been briefed as cypress point the entities are a building and a management group that operate essentially as one and for purposes of the district court's judgment and for purposes of the trial they were treated as one entity  the hospital that they operate on the north shore of new orleans is called cypress point go even further than going to cyprus going to the case before you your honor is a copyright infringement dispute that proceeded to trial fees under this context now of very few points in detail to add a little color to this case the plaintiffs who is southern credentialing prior to leaving her employ or her contractual employment relationship with cypress point and intended or displayed as as far as the evidence shows no intent to assert or claim any copyright to a set shows is that this was a after the fact gotcha where a the forms were used for a standard period of time at cypress point and a registration was done mon is no availability of statutory damages and the reason for that is a purely legal issue this is strictly de novo there is very little information in the record that is required or even needs to be reviewed in order to i think adequately handle this case in reverse it and correctly apply the law the operative facts or when the documents themselves were published for purposes of the judgment in this appeal we will accept what is on the applications which is that they were published in september and november of two thousand and ten that's detain everyone number two is one of the infringements commits the infringements according to the judgment commenced in may tw thirteen when the relationship the employment relationship between the parties cypress point and sutter credentialing was terminated now a set of documents were in use they had been in use for years they were the only set of documents and proof for use which everybody in this case knew pelleas and the appellants that these documents were in use and approved for use for by the way one specific hospital not a set of documents they can be used multiple hospitals because they are customized registration was not made for roughly nine months to twelve months afterwards because there are technically two doctors who are dealing with application packet and a reallocation packet which were  not public is if they document is not registered a work is not registered within three months of the date it's st published then a a violation or infringing use which takes place before or commences before the registration is not available to it is is precluded or barred from awarding statutory damages in any context for any infringement whatsoever this is a on a site that was password protected and then after that it was just loaded on to the site without password protection i'm just going to figure out the facts of what's the distinction between the two infringements as seen by the district court i manage disagree with but it's  interesting because the district court doesn't actually do any analysis on what is different what they simply say is that there is a difference in kind based on the way that it was handled before and the way that it was handled afterwards now what actually happened and what the evidence in the record shows is that the difference is really really have to squint to see any difference whatsoever in the st case from two thousand let's call it august two thousand and eleven when the forms were approved by the medical executive community committee and the applicant would send some sort of set of basically paperwork that you have to sign that says this is a copy of my medical signature this isn't a test nation and i read the bylaws is cetera et cetera what changed is that after tw seventeen instead of those documents be emailed they would receive a letter that said this is the way to access those forms you go to this website and by the way once you access the website and this has been briefed at length because this is very important it is very cumbersome and very difficult to locate the forms itself is not as if there was an ad taken out in the front page of the new york times and said come find these documents which by the way can be used at one hospital for one purpose the pla appellee in this case admitted at trial that the only persons who would ever be interested and accessing these forms online would be persons who were applying for privileges or credentialing at cypress point that is the exact same context as they would have been used before the only difference whatsoever is the manner of which a set of what we call the privilege in forms not to be confused with the application is the application was never used after the germination of the employer relation the privileging forms would be transmitted instead of by email they would receive a letter that says access them yourself on this website so anybody can send in a letter or a contact to cypress point and then receive a copy of those forms because  preliminary verification are you a physician you just get a contact from sony and says i'm looking to apply for privileges and then they get that document so the differences are microscopic and they focus on the mechanics of which those two things were transmitted now this is a very very important issue when it comes to the policy concerns and the potential unintended consequences of this ruling if it is allowed to preserve because we talking about two specific types of incorporation of information in a digital confidence this court ruling on this case is going to have applications on copyright texas louisiana mississippi and point you why they referred to it by courts and circuits around the country and i know you don't think you don't buy into the district court is different in ca and exception to the statutory the bar and statutory damages if the infringement starts before registration what about months if ten years after this case nothing happens for ten years and then your client started copying the same documents would that they be in title to statutory damages with that damages and attorneys fees for infringements that commenced after registration if the same defendant commits an infringement of the same work prior to registration now the difference could be you could certainly receive actual damages you could do what has been done in this case where you have a permanent injunction which carries its own set of penalties if you violate a permanent injunction so there are a number of ways that this can be