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 focus is, therefore, on the options that were available to [the plaintiff] at the time it created the [copyrighted work].” Id. Respectfully, the Court declines to rely on Oracle for this particular proposition. The Federal Circuit’s discussion is hard to reconcile with its own framing of the Second Circuit’s standard. Holding that merger doctrine requires focusing on the options available at the time of copyrightability, rather than infringement, runs counter to the Oracle court’s recognition that in the Second Circuit, “the merger doctrine relates to infringement, not copyrightability.” Id. at 1358 (describing holding of Kregos, 937 F.2d at 705).

On the contrary, the Second Circuit seems to have implicitly recognized that circumstances intervening between a work’s initial fixation and the alleged copying are relevant to merger analysis. For example, in the context of computer programs, the Second Circuit cited with approval a report by an organization called CONTU for the