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 s