[00:00:02] Speaker 00:
May it please the court, Doug Hallward-Driemeier on behalf of Pterodine, and I would like to reserve three minutes of time for rebuttal.

[00:00:09] Speaker 00:
Thank you.

[00:00:11] Speaker 00:
Your Honor, Taradon and Astronix market directly competing digital test instruments, or DTIs, to the same customers.

[00:00:21] Speaker 00:
When they introduce a new DTI, they each face the same challenge, which is that customers who have created their own test program sets, or TPSs... Well, let me stop you here.

[00:00:33] Speaker 03:
Are we talking about, is the market the DTI, or is the market the software?

[00:00:38] Speaker 00:
Well, the software is incorporated into the DTI in each instance, so we think the relevant market is the DTI.

[00:00:47] Speaker 03:
But they were doing different things, right?

[00:00:49] Speaker 03:
The software was able to do different things.

[00:00:53] Speaker 03:
The T940 was able to do something different than the DI was, right?

[00:01:03] Speaker 00:
It may be true that there are some disparities, but it's also true that the record establishes that the government, which is one of the chief customers, is either going to buy their DTI or Teradine's DTI.

[00:01:19] Speaker 00:
And that's why they were directly competing, Your Honor.

[00:01:21] Speaker 00:
And what I meant to say is that when you introduce a new DTI, especially one that has a new language,

[00:01:28] Speaker 00:
The customers have invested time in creating these TPSs, and they want to make sure they work on the new DTI.

[00:01:35] Speaker 00:
Well, when Teradyne did that, introduced a new DTI with a new language, it invested time and effort to create programs that would convert or translate those TPSs to work on Teradyne's new DTI.

[00:01:52] Speaker 00:
And those are the works that are asserted.

[00:01:54] Speaker 00:
When Astronix wanted to introduce its competing DTI, it didn't do what Teradyne did and create its own programs to convert or translate the TPSs to work on the T940.

[00:02:08] Speaker 00:
They took Teradyne's programs and put Teradyne's programs in their DTI.

[00:02:15] Speaker 00:
Do we know if, I'm sorry.

[00:02:17] Speaker 02:
So you say they took Teradyne's programs.

[00:02:20] Speaker 02:
Didn't they just take a little bit

[00:02:24] Speaker 00:
Well, you're right.

[00:02:24] Speaker 02:
Because we have this issue about how many lines, what percentage of the code.

[00:02:29] Speaker 00:
And that's a disputed question of fact.

[00:02:31] Speaker 00:
And that's why we think that summary judgment was inappropriate.

[00:02:35] Speaker 00:
They say 1,000.

[00:02:35] Speaker 02:
No, no, but I want to go back to you said they took it.

[00:02:40] Speaker 02:
But they took a little bit of it.

[00:02:42] Speaker 00:
Well, there's no question that they copied.

[00:02:45] Speaker 00:
There are 16 works that are asserted.

[00:02:48] Speaker 00:
One of those works was copied almost in its entirety.

[00:02:52] Speaker 00:
Another work, the entirety of the central file, which is the heart of the program, was copied in its entirety.

[00:03:01] Speaker 04:
These are- Right, but I had the same question as Judge Bolton, which is, I mean, we're not talking about a very large percentage of

[00:03:09] Speaker 00:
It is a large percentage of the asserted works, Your Honor.

[00:03:15] Speaker 00:
The asserted, again, for one of the works, it's virtually the entirety of the work.

[00:03:20] Speaker 00:
For another work, it's the entirety of the core file in the work.

[00:03:25] Speaker 00:
There are 16 different works.

[00:03:26] Speaker 00:
These are each separate works because they were created at different times by different authors over a period of time to do different things.

[00:03:35] Speaker 00:
So there's 16 different works, again, some of which copied in their entirety.

[00:03:40] Speaker 03:
Do we know how many lines?

[00:03:43] Speaker 00:
We said over 4,000 lines.

[00:03:46] Speaker 03:
Well, that's still less than what Google said, 11,000 some odd lines.

[00:03:51] Speaker 03:
So how does that help you?

[00:03:53] Speaker 00:
Well, it's not a question of an absolute number.

