piece one three dash five seven nine six james martinez versus a mule mcgraw at all or argument fifteen minutes per side mr amy for the substantial similarities stablish copyright infringement that stayner goes back to proving direct copying which we're not doing we're using the other standard the second it's point of or the we will ledge is even of the court were to find an inference of access  past in cases like this from maria going forward that women in the creations alleged by the defendants then they skip on summary judgment this court has required that the defendants either one completed their work prior to or to begin to substantially completed their work prior to the time plan of started and or completed their work here we have stipulations on the record the plan have been made or wrote his song prior to the time that ever was written so that only goes  when the district or judge should we consider that evidence and was there to do so and the third point or from the district court is that he didn't do a central similarity analysis never looked a striking similarity in fact tilled the because we our expert was anytime amanda and copper at their collection he then gave the cassette to name susan tomac susan tomic took that cassette and give to people two people named david bartley and karen phillips and said please give the people the you know that are connected to the music industry but david barley and karen philips lived in the nashville tennessee this point let me stop you one second isha i read the record there is direct evidence that he gave it to bartlett that beyond that gave it to the dressmaker so we have two pieces we have one come in from james martinez and one came in for susan dramatic saying that she gave it to david partly ok but wouldn't that be hearsay as to if you're saying martinez said told max said she gave it to a dressmaker prison since impression should come in has been this he got the impression that she killed hastert to give it to someone connected to the music industry and she said sure i'll do that and here's why i gave it to by the way when you talked to her several months later and this came up in his deposition which i believe is record number two ninety six in this book so was told mack asked directly did she give it to a dressmaker or to philips she said in deposition she said that she did not correct competing evidence were in of course the plan of goods all inferences the fact we're not here to to where judge the credibility in fact the district court did a lot of women alleged when the credibility witnesses did what if we say the dressmaker cassette winds were able to show that it gets into the hands of david bartley and cam phillips and from there they had a close relationship of communicating a contractual relationship the fact with the greenwood's who or working with her records the through and his partner did not bring it to the record label that it was the other way around that they heard it and told them to go ahead and copy it no i actually wrote a we have two different theories of access this is the problem and that's what this  alleged as rectified has notes in the password for us once a cassette is on the inside to prove exactly who gave it to is what the does district court did incorrectly by saying that because they didn't point to the person who gave it to the finish that's why i'm throwing their case league greenwood to music companies to publishers to record labels to songwriters in when he couldn't he was paid handsomely for them the record has that evidence in it and then orton was deposed this he just said look i get one hundred of these they get hundreds of the as i pass them on that's correct and that's what he said and he said he passed on cassettes he passed one to publishing companies he has one recording artist get to the next you have a need you have any case that in effect includes this many steps as i understand the reasonable opportunity to hear usually is you know the tape is in the company and i work for the company or the tape is in the records radio station and i work for the radio station what you've got here is it gets to bartley then there's an inference to  rests only on the hearsay statement and then there's an inference that it gets to greenwood and then there's an inference it gets a gordon and then there's an inference it gets to elmo and that it gets to read and wiseman your own or even if we don't take the p of the equation out bartley transmitter green because he had a close relationship with greenwood too that's gone into that you've got no you've got no connection at all other than general relationship right there is this for talk of vern and took all their pictures for the wedding for the  judge what that was of the northern district of illinois pardon me in that case and we're not here to judge the facts just some evidence at this point is all we need is that some of it is of an actual occurrence not some of it is that there might have been if the one person david hartley might have given it to or the place where this stops then maybe that would be comparable but but that's not at all where it stops though if you go to the prima expert on copyright law professor then was converted remember mrs elmore has evidence in this record that she had the ability to could take control output from her songwriters and she went back frequently and hasn't changed things so that there everyone knew of mcgraw was doing this album he was preparing and there was evidence in the record that if we had that evidence that someone from our music was paid for putting this on referring the song that would help us in our access i don't understand it you haven't explained to me because the person was meet the cassettes the receive would have been labeled with someone's name and address exactly as my client james martina's did and i thank you very much all of all the rest of the claim of access is based solely upon speculation and conjecture there is no probative proof offered on this issue to establish defendants had access to plaintiff song and we believe that the apple a submit that that is an absolutely correct finding on behalf of the district court primarily both mr wiseman and mr reed offered unrebutted testimony of independent creation of their solving hardly is the most i mean if all you have to do is say no we did this by yourselves and the case is over it's not over i certainly agree with that but they did both testify that they wrote the song that has defined how they wrote the song and there was no  testified they didn't know who james martinez was they testified that they had never met with or even heard of him until this lawsuit and martinez himself at page identification thirty to forty seven and record entry to ninety six point one admitted that he had never had a conversation with either we read or wiseman and he concedes that no one ever told him that a copy of his song made it to either read or weissman and even if it head  court held in among other cases ellis against the plaintiff in a copyright case bears