the clock thank your honor good morning they please the court i'm robert unocal on behalf of the appellant experience and from the information solutions this is an appeal from the arizona district court's grant of summary judgment on copyright and trade secret claims there are four errors that the district court made that i'd like to address today or honors the first the district court erred by ruling that a compilation consisting of names and addresses can not be copyrightable because names and addresses are on copyrightable facts regardless of the process used to select the information that goes into those names and addresses but the copyright act the text of section one  one of the copyright act actually defines compilations which are protected will as quote formed by the collection and assembling of preexisting materials of of data that are selected in such a way that the resulting work as a whole constitutes an original work of authorship the district court here specifically said that whether or not a selection is a factual compilation presents as the modicum of creativity is needed to be original quote this is from the district  opinion it does not look to the actions of the compiler selecting the facts unquote that's on sixteen but this court has made clear in for example c d n versus capice that in fact you have to look at the process that is used to select the information that constitutes the facts in order to determine whether or not the selection process bears the hallmarks of originality and creativity yeah well but the most famous case here is  five which is the brecht so i guess the question in the district court obviously thought that this was like a bubble so i guess the question is in in lay terms why is what what we have here different from a phone book so the phone book in feis for any white pages phone book is a mechanical reprinting of the information that in the case of fice rural telephone got from its customers about their name their phone numbers and then it just reprinted that into a single directory there was no selection of information there was no resolution of conflicting information or data there was no election of of what information to put in it was exactly what was obtained from the customers here experian is actually making its own judgments from a huge amount of conflicting data points exactly what information it's going to put into every field so for example experian will that the name their names and addresses you know what you're going to put in is still a name and address that's true your honor but but there's a couple points about that number one is for every person there's actually a huge amount of name and address information that's available from multiple sources that will for example if you are a if you've moved in the last year if you own a residential property as well as a second home if you are investor in a landlord property all of these will come up in the data as addresses attributable to you what experian does not do is reprint all of that information into its database what it does is it tries to pick a single address that it believes is the best the most valuable to its sources it then has to pick which of the information from the multiple sources it's going to put in and to each of the fields so for example the first thing it's going to decide is one of these a business address is one of these an old address is one of these  residential or a second home property and it's going to make a determination it would like to get to somebody as primary residence so that the mail gets delivered to them along with that for example your honor there's elections about what goes into the name fields in the household fields so for a name my name is robert theirs for any of the multiple data entries you're going to have some robs some roberts some bobs some robbie's there's an election that has to be made for each one of the people that's going into the database what name gets included for people who have hyphenated name last names there's an election of you're going to do both names is going to be only the first only the last because differing records will have differing entries and what experience does not do is simply take the records that it gets and reprint them and collect them in a database it takes the multiple pieces of information that it gets about every person and every address and it makes its own value judgments as to which piece of information should go into that database i might point out number two your honor that the district court actually erred by resolving this on summary judgment rather then presenting it to the fact finder i believe there are disputes as to the level of decision making that goes into the various elements of the of the name and address fields for example there's a dispute as to the degree of hygiene what's called that's applied to the names and it would seem to me the question of copyright but with the question of was yes or out of the ultimate determination of copyright ability is a question of law according to the second circuit in matthew bender vs west quote whether the particular elements of a work demonstrate sufficient originality and creativity to warrant copyright protection are a question for the fact finder the ultimate determination of copyright ability is for the court but the question of whether there is sufficient creativity or originality in the choices that are being made by experian is one that should be presented to the fact finder in the welsh sense for purposes of the their motion for summary judgment they must assume that what you are saying is correct so i don't believe that they fully assume that what we said is correct your honor i think that they presented their argument that that the choices that we are making are not sufficiently original or creative i don't believe that they i don't believe is a matter of law as a matter of law that's what they suggested your honor and the court said that the facts themselves were not which is of course true under the copyright act but the court said that it did not need to look to the process that we used to make the selections it did not need to look to the evidence for example showing that experience database