[00:03:57] Speaker 00:
It's a substantiality.

[00:03:59] Speaker 03:
Well, but if they said, if in Google they said that that was okay, or excuse me, that that was.

[00:04:05] Speaker 00:
But they looked, there are several things that are different about Google.

[00:04:08] Speaker 00:
One is they compared that as a percentage of the overall Oracle Java programming.

[00:04:16] Speaker 00:
Whereas here, we're talking about the thing that allows the translation is the program, the asserted works.

[00:04:24] Speaker 00:
And again, some of those were copied in their entirety.

[00:04:29] Speaker 00:
In fact, there's actually, although we're contesting that they're using it in their DTIs, and our DTIs compete.

[00:04:37] Speaker 00:
Teradyne actually has a separate product called TPS converter

[00:04:45] Speaker 00:
forget the last word, Studio.

[00:04:47] Speaker 03:
I'm glad I'm not the only one with the problem with all the acronyms.

[00:04:50] Speaker 00:
A lot of acronyms.

[00:04:52] Speaker 00:
TPS Converter Studio that allows for the conversion of these TPSs written in L language to the use on the new DTIs there in the C language.

[00:05:04] Speaker 00:
And so that's a standalone product that they have.

[00:05:07] Speaker 00:
Of course, that depends on C shell.

[00:05:10] Speaker 00:
That's one of the asserted works.

[00:05:11] Speaker 00:
That is one of the things that's in Teradine's DTI that allows for this conversion and is also in the other sides.

[00:05:19] Speaker 00:
Now, one of the critical facts, and it goes to every one of the four factors of fair use analysis, was it necessary for them to copy this?

[00:05:33] Speaker 00:
And the district judge, page 39, note 23, said,

[00:05:38] Speaker 00:
acknowledged, Teradyne argues it was not necessary.

[00:05:41] Speaker 00:
But the court says, quote, the court would conclude that any excess unnecessary copying here was de minimis at most.

[00:05:51] Speaker 00:
Now, why is necessity important?

[00:05:54] Speaker 00:
In Campbell, they say if it's more than was necessary, you lose factor three.

[00:06:01] Speaker 00:
In Sega and Sony.

[00:06:02] Speaker 02:
So in this case, the customer

[00:06:07] Speaker 02:
wanted to run its software on an Astronix DTI.

[00:06:17] Speaker 00:
They wanted its software to operate with Astronix DTI.

[00:06:23] Speaker 00:
Right.

[00:06:24] Speaker 00:
That's a slight variation, but it's important.

[00:06:27] Speaker 02:
It wouldn't work because the software was written only to be compatible with Pterodine's DTI.

[00:06:36] Speaker 00:
Well, your honor.

[00:06:38] Speaker 02:
So Astronex made the customer software able to operate on its DTI by copying some

[00:06:52] Speaker 02:
of Teradine's code, which is the only way it could work.

[00:06:57] Speaker 00:
That's the disputed question, in fact.

[00:06:59] Speaker 00:
The only way that it could, the necessity.

[00:07:01] Speaker 00:
And this is in Mr. Baer's declaration.

[00:07:03] Speaker 00:
This is at 7 ER 1380.

[00:07:07] Speaker 00:
First of all, 1390, he says there were other ways that they could have done it that would not have required any copying.

[00:07:13] Speaker 00:
They could have rewritten the TSPs for the customer, had the customer do so.

[00:07:18] Speaker 00:
But he says they could have also.

[00:07:20] Speaker 02:
The customer didn't want to do that.

[00:07:22] Speaker 02:
I mean, the customer says, I have invested

[00:07:27] Speaker 02:
Time and effort, millions of dollars in developing this software, it really works on my things that I want to test, but now I want to use your product.

[00:07:38] Speaker 00:
And one thing that AstroX could have done would have been to license Teradine's programs to do that.

[00:07:42] Speaker 00:
The government didn't say you have to steal them.

[00:07:44] Speaker 00:
In fact, AstroX initially asserted the statutory defense that the government made them do it, and they later dropped that defense.

[00:07:52] Speaker 00:
Customer made me do it is not a defense.

[00:07:55] Speaker 00:
If Andy Warhol had said in the Supreme Court case, you know what?

