Oracle Am., Inc. v. Google Inc.

Justia.com Opinion Summary: Sun developed the Java computer programming platform, released in 1996, to eliminate the need for different versions of computer programs for different operating systems or devices. With Java, a programmer could “write once, run anywhere.” The Java virtual machine (JVM) takes source code that has been converted to bytecode and converts it to binary machine code. Oracle wrote 37 packages of computer source code, “application programming interfaces” (API), in the Java language, and licenses them to others for writing “apps” for computers, tablets, smartphones, and other devices. Oracle alleged that Google’s Android mobile operating system infringed Oracle’s patents and copyrights. The jury found no patent infringement, but that Google infringed copyrights in the 37 Java packages and a specific routine, “rangeCheck.” It returned a noninfringement verdict as to eight decompiled security files. The jury deadlocked on Google’s fair use defense. The district court held that the replicated elements of the 37 API packages, including the declaring code and the structure, sequence, and organization, were not subject to copyright and entered final judgment in favor of Google on copyright infringement claims, except with respect to rangeCheck and the eight decompiled files. The Federal Circuit affirmed as to the eight decompiled files that Google copied into Android and rangeCheck. The court reversed in part, finding that the declaring code and the structure, sequence, and organization of the API packages are entitled to copyright protection, and remanded for consideration of fair use.



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United States Court of Appeals for the Federal Circuit ______________________ ORACLE AMERICA, INC., Plaintiff-Appellant, v. GOOGLE INC., Defendant-Cross-Appellant. ______________________ 2013-1021, -1022 ______________________ Appeals from the United States District Court for the Northern District of California in No. 10-CV-3561, Judge William H. Alsup. ______________________ Decided: May 9, 2014 ______________________ E. JOSHUA ROSENKRANZ, Orrick, Herrington & Sutcliffe LLP, of New York, New York, argued for plaintiffappellant. With him on the brief were MARK S. DAVIES, ANDREW D. SILVERMAN, KELLY M. DALEY; and ANNETTE L. HURST, GABRIEL M. RAMSEY, and ELIZABETH C. MCBRIDE, of San Francisco, California. Of counsel on the brief were DORIAN E. DALEY, DEBORAH K. MILLER, MATTHEW SARBORARIA, and ANDREW C. TEMKIN, Oracle America, Inc., of Redwood Shores, California; and DALE M. CENDALI, DIANA M. TORRES, SEAN B. FERNANDES, and JOSHUA L. SIMMONS, Kirkland & Ellis LLP, of New York, New York. Of counsel were SUSAN M. DAVIES, Kirkland & 2 ORACLE AMERICA, INC. v. GOOGLE INC. Ellis LLP, of New York, New York; MICHAEL A. JACOBS, Morrison & Foerster LLP, of San Francisco, California; and KENNETH A. KUWAYTI, of Palo Alto, California. ROBERT A. VAN NEST, Keker & Van Nest LLP, of San Francisco, California, argued for defendant-crossappellant. With him on the brief were CHRISTA M. ANDERSON, STEVEN A. HIRSCH, MICHAEL S. KWUN, and DANIEL E. JACKSON. Of counsel on the brief were IAN C. BALLON and HEATHER MEEKER, Greenberg Traurig, LLP, of East Palo Alto, California; RENNY HWANG, Google Inc., of Mountain View, California; and DARYL L. JOSEFFER and BRUCE W. BABER, King & Spalding LLP, of Washington, DC. MARCIA B. PAUL, Davis Wright Tremaine LLP, of New York, New York, for amicus curiae Ralph Oman. With her on the brief were LACY H. KOONCE, III and DEBORAH A. ADLER. WILLIAM A. RUDY, Lathrop & Gage LLP, of Kansas City, Missouri, for amici curiae Picture Archive Council of America, Inc., et al. With him on the brief were CAROLE E. HANDLER and BRIANNA E. DAHLBERG, of Los Angeles, California. GREGORY G. GARRE, Latham & Watkins, LLP, of Washington, DC, for amici curiae Microsoft Corporation, et al. With him on the brief was LORI ALVINO MCGILL. Of counsel on the brief were PAUL T. DACIER, KRISHNENDU GUPTA, EMC Corporation, of Hopkinton, Massachusetts; and DOUGLAS LUFTMAN, NETAPP, Inc., of Sunnyvale, California. JARED BOBROW, Weil, Gotshal & Manges LLP, of Redwood Shores, California, for amici curiae Eugene H. Spafford, Ph.D., et al. With him on the brief was AARON Y. HUANG. ORACLE AMERICA, INC. v. GOOGLE INC. 3 MATTHEW S. HELLMAN, Jenner & Block LLP, of Washington, DC, for amicus curiae BSA/The Software Alliance. With him on the brief was PAUL M. SMITH. STEVEN T. COTTREAU, Clifford Chance US LLP, of Washington, DC, for amici curiae, Scott McNealy, et al. MEREDITH JACOB, Program on Information Justice and Intellectual Property, American University, Washington College of Law, of Washington, DC, for amici curiae Intellectual Property Law Professors. JULIE P. SAMUELS, Electronic Frontier Foundation, of San Francisco, California, for amici curiae Computer Scientists. With her on the brief was MICHAEL BARCLAY. Of counsel on the brief was JASON M. SCHULTZ, NYU Technology Law and Policy Clinic, NYU School of Law, of New York, New York. JONATHAN BAND, Jonathan Band PLLC, of Washington, DC, filed a brief for amicus curiae Computer & Communications Industry Association. With him on the brief was MATTHEW SCHRUERS, Computer & Communications Industry Association, of Washington, DC. CHAD RUBACK, The Ruback Law Firm, of Dallas, Texas, filed a brief for amici curiae Rackspace US, Inc., et al. JENNIFER M. URBAN, Samuelson Law, Technology and Public Policy Clinic, U.C. Berkeley School of Law, of Berkeley, California for amici curiae Software Innovators, et al. ______________________ Before OâMALLEY, PLAGER, and TARANTO, Circuit Judges. 4 ORACLE AMERICA, INC. v. GOOGLE INC. OâMALLEY, Circuit Judge. This copyright dispute involves 37 packages of computer source code. The parties have often referred to these groups of computer programs, individually or collectively, as âapplication programming interfaces,â or API packages, but it is their content, not their name, that matters. The predecessor of Oracle America, Inc. (âOracleâ) wrote these and other API packages in the Java programming language, and Oracle licenses them on various terms for others to use. Many software developers use the Java language, as well as Oracleâs API packages, to write applications (commonly referred to as âappsâ) for desktop and laptop computers, tablets, smartphones, and other devices. Oracle filed suit against Google Inc. (âGoogleâ) in the United States District Court for the Northern District of California, alleging that Googleâs Android mobile operating system infringed Oracleâs patents and copyrights. The jury found no patent infringement, and the patent claims are not at issue in this appeal. As to the copyright claims, the parties agreed that the jury would decide infringement, fair use, and whether any copying was de minimis, while the district judge would decide copyrightability and Googleâs equitable defenses. The jury found that Google infringed Oracleâs copyrights in the 37 Java packages and a specific computer routine called ârangeCheck,â but returned a noninfringement verdict as to eight decompiled security files. The jury deadlocked on Googleâs fair use defense. After the jury verdict, the district court denied Oracleâs motion for judgment as a matter of law (âJMOLâ) regarding fair use as well as Googleâs motion for JMOL with respect to the rangeCheck files. Order on Motions for Judgment as a Matter of Law, Oracle Am., Inc. v. Google Inc., No. 3:10-cv-3561 (N.D. Cal. May 10, 2012), ECF No. 1119. Oracle also moved for JMOL of infringe- ORACLE AMERICA, INC. v. GOOGLE INC. 5 ment