 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 that copyright was designed to promote. Mr. Rosenkranz, let us say you want to open a restaurant. You have got a great chef, hes has got great dishes, and you say we have to figure out with a menu should look like. Of course you are going to have appetizers first and then entrees and then dessert. You should not have to worry about whether that organization is copyrighted. I think mr. Goldstein is saying that is what is going on here. Every restaurant organizes its menu that way and you do not want to discourage people from opening it because theyre going to have to spend their own time tried to figure out what the menu should look like. Why isnt that exactly what google is saying here . Your honor, this will be a constant team. There is a doctrine for that. Two actually, first for the menu. If it is a standard way of doing things, it is not protected. Or it is unoriginal by your own description. What we have got here is very different. It is not a menu just saying, here are apps and hear our dinner plates. With standard descriptions that everyone uses. Filled the blanks in 30,000 times over and each item had its own description that no one else was using. See, they did have a choice. In other words, your work did not leave them with no option. What choice did they have without having to spend billions of dollars . That would be wasteful and up either development of the hightech wasteful and impede the development of the hightech business. Without spending billions of dollars microsoft and apple both spent billions of dollars creating competing platforms. That is what the copyright act requires. The copyright act does not give google a pass just because it would be expensive to recreate our expression. Says, the mostn efficient and best way to do it, the way to keep programmers doing new things rather than all things is to use java. Honor, in no other context would it be appropriate to be asking whether there is either unprotected whether the work is unprotected or whether there is fair use by saying that the audience has learned the words by heart. If someone wanted to write a book that preserved, the reproduced the 11,000 best lines of seinfeld, they could not do it by claiming we had to do it because those are the lines everyone knows. Thank you, counsel. Thank you, justice thomas. Thank you, mr. Chief justice. Mr. Rosenkranz, seem to be arguing for more than the declaring code. If i am right, do we need to decide more than that . No, your honor. All this court has to decide is whether the declaring code, for purposes of copyright ability, whether it was original it was and for purposes of fair use whether it was fair to copy the declaring code. The point you are noting in the brief is the point several justices made this morning. You cannot distinguish declaring code from implementing code. Certainly not in the way congress defined the code. There is no principle to distinguish. No distinction courts are capable of drawing as Justice Breyer noted. Code is code. Declaring implementing code both consist of words, numbers, or other numerical symbols within the definition of literary work. Both operate a computer. Mr. Goldstein says his rule is what congress would want, but congress rejected the exact line the google proposed when it defined Computer Programs in section 101 as code to be used directly or indirectly to bring about a result. You seem to argue in any case the googles use was not transformative because the use of declaring code operates in android the same way it operates in java. In your way of thinking, what transformative would look like in context of computer code . In the context of computer code, the ninth circuit in both sony areus great. The code was never incorporated into a competing project. It was used to study, to figure out how the machine worked and that was a transformative use. In order to preserve the statutory right to create derivative work this court held transformative use was alter the original works expression, meaning, or message. Google did not do that. Every line of code it copied served the same purpose and communicates the same thing. Adapting our code for the supposedly new smartphone environment does not change the meaning and is no more transformative then adapting a short story into a movie. What google did is the up enemy of commercial superseding use. What campbell describes as using a work to get attention or avoid the drudgery of working up something fresh. Thank you, counsel. Justice breyer. Assume with me the following. Assume the Computer Programs are copyrightable. Then it says methods of operation are not. The problem for us is, is this more like bakerview selden baker versus selden . Or is it more like an ordinary Computer Program . What i got out of reading through this very good briefing is, look, javas people divided the universe of tasks, of which there are billions, in a certain way, all the things that tell the computer to do those things. But that which tells the that is which to do, the declaration. Here is what it is like. You did not have to have a keyboard on typewriters at the beginning, but if you had somebody had a copyright on that now, they would control all typewriters which is nothing to do with copyright. Switchboards on oldfashioned telephone systems. You could have done it 1000 ways, but once you did it all those operators across the world learned that system and you do not want to give a Copyright Holder and monopoly. Or dislike the chief justices example. A chef that figures out a brilliant way of mixing spices and putting the spices for this and that in a certain order on the shelf and then you write something that tells you which shelf to go to which shelf to pick out. Which spice to pickup for which dish. All of those things are somewhat ordinary, but they are also doing something. They are giving you an instruction as to how to call up those programs that reflect javas organization and at this point in time, it is really