dealt with or that this problem can be resolved or that there can be some sort of protection for a copyright holder short of reading an exception into four hundred and twelve that has been rejected by every single court in the entire united states that is ever evaluated so even with the gap and time you'd still say a bar and statutory my understand is obvious the actual damages available if you can prove i can see a different case where there is a gap in time or a continuing infringement could be considered to be legally different now because no court in this entire country has ever found a a different in kind exception related to a separate violation of section one of six are you distributing the documents are you publishing or reproducing the documents because no court has ever found that there has never been an articulated standard of what that would be for example the derek andrew court in the th circuit conducted an actual evaluation of whether something is different in kind we've we've addressed why we think that there's an error on that but what's interesting is that they never mention a violation of a different subsection of one of six what i think the courts mean when they say different in kind or are you date intellectual problem with an endorsement of a continuing in french mint existence i think for example the rosen case which is out of the western district of california which is cited extensively both at the trial court accounts brief is an interesting case where there was a five year gap between any publication or any use in the district court said because there was a five year gap that allows us to say that there is a difference in kind no mention violation of a different subsection of one of six it's that yeah that's the significant operative fact and i think that gap does allow some protection to the plaintiffs that could come in the future and offer some sort of a remedy for them but in this case none none whatsoever exists and i think the policy concerns in the specific facts of this case lend themselves very well to exposing why this is a smart decision why this was a a the mason case this court's opinion mason in that case the specific argument that's being advanced by the plaintiffs which is does a violation of a different subsection of one of six continuing no issue there is a violation of section of a different subsection one of six serve to bar a violation of a separate section it is exact same subsections that are raised in the st case in quali it was a reproduction or a preparation and post says this cannot be the case for as the fist circuits opinion in the mason court explains it would be inconsistent to read section one of section five hundred and four to include all of the damages statutory damages for a set of defendants infringements only work but have section four hundred and twelve only bar certain inference the ramifications of allowing that sort exception to exist are present in this case alone you have a problem with how do you work attorney's fees in a situation where there is  one violation to take place at one time which oh by the way is two years after that a lawsuit was filed and litigation commenced and is there in vail ability for actual damages for violations to take place before the registration the golden rule of copyright law is take not from others to such an extent and in such a manner that you would be resentful if they so took from you that's from the harper and row publishers case it's at footnote three this case is about just that the defendants broke the golden rule they broke it repeatedly and they broke it with all knowledge that what they were doing was a violation of times it's right you know you're too worn to actual damages that is correct your  have only if all of the golden rule stuff if you didn't suffer actual damages then you have to comply with the statute to get statutory damages and you have this problem that your client waited too long to register we would suggest you're out of it in this instance we don't have that problem we have conceded that the prior publications i'm sorry the prior use and and creation of derivative works that occurred before january of two thousand and seventeen which consisted as counsel stated of one off communications between the hospital and the providers where they would request the documents and then in a closed email chain would receive the documents that is an infringement that began almost immediately as far as we can tell after our independent contractor relationship ended in two thousand and thirteen that infringement we discovered it as the records in the evidence show because we obtained the actual e mail chains and based on them not my clients obtained counsel and they obtained the registrations after obtaining those registrations they sent defendants to notices that their actions were in violation of their copyrights but then it still did not stop using them they filed a lawsuit alleging a willful infringement because defendants were now on notice and they knew of the specific documents at issue and we know that because the defendants responded with a letter dated september of the same year where they said we've looked at the documents in our possession which include all of the documents a here we've determined that these are nothing but blank forms you can't make that determination unless you know precisely the documents that we have at issue so we filed a lawsuit we survived a motion to dismiss and in that motion to dismiss it was laid out a side by side comparison these are the documents that are protected by the registrations these are the documents that we have seen on these one on one e mail circulation after that we served discovery we exchanged will twenty six initial disclosures in those initial disclosures they admitted that the documents in addition are the documents that are in their registration their their credential only after all of that transpired and the additional counsel in this case withdrew if they post these online and i respectfully disagree with my colleague that this was a microscopic difference this is an order of magnitude difference because as we had before us the standard you would have us adopt for how different is different need to be to get around the bar in statutory damages i think the standard is written right out in section one hundred and six section one  six provides the exclusive rights of violation of any one of those exclusive rights affords the