statistically is different than the other databases that independent studies have compared it with this is not a situation for example like with multiplication tables with multiplication tables there would be one possible answer that would have to go into any compilation of multiplication tables here there are multiple choices all ways of expressing an address to make it valuable in your estimation and that's verified by the fact that the independent studies actually show that when ruling that a compilation consisting of names and addresses can never be entitled to trade secret protection because publicly available individual names and addresses are supposedly readily available but experian never ever claimed that individual names and addresses by themselves are a trade secret experience or that it's compilation of more than two hundred fifty million names and addresses were its consumer view a database i thought the argument argument i don't believe that's the argument it's certainly not the arguing that the district court relied on your honor but the district court said was if you disaggregate the compilation and look at each individual name and address you could go out and find that name and address all on your own through publicly available records and therefore you cannot say that when you put all of that publicly available material together that the resulting database is somehow not readily ascertainable by proper means that is an experience argument with regard to the trade secret that really it's the process by which you get to this compilation that's the trade secret no your honor ok the process doesn't fact give rise to a trade secret the compilation itself but it's the value of the compilation itself so the statutory definition of trade secrets focuses on the economic value of the compilation due to its secrecy and here it's the compilation not not the process but what results from that process that we license out and get millions of dollars a year for because it is valuable to consumers because it is not readily available by other means the reason they license it from us at considerable cost and under strict regulations as to how they can use it is precisely because we have created through considerable effort a database that is economically valuable due to its secrets and what was the basis of the district court's ruling treaty on the trade secret count this is approximately at the twenty the court said that because the individual names and addresses which make up the database are in our publicly available on their own forever and your position is that that's incorrect as a matter of law that is incorrect as a matter of law and as well i might add your honor that it is up to the fact finder to determine whether or not there is a trade secret based on the statutory definitions of a trade secret and there's ample evidence in the record here to show that met all of those whose your client has many licensees who have access to the router if coca cola was to give its formula out without any restriction or confidentiality obligations it may very well eventually stop being a trade secret but that's not what experience what experience does with everybody who licenses it or uses any portion of it asset is the fact that other than coming to experian and taking a license agreement subject to specific restrictions you cannot otherwise get this information so it does not cease to be a trade secret as to experience merely because experience has had a lot of every license is obviously subject to its own unique terms of negotiations but any customer can license portions of the consumer of your database that are relevant to its knees so that could be a huge number of fields that go beyond names and addresses the fields that you have actually taken a license to i guess i take it in order to prevail on your trade secret you will have to show that they knowingly wrongfully you acquired this that's correct your honor and so we would  what you're asking us to do is to say that the district court erred as a matter of law and saying that this compilation can't be trade secret and then send it back for everything else yes your honor the same with respect to the a to the copyright cla i'd like to start one of my opportunities this morning is to make certain that we have focused narrowly on the copyright issue because my sense is and particularly in the reply brief there may have been a subtle shift of arguments  the argument below was that experian uses its judgment and expertise to coordinate the right name with the right address and it says this arrangement that ultimately results in the c d being a compilation that quote glows bright with the creative spark that warrants protection that's the issue it doesn't have anything that's a pretty good it will be created a market language comes directly from the case law i would suggest that it creativity he just has to be a little tiny bit of creativity that's limitless enough well i think when when you are engaged in the discovery of preexisting facts facts that exist in the public domain regardless of whether you're compiling them or not so preexisting facts you know gravity preexisting for you know well and you know the fact that you can put airplanes you know hav beg to disagree because when you get in for example to the copyright cases and you deal with things such as the c d n case where you are estimating something for example you are taking public domain data and making inferences  hypotheses and coming up with with a creative creative original authorship of estimates those are not really prepared preexisting historic tracks and up sure the probability exists that whether or not you determine that all right but i think we're missing words here i mean the fact is what opposing counsel has presented is a process that strikes me at least as paradigm of non copyrightable kind of process that the resulting list the resulting compilation if you will as we pointed out in our brief what the census does in terms of trying to determine the most accurate names paired with the most accurate addresses and indeed on for a particular date which involves more in terms of estimates and opinions is the paradigm example of something