tough. Very bad consequences will flow if you do not see that distinction. Ok . Long question, but that is what i got out of the method of operation argument and i wanted you to say what you want about that. Thank you, your honor. I will answer your seven questions. First, this is not like the qwerty keyboard. There was nothing expressive in qwerty. It was purely mechanical. That is true of all of your examples. But you have got to the nub of it by asking about baker. Seldenr, the author described a bookkeeping system. Selden tried to extend his copyright in the description to block everyone else from using that system. Forms wered let your necessary to use the system. Bakers forms were not even the same, but selden sued for Copyright Infringement because bakers forms used seldens system which was to say they depicted on a single page. The court said you cannot monopolize paper. Thank you. Justice alito. Mr. Rosenkranz, can i ask you about 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. What wasnt the federal circuit standardto apply the and ask whether the evidence presented at trial would have been sufficient as a matter of law to support the jurys varies verdict . Honor, that is with the federal circuit did. Performedof appeals three stubble standard that google urges. The court said no reasonable appendix 27 toed 28, 46, 51, and 52. Having found factors strongly favored oracle and googles use was superseding, there was no other reasonable conclusion but that googles use was unfair use. To circle back to the first half of your question the standard root of review is it respects the jurys findings of historical fact, but then allows as they have been doing for decades to decide what legal conclusions to draw from those facts. Use requiresr primarily legal work and in an area of lower stability is paramount, and were president use typically turns on disputes about the legal standard. There are some mixed questions of fact and law that are submitted to juries. That is what was done here. Was that an error . No, your honor. I think what this court has done under fair use is review. Case, theythe genova were not sending it back to the District Court to resolve anything. That this court could decide an Appellate Court may take as a matter of law that the challenge use does not qualify as fair use once it has the factual record and resolves all factual subsidiary questions in favor of the factfinding. There were numerous disputes in harper including how you weigh various factors, questions like the value of news reporting weighed against the original derivative. I grant you 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. Thank you, counsel. Justice sotomayor. Council, in your beginning statement you had this guide following if we ruled in favor of google. The problem with that argument, for me, is that it seems since 1992, and Justice Kagan a ninthd the case circuit case, 11th circuit case, a First Circuit case, that a basic principle has developed. 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 computerworld have not tried to analogize computer codes, other methods of expression because it is too generous. Said, the api, application programming interface of which the declaring code is part, is not copyrightable. Implementing codes are. Understanding industries have built industries have built up around canications that know they copy only what is necessary to run on the application, but they have to change everything else. That is what they did here. That is why it took less than 1 of the java code. So, i guess, thats the way the world has run in every other system, whether it is apple desktop or amazon web services, Everybody Knows that apis are not declaring codes copyrightable. Implementing codes are. Please explain to me why we should now upend what the thestry has viewed as copyrightable elements, and has declared that some are methods of operation, and some are expressions. Why should we change that understanding . Your honor, i beg to differ with the understanding of the lower court cases. Not a single case has ever said that you can copy this vast between platforms to use for the same purpose. The Third Circuit, the First Circuit, the ninth circuit, the 10th circuit, they all agree with that. No one true that distinction between implementing code and declaring code, you will not find a single case that does this. It is just wrong that the success of the Software Industry depends on unlicensed copying. Major corporate entities were paying a lot of money. Key point that involve either no copying at all, licensed copying, or copying of elements that were so uncreative that no one was say they are protectable. Justice kagan . As i. Rosencrantz, understand it, there are two features of your declaring code that you think merit copyright and it want to ensure im right on this first. The first feature, and this is pretty basic, is that we need some way of connecting a programmers input, some way of connecting those inputs to implementing code. That therefeature is needs to be a way to organize those inputs and to various classes and packages. One is like the trigger and one is the rest of the organization. Is that right, is that the thing that you are saying merits copyright . 