with respect to the eight decompiled security files. In granting that motion, the court found that: (1) Google admitted to copying the eight files; and (2) no reasonable jury could find that the copying was de minimis. Oracle Am., Inc. v. Google Inc., No. C 10-3561, 2012 U.S. Dist. LEXIS 66417 (N.D. Cal. May 11, 2012) (âOrder Granting JMOL on Decompiled Filesâ). Shortly thereafter, the district court issued its decision on copyrightability, finding that the replicated elements of the 37 API packagesâincluding the declaring code and the structure, sequence, and organizationâwere not subject to copyright protection. Oracle Am., Inc. v. Google Inc., 872 F. Supp. 2d 974 (N.D. Cal. 2012) (âCopyrightability Decisionâ). Accordingly, the district court entered final judgment in favor of Google on Oracleâs copyright infringement claims, except with respect to the rangeCheck code and the eight decompiled files. Final Judgment, Oracle Am., Inc. v. Google Inc., No. 3:10-cv3561 (N.D. Cal. June 20, 2012), ECF No. 1211. Oracle appeals from the portion of the final judgment entered against it, and Google cross-appeals from the portion of that same judgment entered in favor of Oracle as to the rangeCheck code and eight decompiled files. Because we conclude that the declaring code and the structure, sequence, and organization of the API packages are entitled to copyright protection, we reverse the district courtâs copyrightability determination with instructions to reinstate the juryâs infringement finding as to the 37 Java packages. Because the jury deadlocked on fair use, we remand for further consideration of Googleâs fair use defense in light of this decision. With respect to Googleâs cross-appeal, we affirm the district courtâs decisions: (1) granting Oracleâs motion for JMOL as to the eight decompiled Java files that Google copied into Android; and (2) denying Googleâs motion for JMOL with respect to the rangeCheck function. Accordingly, we affirm-in-part, reverse-in-part, and remand for further proceedings. 6 ORACLE AMERICA, INC. v. GOOGLE INC. BACKGROUND A. The Technology Sun Microsystems, Inc. (âSunâ) developed the Java âplatformâ for computer programming and released it in 1996. 1 The aim was to relieve programmers from the burden of writing different versions of their computer programs for different operating systems or devices. âThe Java platform, through the use of a virtual machine, enable[d] software developers to write programs that [we]re able to run on different types of computer hardware without having to rewrite them for each different type.â Copyrightability Decision, 872 F. Supp. 2d at 977. With Java, a software programmer could âwrite once, run anywhere.â The Java virtual machine (âJVMâ) plays a central role in the overall Java platform. The Java programming language itselfâwhich includes words, symbols, and other units, together with syntax rules for using them to create instructionsâis the language in which a Java programmer writes source code, the version of a program that is âin a human-readable language.â Id. For the instructions to be executed, they must be converted (or compiled) into binary machine code (object code) consisting of 0s and 1s understandable by the particular computing device. In the Java system, âsource code is first converted into âbytecode,â an intermediate form, before it is then converted into binary machine code by the Java virtual machineâ that has been designed for that device. Id. The Java platform includes the âJava development kit (JDK), javac compiler, tools and utilities, runtime programs, class libraries (API packages), and the Java virtual machine.â Id. at 977 n.2. 1 Oracle acquired Sun in 2010. ORACLE AMERICA, INC. v. GOOGLE INC. 7 Sun wrote a number of ready-to-use Java programs to perform common computer functions and organized those programs into groups it called âpackages.â These packages, which are the application programming interfaces at issue in this appeal, allow programmers to use the prewritten code to build certain functions into their own programs, rather than write their own code to perform those functions from scratch. They are shortcuts. Sun called the code for a specific operation (function) a âmethod.â It defined âclassesâ so that each class consists of specified methods plus variables and other elements on which the methods operate. To organize the classes for users, then, it grouped classes (along with certain related âinterfacesâ) into âpackages.â See id. at 982 (describing organization: â[e]ach package [i]s broken into classes and those in turn [are] broken into methodsâ). The parties have not disputed the district courtâs analogy: Oracleâs collection of API packages is like a library, each package is like a bookshelf in the library, each class is like a book on the shelf, and each method is like a how-to chapter in a book. Id. at 977. The original Java Standard Edition Platform (âJava SEâ) included âeight packages of pre-written programs.â Id. at 982. The district court found, and Oracle concedes to some extent, that three of those packagesâjava.lang, java.io, and java.utilâwere âcoreâ packages, meaning that programmers using the Java language had to use them âin order to make any worthwhile use of the language.â Id. By 2008, the Java platform had more than 6,000 methods making up more than 600 classes grouped into 166 API packages. There are 37 Java API packages at issue in this appeal, three of which are the core packages identified by the district court. 2 These packages contain The 37 API packages involved in this appeal are: java.awt.font, java.beans, java.io, java.lang, ja2 8 ORACLE AMERICA, INC. v. GOOGLE INC. thousands of individual elements, including classes, subclasses, methods, and interfaces. Every package consists of two types of source codeâ what the parties call (1) declaring code; and (2) implementing code. Declaring code is the expression that identifies the prewritten function and is sometimes referred to as the âdeclarationâ or âheader.â As the district court explained, the âmain point is that this header line of code introduces the method body and specifies very precisely the inputs, name and other functionality.â Id. at 979-80. The expressions used by the programmer from the declaring code command the computer to execute the associated implementing code, which gives the computer the step-by-step instructions for carrying out the declared function. To use the district courtâs example, one of the Java API packages at issue is âjava.lang.â Within that package is a class called âmath,â and within âmathâ there are several methods, including one that is designed to find the larger of two numbers: âmax.â The declaration for the âmaxâ method, as defined for integers, is: âpublic static int max(int x, int y),â where the word âpublicâ means that the method is generally accessible, âstaticâ means that no va.lang.annotation, java.lang.ref, java.lang.reflect, java.net, java.nio, java.nio.channels, java.nio.channels.spi, java.nio.charset, java.nio.charset.spi, java.security, java.security.acl, java.security.cert, java.security.interfaces, java.security.spec, java.sql, java.text, java.util, java.util.jar, java.util.logging, java.util.prefs, java.util.regex, java.util.zip, javax.crypto, javax.crypto.interfaces, javax.crypto.spec, javax.net, javax.net.ssl, javax.security.auth, javax.security.auth.callback, javax.security.auth.login, javax.security.auth.x500, javax.security.cert, and javax.sql. ORACLE AMERICA, INC. v. GOOGLE INC. 9 specific instance of the class is needed to call the method, the first âintâ indicates that the method returns an integer, and âint xâ and âint yâ are the two numbers (inputs) being compared. Copyrightability Decision, 872 F. Supp. 2d at 980-82. A programmer calls the âmaxâ method by typing the name of the method stated in the declaring code and providing unique inputs for the variables âxâ and ây.