that does not well it's used as an example of something that would not would not yes thank you it's actually highlighted here along with a good deal the rest of the case facts do not owe their origin to an act of authorship the one is the distinction is one b between creation and discovery census takers for example do not quote create the population figures that emerge from their efforts they copied these figures from the world around them census data therefore do not trigger copyright because these data are not original in the constitutional sense copyright the ability of sense is there because it's a government publication and can be copyrighted but it's certainly not saying that when the census bureau decides it's going to look for kinds of data and other kinds of  i believe that the eleventh circuit later also and i would point to the bell south case which applies the feist and i think this addresses the very issue before the court to be sure baptise employed a set of strategies or techniques for discovering the data any useful collection of facts will be structured by a number of decisions regarding the optimal manner in which to collect the pertinent data in the most efficient and accurate call that they them make judgments about which things to include and which things to exclude oh and i think that that's important i don't think that is the argument the argument is we go out and we search from public domain sources to try to find the most accurate information they call a deliverability but not choosing from sources in some other creative sense they're trying to find what is they believe accurate precisely the same thing the cens here's what i'm getting in the data itself is not copyrightable correct so the names and addresses themselves are not correct but what feist seems to be say is that a compilation of these things if not a selection of particular for example consumers it is not a subset it's not the creative spark in taking information and calling it down indices thing else it is we're going to go out to the taking public domain data and and coming up with estimates of value that's where the creativity is it is not going out and just collecting raw names and raw addresses and i i i mean that's that's my reading the cases in my reading of feist but i see my titles running down and i want to so counsel us if we were to decide that this compilation was copyrightable would it be  now to mark's position that we should also decide on the infringement issue as a matter of law rather than sending it back based i believe i believe it can be and in particular in connection with the virtual identity that it's a separate basis to affirm an independent basis i want to i want to get to the answer nick airframe set of of cases in die and that is it is undisputed on this record it's a threshold issue because it resolves copyrights dispositive is that they did not compare the registered copyrighted work to the allegedly infringing work and to judge her wits as pinion in that case says that's a that's a requirement in every other case that's looked at this i believe has said that and the airframe case out of the first circuit which judge her with cited is directly on point in  case out of florida is also almost exactly on point they involve subsequent versions of computer code databases and and so forth that is as we said in our brief legal requirement you cannot compare and i want to be clear about what the object of facts and the object of record in this case the registered copyright is in exists is is a version of the  database it's what's called x one forty nine version one forty nine of this database that's the allegedly infringed work experience in house comparison used version one eighty three thirty four versions later during which if we use the one point five million people moving consumers moving per month roughly fifty two this goes to whether you can prove a profit no this goes just to substantial similarity as a matter of law and this is resolved and decided time and time again as a matter of law the courts look and they say if you did not compare the a let the registered work with the allegedly infringing work you lose bar none and what's interesting is the as i said the airframe case is directly on point and in that case there was actual evidence that the defendant had copied it's an it's an interesting case not only was there plainly access but when the when the defendant was copying or some employee was copying there was actually in the margin in the code comments to the effect of i don't know what this means but i'm leaving it in and yet the first circuit said you you compared you compared a much later version and it was updated it had changed it was updated in the ordinary course of business what do we have in this case we have a we have a database that is updated on a twenty four hour a day seven day a week basis according to experience thirty four versions later fifty two million people have moved and that's their only evidence of similarity that's their only evidence of infringement in this case and i would suggest to you and as i said answer nick cites a number of those cases including the customer list cases they deal with certain attributes but i think your question was directly related to a point i wanted to make which is the argument here is that the process there are public domain sources out there there are phone directors there's a national change of address database their utility records these various public sources and we've come up internally with some system or method when we plug that data in it spits out what we think is the most accurate data and i think what experian has done is conflate the process with the result the process itself might be trade secret because you could then go out and use that to cull from public domain sources and continue to generate these kinds of accurate lists but i think then you go to the the the phoenix case well you go to enterprise leasing case first which says that a comprehensive listing at least the way i read it a public domain data doesn't suffice public domain data in general is  not is not subject to trade secret the method of selecting out from that my fee i'm sure it's