newburgh you may proceed for the thank you may please the court my name is praed newburg and i represent clockwork ip i have proof of reserve three minutes rebuttal to be clear this is not an appeal trying to overcome complicated fact issues is instead based on the dick legal errors in fact i'll spend most of my time on two clear legal issues that require little review of the record now it is undisputed that clock work never gave hiller derivative work apocalypse material and issue to legal issue two is whether the court is going to adopt the lower courts provide a standard for unauthorized derivative work that is one can only copyright in the unauthorized work i e an infringement as long as the unauthorized material is not pervasive and spread throughout the whole work a standard which is not been decided by the circuit but whose reasoning has been rejected by the other circuits to consider it and the arguments which the th circuit even specific explicitly stated in pick it has never been taken seriously we raised other issues which i will discuss but regarding these two issues if you are agree with  position on both of them then the decision below must be reversed if you agree with awkward position on just one of them however and the decision blow must be be heeded and remanded for a new trial and what i really like the court's even mind is we don't know what the jury found the use of a general verdict form and lack of any authorisation struction at all and the use of the pervade standard means we simply cannot excise the verdict from the legal air first on the authorization issue instruction no i mean authorization issue can see from the court's holdings on the judgment notwithstanding the verdict motion confuse the parties by finding that clockwork may have sold or licensed materials directly to hillah that there's no evidence  the court must have been to be used as the party but i believe what you will say it doesn't matter s g i was able to and did give hiller authorization but the clockwork s g i license is unambiguous and it  district court declined to analyze the clockwork s g i license simply quoted one line from one section one dollar and without explanation said hiller might have done opposition but the only possible reading of the court's  but that certainly isn't a lot and we've decided pieces at least to show tenants of contract construction saying populate licenses by law they must be construed narrowly and you must only look at the specific copyright rights explicitly given and not include rights not expressly given here the derivative work right was not only not explicitly given testy i've had to do with self or sub license but the very next section of the contract one point three states all right not explicitly given a reserve to cotland hocker the agreements clear s g i student members cannot be allowed to do anything outside of their participation in it taking sci's training class and if used means use finally on authorization i do need to point something out brand new in the hiller pelly for each of us i get it maybe s g i not cock work only material so we didn't need congress permission at all this was never an issue at trial and their brief filler does not point to a single page in the hell are supposed to work where they say this is what the sci material is always shows side by side many pages of clockwork material and it's single site filler gives about ms deledio referring to retire eels as sci materials miss sylvia specifically because that what she was testifying about was materials sci could use simply because they were licensed by clockwork and owned by found that killer had authorization to use congress materials or not because as i point out the court rejected the special verdict form but also gave these instructions that the jury could decide fine for a killer even a killer had no authorization and use significant portions of pockmarks material as long as the jury found that the use did not and her baby to be in hired of the hiller work which is further defined as being spread out throughout every single length but the district court was steadfast on the previous instruction not the th circuit has not ruled on the validity of a pretty standard but the pervades had any pervy standard whether inexorably intertwined or even the broader pervade test created by the district court its reasoning as been rejected by every circuit to consider it with a definite serkin picket as i said going so far and states it was never it's never been taken seriously in taken as a great discussion of how hillary's exact position would have all discuss section want to three and how unauthorized unlawful derivative works cannot have copyright protection even if they add new matter and the only cases hiller offers on this point are one dicta in a forty year old nd circuit case which is invalid based on the nd circuit taking on this reasoning in read more recently and feeling and in fact feeling even cites legislative history of section one hundred and three dollars to say you would need exception like fair use in order to take an unauthorized work and make it lawful so even the new work is the copyrightable and nd killer sites to trial court decisions on the th circuit also i entitle to prevail even as heller added you know fifty one over fifty percent of the material is new is that is that your position well there's two parts of what you're saying because the fifty percent new  much they're used of course if there was a war or a short word a phrase you know thing as as the nd circuit mentioned in their use of something that that wouldn't make it an unauthorized derivative work certainly taking fifty percent or even twenty percent or thirty percent would be enough to have copyright infringement under the law and therefore make it an unauthorized derivative work so i don't want to go to the absolute extreme right your honor if they took a word and i said oh look that's our word we're not doing that here by an unauthorized derivative works any unauthorized derivative work does not matter there's all there are new work because killer tries to have a copper registration claims right str in this entire world they never did i think you're i think you're opposing counsel and then argue there's enough evidence here for the jury to found that there was enough new work to allow the sec to defeat your claim i mean isn't that what they're going to right it's a matter of law it's incorrect as a matter of law the parade standard is incorrect if this idea that has to be inexorably intertwined throughout the entirety of every part of the work in correct we don't really know what the jury found what we do know is that the court below said it was a derivative work that miller admitted at summary judgment that at least fourteen pages were taken directly from cock work that at trial at least twenty five pages in the nice notes actually worked from clockwork and killers direct your brain dead in some cases even the clockwork ip no it was taken off and hillary's was put on so we don't really know exactly what it was that's what the court actually the jury actually found and that's the important or i want to get through here is that we can excise the verdict from the from the jury from the legal error it's not a case of where all ten we find some avin you where the jury might have been able to find for hillary by saying that was original or this was authorized or this was all unauthorized but it didn't prove the we don't know exactly what the jury found and so given by