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 method. And eacht self created line of declaring code actually teaches the user what that method does, how it is used, how it relates to others, and what the results will be. Those are the two things. Lets start with that, the structure, the organization. Even if we have time to get back to the other. Ill give you an example that is similar to one that the chief justice used that i think you wont be able to answer in quite the same way. Storesay i own a grocery and i come up with a really turkic way of organizing my fresh produce, my vegetables into these categories. Their intuitive for the shopper. This is not a standard way. It is different from the chief justice is hypothetical in that way. A rival grocery store, all rival Grocery Stores want a copy of it. Do i have a copyright claim . You dont have a copyright claim anything that is not set down in writing. You are hypothesizing that you put down in outline form way of organizing. Maybe there would be a lot of their use questions about that, but this is different why is it different . It seems to me there are all kinds of methods of organization in the world, whether it is the keyboard or the periodic table, or whether it is the system of kingdoms and classes and so forth that animals are organized into. There are 1000 ways of organizing things which the first person who developed them could claim to have a copyright and prevent anybody else from using them. To answer. First, lets not forget that the declaring itself is enough volume to take up 600 pages in the joint appendix. The declaring code itself gets protection. But the answer is the relationships of the methods, classes, and packages, it is not just most intricate hierarchy youve ever seen, if you look at one package on page nine, you will even see it, multiple pages of this appendix, but the relationships across from one package to the next, from one it isto the next, extraordinarily intricate in a way that does deserve copyright protection. Thank you. Just as gorsuch . Good morning, counsel. Your colleagues on the other side suggested the federal circuit did not get sufficient deference to the jurys finding of fair use, and i would like to follow up on that. Often, factspecific questions like fair use that are multifactor balancing inquiries are reviewed before substantial evidence in the record. That is not what the federal circuit did. Particularly when questions are bash legal rules have yet to form around them. Circuitld the federal not have used the traditional standard of review . Your honor, my first answer itthe same as the answer, actually did when it was conducting its analysis of those numbers that i mentioned. Im sorry to interrupt, but lets just suppose that is not how i read the decision. Lets suppose i agree with you, i think you have said elsewhere that it properly reviewed. Casehouldnt we remand a for the consideration of it under more deferential review to only apply to jury findings and general vertex general verdicts . I would say in addition to the point that i made earlier about the need for clear rules, i would also say in terms of institutional conference, this is a question of privacy. The key difference between us that only a jury can balance the factors. That cant be right. That would mean that even if parties speculate on all the granting Summary Judgment is what courts do all the time. Cases defineduse by courts in a 30 year time span. Google could find only five cases, and even went to a jury. Approach, that would be nearly impossible because it would be a fact question for every jury. Thank you, counsel. Justicecapital . Kavanagh . I just want you to follow up on two of my colleagues questions. First, any more you want to say about Justice Breyers qwerty keyboard question, and second, Justice Sotomayor question that settled expectations . I would add the 83 computer concerned about threatening significant disruption, if you could just follow up on those two and i have no further questions after that. Thank you, justice kavanagh. I want to finish the answer on paper. 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 some wrote its own specific layout and filled in the blanks 30,000 times over, we seek to only realized expression and others are free to write and organize their own prewritten asgrams however they see fit long as they dont copy ours. Half ofnswer the second the settled expectations, youve heard dire predictions from google about the future software. Nnovations different administrations would not be supporting us if our position were a threat to innovation. The Software Industry rose the world dominance because of copyright protection, not unlicensed copying. As you pointed out earlier, just as capital, the sky has not fallen in six years since the court of appealsfirst decision. It has brought numerous interoperability. Machinemputing, 5g, learning, and autonomous vehicles. I can tell you two things that will kill software innovation, the first, change the rules under which the industry has thrived for 40 years and substitute a rule that a copy is what every jury decides as a matter of public policy, and the second is take away the incentive to write original code. Thank you, counsel. Do you want to take a minute to wrap up . Yes, mr. Chief justice, thank you. Let me just say two things. The first is that ruling for google will decimate the incentive to create highquality, userfacing codes, codes essential for the industry to survive. Developershurt app in the long run, because who will invest the excruciating time it takes to refine codes from the passable to the masterful if they can all be stolen . These companies are spending lots of money right now to license declaring code. They simply not true that are all paying for nothing because it is all unprotected. The whole market, that whole market would be gone with the stroke of a pen. Congress has the copyright act to secure the longterm incentive, not shortterm expedient to copy. Ruling for google will also destabilize copyright laws. Our rule protects original code, it is a simple rule, it supports the traditional copyright principles. To copy whenever necessary for a user to bring about a result is poorly defined and the courts and the industry would have decades of uncertainty. Mr. Stewart . Thank you, mr. Chief justice. In the 1970s, congress established the National Commission to study problems related to copyright laws and consumer code and in my 78, the commission issued its report recommended that can peter continue to be eligible for copyright protection. The justification a gate with a computer code is much more expensive to draft than it is to copy and consequently, potential authors of computer code knew that their works can be