â The expressions used command the computer to execute the implementing code that carries out the operation of returning the larger number. Although Oracle owns the copyright on Java SE and the API packages, it offers three different licenses to those who want to make use of them. The first is the General Public License, which is free of charge and provides that the licensee can use the packagesâboth the declaring and implementing codeâbut must âcontribute backâ its innovations to the public. This arrangement is referred to as an âopen sourceâ license. The second option is the Specification License, which provides that the licensee can use the declaring code and organization of Oracleâs API packages but must write its own implementing code. The third option is the Commercial License, which is for businesses that âwant to use and customize the full Java code in their commercial products and keep their code secret.â Appellant Br. 14. Oracle offers the Commercial License in exchange for royalties. To maintain Javaâs âwrite once, run anywhereâ motto, the Specification and Commercial Licenses require that the licenseesâ programs pass certain tests to ensure compatibility with the Java platform. The testimony at trial also revealed that Sun was licensing a derivative version of the Java platform for use on mobile devices: the Java Micro Edition (âJava MEâ). Oracle licensed Java ME for use on feature phones and smartphones. Sun/Oracle has never successfully developed its own smartphone platform using Java. 10 ORACLE AMERICA, INC. v. GOOGLE INC. B. Googleâs Accused Product: Android The accused product is Android, a software platform that was designed for mobile devices and competes with Java in that market. Google acquired Android, Inc. in 2005 as part of a plan to develop a smartphone platform. Later that same year, Google and Sun began discussing the possibility of Google âtaking a license to use and to adapt the entire Java platform for mobile devices.â Copyrightability Decision, 872 F. Supp. 2d at 978. They also discussed a âpossible co-development partnership deal with Sun under which Java technology would become an open-source part of the Android platform, adapted for mobile devices.â Id. The parties negotiated for months but were unable to reach an agreement. The point of contention between the parties was Googleâs refusal to make the implementation of its programs compatible with the Java virtual machine or interoperable with other Java programs. Because Sun/Oracle found that position to be anathema to the âwrite once, run anywhereâ philosophy, it did not grant Google a license to use the Java API packages. When the partiesâ negotiations reached an impasse, Google decided to use the Java programming language to design its own virtual machineâthe Dalvik virtual machine (âDalvik VMâ)âand âto write its own implementations for the functions in the Java API that were key to mobile devices.â Id. Google developed the Android platform, which grew to include 168 API packagesâ37 of which correspond to the Java API packages at issue in this appeal. With respect to the 37 packages at issue, âGoogle believed Java application programmers would want to find the same 37 sets of functionalities in the new Android system callable by the same names as used in Java.â Id. To achieve this result, Google copied the declaring source code from the 37 Java API packages verbatim, inserting ORACLE AMERICA, INC. v. GOOGLE INC. 11 that code into parts of its Android software. In doing so, Google copied the elaborately organized taxonomy of all the names of methods, classes, interfaces, and packagesâ the âoverall system of organized namesâcovering 37 packages, with over six hundred classes, with over six thousand methods.â Copyrightability Decision, 872 F. Supp. 2d at 999. The parties and district court referred to this taxonomy of expressions as the âstructure, sequence, and organizationâ or âSSOâ of the 37 packages. It is undisputed, however, that Google wrote its own implementing code, except with respect to: (1) the rangeCheck function, which consisted of nine lines of code; and (2) eight decompiled security files. As to rangeCheck, the court found that the Sun engineer who wrote it later worked for Google and contributed two files he created containing the rangeCheck functionâ âTimsort.javaâ and âComparableTimsortââto the Android platform. In doing so, the nine-line rangeCheck function was copied directly into Android. As to the eight decompiled files, the district court found that they were copied and used as test files but ânever found their way into Android or any handset.â Id. at 983. Google released the Android platform in 2007, and the first Android phones went on sale the following year. Although it is undisputed that certain Android software contains copies of the 37 API packagesâ declaring code at issue, neither the district court nor the parties specify in which programs those copies appear. Oracle indicated at oral argument, however, that all Android phones contain copies of the accused portions of the Android software. Oral Argument at 1:35, available at http://www. cafc.uscourts.gov/oral-argument-recordings/2013-1021/all. Android smartphones ârapidly grew in popularity and now comprise a large share of the United States market.â Copyrightability Decision, 872 F. Supp. 2d at 978. Google provides the Android platform free of charge to smartphone manufacturers and receives revenue when 12 ORACLE AMERICA, INC. v. GOOGLE INC. customers use particular functions on the Android phone. Although Android uses the Java programming language, it is undisputed that Android is not generally Java compatible. As Oracle explains, âGoogle ultimately designed Android to be incompatible with the Java platform, so that apps written for one will not work on the other.â Appellant Br. 29. C. Trial and Post-Trial Rulings Beginning on April 16, 2012, the district court and the juryâon parallel tracksâviewed documents and heard testimony from twenty-four witnesses on copyrightability, infringement, fair use, and Googleâs other defenses. Because the parties agreed the district court would decide copyrightability, the court instructed the jury to assume that the structure, sequence, and organization of the 37 API packages was copyrightable. And, the court informed the jury that Google conceded that it copied the declaring code used in the 37 packages verbatim. The court also instructed the jury that Google conceded copying the rangeCheck function and the eight decompiled security files, but that Google maintained that its use of those lines of code was de minimis. See Final Charge to the Jury (Phase One), Oracle Am., Inc. v. Google Inc., 3:10-cv3561 (N.D. Cal. Apr. 30, 2012), ECF No. 1018 at 14 (âWith respect to the infringement issues concerning the rangeCheck and other similar files, Google agrees that the accused lines of code and comments came from the copyrighted material but contends that the amounts involved were so negligible as to be de minimis and thus should be excused.