Oracle has a copyright to the computer code, but not a patent. That means that the public, not oracle, has the right to these functions. Oracle cannot leverage its copyright to create pattonlike rights. Specifically, under the merger document there is no copyright protection for computer code that is the only way to perform those functions. Java Software Developers have the right to use certain commands to create applications for googles android smartphone platform. The commands require google to reuse an exact set of code from java se. Because there are no substitutes oracle is claiming the exclusive right to not merely what the declaration is saying, but what the declarations do. That is not a copyright, it is a patent right. Respect to fair use, the longstanding practice of reusing code is write the developers to millions of creative applications that are used by more than one billion people. Those policy questions are academic, the issue is not whether this court would find fair use. The standard asks the much narrower question of whether the jury could reasonably find fair use. Oracle regrets its demand that the jury way all the evidence in a general verdict that contains no subsidiary findings. No Previous Court ever held that only a Court Must Decide fair use. No prior Appellate Court overturned a fair use verdict. This uniquely contested case should not be the first. Today you will hear three lawyers present legal arguments for an hour. In 2016, the jury heard the starkly conflicting testimony of almost 30 witnesses and reviewed exhibits over 2. 5 weeks. As thee illustrates court reiterated in georgia verse public resource, that the fair use quote is sensitive and cannot be resolved without a trial. Mr. Goldstein, lets say somebody copies the headings in your brief and they copy the organization in your brief, which sections you put first and how you organize them, would your argument say that is perfectly fine so long as they write their own text . Computertein no, a program is different and in addition you would not have the issue of the merger doctrine. The issue here is that it is not possible to provide the functionality that we have the right to with android without recreating that structure. Justice roberts i understand your merger argument is different, but i dont think that was the question i asked. Mr. Goldstein in terms of whether you could recreate the bookngs from a brief or a and recreate the structure, not unless it was necessary to do so. That is what is true here. You areroberts if talking about necessary to do so and again you are forcing me back to the merger doctrine and that is fine. Reason there is only one way to do it is because some expression product was very successful. There were a lot of ways to do it when they did and the fact that everybody, the programmers liked it and that is what everybody used it seems a bit much to penalize them for that. Mr. Goldstein we dont intend to penalize them. Our point is that in the language of section 102 b they may have come up with a model method of operation, they may have created one. They dont get the rights to it. That is a patent like right. As your point illustrates in baker versus selden you could have said mr. Selden came up with an innovative form of bookkeeping and other people could have used a different one. That was not enough to give him a copyright. I dont think its a patent right. It is there particular expression and you are saying the only way for you to say what you want to say in the new material that you provide is to copy there is, that is not a patent, that is copyright. Mr. Goldstein 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 102 b . If there were other ways to do it that would be another matter. Since there is one way there is no copyright protection. Even if you took the perspective that copyright looks at the options available to oracle to begin with, clearly fair use looks at it from the other end of the telescope and there was a creativity unleashed Justice Roberts before you get into fair use, you say that was the only way to do it. Cracking the safe may be the only way to get the money that you want, but that does not mean you can do it. If its the only way for you to get it, the only way to get it is a license. Mr. Goldstein that analogy would help us. If you get a patent on the safe you may be able to keep us out. If you write a book about the safe about how to crack safes that does not give you the exclusive right to do it. Justice roberts well all right. What about the combination to the lock on the safe . Can you copy that just because somebody else has it and that is the only way to get in . Mr. Goldstein 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. It shares the knowledge about how to crack safes or open locks. Copyright law is for people to be able to use that knowledge. Justice roberts thank you. Justice thomas . Justice thomas thank you, mr. Chief justice. Mr. Goldstein, you seem to rely quite a bit on section 102. 