[00:08:01] Speaker 00:
Variety told me I had to use that Goldsmith photo as the basis.

[00:08:07] Speaker 00:
That would not have been a defense copyright viability.

[00:08:12] Speaker 00:
But I want to go back to 7 ER 1380, where Mr. Baer said that a different alternative would have been a standalone wrapper

[00:08:21] Speaker 00:
piece of software used to assist the conversion of test programs written for the M9.

[00:08:27] Speaker 00:
Such a wrapper would have required, would have required knowledge and use of terms matching the functions, but it would not have obligated ATS to engage in wholesale copying and use of Teradyne's works across the implementation of the T90 product and software.

[00:08:44] Speaker 00:
And then the next paragraph, 309,

[00:08:47] Speaker 00:
ATS often included pteridine source code files instead of individual functions or constants, even where it was entirely unnecessary to do so from a technical perspective.

[00:08:58] Speaker 00:
So here was an assertion of fact by an expert that the judge simply disregarded.

[00:09:06] Speaker 00:
On summary judgment, the judge can't do that.

[00:09:10] Speaker 00:
And again, this question of necessity goes,

[00:09:12] Speaker 00:
to factor three as a Campbell a case says Supreme Court goes to factor two that's where this court Sega and Sony cases analyze necessity in fact in Sony the court said.

[00:09:29] Speaker 00:
connects copying of Sony's bios must have been, quote, necessary to have been fair use.

[00:09:34] Speaker 00:
So it goes to second factor, but it also goes to the first factor.

[00:09:38] Speaker 00:
In SEGA, in discussion of the first factor, it refers to its discussion of necessity in the second factor.

[00:09:44] Speaker 00:
And then finally, it goes to the fourth factor, because if it's not transformative,

[00:09:50] Speaker 00:
then you presume the fourth factor in our favor too.

[00:09:53] Speaker 00:
So necessity was critical.

[00:09:55] Speaker 00:
There's also this related question of was there an alternative or did the government demand this?

[00:10:01] Speaker 00:
That was also disputed.

[00:10:04] Speaker 03:
When I'm reading all these cases, I guess I get the sense that the Supreme Court and the case law seems to tell us

[00:10:09] Speaker 03:
When the thing that's new is in fact transformative, then obviously that would weigh against your position.

[00:10:19] Speaker 03:
And here, wasn't that what was happening?

[00:10:20] Speaker 03:
We have this new transformative software that was able to

[00:10:25] Speaker 03:
help operate these DTIs?

[00:10:29] Speaker 00:
Again, that's the problem.

[00:10:30] Speaker 00:
And transformative is a classic question of fact that should have gone to the jury.

[00:10:35] Speaker 00:
And there are many cases in which the jury instructions put precisely that question to the jury.

[00:10:40] Speaker 00:
Was it transformative?

[00:10:42] Speaker 00:
Now, in the cases you cite, it's true that the Supreme Court or this court thought that the new, the copying was part of something that was transformative.

[00:10:52] Speaker 00:
Note that in Sega and Sony, none of the plaintiff's copyrighted code was included in the product that the defendant sold.

[00:11:02] Speaker 00:
And in none of the three did the defendant sell a product that competed head-to-head with the plaintiff's product.

[00:11:09] Speaker 00:
That was the fact in Andy Warhol, and that's where the court said if the secondary use is one that supplants, i.e., takes the sale away from the first use, it cannot be transformative, or that would eviscerate the copyright.

[00:11:28] Speaker 00:
But what about Google?

[00:11:30] Speaker 02:
I mean, the district judge said, this is Google.

[00:11:34] Speaker 02:
And it's not Google, Your Honor, because- Didn't Google, at the end, because the copying was allowed, were competing for the same

[00:11:46] Speaker 00:
No, your honor, in Google, the court made clear that what was critical to its analysis was the fact that Google was creating a whole new ecosphere, this Android cell phone.

[00:12:01] Speaker 00:
Oracle did not sell cell phones.

[00:12:04] Speaker 00:
Google was creating a whole new ecosphere of Android cell phones and the Supreme Court noted that in fact the programmers that used Oracle's product, Java, were gonna have many more opportunities to do that now that there was this entirely new platform.