freely copied, there would be a pronounced this and send it to creation and of course, it is the preservation of those economic incentives to create that is the core justification for having copyright protection in the first place. Core argument is that once the App Developers it wouldned the codes, be inefficient to make them learn new codes in order to invoke new declarations. Variety of circumstances, once a work have been creative, if you focus exquisitely on that work, it would often see more efficient to allow copying. Stewart, we represent the United States, of course, and were told that if we agree with oracle will ruin the Tech Industry in the United States. Why is that not true . I should think it is. I can give three or four reasons to the first has been explored already, they issued the copyright opinion in 2014 and we havent seen effects from that. The brits is that talk about the practices of copying interfaces, but those terms are very vague and potentially expensive. A lot of things that might be called interfaces would be segments of code that are so short that they dont 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 is not a basis for the rule. And the third thing, there is a prevalent practice of licensed copying of declarations. 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. Thank you, mr. Stewart. Justice thomas . You, chief justice. Mr. Stork, a couple of quick questions. Do you think the federal circuit applied the proper review of standard . We do, and we agreed that the rule standard applies for a reasonable jury that reached this verdict but in litigation, its obviously very common that there could be disputed questions, both of fact and law. Even when the questions of law are posted, reasonable judges can disagree, the court is supposed to say what is the right answer to those legal questions . And so when we asked, could a reasonable jury have found fair use here, we should be asking, could be reasonable jury applying an accurate version of the law have found fair use . So we assume that the jury made factual findings that are most favorable to google. But then we ask, what is the right answer . Was this transformative . I think that is the way that the circuit did it. They would assume the version of the facts most in googles favor and then we will determine as a matter of law if this is transformative. That is the way that the court did it in harper row, but there is no reason that a jurys like hadn of questions we balance the relevant factors should be given greater weight than the District Court with respect to the same questions. One final question. Analysis hasr use provided four factors and we have said that those were not exhaustive. Can you think of anything else that should be added in that analysis . Cant think of anything else. There may be other factors in particular cases, but the only thing i would emphasize is that in deciding questions of fair use, the court should not 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 . Justice breyer . Im curious as to why the government thinks the balance live the way you do. I do think of the qwerty keyboard. It calls a the laws that make an impression on a piece of paper and that is how you write words. The system calls up a system of dividing the world into a variety of tasks, which then will be done. No. Nothing in copyright is meant to give the owner of the qwerty, whoever thought of that, and monopoly of type rating. Type writing. And nothing here, if in fact, you give them a monopoly of this, the millions of people who have learned it will have to spend vast amounts of money when we get all kinds of new methods for using computers, turning on heaters, stoves, etc. , 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 its roughly what they are arguing. Why does the government project that . I think there are all sorts of things like the qwerty keyboard that have become would not have been eligible for copyright protection in the first instance. They are not sufficiently creative. Here, google has conceded that the large volume of individual declarations and the intricate method of organization is reflected in the sso are sufficiently creative. The second thing, when we talk about the people who will have to learn new calls in order to invoke the declarations, we not talking about consumers, we are not talking about the people who actually use this. We are talking about App Developers, these are economic actors. Their interests happen to align with google because if they can create popular apps, the developers will gain money and google will gain advertising revenue because the platform will become more popular. Justice alito . My question for the government is essentially the one the chief justice asked. There has been some elaboration on it and obviously, it is the sky is going to fall if we do not rule for google. Do you have anything you want to add on that, on that point . The only thing i would flesh out a little bit was that the last point that i had gotten to for the end, there is this phenomenon of licensed copying. Sometimes, often the license terms dont include the payment of money, they simply include a requirement for whatever improvements to the code you make have to be given back to the programming community, have to be made known to other professional programmers. To the Copyright Holders enforce those licenses, obviously depend on the proposition that the code is copyrightable to begin with. Those licenses would be a flagrant gesture otherwise. In the very fact that those licenses are offered with such frequency tends to dispel the idea that there is a common understanding in the Relevant Community have this material is not copyrightable at all. Thank you. Justice sotomayor . Counsel, could you tell me why you think that googles work was not transformative . If moved job of javas platform from a pc, essentially, to mobile phones. Why wasnt that a transformative step . Allan, the answer is that fair use involves copying. So, to do fair