101dont we rely on section which is more specific with respect to Computer Programs . Mr. Goldstein section 101 tells us that oracle holds a copyright in java se as a Computer Program. Tells us that copyright does not expand to any method of operation in java se. That is called the ida expression dichotomy. The merger doctrine tells us if there is only one way to provide the method of operation of java se you cannot get a copyright on that expression. Our point is that the method of operation of java se is a combination of commands by the developers and the declarations in java se. If we cannot use anything else then we would be giving oracle patent rights by preventing us from reusing the declarations. Justice thomas at what point should we determine the merger, whether or not there is merger when oracle develops this program or when you decide to use it . Mr. Goldstein the latter, and that is the teaching of baker versus selden and the text of 102 b . When you copyright something and publish it you disclose to the public. Selden disclosed a system of bookkeeping. Once published to the public has a right to use it. Here, once oracle published java se, people in the public and Companies Like google have the right to create their own versions of it that would provide the same functionality. The question is is there anyway to do it without reusing the expression of the original when there is no copyright protection . Justice thomas someone could if a team takes your best players, a football team, those playersway could perform at a high level is if you give that team your playbook. I dont think anyone would say that is right. Our point is not that we cannot do it at a high level. Everyone agrees that we have the right as google to write a Computer Program that provides all the same functionality as java se. On android we wrote new and better versions that were more suitable for a use in a modern smartphone. It is not like we are trying to take someones fan base, football players, or something else. Oracle does not want to fan base, it wants prisoners. It once the people who use its work, the developers, that is not what a copyright gives you. You dont get a fan base with a Computer Program the same way you do with j. K. Rowlings novels. Justice thomas my concern was having to turn over the playbook. Lets go to fair use briefly. How would you distinguish harper . Mr. Goldstein that was a case where the district judge made findings and the court said when there are established findings in the court the jury will resolve fair use, the Appellate Court or the District Court. Here you have a general jury verdict, there are no subsidiary findings. The jury was asked to weigh all the evidence in the fair use factors. You cannot unpack it the same way you could with harper. Justice thomas because of the factfinder or because the general verdict . Mr. Goldstein both. Both are critically important. Its not the court that is assigning the responsibility under rule 39 c end the seventh amendment, it is the role of the toy and you would have construe everything in our favor which the federal circuit disavowed doing. Justice thomas thank you. Justice roberts Justice Breyer . Justice breyer i have a question for each side. I am trying to answer in my own mind. For you i would like to ask this. Down i have a computer in front of me and i put in a command. That calls up a certain program. Which you did not copy, the one it calls up, which is setting the switches of the computer very the words switches of the computer. The words i typed also called up a particular program. A set of computers switches that will get me to the program that does a particular thing. It is a Computer Program, isnt it . And you can copyright Computer Programs. What is the difference between , etc. That sets switches on the computer and any other program that sets switches on the computer . Mr. Goldstein that is our point, your honor. Justice breyer i know that is your point, thats why i want you to say it clearly so i can understand it. Mr. Goldstein there are two parts to the shortcut program. There is the implementing code that provides of the function of the program and will produce the larger of two numbers. Oracle agrees if there is only one way to write that, we can reuse that implementing code. It cannot explain why the same is not true for the code you mentioned, the combination of calls by the developer and the declaration that appears in android and java se. If there is only one way to do it and you give a copyright that is exclusive, you are saying that person is the only one who can make the computer do the thing. Whether it is invoking the implementation code or perform the function of the program through the implementing code. Justice breyer why is there just one way to do it . If you spend enough time and you had 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 did not ava. Lang. Ord j mr. Goldstein why would we have a copyright system that does that . The only upshot is to make Computer Programming inefficient so we have fewer creative Computer Programmers. We do have very good Computer Programmers. When you use that instruction math. Java. Lang. It is a rule of the language that there is only one declaration that will work with it. That is a plain finding of the District Court that is uncontested. Justice breyer thank you. Justice roberts Justice Alito . I am concerned that under your argument all computer code is at risk of losing protection under 102 b . How do you square your position with congresss express intent to provide protection for computer code . Mr. Goldstein that is a criticism that has been levied at our argument about the method of operation. It is not a criticism that i think is fair of our argument about mergers. Our argument is limited in that sense to circumstances in which the function that is disclosed, the relationship between the calls and the declaration and only be written one way. Its a principle that oracle concedes with respect to the implementing code that makes the shortcut programs work, and produces the larger of two numbers. Have beenito there questions already about the merger argument. How do you respond to oracles argument that you are arguing in a circle, that there is only one way to write a declaring code like oracle did. Mr. Goldstein 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 have a right to use the commands that they have learned in java including the ones that worked with java se. When developers use those commands we have the right to write a computer that will respond to those commands. We will happily not use the java se declarations if we could come in a language only permits us to use those. You could use the same circularity argument about