[00:12:21] Speaker 00:
They were not competing with Oracle, Google and Oracle.

[00:12:25] Speaker 00:
They were creating a new platform for

[00:12:27] Speaker 00:
Oracle's licensees to create new products for it.

[00:12:31] Speaker 00:
There was actually going to be more demand.

[00:12:34] Speaker 00:
That was the creativity that Google unleashed.

[00:12:37] Speaker 00:
But that's not true here, because here, Teradyne and Astronix sell directly competing products.

[00:12:45] Speaker 00:
If the government buys an Astronix T940, they don't buy a Teradyne DI series.

[00:12:51] Speaker 00:
They've already solved that problem.

[00:12:54] Speaker 00:
That's the supplanting that the court was talking about in Andy Warhol.

[00:12:59] Speaker 00:
Any other questions now?

[00:12:59] Speaker 04:
I do want to reserve.

[00:13:00] Speaker 00:
All right, I'll give you three minutes for rebuttal.

[00:13:02] Speaker 04:
Thank you very much.

[00:13:02] Speaker 04:
Thank you.

[00:13:04] Speaker 04:
OK, Ms.

[00:13:04] Speaker 04:
Sendali.

[00:13:14] Speaker 01:
I like the, forgive me, Your Honors, the court with a more adjustable podium.

[00:13:19] Speaker 04:
You and I have the same issues.

[00:13:22] Speaker 02:
I think I stood there yesterday and said, isn't this a little high?

[00:13:28] Speaker 01:
Thank you.

[00:13:31] Speaker 01:
Good morning, and may it please the courts.

[00:13:34] Speaker 01:
I'm Dale Sundale, counsel for Astronics.

[00:13:36] Speaker 01:
This is a quintessential case of fair use.

[00:13:40] Speaker 01:
Affirmance is proper because it's well established under copyright law that copying functional computer programs for the purpose of compatibility is fair use at its zenith.

[00:13:53] Speaker 04:
It would be helpful to me if you could just jump right into the question of the commercial competition that's going on here, which makes this case a little bit different than something where you're talking about a truly transformative use, perhaps.

[00:14:07] Speaker 01:
Well, two things, Your Honor.

[00:14:10] Speaker 01:
It's not different in any way than Google.

[00:14:16] Speaker 01:
Certainly not different from Sony and Sega, where you ended up with, as this court noted in those cases, that you were having, instead of buying consoles, and they even recognized that consoles may not be sold as much because people could play the games on compatible PCs,

[00:14:34] Speaker 01:
or people instead of just only being able to use in Sega games on the Sega system could use it on the because of the defendant's compatibility code on other systems.

[00:14:47] Speaker 01:
The court said though

[00:14:48] Speaker 01:
That wasn't relevant in light of the transformative purpose.

[00:14:52] Speaker 01:
And that's what this is about because you can't have a transformative purpose.

[00:14:58] Speaker 01:
That's what Google was about and the concern about lock-in for two reasons.

[00:15:03] Speaker 01:
You can't have this kind of competition purpose because you need to look to, as a matter of law,

[00:15:09] Speaker 01:
at the source, as Google says, of the alleged injury under factor four.

[00:15:14] Speaker 01:
And as a matter of the statute, it says you look to the injury to be copyrighted.

[00:15:21] Speaker 01:
work, the effect on the market for the copyrighted work, not the equipment.

[00:15:26] Speaker 01:
And my friend on the other side is all talking about, oh, we're competing in these devices, but they don't have a ownership, a copyright.

[00:15:35] Speaker 03:
So that was my first question that I asked counsel.

[00:15:38] Speaker 03:
What was the market?

[00:15:39] Speaker 03:
He indicates that the market is not software, that it's on these DTIs, that it's

[00:15:46] Speaker 01:
That's wrong as a matter of law under the plain language of the statute.

[00:15:50] Speaker 01:
Judge Wu in his very detailed and thoughtful district court opinion dealt with that.

[00:15:54] Speaker 01:
And it's not consistent with the Lexmark decision, which is right on point.

[00:15:58] Speaker 01:
It was cited for approval in the Google Supreme Court case or in the recent 11th Circuit Corellium case that says you can't bootstrap into devices because of copyright.