plaintiff a copyright violation infringement you have three rights iteration here the st is to use their using them prior the nd is to create derivative works that's exactly what they were doing before they were not publishing and that's the rd i wasn't sending them to the doctors publishing i wanted back of counted they were emailing in the website or recall that these were published on the competitors website anybody in the public could go to the competitors website and access those that's how our clients might be broader distribution i don't see how one's distribution on one isn't i would respect di the one on one communications that were occurring were occurring at the behest of the doctors who are seeking privilege so they would request and in return they would receive i would suggest you that a publication means more than that a publication is making it available to a broader audience and in this instance you had them on a publicly available website hosted by or direct competitors alongside a letter on the same website that said that anybody who would like to receive privileges at our hospital needs to fill out these copyrighted documents didn't mention that they were copyrighted but they need to fill out these copyrighted documents and submit them to us so you wouldn't expect necessarily but we can't know that and that's what my client testified to at the trial there is no way of knowing who access those documents and the key to these documents is their originality is the fact that what they have done is taken what can be a very cumbersome process of getting somebody credential stripped them down to the exact essential oils and then if you follow the problems that are required by these you will be able to withstand any kind of review that's out there the record evidence was that my client's record was impeccable in this space she was that audits and it's because time and time and time and time again she sat in on these meetings where these a of knowledge from which she created these documents that she then went and got protected by the copyright on so in this instance they were put to use by the direct competitor that was a benefit to them they could have been obtained by any other direct competitor certainly c s s my client knew of its direct competitors there are other competitors in this space they could have access these documents as well and it would have been known in the community that these were documents that work because he never failed an inspection so i think the other point that we want to make and this is any court of followed a different other than the district court here take it said that there's a differen infringement which then gets outside from the bar yes i think that you find there appear to be an interesting lee enough it started here in the eastern district i recognize that we're up at the th circuit right now but it started right here with  and ninety two that was a just leave in a case we had cited it it made this distinction between statutory damages that are available if the infringement occurs after registration and it in the earlier district court opinions the district court made the fact finding that the infringement never changed that's in the st district court opinion that was appealed up to the circuit the specific type of infringement of the plaintiffs maps never utory damages for the discrete acts of infringement that occurred prior to registration but after registration i can obtain those because those are separate disagree the court said no once you have a series of acts that are of the same kind that will keep create the continuing infringement rule and so that wipes out statutory damages forever what we're asking you to interpret is the word infringement that is the word that is the crux of this appeal that is the crux of our argument under section one hundred and four dollars we agreed that their use and their making a derivative works begin before we got registration we do not create and they would concede that their publication online occurred only after two years of this dispute going on one year after a lawsuit was file out all damages that is actually a very expansive interpretation of that word infringement because that would actually renders a person less the other rights that are available under section one o six we are asking for a conservative registration then yes but is if they start anew with a different kind of infringement after registration then it opens it back up again and this is in accord to respond to their argument really mason relied in large part on saying with to read the bar on statutory damages consistent with five o four which allows for statutory damages and you know that only allows for this one you don't get as each day of sending out a piece of paper isn't  statutory damages you look at the entire infringement so how does how do you respond to the argument that was sort of disrupt that congruity with the other statute respectfully i think that that income grew in c is actually satisfied by the requirement that you elect statutory games you have to elect in lieu of actual damages at a certain point the plaintiff has to say i choose to get statutory damages rather than actually and you would have to say five or four does mean you get a separate statutory award for each different type of infringement if that type of starving after registration but could you get so here could you get actual damages for the pre registration derivative works and also then statutory damages for the post registration no you are an obligation we conceded from the outset that we can either pursue actual damages or we can pursue statutory going had this post ex post publication not occur the infringement occurred after counsel had identified the specific documents and issue that opens up the door and that they write it actually if you're saying it's a definition of infringement of this is a different infringement and here's what judge fallon said in the case there are a lot and he said if that argument worked then you would be able to get actual damages for the pre registration infringements and statutory damages for post registration which is not how it's generally viewed as working i think the concern that and what i'm suggesting to say is that same concern is addressed by the election if you have to elect then you cannot have an instance where you get actual damages for infringements that occur pursue actual damages for the infringements