going to mean they claim that i mean you know lots of close in the public domain every ingredient on the call this we use the secret process to take out names leave certain names in and come up with this thing that is not a reflection in itself may has stuff that's in the public domain process is secret the process not the end result it's not the coca cola bottle that sitting over on counsel table it's the process of taking those in in the process by which you come up with that right that's the that's the process and you can't from the coca cola but well actually an engineer or some somebody trained in that probably couldn't measure what and why if you keep i mean the palmach or call if you have to send out for people to doing so you can't really keep  the results secret but in this case i say we create those out and we were licensing the people and we each of those licensees is subject to strict confidentiality to point the  process is not loaned out to anyone the process isn't a list of names and addresses maybe but that's just the ultimate list that tells you nothing about the process that goes into it nothing at all and i will tell you th there's a result of the process i understand and might my distinction is to say that the process might well be a trade secret and that a list of public domain names and addresses is not i agree that's not the argument they're  that's your position but why because it is the process that is kept secret it is it is the process in fact there nondisclosure agreements exclude public domain they can't protect the result of the process that's what you're saying well i think they could as to as to as to ninety nine percent of this database attributes i mean you get into the into the customer list cases if you call out certain attributes and so forth we're not talking about any of that i'm saying that if you go out into the public domain and you collect names and addresses the name how you do that how you do that if you come up with some special algorithms and so forth how you do that may well indicate that if it's if the customer list is simply a list of some names and addresses that are basically available to competitors then those are not those are not trade secret it's a selective listing of attributes for example a particular policy holder a list of policyholders i believe is not a trade secret under arizona law but if you have a list of policy holders and then a series of attributes about them about purchase perhaps what particular kind of insurance do they buy what kind of premiums do they pay what are their coverage limits and so forth now you're getting into something that i think may well under arizona law will give you to move thank you or i'll be brief i'd like to address just two points from from opposing counsel's discussion first as to the anthony case the airframe cases these are in fact related to the infringement analysis the substantial similarity analysis is infringement there is no record on it for enjoyment here because the district court having found that the this was a not copyrightable database did not engage in this and mean it there's no record there record there either there's no rulings from the district court and the only time these cases were raised were in the reply brief on motions for some on the motion for summary judgment there is no opportunity for us to actually engage or go through any of the  relevant discussion i will notice that note however that in the data east vs epix case this court the ninth circuit said that what is required is not necessarily a comparison of the original work to the alleged infringing work it's that there must be sufficient evidence of the contents of the work to make a quote fair comparison here there is there is in fact three groups of comparison an example ation the data east was no that was a source that was a code case your honor here there is evidence that it was presented below on summary judgment and in the broader record that shows there are three comparisons which have been made to the actual consumer view database not to some recreat simulation of it in and to nick i should note there was no evidence whatsoever of any comparison the only claim in that case was that if you could prove access even without showing what the access was to that that would suffice to establish substantial similarity and here the court said no you can't just prove access you have to show some comparison we have comparisons here and that's why this is a fact issue that should be dealt with at the district court level however the comparison was  to an experian file from twenty twelve and then to now the mark files against an experience file from twenty fourteen so the fact that experian continually updates its database right so the changes are going to be made over time when you want you get different information and you want to prove the accuracy of that information because that's the value of the database that it's necessarily going to change over time i think is but councils point was therefore if you're comparing is first of all i should note that in addition to dr in the analysis there was the original comparison which was done of the net of mark sample in may of two thousand and twelve which is much closer in time to the date of the registration which showed a ninety seven point eight one percent similarity or match rate between the nationwide sample and the experience sample so it's the record is not just reliant on doctor him and analysis but moreover the complaint to the extent that there would be a complaint then about that about that comparison is invokes the best evidence rule which was an objection that was not made or ruled on on an adequate record below where for example in airframe the case that they're relying on the footnote number nine of the decision which is on page one hundred seven specifically says quote if the best evidence rule is satisfied evidence other than the original may be sufficient to establish the content of the copyrighted work here there are too many fact questions about differences are or are not what the availability of the original database is or is not and those are not available for this court to rule on on this present record thank