[00:16:12] Speaker 01:
And that's because

[00:16:13] Speaker 01:
They're protected by different things.

[00:16:15] Speaker 01:
Patent law protects devices.

[00:16:18] Speaker 01:
Not mentioned, but in this case, as we noted in our briefs, is the other side started off with the patent claim too on their device.

[00:16:26] Speaker 01:
Once that patent was invalidated, it dropped out and is no longer part of this case.

[00:16:30] Speaker 01:
They don't have a patent on the hardware.

[00:16:33] Speaker 01:
What they're trying to do is bootstrap a patent-like protection

[00:16:39] Speaker 01:
and create a monopoly on their devices when all they have is very slender, very low declaring code, the smallest kind of protectable kind of copyright you have and only a small part, as Judge Bolton says, taken to kind of create this.

[00:16:59] Speaker 02:
I also- Let me ask about

[00:17:01] Speaker 02:
whether there's a material issue of fact and going back to this issue of lock-in, because you argue in your briefs that basically what Teradyne wanted to do was make it so that the people that had written code to be compatible with Teradyne's equipment, software, that they were, if Teradyne were to prevail,

[00:17:24] Speaker 02:
They would be forced to continue to use Teradyne, because it's the only way their software would run, or alternatively, to spend a fortune to create all new software.

[00:17:38] Speaker 02:
Correct.

[00:17:41] Speaker 02:
Council said that there's an affidavit that was submitted in summary judgment that said

[00:17:50] Speaker 02:
there's a way to do wraparound code.

[00:17:52] Speaker 02:
They didn't have to take our code to make the software of the customer compatible with our machines.

[00:18:00] Speaker 02:
They could have written this new wraparound code.

[00:18:05] Speaker 02:
And if that's the case, is there a material issue of fact as to whether or not there was an alternative to this copying?

[00:18:13] Speaker 01:
No, Your Honor, for several reasons.

[00:18:16] Speaker 01:
One, there's no requirement under the law that there be only one way to do it and that there wouldn't be alternatives.

[00:18:23] Speaker 01:
In Google, they didn't need to copy.

[00:18:25] Speaker 01:
They could have just, as in Apple or in Microsoft, just had their own code.

[00:18:31] Speaker 01:
There's no requirement of that.

[00:18:33] Speaker 01:
Moreover, while my friend on the other side didn't cite 20 SER 52224 and 5,

[00:18:41] Speaker 01:
which were their own expert that they just relied on, admitted in his deposition that doing a wrapper like that would still require copying.

[00:18:50] Speaker 01:
Moreover, as we explained, so you couldn't evade the copying.

[00:18:53] Speaker 01:
Moreover, there are other so-called alternatives, which again, are not a matter of law.

[00:18:57] Speaker 01:
You don't need to do it.

[00:18:59] Speaker 01:
But those other so-called alternatives defeat the whole purpose because they all are about

[00:19:04] Speaker 01:
rewriting, and that's the whole point.

[00:19:07] Speaker 01:
There's, as Judge Wu found and they admitted in their disputed statement facts, the risk of not working, of having a potentially catastrophic failure, could be high.

[00:19:21] Speaker 01:
This was right in their disputed issue of material facts.

[00:19:26] Speaker 01:
Moreover, my friend on the other side misstates the law when they argued that necessity is required.

[00:19:33] Speaker 01:
That's simply not the law.

[00:19:37] Speaker 01:
Rather, as this court noted in Trisona and as the Supreme Court said in Campbell, which was the case that set forth the transformative standard and was one of our first seminal fair use cases, that rather the

[00:19:56] Speaker 01:
The amount and substantiality of the portion used in relation to the copyrighted work as a whole is reasonable in relation to the purpose of the copying.

[00:20:10] Speaker 01:
That's what Campbell said.

[00:20:11] Speaker 01:
That's what Trisona cited.

[00:20:13] Speaker 01:
So they're being inaccurate in claiming that there's a necessity argument, which I heard them do for each and every factor.

[00:20:21] Speaker 01:
That's just not the law.

[00:20:23] Speaker 01:
What the law is,

[00:20:25] Speaker 01:
look to what the alleged purpose is.