â). On May 7, 2012, the jury returned a verdict finding that Google infringed Oracleâs copyright in the 37 Java API packages and in the nine lines of rangeCheck code, but returned a noninfringement verdict as to eight decompiled security files. The jury hung on Googleâs fair use defense. ORACLE AMERICA, INC. v. GOOGLE INC. 13 The parties filed a number of post-trial motions, most of which were ultimately denied. In relevant part, the district court denied Oracleâs motion for JMOL regarding fair use and Googleâs motion for JMOL as to the rangeCheck files. Order on Motions for Judgment as a Matter of Law, Oracle Am., Inc. v. Google Inc., No. 3:10cv-3561 (N.D. Cal. May 10, 2012), ECF No. 1119. The district court granted Oracleâs motion for JMOL of infringement as to the eight decompiled files, however. In its order, the court explained that: (1) Google copied the files in their entirety; (2) the trial testimony revealed that the use of those files was âsignificantâ; and (3) no reasonable jury could find the copying de minimis. Order Granting JMOL on Decompiled Files, 2012 U.S. Dist. LEXIS 66417, at *6. On May 31, 2012, the district court issued the primary decision at issue in this appeal, finding that the replicated elements of the Java API packagesâincluding the declarations and their structure, sequence, and organizationâwere not copyrightable. As to the declaring code, the court concluded that âthere is only one way to writeâ it, and thus the âmerger doctrine bars anyone from claiming exclusive copyright ownership of that expression.â Copyrightability Decision, 872 F. Supp. 2d at 998. The court further found that the declaring code was not protectable because ânames and short phrases cannot be copyrighted.â Id. As such, the court determined that âthere can be no copyright violation in using the identical declarations.â Id. As to the overall structure, sequence, and organization of the Java API packages, the court recognized that ânothing in the rules of the Java language . . . required that Google replicate the same groupings even if Google was free to replicate the same functionality.â Id. at 999. Therefore, the court determined that âOracleâs best argument . . . is that while no single name is copyrightable, Javaâs overall system of organized namesâcovering 37 14 ORACLE AMERICA, INC. v. GOOGLE INC. packages, with over six hundred classes, with over six thousand methodsâis a âtaxonomyâ and, therefore, copyrightable.â Id. Although it acknowledged that the overall structure of Oracleâs API packages is creative, original, and âresembles a taxonomy,â the district court found that it âis nevertheless a command structure, a system or method of operationâa long hierarchy of over six thousand commands to carry out pre-assigned functionsââthat is not entitled to copyright protection under Section 102(b) of the Copyright Act. Id. at 999-1000. In reaching this conclusion, the court emphasized that, â[o]f the 166 Java packages, 129 were not violated in any way.â Id. at 1001. And, of the 37 Java API packages at issue, â97 percent of the Android lines were new from Google and the remaining three percent were freely replicable under the merger and names doctrines.â Id. On these grounds, the court dismissed Oracleâs copyright claims, concluding that âthe particular elements replicated by Google were free for all to use under the Copyright Act.â Id. On June 20, 2012, the district court entered final judgment in favor of Google and against Oracle on its claim for copyright infringement, except with respect to the rangeCheck function and the eight decompiled files. As to rangeCheck and the decompiled files, the court entered judgment for Oracle and against Google in the amount of zero dollars, per the partiesâ stipulation. Final Judgment, Oracle Am., Inc. v. Google Inc., No. 3:10-cv3561 (N.D. Cal. June 20, 2012), ECF No. 1211. Oracle timely appealed from the portion of the district courtâs final judgment entered against it and Google timely crossappealed with respect to rangeCheck and the eight decompiled files. Because this action included patent claims, we have jurisdiction pursuant to 28 U.S.C. § 1295(a)(1). ORACLE AMERICA, INC. v. GOOGLE INC. 15 DISCUSSION I. ORACLEâS APPEAL It is undisputed that the Java programming language is open and free for anyone to use. Except to the limited extent noted below regarding three of the API packages, it is also undisputed that Google could have written its own API packages using the Java language. Google chose not to do that. Instead, it is undisputed that Google copied 7,000 lines of declaring code and generally replicated the overall structure, sequence, and organization of Oracleâs 37 Java API packages. The central question before us is whether these elements of the Java platform are entitled to copyright protection. The district court concluded that they are not, and Oracle challenges that determination on appeal. Oracle also argues that the district court should have dismissed Googleâs fair use defense as a matter of law. According to Google, however, the district court correctly determined that: (1) there was only one way to write the Java method declarations and remain âinteroperableâ with Java; and (2) the organization and structure of the 37 Java API packages is a âcommand structureâ excluded from copyright protection under Section 102(b). Google also argues that, if we reverse the district courtâs copyrightability determination, we should direct the district court to retry its fair use defense. âWhen the questions on appeal involve law and precedent on subjects not exclusively assigned to the Federal Circuit, the court applies the law which would be applied by the regional circuit.â Atari Games Corp. v. Nintendo of Am., Inc., 897 F.2d 1572, 1575 (Fed. Cir. 1990). Copyright issues are not exclusively assigned to the Federal Circuit. See 28 U.S.C. § 1295. The parties agree that Ninth Circuit law applies and that, in the Ninth Circuit, whether particular expression is protected by copyright law is 16 ORACLE AMERICA, INC. v. GOOGLE INC. âsubject to de novo review.â Ets-Hokin v. Skyy Spirits, Inc., 225 F.3d 1068, 1073 (9th Cir. 2000). 3 The Supreme Court has not addressed whether copyrightability is a pure question of law or a mixed question of law and fact, or whether, if it is a mixed question of law and fact, the factual components of that inquiry are for the court, rather than the jury. Relatedly, it has not decided the standard of review that applies on appeal. Ten years ago, before finding it unnecessary to decide whether copyrightability is a pure question of law or a mixed question of law and fact, the Seventh Circuit noted that it had âfound only a handful of appellate cases addressing the issue, and they are split.â Gaiman v. McFarlane, 360 F.3d 644, 648 (7th Cir. 2004). And, panels of the Ninth Circuit have defined the respective roles of the jury and the court differently where questions of originality were at issue. Compare North Coast Indus. v. Jason Maxwell, Inc., 972 F.2d 1031, 1035 (9th Cir. 1992), with Ets-Hokin, 225 F.3d at 1073. More recently, several district courts within the Ninth Circuit have treated copyrightability as a question for only the court, regardless of whether it is a pure question of law. See Stern v. Does, No. 09-1986, 2011 U.S. Dist. LEXIS 37735, *7 (C.D. Cal. Feb. 10, 2011); Jonathan Browning, Inc. v. Venetian Casino Resort LLC, No. C 07-3983, 2009 U.S. Dist. LEXIS 57525, at *2 (N.D. Cal. June 19, 2009); see also Pivot Point Intâl, Inc. v. Charlene Prods., Inc., 932 F. Supp. 220, 225 (N.D. Ill. 1996) (Easterbrook, J.) (citing to Markman v. Westview Instruments, Inc., 517 U.S. 370 (1996), and concluding that whether works are copyrightable is a question which the âjury has nothing to do withâ). We need not address any of these questions, because the parties here agreed that the district court would decide copyrightability, and both largely agree that 3 ORACLE AMERICA, INC. v. GOOGLE INC. 17 We are mindful that the application of copyright law in the computer context is often a difficult task. See Lotus Dev. Corp. v. Borland Intâl, Inc., 49 F.3d 807, 820 (1st Cir. 1995) (Boudin, J., concurring) (âApplying copyright law to computer programs is like assembling a jigsaw puzzle whose pieces do not quite fit.