use, you have to copy something. And create something new from it. So, why wasnt that a giant step of fair use . Say three or four things as to why this wasnt transformative. Explains, when google why a copy of particular declarations and not others, the explanation that it gives is that these are the declarations, these are the functionalities that will carry over to a smartphone platform. Declarations that will be useful in the new technological environment. Even know a lot of the code that oracle has written might not be useful, this is. That is the only way to make copied, inwhat they terms of the declaring code, it was only that which would function in the new environment. Theys not the only way could do it that would make it function in the new environment. There are very clear about this. It was the only way that would allow the developers to use the preexisting calls in order to call up the established methods. The second thing i would say about transformativeness, that whole argument about allowing App Developers to use their knowledge, the only way that it works is that developers can have confidence that when they use code with which they are familiar. It will trigger the same functionality it has triggered on the java platform. It is not transformative in that sense, the code is performing exactly the same function as it performed on java. If you imagine a Motion Picture that has only been released in theaters and somebody is to print and offers to live stream it over the internet, it is the same content that has been seen, simply being used on a different platform. No one would think of that as transformative. Justice kagan . Suppose that i come up with a new and very useful keyboard. Something better than qwerty. So useful that everybody starts using it. Lets assume for the purposes of my question that this is copyrightable, which it might be or is not be, but lets assume that it is. When a cell phone, a smartphone manufacturer takes that layout, takes that keyboard and uses it for its next phone, is that fair use, why or why not . The Fair Use Analysis would depend on a lot of factors that yes, in Fair Use Analysis, you can take into account that is developing expectations, concerns about interoperability. We are assuming for these purposes as you ask that this is copyrightable. That would be a factor to consider in Fair Use Analysis. We dont have a proposition that interoperability can be a favor for Fair Use Analysis. Why isnt it any different here . Programmers wouldnt have to learn a whole new system for coding, just as a cell phone soufacturer took my keyboard that people can rely on something familiar. But one of the differences is that the App Developers are in a fundamentally different position from the consumers. If google had passed its own employees with creating new apps so that the injured platform would become more popular for consumers, nobody but think that the desire to make it easier on by not requiring them to learn new calls would be providing fair use. That was the paradigmatic copying in order to avoid the treasury of working up something new. The analysis should not be different just because the App Developers are economic factor whose interest happened to align with googles, rather than a google employee. Thank you, counsel. Justice gorsuch . Thate government concedes this work is copyrightable and then set the Fair Use Analysis has to permit the copying here. And i wonder whether it gives him one hand and takes away with the other. Analysis forse incommensurable factors that need to be weighed . Why did no reasonable jury had concluded that it was fair use here . Are you essentially saying that code is copyrightable but really, it is always subject to fair use . Were certainly saying it is subject to Fair Use Analysis we argue that the use here was not fair. That,e reason we think the error we think the District Court made was that it treated as a factual question what it should have treated as a subsidiary legal assessment. That is, on the question of transformative miss, google argued it is transformative because it is being used on a new platform. Oracle will argue it is the same code being used the same purpose. The District Court did not decide which of those views was right, it simply said at least one jury could have sided with google. 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 and correctly found that it was not transformative. Onif we disagree with you standard of review that should apply here, what should we do . I think if you disagreed and you thought that the question about is this transformative or not, if you think that is a question as to which the view of a reasonable jury should be deferred to, the remand is probably the appropriate course. That is not only going to affect the jury, it is going to affect Summary Judgment practice because a lot of their use questions are decided on Summary Judgment. That wont be possible on the longer, just issues like putting on a new platform. Thank you, counsel. Justice kavanaugh . One question on merger doctrine and one question on method of operation. First, google says in its reply brief that the undisputed facts in this case is that the declarations cannot be written in any other way and still properly respond to the calls used by java programmers. Are they wrong in saying that . Idle think that they are wrong in saying that but the the correctin proposition that merger applies if the only 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 is wrong for two or three reasons. 