[00:20:28] Speaker 01:
and see if it's justified.

[00:20:31] Speaker 01:
And if it's consistent with the public interest, it's consistent with the purpose of copyright, which is to create new works.

[00:20:40] Speaker 01:
And that's why we thought this case is so on fours with Google, because there, the Supreme Court, in a full-throated opinion, we think, similar to this court's decisions in Sony and Sega that also talked about the importance of the public interest,

[00:20:57] Speaker 01:
said that copyright laws should not be construed in a way to create monopolistic effect that are contrary to the principles of copyright of creating new works.

[00:21:09] Speaker 01:
And that's why Judge Wu here made such a point that by letting the military be able to use these TPSs confidently without risk of catastrophic laws, without having to spend time and money

[00:21:27] Speaker 01:
to even try to do that, would create the ability to have new products.

[00:21:32] Speaker 01:
As was discussed with my friend on the other side, the T940, I have problems with the names too, the T940 adds new features.

[00:21:42] Speaker 01:
It was deemed, I commend to the court, the letters between Teradine,

[00:21:48] Speaker 01:
And the government contractors, we cited in our briefs, where it talks about the government saying, your proposal, Teradyne, was deficient.

[00:21:57] Speaker 01:
Teradyne writing back saying, we don't care.

[00:21:59] Speaker 01:
You have to use us anyway if you want to avoid time and risk.

[00:22:04] Speaker 01:
Is that how copyright law should be utilized?

[00:22:08] Speaker 01:
No.

[00:22:10] Speaker 01:
That's what Google tells us.

[00:22:12] Speaker 01:
That's what Sony tells us.

[00:22:14] Speaker 02:
Can I go back to the amount of copying because there's this argument between you and counsel and the trial judge sided with you about do you look at these works as whole or do you look at them separately?

[00:22:32] Speaker 02:
And counsel told us that at least as to one of the 16 works, the whole thing was copied.

[00:22:39] Speaker 01:
Yeah, I think this is the legal concept of a distinction without a difference.

[00:22:44] Speaker 01:
So first, it doesn't matter because again, as Kelly teaches, even if everything was taken, if there's a transformative purpose here, what was taken and there's no allegation that we took more, you know, they're claiming it

[00:23:02] Speaker 03:
Then can you explain what that transformative use is?

[00:23:07] Speaker 03:
Because Council doesn't seem to believe that there is one.

[00:23:11] Speaker 01:
Well, just like Sony, just like Google, it's a transformative purpose for compatibility purposes to let people use either in Google their existing knowledge of APIs, the least protectable if at all kind of computer code, to let them

[00:23:30] Speaker 01:
work with and new products.

[00:23:33] Speaker 01:
Just like in here, it's a transformative purpose for people to be able to use their existing TPIs, these people are the military, for new products.

[00:23:43] Speaker 01:
In both cases, you're creating the ability to have new products.

[00:23:47] Speaker 01:
And then going back to Judge Bolton's question about the number of works, one, it really doesn't matter because while you look at quantitative and qualitative with regard to factor three,

[00:23:59] Speaker 01:
Again, it could be everything, and that still could be fine for the transformative purpose.

[00:24:06] Speaker 01:
But the other thing is, as Judge Wu explained in the early part of his opinion, I think it was on page two where he was doing the facts section.

[00:24:14] Speaker 01:
What's lost in this is that all these works were first published around 1999.

[00:24:20] Speaker 01:
They only filed for copyright when they were about to sue in approximately 2019.

[00:24:28] Speaker 01:
What they did was rather than register, which you would normally do, the whole code for the M9

[00:24:39] Speaker 01:
product, I think I have that name right, they've split it up into lots of pieces so that they can say, oh look, there's a lot of different works here and some of them you copy completely.

[00:24:50] Speaker 01:
That's a misuse of the registration process and is artificial.

[00:24:54] Speaker 01:
What you need to look to is what the whole code base was and the whole code base was not split up in these little things but was a larger amount and that's why our expert, as we explain,

[00:25:07] Speaker 01:
said that it was less than 1% and only about 1,000 lines of code, far less, as Your Honor noted, than was used in Google.