â). On this record, however, we find that the district court failed to distinguish between the threshold question of what is copyrightableâ which presents a low barâand the scope of conduct that constitutes infringing activity. The court also erred by importing fair use principles, including interoperability concerns, into its copyrightability analysis. For the reasons that follow, we conclude that the declaring code and the structure, sequence, and organization of the 37 Java API packages are entitled to copyright protection. Because there is an insufficient record as to the relevant fair use factors, we remand for further proceedings on Googleâs fair use defense. A. Copyrightability The Copyright Act provides protection to âoriginal works of authorship fixed in any tangible medium of expression,â including âliterary works.â 17 U.S.C. § 102(a). It is undisputed that computer programsâ defined in the Copyright Act as âa set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result,â 17 U.S.C. § 101âcan be subject to copyright protection as âliterary works.â See Atari Games Corp. v. Nintendo of Am., Inc., 975 F.2d 832, 838 (Fed. Cir. 1992) (âAs literary works, copyright protection extends to computer programs.â). Indeed, the legislative history explains that âliterary worksâ includes âcomputer programs to the extent that we may undertake a review of that determination de novo. 18 ORACLE AMERICA, INC. v. GOOGLE INC. they incorporate authorship in the programmerâs expression of original ideas, as distinguished from the ideas themselves.â H.R. Rep. No. 1476, 94th Cong., 2d Sess. 54, reprinted in 1976 U.S.C.C.A.N. 5659, 5667. By statute, a work must be âoriginalâ to qualify for copyright protection. 17 U.S.C. § 102(a). This âoriginality requirement is not particularly stringent,â however. Feist Publâns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 358 (1991). âOriginal, as the term is used in copyright, means only that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity.â Id. at 345. Copyright protection extends only to the expression of an ideaânot to the underlying idea itself. Mazer v. Stein, 347 U.S. 201, 217 (1954) (âUnlike a patent, a copyright gives no exclusive right to the art disclosed; protection is given only to the expression of the ideaânot the idea itself.â). This distinctionâcommonly referred to as the âidea/expression dichotomyââis codified in Section 102(b) of the Copyright Act, which provides: In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. 17 U.S.C. § 102(b); see Golan v. Holder, 132 S. Ct. 873, 890 (2012) (âThe idea/expression dichotomy is codified at 17 U.S.C. § 102(b).â). The idea/expression dichotomy traces back to the Supreme Courtâs decision in Baker v. Selden, 101 U.S. 99, 101 (1879). In Baker, the plaintiff Selden wrote and obtained copyrights on a series of books setting out a new system of bookkeeping. Id. at 100. The books included an ORACLE AMERICA, INC. v. GOOGLE INC. 19 introductory essay explaining the system and blank forms with ruled lines and headings designed for use with that system. Id. Baker published account books employing a system with similar forms, and Selden filed suit alleging copyright infringement. According to Selden, the âruled lines and headings, given to illustrate the system, are a part of the bookâ and âno one can make or use similar ruled lines and headings, or ruled lines and headings made and arranged on substantially the same system, without violating the copyright.â Id. at 101. The Supreme Court framed the issue on appeal in Baker as âwhether the exclusive property in a system of book-keeping can be claimed, under the law of copyright, by means of a book in which that system is explained.â Id. In reversing the circuit courtâs decision, the Court concluded that the âcopyright of a book on book-keeping cannot secure the exclusive right to make, sell, and use account-books prepared upon the plan set forth in such book.â Id. at 104. Likewise, the âcopyright of a work on mathematical science cannot give to the author an exclusive right to the methods of operation which he propounds.â Id. at 103. The Court found that, although the copyright protects the way Selden âexplained and described a peculiar system of book-keeping,â it does not prevent others from using the system described therein. Id. at 104. The Court further indicated that, if it is necessary to use the forms Selden included in his books to make use of the accounting system, that use would not amount to copyright infringement. See id. (noting that the public has the right to use the account-books and that, âin using the art, the ruled lines and headings of accounts must necessarily be used as incident to itâ). Courts routinely cite Baker as the source of several principles incorporated into Section 102(b) that relate to this appeal, including that: (1) copyright protection extends only to expression, not to ideas, systems, or processes; and (2) âthose elements of a computer program that 20 ORACLE AMERICA, INC. v. GOOGLE INC. are necessarily incidental to its function are . . . unprotectable.â See Computer Assocs. Intâl v. Altai, 982 F.2d 693, 704-05 (2d Cir. 1992) (âAltaiâ) (discussing Baker, 101 U.S. at 103-04). It is well established that copyright protection can extend to both literal and non-literal elements of a computer program. See Altai, 982 F.2d at 702. The literal elements of a computer program are the source code and object code. See Johnson Controls, Inc. v. Phoenix Control Sys., Inc., 886 F.2d 1173, 1175 (9th Cir. 1989). Courts have defined source code as âthe spelled-out program commands that humans can read.â Lexmark Intâl, Inc. v. Static Control Components, Inc., 387 F.3d 522, 533 (6th Cir. 2004). Object code refers to âthe binary language comprised of zeros and ones through which the computer directly receives its instructions.â Altai, 982 F.2d at 698. Both source and object code âare consistently held protected by a copyright on the program.â Johnson Controls, 886 F.2d at 1175; see also Altai, 982 F.2d at 702 (âIt is now well settled that the literal elements of computer programs, i.e., their source and object codes, are the subject of copyright protection.â). Google nowhere disputes that premise. See, e.g., Oral Argument at 57:38. The non-literal components of a computer program include, among other things, the programâs sequence, structure, and organization, as well as the programâs user interface. Johnson Controls, 886 F.2d at 1175. As discussed below, whether the non-literal elements of a program âare protected depends on whether, on the particular facts of each case, the component in question qualifies as an expression of an idea, or an idea itself.â Id. In this case, Oracle claims copyright protection with respect to both: (1) literal elements of its API packagesâ the 7,000 lines of declaring source code; and (2) non-literal elementsâthe structure, sequence, and organization of each of the 37 Java API packages. ORACLE AMERICA, INC. v. GOOGLE INC. 21 The distinction between literal and non-literal aspects of a computer program is separate from the distinction between literal and non-literal copying. See Altai, 982 F.2d at 701-02. âLiteralâ copying is verbatim copying of original expression. âNon-literalâ copying is âparaphrased or loosely paraphrased rather than word for word.