that occurred after registration we just could not pursue statutory damages for the same type of infringements that began before  and you and i think this naturally kind of segues into our willfulness argument the district court's willfulness decision which is the only thing that we have taken up on appeal was based on two fines the st finding was that this online publication which is the only basis of our statutory was made at the advice of counsel they simply no record evidence to support that determination what the record actually shows is that way back in two thousand and fourteen when we warned them that they were violating our counting rights they went to their counsel with on any and they determined that it was absurd and then they made a decision to keep on using these documents and they wrote us back and they said we've looked at the documents we have in our possession we've turned that they're blank forms and please also show us the precise arrangements that make these original that indicates that they knew full well the scope of this dispute the  nd prong of the district courts wolf in this ruling is this idea that they didn't know full well what documents were edition but you can't look at that september two thousand and fourteen correspondence and say to yourself that they didn't understand  because they're raising the same defenses that they would raise time and time and time again including in their motion to dismiss which we responded to with an invitation to look at these documents side by side see the documents that we've opposition these are actual e mails out in circulation they show the documents that we made that are at issue here and then i said these are the documents that appear in the copyrighted registration if you look at those two things together you're performing the exact same analysis that the district court perform when you determine whether copying was me these are verb atum coppens of our protected works we said case after case that shows that in this instance where you both had actual knowledge in this instance from the letter written by the chief of the board of the hospital back to us saying that these are nothing but black blank forms do constructive knowledge which encompasses saying no evidence of willful as the court of appeals reverses and says no a jury or the fact finder could find willfulness here or when you have a trial and the judge says i mean i think he just said there's evidence of willfulness well ok there is some evidence to support willfulness but the district judge as the fact finder wasn't persuaded so i mean what you have to show that as a matter of law there was will form for this right which is i'm a much higher burden than these cases just saying there's a fact issue on willfulness well we ours you had knockoffs that were very identical to the plaintiff's copyrighted works you have multiple cease and desist letters that were disregarded and finally you how to counsel response to a demand letter and in that instance the district court made a similar determination there was not welcome this but nonetheless awarded sense for damages and went up on appeal to the nd circuit and the nd circuit reverse and in particular they said the lawyers letter was an evidentiary basis from the when the from which the inference was inescapable that the defendant had constructive knowledge that its that its actions constituted copyright infringement even mind this it's a reckless and stand it doesn't have to be actual knowledge but if they disregard a known risk that their acts are violating our rights then we have established recklessness and n a s the remedy deterrent element which is exactly what we're asking for your honour's the defendants have raised additional issues they might like and attacked whether our copyrights are or on sorry that are registered works are subject to copyright protection because electrician ality they've also  i think the problem with the willfulness can be resolved at a much simpler and shallower level because quite frankly this is a distinction without a difference if the court were to reverse the willfulness opinion and leave selection come coordination in arrangement of facts now within the facts that are copyrighted you have a two page document that has the bylaws accessed ation which is drawn directly from our corporations bylaws you have a a statement of them unity or release of liability which is another two page document also cribbed directly from our bylaws those documents themselves along with many other documents the delineation pages the t v acknowledgement medical records signature are all duplicates or modifications or alterations or however subtly or otherwise of some document that is used in some other aspect in this industry paperwork in the credentialing industry changes hands constantly and that's what the evidence in this case shows so that thing copyright only protects what is original to the compiler which is the selection and ordination of that paperwork so the fact that they have via laws and we have our bylaws there's anywhere copying there via laws means they took our bylaws and put it in their packet and then one copy that tact which is what happened in this case now the district court found technically that there is a copyright in this case with appeal very very thin precedent to hold what would be a monumental change in the law because the mason underlying mason opinion the district court opinion from the western from the southeastern of texas which this court reviewed in one thousand a two and reversed had before it the specific language of whether there was a new or separate basis for a different kind exception to something that takes place after infringement and this district this this court evaluated the legislative history in the value of the house reporter notes it evaluated to the statutory purpose that has come from many different sources all of which relate to a central policy aim of giving plaintiffs this this extra tool in their toolbox which by the way contains the ultimate weapon for any plaintiffs which is attorneys fees so this powerful weapon is given to those who play by the rules and it is not given to those who do not play the rules by the rules there's no prejudice against them they can still get an award of actual damages for anything that takes place after registration however where there is no timely registration that means that within the three month grace period which is