[00:25:17] Speaker 01:
And by the way, this is the first time today we even heard that it was 4,000 that they're complaining.

[00:25:22] Speaker 03:
Well, I looked for that number, the lines.

[00:25:25] Speaker 03:
I couldn't find the number.

[00:25:27] Speaker 03:
We went back and forth trying to figure that out.

[00:25:29] Speaker 03:
So now we have a number.

[00:25:31] Speaker 01:
We do, but the district court also asked them for a number.

[00:25:34] Speaker 01:
And the district court, remember, this was a tentative, the way Judge Wu does things and let the parties come in and argue.

[00:25:42] Speaker 01:
And he specifically said, come on in and tell me why this is wrong and why it would make a difference.

[00:25:48] Speaker 01:
Because regardless of how much you're copying, is this

[00:25:52] Speaker 01:
qualitatively in any way different.

[00:25:56] Speaker 04:
It could have been much more in your view and we'd reach.

[00:25:59] Speaker 01:
You're right, Your Honor.

[00:26:00] Speaker 01:
It could have been much more.

[00:26:01] Speaker 01:
It didn't matter.

[00:26:03] Speaker 01:
But what the judge said is how is this kind of code different from the code in Google that the court said was maybe barely copyrighted at all, but it was functional.

[00:26:12] Speaker 01:
And that's why I go back to where I started off, which is this being a computer case is so important.

[00:26:19] Speaker 01:
And that's why we don't know of the only computer software compatibility cases that we know of all find fair use.

[00:26:28] Speaker 01:
Google, Sega, Sony, Corellium, they have not cited a single compatibility

[00:26:35] Speaker 01:
computer software case that found it wasn't fair use.

[00:26:39] Speaker 01:
And for good reason, it would be perverse to what copyright law is all about.

[00:26:45] Speaker 01:
And it would also talk about the public interest.

[00:26:49] Speaker 01:
I mean, I know people sometimes say, oh, don't talk about public interest because that makes it sound like you're not right on the law and you're not right on the facts kind of pound the table.

[00:27:00] Speaker 03:
I don't believe that.

[00:27:00] Speaker 01:
Well, thank you, Your Honor, because I don't believe it either.

[00:27:03] Speaker 01:
I mean, you're more than me.

[00:27:05] Speaker 01:
You guys are here for the public interest.

[00:27:08] Speaker 01:
And if in Google there was a public interest in avoiding lock-in and making it possible for people to reuse their knowledge in new things, I can't think of a more compelling public interest than letting the US military.

[00:27:22] Speaker 01:
It's in the record of how many of these TPSs they are.

[00:27:25] Speaker 01:
It's in the record of how much risk there would be.

[00:27:28] Speaker 01:
for them to have to redo them.

[00:27:30] Speaker 01:
And for that to not be allowed, just so that they can be the only one the government can pick, that's a misuse of copyright law.

[00:27:40] Speaker 01:
They don't have a patent.

[00:27:42] Speaker 01:
And we respectfully, respectfully ask this court affirm.

[00:27:46] Speaker 04:
Thank you.

[00:27:46] Speaker 04:
Any other questions?

[00:27:48] Speaker 04:
No.

[00:27:48] Speaker 04:
Thank you very much for your argument.

[00:27:59] Speaker 00:
Your honors, that would be a fantastic closing argument to the jury, but it's not

[00:28:04] Speaker 00:
one for this court now because all of those facts are disputed.

[00:28:09] Speaker 00:
For example, the question whether it's monopolistic, the only way, all of those are about whether there was an alternative.

[00:28:17] Speaker 00:
And Judge Bolton, you're exactly right.

[00:28:19] Speaker 00:
Mr. Bayer disputed that in his declaration saying that you could use a wrapper and that the wrapper would maybe require using some isolated declaring code

[00:28:33] Speaker 00:
to do that, but you would not have to copy the comments, the error codes, the error messages, Teradine's own copyright notice.

[00:28:42] Speaker 00:
None of that would have had to be copied.

[00:28:44] Speaker 00:
They just did that because it was easier.

[00:28:46] Speaker 00:
Copyright fair use is not about making it easier for them to compete with us.