â Lotus Dev. Corp. v. Borland Intâl, 49 F.3d 807, 814 (1st Cir. 1995). Here, Google concedes that it copied the declaring code verbatim. Oracle explains that the lines of declaring code âembody the structure of each [API] package, just as the chapter titles and topic sentences represent the structure of a novel.â Appellant Br. 45. As Oracle explains, when Google copied the declaring code in these packages âit also copied the âsequence and organizationâ of the packages (i.e., the three-dimensional structure with all the chutes and ladders)â employed by Sun/Oracle in the packages. Appellant Br. 27. Oracle also argues that the nonliteral elements of the API packagesâthe structure, sequence, and organization that led naturally to the implementing code Google createdâare entitled to protection. Oracle does not assert âliteralâ copying of the entire SSO, but, rather, that Google literally copied the declaring code and then paraphrased the remainder of the SSO by writing its own implementing code. It therefore asserts non-literal copying with respect to the entirety of the SSO. At this stage, it is undisputed that the declaring code and the structure and organization of the Java API packages are original. The testimony at trial revealed that designing the Java API packages was a creative process and that the Sun/Oracle developers had a vast range of options for the structure and organization. In its copyrightability decision, the district court specifically found that the API packages are both creative and original, and Google concedes on appeal that the originality requirements are met. See Copyrightability Decision, 872 F. Supp. 2d at 976 (âThe overall name tree, of course, has 22 ORACLE AMERICA, INC. v. GOOGLE INC. creative elements . . . .â); Id. at 999 (âYes, it is creative. Yes, it is original.â); Appellee Br. 5 (âGoogle does not disputeâ the district courtâs finding that âthe Java API clears the low originality threshold.â). The court found, however, that neither the declaring code nor the SSO was entitled to copyright protection under the Copyright Act. Although the parties agree that Oracleâs API packages meet the originality requirement under Section 102(a), they disagree as to the proper interpretation and application of Section 102(b). For its part, Google suggests that there is a two-step copyrightability analysis, wherein Section 102(a) grants copyright protection to original works, while Section 102(b) takes it away if the work has a functional component. To the contrary, however, Congress emphasized that Section 102(b) âin no way enlarges or contracts the scope of copyright protectionâ and that its âpurpose is to restate . . . that the basic dichotomy between expression and idea remains unchanged.â Feist, 499 U.S. at 356 (quoting H.R. Rep. No. 1476, 94th Cong., 2d Sess. 54, reprinted in 1976 U.S.C.C.A.N. 5659, 5670). âSection 102(b) does not extinguish the protection accorded a particular expression of an idea merely because that expression is embodied in a method of operation.â Mitel, Inc. v. Iqtel, Inc., 124 F.3d 1366, 1372 (10th Cir. 1997). Section 102(a) and 102(b) are to be considered collectively so that certain expressions are subject to greater scrutiny. Id. In assessing copyrightability, the district court is required to ferret out apparent expressive aspects of a work and then separate protectable expression from âunprotectable ideas, facts, processes, and methods of operation.â See Atari, 975 F.2d at 839. Of course, as with many things, in defining this task, the devil is in the details. Circuit courts have struggled with, and disagree over, the tests to be employed when attempting to draw the line between what is protectable expression and what is not. Compare Whelan Assocs., Inc. v. Jaslow Dental Lab., Inc., 797 F.2d 1222, 1236 (3d Cir. ORACLE AMERICA, INC. v. GOOGLE INC. 23 1986) (everything not necessary to the purpose or function of a work is expression), with Lotus, 49 F.3d at 815 (methods of operation are means by which a user operates something and any words used to effectuate that operation are unprotected expression). When assessing whether the non-literal elements of a computer program constitute protectable expression, the Ninth Circuit has endorsed an âabstraction-filtration-comparisonâ test formulated by the Second Circuit and expressly adopted by several other circuits. Sega Enters. Ltd. v. Accolade, Inc., 977 F.2d 1510, 1525 (9th Cir. 1992) (âIn our view, in light of the essentially utilitarian nature of computer programs, the Second Circuitâs approach is an appropriate one.â). This test rejects the notion that anything that performs a function is necessarily uncopyrightable. See Mitel, 124 F.3d at 1372 (rejecting the Lotus courtâs formulation, and concluding that, âalthough an element of a work may be characterized as a method of operation, that element may nevertheless contain expression that is eligible for copyright protection.â). And it also rejects as flawed the Whelan assumption that, once any separable idea can be identified in a computer program everything else must be protectable expression, on grounds that more than one idea may be embodied in any particular program. Altai, 982 F.2d at 705-06. Thus, this test eschews bright line approaches and requires a more nuanced assessment of the particular program at issue in order to determine what expression is protectable and infringed. As the Second Circuit explains, this test has three steps. In the abstraction step, the court âfirst break[s] down the allegedly infringed program into its constituent structural parts.â Id. at 706. In the filtration step, the court âsift[s] out all non-protectable material,â including ideas and âexpression that is necessarily incidental to those ideas.â Id. In the final step, the 24 ORACLE AMERICA, INC. v. GOOGLE INC. court compares the remaining creative expression with the allegedly infringing program. 4 In the second step, the court is first to assess whether the expression is original to the programmer or author. Atari, 975 F.2d at 839. The court must then determine whether the particular inclusion of any level of abstraction is dictated by considerations of efficiency, required by factors already external to the program itself, or taken from the public domainâall of which would render the expression unprotectable. Id. These conclusions are to be informed by traditional copyright principles of originality, merger, and scenes a faire. See Mitel, 124 F.3d at 1372 (âAlthough this core of expression is eligible for copyright protection, it is subject to the rigors of filtration analysis which excludes from protection expression that is in the public domain, otherwise unoriginal, or subject to the doctrines of merger and scenes a faire.â). In all circuits, it is clear that the first step is part of the copyrightability analysis and that the third is an infringement question. It is at the second step of this analysis where the circuits are in less accord. Some treat all aspects of this second step as part of the copyrightability analysis, while others divide questions of originality from the other inquiries, treating the former as a question of copyrightability and the latter as part of the infringement inquiry. Compare Lexmark, 387 F.3d at 537-38 Importantly, this full analysis only applies where a copyright owner alleges infringement of the non-literal aspects of its work. Where âadmitted literal copying of a discrete, easily-conceptualized portion of a workâ is at issueâas with Oracleâs declaring codeâa court âneed not perform a complete abstraction-filtration-comparison analysisâ and may focus the protectability analysis on the filtration stage, with attendant reference to standard copyright principles. Mitel, 124 F.3d at 1372-73. 