302a saysion copyright protection is from the works creation and at the time that the work was created, there were no falls going to developers. Is, as the chief justice pointed out in an earlier part of the argument, that would effectively penalize marketplace success, the fact that the calls were wellknown was simply a function of the platform was java popular and a lot of people have written a lot of apps for it. And the method of operation, google says that the declarations or a method of operation because the developers andthe implementing code instruct the computer. Your response to that . The term method of operation ands from baker versus what the court said, and it was a long list of examples, 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 the task. And the courts as a mathematician who wrote a treatise could not get an exclusive right to his methods of operation. The report discussed the way in which section 102b would apply to computer code and i think the clearest expression was on page it is alwaysaid free to make the machine do the same thing as it would have if it had the copyrighted workplace, mr. Stork, if you would like to take a minute to wrap up. Thank you, mr. Chief justice. That shouldtal line be drawn for the purposes of merger analysis for the purposes is if a particular line of code is without regard to the inquired expertise of other actors, the only way to make the computer perform a particular function, then the code is not copyrightable. Here, it is 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 willing to learn new calls and analyzing the case way toy is inappropriate the copyright policy of creating adequate incentives for the creation of authorship. Thank you. Mr. Goldstein, to even out the time a little bit here, i think we will go through another round of questioning for you if thats all right. Thank you, mr. Chief justice. I guess i will start. I wonder if you had any further response to mr. Stewarts representation about the effects of the case on the Technology Market if we rule in favor of oracle. Yes, mr. Chief justice. Isold think that mr. Stewart accurately reflecting heavy industry operates. You have the leading computer scientists and the Software Industry that say that a nonlicensed reimplementation is widespread, that is the concern about decimating how the industry operates. 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 an example in your question about how this play out with other kinds of innovations and Justice Kagan hypothetically said there are lots of factors involved. That is why different a very use verdict about the record in this case is a perfectly appropriate and sensible way to resolve the case. I wonder if you want to take it bit more time to respond further to my question about why your merger argument doesnt make oracle a victim of its own success. Mentioned that several Tech Companies did, in fact, find a way to develop their programs without relying coding, so why shouldnt we invoke that same obligation on oracle . That wasnt resolved whether we had the fair use right, because in any event, i think that is an optical illusion. Brief,puter scientists the microsoft brief explained that with apple and microsoft, thes example did reason that they can use these interfaces if they were using a different language, as if they were in french rather than english. Oracle does not get to claim exclusive rights 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, they dont get that exclusive copyright. Justice thomas, do you have further questions . I have no further questions, chief justice. Ive heard from the other side that, yes, that may be true, but this result is simply calling up a set of programs written by java. You couldhe beginning have done this in different ways with different divisions of tasks in a world of different callout numbers, and there were people trained at that time. And copyright runs from the beginning. What do you do about that . There used certainly runs from the end. Im not talking about fair use, im talking that your merger argument and the method of operation argument. There is a difference between the fact that we have a copyrighted work from the point of publication, from where the merger applies. Book onpublished his that day, he was the person who had created that. But the courts and what about a later user that wants to use the system, can they do it without part of the work . They said no, and that meant there is no copyright protection within the copyrighted work for that particular piece of expression. Thank you. Justice alito . Is this your answer to mr. Malcolms transformative use argument, and what is your best argument on fair use . Hour answer with respect to transformative use is that it cannot be the transformative use when computer code does something different. Computer code only does one thing, there is no parity of computer code. That would mean ironically that is highly functional expression is less susceptible to fair use than a highly creative novel. That cannot be right. In any event, the jury was entitled to conclude that this was an entirely new context, that job but was not usable in this particular smartphone. Our best argument is about the standard of review. Of fact anduestion law was put to the jury at oracles insistence. The question is, that the jury have balanced these factors . I know that the other side is concerned about providing legal guidance. That is why we have jury instruction. Has made quite clear that this is incredibly dependent on the circumstances and mr. Stewart has only reinforced that point. In that context, you cannot say that the jury could not reasonably find that this massive creativity with one million applications and an entirely new way of computing on the smartphone is not fair use. Thank you, counselor. Justice kagan . Goldstein,ering, mr. What is the first part of the answer that you gave to Justice Sotomayor . When that suggest a transformative use question here, although it is in another context . As i understand it, you are using this for the exact same purpose, to make sure that users are given the familiar interface as one that should favor fair use. Right, is the transformative use question really in this match in this context . Oracle, thelated by statute is not say transformative, it asks about the nature of the use. What were doing is using the interface which is connected tissue between Computer Programs and is at the most barely creative. Even the