[00:28:52] Speaker 00:
In terms of whether— Ms.

[00:28:53] Speaker 02:
Candali just said there didn't have to be an alternative.

[00:28:56] Speaker 02:
Just had to be a fair use.

[00:29:00] Speaker 02:
Even if you could do this wraparound code, you don't have to if you can transform the copyrighted code.

[00:29:09] Speaker 00:
So, but transform is not to be able to create a competing product.

[00:29:14] Speaker 00:
That's what Andy Warhol says.

[00:29:16] Speaker 00:
And she's misrepresenting Sony because Sony was very clear that it was transformative precisely because it allowed you to play on something when you didn't have a Sony PlayStation available.

[00:29:29] Speaker 00:
It wasn't about

[00:29:30] Speaker 00:
Well, the defendant in the Sony case wasn't selling PCs.

[00:29:35] Speaker 00:
They were selling a software program, and this court said it was transformative because it allowed a new platform.

[00:29:41] Speaker 00:
There's no new platform here.

[00:29:42] Speaker 00:
There's a directly competing DTI.

[00:29:46] Speaker 00:
That's not transformative, and that's exactly what Andy Warhol says.

[00:29:50] Speaker 00:
And in terms of this, you know, the whole world's going to blow up.

[00:29:54] Speaker 00:
I understand that that is their argument, but in the court's opinion on page 12, he cites Statement of Undisputed Fact 8 for that.

[00:30:05] Speaker 00:
But there's an entire column that disputes that and says, no.

[00:30:09] Speaker 00:
In fact, the risk can't be eliminated, but the risk can't be eliminated by using a new DTI either.

[00:30:15] Speaker 00:
And that's why there are all of these systems to verify.

[00:30:19] Speaker 00:
And so there's no additional risk, is what our declarants said.

[00:30:23] Speaker 00:
This is at, I want to make sure that I,

[00:30:27] Speaker 00:
I'll get it to you, 4ER0560.

[00:30:32] Speaker 00:
Again, it was page 12 of the opinion, cite statement of undisputed fact 8.

[00:30:36] Speaker 00:
That's their statement.

[00:30:38] Speaker 00:
And then we contest that.

[00:30:39] Speaker 00:
And we cite the declarations of Ms.

[00:30:41] Speaker 00:
Lopes and Mr. Wood discussing that there are ways to reduce those risks, specifically with respect to a rapper, Your Honor.

[00:30:50] Speaker 00:
In Mr. Baer's declaration in paragraph 279,

[00:30:55] Speaker 00:
that's on 7ER1369, he talks about the fact that the Air Force already uses a wrapper.

[00:31:02] Speaker 00:
So of course, the Air Force is not gonna use a wrapper if we think the world's gonna explode.

[00:31:06] Speaker 00:
So this is a dispute of fact.

[00:31:08] Speaker 00:
This is why we have jury trials.

[00:31:10] Speaker 00:
Even the question about what's the market, Google says that's a question of fact that should go to the jury.

[00:31:16] Speaker 04:
Let me stop you because you're out of time and see if either of my colleagues have additional questions.

[00:31:19] Speaker 04:
I do not.

[00:31:20] Speaker 04:
Okay, why don't you just take a moment to wrap up and thank you.

[00:31:24] Speaker 00:
Again, I come back to the fact that in Sega, Sony, Google, it was all about reverse engineering to understand the functional aspects of the code, which was not copyrightable, and it was only by disassembly, it was intermediate copying, that you could understand the function and then apply the ideas in doing something new.

[00:31:46] Speaker 00:
That's not what they did here.

[00:31:47] Speaker 00:
They actually copy the code and sell it in their product.

[00:31:51] Speaker 00:
When Teradyne sells its DTIs, it's competing against its own product because they're using the same thing that we created.

[00:31:59] Speaker 00:
That's what copyright protects against your hardware.

[00:32:01] Speaker 00:
Thank you very much.

[00:32:02] Speaker 04:
Thank you.

[00:32:02] Speaker 04:
We thank both of you very much for your helpful arguments this morning and all counsel on the briefs for the helpful briefing in this case.

[00:32:08] Speaker 04:
This matter is now submitted and our court's in recess until tomorrow morning.