4 ORACLE AMERICA, INC. v. GOOGLE INC. 25 (finding that the district court erred in assessing principles of merger and scenes a faire in the infringement analysis, rather than as a component of copyrightability), with Kregos, 937 F.2d at 705 (noting that the Second Circuit has considered the merger doctrine âin determining whether actionable infringement has occurred, rather than whether a copyright is validâ); see also Lexmark, 387 F.3d at 557 (Feikens, J., dissenting-in-part) (noting the circuit split and concluding that, where a court is assessing merger of an expression with a method of operation, âI would find the merger doctrine can operate only as a defense to infringement in that context, and as such has no bearing on the question of copyrightability.â). We need not assess the wisdom of these respective views because there is no doubt on which side of this circuit split the Ninth Circuit falls. In the Ninth Circuit, while questions regarding originality are considered questions of copyrightability, concepts of merger and scenes a faire are affirmative defenses to claims of infringement. Ets-Hokin, 225 F.3d at 1082; Satava v. Lowry, 323 F.3d 805, 810 n.3 (9th Cir. 2003) (âThe Ninth Circuit treats scenes a faire as a defense to infringement rather than as a barrier to copyrightability.â). The Ninth Circuit has acknowledged that âthere is some disagreement among courts as to whether these two doctrines figure into the issue of copyrightability or are more properly defenses to infringement.â EtsHokin, 225 F.3d at 1082 (citations omitted). It, nonetheless, has made clear that, in that circuit, these concepts are to be treated as defenses to infringement. Id. (citing Kregos, 937 F.2d at 705 (holding that the merger doctrine relates to infringement, not copyrightability); Reed-Union Corp. v. Turtle Wax, Inc., 77 F.3d 909, 914 (7th Cir. 1996) (explaining why the doctrine of scenes a faire is separate from the validity of a copyright)). With these principles in mind, we turn to the trial courtâs analysis and judgment and to Oracleâs objections 26 ORACLE AMERICA, INC. v. GOOGLE INC. thereto. While the trial court mentioned the abstractionfiltration-comparison test when describing the development of relevant law, it did not purport to actually apply that test. Instead, it moved directly to application of familiar principles of copyright law when assessing the copyrightability of the declaring code and interpreted Section 102(b) to preclude copyrightability for any functional element âessential for interoperabilityâ âregardless of its form.â Copyrightability Decision, 872 F. Supp. 2d at 997. Oracle asserts that all of the trial courtâs conclusions regarding copyrightability are erroneous. Oracle argues that its Java API packages are entitled to protection under the Copyright Act because they are expressive and could have been written and organized in any number of ways to achieve the same functions. Specifically, Oracle argues that the district court erred when it: (1) concluded that each line of declaring code is uncopyrightable because the idea and expression have merged; (2) found the declaring code uncopyrightable because it employs short phrases; (3) found all aspects of the SSO devoid of protection as a âmethod of operationâ under 17 U.S.C. § 102(b); and (4) invoked Googleâs âinteroperabilityâ concerns in the copyrightability analysis. For the reasons explained below, we agree with Oracle on each point. 1. Declaring Source Code First, Oracle argues that the district court erred in concluding that each line of declaring source code is completely unprotected under the merger and short phrases doctrines. Google responds that Oracle waived its right to assert copyrightability based on the 7,000 lines of declaring code by failing âto object to instructions and a verdict form that effectively eliminated that theory from the case.â Appellee Br. 67. Even if not waived, moreover, Google argues that, because there is only one way to write ORACLE AMERICA, INC. v. GOOGLE INC. 27 the names and declarations, the merger doctrine bars copyright protection. We find that Oracle did not waive arguments based on Googleâs literal copying of the declaring code. Prior to trial, both parties informed the court that Oracleâs copyright infringement claims included the declarations of the API elements in the Android class library source code. See Oracleâs Statement of Issues Regarding Copyright, Oracle Am., Inc. v. Google Inc., No. 3:10-cv-3561 (N.D. Cal. Apr. 12, 2012), ECF No. 899-1, at 3 (Oracle accuses the âdeclarations of the API elements in the Android class library source code and object code that implements the 37 API packagesâ of copyright infringement.); see also Googleâs Proposed Statement of Issues Regarding Copyright, Oracle Am., Inc. v. Google Inc., No. 3:10-cv-3561 (N.D. Cal. Apr. 12, 2012), ECF No. 901, at 2 (Oracle accuses the âdeclarations of the API elements in Android class library source code and object code that implements the 37 API packages.â). While Google is correct that the jury instructions and verdict form focused on the structure and organization of the packages, we agree with Oracle that there was no need for the jury to address copying of the declaring code because Google conceded that it copied it verbatim. Indeed, the district court specifically instructed the jury that âGoogle agrees that it uses the same names and declarationsâ in Android. Final Charge to the Jury at 10. That the district court addressed the declaring code in its post-jury verdict copyrightability decision further confirms that the verbatim copying of declaring code remained in the case. The court explained that the âidentical linesâ that Google copied into Android âare those lines that specify the names, parameters and functionality of the methods and classes, lines called âdeclarationsâ or âheaders.ââ Copyrightability Decision, 872 F. Supp. 2d at 979. The court specifically found that the declaring code 28 ORACLE AMERICA, INC. v. GOOGLE INC. was not entitled to copyright protection under the merger and short phrases doctrines. We address each in turn. a. Merger The merger doctrine functions as an exception to the idea/expression dichotomy. It provides that, when there are a limited number of ways to express an idea, the idea is said to âmergeâ with its expression, and the expression becomes unprotected. Altai, 982 F.2d at 707-08. As noted, the Ninth Circuit treats this concept as an affirmative defense to infringement. Ets-Hokin, 225 F.3d at 1082. Accordingly, it appears that the district courtâs merger analysis is irrelevant to the question of whether Oracleâs API packages are copyrightable in the first instance. Regardless of when the analysis occurs, we conclude that merger does not apply on the record before us. Under the merger doctrine, a court will not protect a copyrighted work from infringement if the idea contained therein can be expressed in only one way. Satava v. Lowry, 323 F.3d 805, 812 n.5 (9th Cir. 2003). For computer programs, âthis means that when specific [parts of the code], even though previously copyrighted, are the only and essential means of accomplishing a given task, their later use by another will not amount to infringement.