the burden of proof on both access and substantial similarity the plaintiff can meet his burden on neither of those points regarding been misconstrued over the years to hoe that there is no no proof of access as required striking similarity actually maintains that if if no other possible explanation for creation exists then a jury or fact finder can infer proof of access but generally i can see there is certainly a sliding scale between the level of similarity and the strength of the access proof but to repeat it admissible evidence the plaintiff's access theory has never been consistent and it's never been sound that the plaintiff first maintained that he gave his son to amanda lennon who was a pageant participant i never had it i mean i didn't i don't recall having it there's also testimony that there are hundreds of these cassettes that are just passed around people don't know whose it is they don't somebody gives written about by this court in the jones replies case and recast the ration in that case which was universal music as the national community or the songwriting community or the community of musicians but that is too broad to sustain a finding of a reasonable possibility of access and moved clearly into the area of bare possibility of access in this court as well as by as far as i know every other court has held that  possibility of access is insufficient there has to be a reasonable possibility of access to the plaintiff has no proof that his tape made it into the mix whenever the mix as one hundred or in any mix he has no proof that his tape ever made it found that even even within that company there was no way to reasonably infer that the illegibly infringed work made it to the alleged infringer because there was no connection there was no pitch the plaintiff song to the record company had a written record of it there was also proof in the record that the pitch company then took at the same work the allegedly inferential work to mr bashers manager and this is all everything you're saying now is about brainard and brainer ended up saying there was enough access is that right yes the middle district said it was a close call but there was sufficient proof of access rainer and then sanford you're saying you're not as familiar with i am it the plaintiff's proposed rule and then the only rule that would allow his case to survive appears a page five of his reply brief and it strips away any it any of the other elements of reasonable possibility of reasonable inference can be drawn and judge bob dressed whether there was any other case with this many steps i have not found in any other case that has incurred near this many steps because you have to get from is no reasonable possibility of that or proof of a reasonable possibility the athletes would still be entitled to judgment on substantial similarity nobody has identified a single original element of plaintiff's work that was allegedly copied material in order to have protection this court in murray hill says that the first step in any copyright substantial similarity analysis is to strip out or throw out the unprotect well meant seems a fair common treatments before the substantial similarity comparison takes place in the plant as it is deposition which is in the record at two ninety six point one he failed to identify the point of substantial similarity between his work and the that he didn't address during the sentence of his argument is that in order to find independent creation there must be proof that the defendant finishes its work before the plaintiff starts its work i am saying that argument anywhere in the braves haven't heard it before don't know of any support for it and his post point is that the court didn't do a substantial similarity analysis where there were no authority or orders that would require the court to perform a substantial similarity analysis in a situation like this where the court enter summary judgment favor of the defendant on the issue of access but for the reasons i've already explained if this court it this quarter find that with a lawyer a man would not be necessary because the record supports a finding that there is no substantial similarity of any original part or in the original or protectable part of the plaintiffs will also help me here on the on the chain because i'm not sure i got everything right on my own notes it gets to berkeley that's at least supported from bartley it could get to greenwood either directly or through philips at least that's the theory that fair that's the fia well oh that's a little cloudy about water quietly and phillips had some connection with greenwood you know in some way ok greenwood has an agent the agent is gordon brown is a retired lawyer but he's an agent and he passes things on to other people now  read and wiseman worked for elmo but they were under contract with alamo though at that i mean essentially that would be the last step in this chain that gordon somehow gets it to them mcgraw is beyond we read and song is that fair that those are the steps that you would have to make if you wanted to make the change yes and that would be describing the case law as it took us a chain of hypotheticals she's an ordinary observer of precisely what your honor and then we had the song plugger missy go more couldn't tell the difference between the interest of the three songs in that she said that they all sounded the same and that's our point is very heavily real but they sounded the same as was based on this original tape on something else based on that the original yes but they were journal a copyright collections are stand your shot but wait a minute because i thought there was this discussion a judge white's question about the tape went to analysis needs to be done at least see if there is striking similarity if we go this case is not we'll get to that second with this case is does have evidence of record that's in our briefing concerning the similarity between the  expression of the ideas that we feel architect lead song is about a battle for a long lover who grew up together with a woman in a small town one of those people leads in this person doesn't really cyrano their place in this is in the briefing but he thinks he sees or other summary judgment exhibits three and for those of the lyrical analysis of anytime anywhere amanda in everywhere and that contains a side by side comparison with there is a lot of similarity if you look at the chord progression each the same sonically many of the course  relatively low burden for access in the because there was song was imposition of the manager's office was passed on to the record label that was sufficient to stop us access here we had the song going to leave greenwood and over to the road to the publishing company into the writers and we think that's enough to stop the sexes these people were communicating together at the same time in the same place about the same thing to create songs for tim mcgraw's everywhere that everyone knew he was doing a national this is a big deal and that's what was written for and i think