federal circuit knowledge it is impossible from the jury verdict. And you ask what comes of it, what is the nature of this . Using it in an entirely different environment before the jury. The nature of the use here is quite significantly different from a regional use. I think that is a statutory question. Of course, the choice question, balancing that and all the other factors. Is it fair use . Justice gorsuch . Just to follow up on that, Justice Sotomayors question, mr. Stewart argued that if we were to uphold the jury verdict or send it back on fair use, that we would be negatively impacting Summary Judgment and that most District Courts take these questions up as a matter of law. Yes, this was exactly the argument that was made that some issues are decided very frequently on Summary Judgment, but that doesnt mean that there arent other incredibly highly contested facts that arise in new environments like you pointed out earlier. This is that kind of case. It went to the jury under rule 39c and was moved for Summary Judgment in this case. Itn you have such a case, isnt a license to just throw out the actual standard of review. Problemurts have had no reaching Summary Judgment where it is appropriate because generally, you dont have anything like a factual fight to supplant java in the marketplace. Classical fair use cases are things like parities or news reportings in which we have established the rules. Mr. Stewart is cautioning you against writing an opinion with categorical rules. I dont understand how he wants to do that and adopt a categorical rule against what were using here. Thank you. Justice kavanagh . Stewart responded to my question quoting pages 70 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. Agrees with the factual courts findings, but the only way to respond to these developers calls is with these instructions. His point is, well, so what . Developers can write other call. That is a way of saying we can use a different method of operation. It is also nonsensical as a matter of copyright involvement. Why would Congress Write a rule that says ok, these developers are extremely familiar with these commands, they are used to create Computer Programs, lets make this as an efficient as possible for them . That is not trying to create a fan base for oracle, is creating prisoners. It will lock lots of developers only into using java. That is not a right that you can get from copyright for that congress could confirm. Thank you, mr. Goldstein. Mr. Goldstein, you have got three minutes left if you want to shift. On the want to focus question of fair use and the fair use jury verdict because i do think that mr. Stewarts argument, his point the different kinds of interfaces might call for different kinds of results is the exact reason why the rule 50 standard should be applied here, because the jury heard testimony on a variety of points that mr. Rosenkranz is just trying to deny. I dont think there is actual debate about the expectations of the industry and they have nothing to do with license interfaces. This is been the practice. What do you do if you are asked to adopt a categorical rule that all things people say will append the Industry Expectations and how it is operated . The course was reasonable here. Would this be a reasonable application of copyright, or would it reduce expression . Here, you have minimally creative declarations and their being invoked for the publication of millions of programs on an innovative smartphone platform. Can think of there was no traction to the argument that the federal circuit had correctly apply the right standard of review. 24a, they say they will decided as a matter of law and the same page 54a. They deemed the jury verdict advisory and said we will take it from here. That is not appropriate. Ther rule 39c, oracle made choice to litigate this case in a particular way. It is impossible to unpack the factual findings that they are relying on and i just want to point out how many times mr. Kranz is contradicting the jury efforts. The former ceo of oracle is saying that these guys were never license were sold separately from the language. It is just a base assertion that ibm was paying for. Said itnkranz superseded java. Andrew has not superseded java sc. They say that the declarations were so important to developers asng oracles product, but 145 began, the former ceo says the strategy which has been the strategy long before i joined the firm was that we agree on them, and we share then we compete on the implementations. The evidence at the trial is certainly sufficient, easily, to recently conclude that there was fair use. Thank you very much. Mr. Rosencrantz, mr. Stewart, thank you. The case is submitted. Announcer the Senate Confirmation hearing for judge Amy Coney Barrett will begin monday at 9 00 a. M. Eastern with Opening Statements by Judiciary Committee members, introduction of a nominee, followed by an opening statement. Watch live coverage on cspan, stream ondemand, or listen live on the cspan radio app. The u. S. Supreme court began its new term hearing oral arguments via conference call. Listen live at www. Cspan. Org supremecourt. Tuesday, listen live to two cases. Followed by city of chicago befalls him city of chicago v. Fuolsom. Listen to the oral arguments live or ondemand at www. Cspan. Org supremecourt, next, Justice Stephen breyer talks about the role of the Supreme Court with msnbc chief Legal Correspondent in a discussion presented by the Edward Kennedy institute for the u. S. Senate. On behalf of the edward m Kennedy Institute and the United States senate, i am very pleased to welcome all of you to this very special edition of our getting to the point series. The Kennedy Institute is a nonprofit, nonpartisan slate envisioned and plant im a light has been, senator Edward Kennedy. Visitors,ace where virtually as well as in person, to experience democracy. Through handson learning about the United States senate. And they will

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