the merger doctrine for anything in english, you could say every d in english we have not abandoned the merger doctrine. If they were to disclose something as java se discloses the relationship between calls and declaration, then you have the right to perform that function, and less somebody wants to get a patent. Totice alito let me switch fair use. Thatshould i do if i think the purpose and character of the use and the effect on market value here weigh very heavily against you on the fair use issue . That a jury could not reasonably find in your favor on those factors . Mr. Goldstein you should recognize that those factors are continuums. Do think,e to say i notwithstanding the jury verdict, that there was some marked effect. You 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 here, the declarations, is barely creative and it has unleashed millions of creative Computer Programs used by on billion people. That on a whole is not unreasonable for the jury to find fair use given that it was their responsibility. Thank you. Justice roberts Justice Sotomayor . I go back toayor the essence of the questions that i think my colleagues are asking. Betweenou differentiate declaring codes and implementing codes . You agree that you could not have had copied your implementing code because there are multiple ways of doing that. You fight the declaring codes because there are multiple ways of declaring as well. Apple has a different way of declaring the same functions. They spent billions of dollars necessary, presumably you could have. You spend so much time in your brief convincing me that implementing that declaring codes go together, they merge. How do we draw the line . Mr. Goldstein you dont. It is oracle that is trying to draw the distinction you say is not recognized by the statutes. The legal principle that you can reuse computer codes that can only be written one way applies to declaring code and implementing code. Oracle concedes its implementing codes can only be written one way we could reuse it. It could not explain why given that the declaring code will not function if it is written another way. We cannot reuse that. They are trying to draw that line. With respect to apple, they did not reuse the java se declarations because they were not using java. They did use other declarations. Justice sotomayor may i stop you right there . Which is,e problem what gives you the right to use work . Original how do you define method of operation so that there is a andeen line between that you have to create new code, like the implementing code . . Mr. Goldstein section 102 b tells you you cannot get a copyright in the functionality of the computer code. There are so many things listed like method of operation because Congress Wanted to be encompassing, you get a copyright none of the functionality. The merger doctrine tells us if there is only one way to write the computer code that will provide that functionality, then you cannot get a copyright protection, you have to get a patent protection. With respect to implementing code, because there are numerous ways to write the implementing code, we wrote it. Millions of lines of it. The only reason the only reason we reuse to the code was because we had no choice. We could not write a Computer Program that would respond to the developers instructions without using this limited set of instructions. Justice sotomayor my problem of your argument is what is your definition of interoperability . As them to define it extent to which existing thirdparty applications can run on your platform. Not whether app develops apps developed on your platform can run on systems that use max. Math. Java. Lang. Is one way. T you now have developed many different packages and platforms and things like that. Can they copy years . Mr. Goldstein they can copy any part of our code including certainly our interfaces, our declaration that can only be written this way. We have interoperability in the fact that developers instructions work with our methods, classes, and our packages. It is frequently the case that you have in modern Computer Programming interoperability, a new Software Program that comes in and supplants on older, less superior one. One that does not work as well. That is incredibly important and what congress should want, to be able to take the functionality of a Computer Program, somebody comes along and does it better. Its no surprise that we dont use all of the packages, because they dont have anything to do with a modern smart phone. They dont have a gps function to them. The smartphone does not have a computer mouth. There is no reason to think he would reuse all of them and it would be impractical given the constraints of a smartphone. Justice sotomayor thank you. Justice roberts Justice Kagan . Justice gorsuch i am surprised or confused about some of the arguments you are making this morning. Maybe it is just me and i dont understand it. I am hoping you will explain it to me. When i read your briefs i took you to be making a different argument principally than the one youre making today. I thought you would be saying that the declaring code is unprotected because its a method of operation, it allows java programs to operate the computer, and to be setting forth the plenty pretty flat rule on that of that kind. I do not hear you saying that today. I hear you saying that the real question is are there multiple ways of doing the same thing . Are those different arguments and which one are you making . Mr. Goldstein they are different arguments. We are making both of them. I am focusing on the merger. The argument you mentioned as our lead argument i dont think honestly is. We have a straight, p or, text your list argument that the american code is a method of operation because it is the theloper on how to operate prewritten Computer Program. Today i have focused on the argument that