i think i maxed out i need to inform the court and apologize for the omission of a really important case in this matter the case that we somehow emitted from our briefing in the appeals court so important case authored by judges would pozner and rovner grosvenor out of the seventh circuit called muhammad ali versus the final call and perhaps your yes in this insight is eight thirty two fed third seven fifty five this case was decided in august and sixteen the case is essential because it directly addresses one of the fundamental issues in this case and that is what this case was decided over here and i have to go and this is a field that you litigated regularly and you didn't call it our tension correct we briefed it below and directly discussed it below which is no excuse for not doing it here and it's professionally embarrassing but it's essential that the court recognize that our view is that it's  the brightest light on the issue what is necessary to be pled in a copyright infringement case i fully understand and appreciate the court's question and have no excuse but to chance to respond to it in a measured way on appeal understood go ahead and explain why it's essential understood it's essential because there's been a misapplication of a of or a miss tatement of the fundamental notion of what is necessary to plead a copyright infringement case faced has faced publishers for publishing versus price focused on originality really more it has that statement that has been repeated over and over again that what's necessary to play to copyright infringement came claim is ownership and copying but then we've said that copying is shorthand for an authorised copying and what of course is at issue here is how much was authorised and there to complain is devoid of any particular allegations about in what way the license is rick seated in fact we don't even really have meaningful licenses to look at well  that view i understand that view respectfully we suggest that it's very important that the word on authorized has been injected into what feist said in one nine hundred ninety one feist not say that you must show an authorized copy and the reason for that is spelled out in mohammad ali's which is to say that otherwise we're required to prove a negative report required to prove first of all we're required to go into the affirmative defenses of the defendant because general matter in a copyright regime that requires rigid and admit licensing and where you your client clearly cording to your allegations authorised corpus to give licenses and to author rights use why does it make sense to start in  copyright infringement action at the premise that your client was the owner and there was copying and allow that to be sufficient to state a claim for copyright infringement i don't really understand why that makes sense well it makes sense because fifes said that and says does not include an authorized but second the very rationale and muhammad ali points this out and with respect to fair notice the last take knows full  well about muhammad ali because we both argued it in the lower court but the reason the rationale is set forth in muhammad ali by judge would he said to require unauthorized she start she said to require unauthorized a copying would be to prove a negative to have to prove a negative and it's exactly what happens here in this case because here's what's really happening in this case scholastic knows full well of the licenses that house they know full well that they will not turn over any information about how they exceeded the licenses let's assume for a moment that your your client authorized corpus to license  various parties the use of the photographs isn't that right correct and i was confused that your client would not have notice because of its relationship with corpus of the terms of the license you need to provide authorization to corpus to get licenses yes but why wouldn't your client have access to the terms of the license ordinarily you would think that would be the case in this case the facts are that corpus never provided the licenses and then when counsel ma asked corvus to do so corba said subpoena them and in reality is in bed with scholastic because scholastic is a big and other clients are big clients of corpus what document governs the relationship between your client and corpus a representation agreement and approach is that in the record i believe it is we can provide that on defendant here well at one point in time we contemplated that but the real issue the beef we have is with scholastic and what is the  fiction that's occurring here because after all what's the fun fundamental notion fundamental notion is whether they have fair notice of the claims that were asserting against them there is no question they know what this  lawsuits about they've been sued many times before in other of your complaints and there we've seen that there have been many there's been quite a varied set of allegations some of which he which they're exhibits that actually show the term of the license and suggest ways in which infringement might have occurred here you say that they've been infringed in various ways the license of being seated in various ways including five or six ways and or without any specificity about type of infringement and you allege that there's been infringement as to language potentially these are photographs you know what is there any any better specificity you can provide with regard to the kind of infringement that you claim occurred in this case no and we provided but we provided everything we knew about and that's in the record under exhibit one to the proposed first amended complaint and what would it be but would infringement as to language mean oh infringement as the language means that you license to work for use in english language if if you licensed it for other languages there is more money to charge to use your photographs right it's textbook it's the license protocol protocol what kind of version would be authorized could they publish in foreign editions right so if the photograph goes into a book of course a photograph is afforded a photograph but if the language of the book is spanish or french in the pricing of these licenses that adds fees that's why we contend that there was a request for the minimum license parameters frequently why to save money and then when it was decided sometimes before licensing even that they would use the licenses one hundred or make one hundred thousand copies even though they knew that they would they would license for forty thousand or in what case district court is the district court allowed you to go forward on a motion to dismiss with a complaint that alleges either this level of detail or less that because there is only one one or two images here that judge forrest allows you to proceed on right and as to the rest she said there was inadequate specificity one image out of  hundred nineteen uses and about eighty three photographs that are there are other cases every single case that we have filed both against scholastic including judge fellow who sustained an almost identical complain the act of complaint was not almost identical in judge phyllis case because the exhibits were much more specific about the scope of the licenses and the it was much easier to discern what kinds of  infringement was alleged i believe that there are important differences between that complaint and this which has virtually nothing well we would respectfully take issue with that for example and i understand the difference but we had that information when we pled that case before judge fellow fella here we do not but we have a lot of information your honor we have the invoice that was paid the invoice number that was  that the original license was made to scholastic so we have this connection in other words we have exactly the invoice number that would permit scholastic to go back into the records and invoice and know what parameters they had there for the use of that image we also provided them the date of the end of the invoice also the imprint within scholastic a whole number of different imprints to direct as best we could we also provided of course the registration date and number you did provide copies of the infringed material that that's correct because we but we asked and here's why if we had this is not about holding on to things that we had