â Altai, 982 F.2d at 708 (citation omitted). We have recognized, however, applying Ninth Circuit law, that the âunique arrangement of computer program expression . . . does not merge with the process so long as alternate expressions are available.â Atari, 975 F.2d at 840. In Atari, for example, Nintendo designed a programâ the 10NESâto prevent its video game system from accepting unauthorized game cartridges. 975 F.2d at 836. Nintendo âchose arbitrary programming instructions and arranged them in a unique sequence to create a purely arbitrary data streamâ which âserves as the key to unlock the NES.â Id. at 840. Because Nintendo produced expert ORACLE AMERICA, INC. v. GOOGLE INC. 29 testimony âshowing a multitude of different ways to generate a data stream which unlocks the NES console,â we concluded that Nintendoâs specific choice of code did not merge with the process. Id. Here, the district court found that, âno matter how creative or imaginative a Java method specification may be, the entire world is entitled to use the same method specification (inputs, outputs, parameters) so long as the line-by-line implementations are different.â Copyrightability Decision, 872 F. Supp. 2d at 998. In its analysis, the court identified the method declaration as the idea and found that the implementation is the expression. Id. (âThe method specification is the idea. The method implementation is the expression. No one may monopolize the idea.â) (emphases in original). The court explained that, under the rules of Java, a programmer must use the identical âdeclaration or method header linesâ to âdeclare a method specifying the same functionality.â Id. at 976. Because the district court found that there was only one way to write the declaring code for each of the Java packages, it concluded that âthe merger doctrine bars anyone from claiming exclusive copyright ownershipâ of it. Id. at 998. Accordingly, the court held there could be âno copyright violation in using the identical declarations.â Id. Google agrees with the district court that the implementing code is the expression entitled to protectionânot the declaring code. Indeed, at oral argument, counsel for Google explained that, âit is not our position that none of Java is copyrightable. Obviously, Google spent two and a half years . . . to write from scratch all of the implementing code.â Oral Argument at 33:16. 5 Because it is undisIt is undisputed that Microsoft and Apple developed mobile operating systems from scratch, using their own array of software packages. When asked whether Google could also copy all of Microsoft or Appleâs declaring 5 30 ORACLE AMERICA, INC. v. GOOGLE INC. puted that Google wrote its own implementing code, the copyrightability of the precise language of that code is not at issue on appeal. Instead, our focus is on the declaring code and structure of the API packages. On appeal, Oracle argues that the district court: (1) misapplied the merger doctrine; and (2) failed to focus its analysis on the options available to the original author. We agree with Oracle on both points. First, we agree that merger cannot bar copyright protection for any lines of declaring source code unless Sun/Oracle had only one way, or a limited number of ways, to write them. See Satava, 323 F.3d at 812 n.5 (âUnder the merger doctrine, courts will not protect a copyrighted work from infringement if the idea underlying the copyrighted work can be expressed in only one way, lest there be a monopoly on the underlying idea.â). The evidence showed that Oracle had âunlimited options as to the selection and arrangement of the 7000 lines Google copied.â Appellant Br. 50. Using the district courtâs âjava.lang.Math.maxâ example, Oracle explains that the developers could have called it any number of things, including âMath.maximumâ or âArith.larger.â This was not a situation where Oracle was selecting among preordained names and phrases to create its packages. 6 As the district court recognized, moreover, codeâcodes that obviously differ from those at issue hereâcounsel for Google responded: âYes, but only the structure, sequence, and organization. Only the command structureâwhat you need to access the functions. Youâd have to rewrite all the millions of lines of code in Apple or in Microsoft which is what Google did in Android.â Oral Argument at 36:00. 6 In their brief as amici curiae in support of reversal, Scott McNealy and Brian Sutphinâboth former executives at Sun who were involved in the development of the Java platformâprovide a detailed example of the ORACLE AMERICA, INC. v. GOOGLE INC. 31 âthe Android method and class names could have been different from the names of their counterparts in Java and still have worked.â Copyrightability Decision, 872 F. Supp. 2d at 976. Because âalternative expressions [we]re available,â there is no merger. See Atari, 975 F.2d at 840. We further find that the district court erred in focusing its merger analysis on the options available to Google at the time of copying. It is well-established that copyrightability and the scope of protectable activity are to be evaluated at the time of creation, not at the time of infringement. See Apple Computer, Inc. v. Formula Intâl, Inc., 725 F.2d 521, 524 (9th Cir. 1984) (quoting National Commission on New Technological Uses of Copyrighted Works, Final Report at 21 (1979) (âCONTU Reportâ) (recognizing that the Copyright Act was designed âto protect all works of authorship from the moment of their fixation in any tangible medium of expressionâ)). The focus is, therefore, on the options that were available to Sun/Oracle at the time it created the API packages. Of creative choices involved in designing a Java package. Looking at the âjava.textâ package, they explain that it âcontains 25 classes, 2 interfaces, and hundreds of methods to handle text, dates, numbers, and messages in a manner independent of natural human languages . . . .â Br. of McNealy and Sutphin 14-15. Javaâs creators had to determine whether to include a java.text package in the first place, how long the package would be, what elements to include, how to organize that package, and how it would relate to other packages. Id. at 16. This description of Sunâs creative process is consistent with the evidence presented at trial. See Appellant Br. 12-13 (citing testimony that it took years to write some of the Java packages and that Sun/Oracle developers had to âwrestle with what functions to include in the package, which to put in other packages, and which to omit entirelyâ). 32 ORACLE AMERICA, INC. v. GOOGLE INC. course, once Sun/Oracle created âjava.lang.Math.max,â programmers who want to use that particular package have to call it by that name. But, as the court acknowledged, nothing prevented Google from writing its own declaring code, along with its own implementing code, to achieve the same result. In such circumstances, the chosen expression simply does not merge with the idea being expressed. 7 It seems possible that the merger doctrine, when properly analyzed, would exclude the three packages identified by the district court as core packages from the scope of actionable infringing conduct. This would be so if the Java authors, at the time these packages were created, had only a limited number of ways to express the methods and classes therein if they wanted to write in the Java language. In that instance, the idea may well be merged with the expression in these three packages. 8 The district court did not find merger with respect to the structure, sequence, and organization of Oracleâs Java API packages. Nor could it, given the courtâs recognition that there were myriad ways in whic