ignoring the unambiguous nature of the clockwork argues in the reply brief and similar language throughout the world argument this morning at the district court erred in instructing the jury that unauthorized material must per day the work to invalidate the copyright those whole book in terms of concrete law that actually doesn't make sense no matter how broad the copyright is the derivative author only gets protection for the new material and one of the three as instructed to the jury yet correct instruction entire were or is inextricably intertwined with the preexisting material copyright protection may not be granted that's also a correct state but what clockwork is arguing about is the potential implication that there prince whether the law was correct where the decision was correct this panel does not need to decide that because these constructions are legally the instructions are legally correct and when viewed as a whole which is how this can muster you jury instructions adequately inform the jury of the rule relevant considerations to provide a sound basis of mine and it's as a whole this instruction connection with the instruction and originality and in connection with destruction and protected vs unprotected matter the jury was was asked to consider originality they're asked to consider this overlap analysis that clapper presents and sippin siddur what is protected that was cut but i was allegedly copied and what was unprotected material the steps the system the process ordinary industry phrases the jury was asked to filter all that out and the jury was asked to consider authorisation and to what extent unauthorized material is in the man with those instructions the jury has a sound basis in law because recall and it came up in argument as well there is a lot of pictures in the brief and discussion at trial of the appendix the nice to know section  in said clapp material copper copyrighted material does not prevent this manual then it's not a derivative work at all because it's not based on it doesn't transform it doesn't recast or adapt the classic material the appendix created at the end but the manual itself was independently created through the design workshop today workshop in which bob hige the consultant sat down with hiller technicians and executives and brainstorm the proper best practices producing a group for performing a service call in the rather than industries that's where the manual was come it was created and that's the evidence the jury he specific manual with specific evidence and the jury was adequately instructed on how to consider that evidence and find about a copyright this statute itself the dispute the parties had is with respect to the th and th circuit i think we can we can agree on find that as a matter of law there is no copyright you know i think i'd prefer to work again i don't think be looking at pick a few prints itself it didn't make a difference how the court would arrive at that the work in question was a guitar sheep like prince a symbol and the court said that of course the copyrighted symbol pervades  the work in question and so the issue then is whether congress utilized a framework where an authorized driven work is invalid as a matter of law or they use the language that's actually which says that copyright protection for a bit of work does not extend to any part of the derivative work and which material has been used i'm awfully and that goes to judge bush's question is if there is a derivative work and there is an entirely separate part of  separate new contact without an authorised preexisting material and it congress a statutory framework offers limited protection to that material to that new material that's how congress chose to set the statute  seven circuit consider pervasive mr prout a lot of what evidence is there from which the jury could have decided that a clockwork material but not pervasively invade the work  there's quite a bit of iran in it starts with independent creation at that you desire workshop this work was not cobbled together a collage of clockwork material but the jury saw evidence of how this was created with the brains today brainstorming session where people identify their best practices and post reports and there's little arrows on the port authority crosses out those photographs of that then there's photographs of the carts that were created from the posters then there was a road map created from those experience there is a right way to do things is what he said clockwork claims that it actually came from what's called a right along survey which is a checklist up hiking member had that checklist jimmy hill who jr never saw that checklist so that was independently created moreover in this goes to the ownership issue that s g i president rebecca castle testified that those very steps that clapper excess came from the right along survey are in three or four different places in the collective materials related s g i including materials that clock were purchased copyrights of and she gave a great example it's called the immediate impact imaging booklet that she says  same content that's in that allegedly in that room that that poster board and that module set the tone so it's not to the extent a jury found that there were similar stuff similar words similar steps in those modules there's three ways it could have gotten there one it was independently created as it was testified to both for two that these are just steps in a process and sed both manuals teach best practices in the industry both in the same industry common words and phrases similar steps like park your car on the side of the street we would expect that to be there three it could have come from s g i who testified that that material is in their possession and they're the ones who contains some clockwork material it also contains some one of a better word generic material industrywide material that anyone uses work or so it's not really copy it also contains some killer tiriel is that your position if i would say it slightly differently i think there is evidence that in the appendix there is some material that was that was at least as  phony clock material the manual itself and any work but any instructional manual is going to consist of some non protectable material right and i would say that the work itself is pillar even if the words are the same if they were independently treated it's still copyrighted it's only when it was copied and there's no direct there's no evidence that that was copied it was testified to that it was independently created one last point on this issue the very different from what i on and i'm not going to get to some based on this contract issue the contract interpretation issue all three theories of original work compilation and derivative work were submitted to the jury properly notwithstanding the traditional contract and absent pervades tend to have a copyright and is passed through or spread the whole extent of to be disabused throughout every part of that doesn't come from the copyright act that's a dictionary definition that they that they propose i think we need to really brought to workshop and a case brainstorming is not a tangible expression they have to show copyright rush and finally on the authorization point again there is no authorization instruction whatsoever we believe that this record below got wrong in terms of it being unambiguous as i could not sub license but there is no there is no instruction whatsoever if it actually got to the jury and the last thing i would say is that