withholding information that we had in order to keep them in the dark that's not what's going on every single case that we filed against this company to keep them in the dark but your client was the owner of the photographs and executed that really the rep taishan agreement authorizing certain licenses with morbus and had the right in developing that relationship to require audit rights and you know is was getting paid on the basis of usage so there is there just seems to be an important link that is totally overlooked here we're not really arguing about whether you've given enough information for the defendant to search twenty years worth of records and to the extent it could identify the extent of use but you had a primary right and responsibility i would think to know the terms of the license that you had authorized but why is that unreasonable to think here's why it's unreasonable michael you must as a national geographic photographer he travels the world he makes photographs he provides thousands of those images to corpus they license every day probably in the old days at least did michael you marsh that was not going to go to corpus and say please provide us the details of every license the thousands of licenses that is cut and station that's his life we heard that's what he depends on why yes and reasonable for him to control that because this photographer is literally travelling the world to create new images he's not in the business of of monitoring his photographs expecting that skull lastic a textbook publisher who who itself creates copyrighted work and who vigorously so he gives a license for forty thousand how does he know when and if scholastic starts printing forty thousand and one the one copy or the fifty thousand copies he's it's unrealistic and there are cases that have bound to corpus to provide that kind of information they were bound to provide copies or mishaps do you believe that corpus has this information  corpus has been sold to a chinese company but when we subpoenaed their records as they demanded because in actuality their party more interested in scholastic than a photographer and would not turn over the licenses did you then find out how wide the use of the license was no because they have that information and they keep it secret scholastics going to get up here and tell you they're so difficult i'm going to go back to the card are you saying that they were sco unstick was contractually bound to give this information the numbers and so on and so forth which are missing i was bound to give that to the intermediary company and did not direct were saying that they were really required under the p b s under their contracts to give a copy of the textbooks in which they included your matia photographs they never did that now  that's all we're talking about copies of it or an accounting of numbers or what well within the contractual provisions that corpus had with scholastic it had a right to demand the the uses parameters of the uses from scholastic but that was never done because these were their clients their good clients and it would be like accusing your best client of stealing from you and so in practice that was not done your time has long since expired but you have reserved we manage for about all we'll hear from scholastic rosenthal representing scholastic inc so i'd like to just start first of all i'd just like to point out that in this in the referring to the mohammed ali case in the second circuit in the to seanie case which dates back to two thousand i probably can find a cite if i walk the this court held that if the issue was over the scope of the license that the plaintiff bears the burden of showing that the license terms have been infringed so the seventh of showing that's a matter of proof that we're looking right now at a twenty six a notion of what has to be pled right so so that gets kind of back to the feist standard where appellants argument is well face says all you have to have of these two elements ownership and an authorized copying but that's not what they that's not the pleading standard in twamley and it ball that it was made very clear it has to be more than a recitation of the elements of of a claim one has to actually articulate some factual basis that makes that claim plausible and what's happened here as as the courts pointed out is that plaintiff has simply said here are five ways that scholastic might have infringed mystery a motion is rights and in fact in an e mail that was sent to us which is in the record  in the record it's a page eight two hundred of the of the record mr the counsel for you said if you were going to here's a here's a copy of the complaint we filed if you provide us with information about all the kinds of uses of these images and any other images you made of mr your matias claims we photographs we won't serve this complaint and by the way if you show us that you haven't infringed these w remove them from the complaint that's not the way it's supposed to work a plan it was supposed to come into court and say here is here is what i have and here is how it's been in for it but respectfully still you know i understand that position but you know even if he had the license terms was able to say ok there was a license to you know a permit you to do english language versions forty thousand copies you know hard twenty thousand soft never and on information belief we believe those numbers were exceeded because i saw some version when i was in afghanistan and i didn't give you know it to my knowledge there was no right to publish  afghan version you know how the how was he supposed to be able to allege without getting information from you except on kind of a suspicion that some terms of the license weren't exceeded he has to rely on his agent and you in good faith to report actual sales and print runs doesn't he so that gets back to the discussion we were having a few minutes ago that you're having with with a pal and the photographer in this case chose not to bargain for insist upon audit rights in his license of photographs through his licensing agent he received there are other rights actually available but this is outside the record but can connect photographer demand audit so i don't i don't know what corpus would have said if a photographer said to corvus i want to have what i write are getting positions or so on even that it makes one concerned when the publisher says you could always have demanded audit rights but the you know as you as you  pointed out earlier this was the plan of livelihood he decided that he was going to give thousands of images to stock for the photograph photography agencies to license and the bargain was that he did not ask for or or insist upon any information including even the invoice is that in the industry for order rights so let's step back from the stock photography for a moment and talk about licensing in general in the licensing scheme music licensing licensing for motion pictures the license or always ask for audit rights in the license or has the right to go in and ask the movie company to show the records and say how much money did you make where did you distribute my film and if you didn't have that you'd have situations like you have here where somebody could come in twenty years later because some of these invoices go back to the one nine hundred ninety s and say hey i just realized that my you didn't pay me or i just heard that you were sued by somebody else for distributing and some are on authorized country now i want to go back and i want to see every use you made of my materials was what if anything was your client contract and we supposed to orders with respect to these so some of the there are i think five different preferred vendor agreements that deal with it some of them have a provision in it that scholastic was to provide copies of the books in which the photographs were included just a copy of the  there was a provision also in some of these preferred vendor agreements that korbut corpus could include in an invoice or require i require an accounting requirement but we have no evidence that that ever happened here there was no being missing here that's correct that's correct the copies of the p b s that we have in the record are largely redacted and really impossible to tell what the terms are what is available to the plaintiff in terms of getting knowledge of what the the terms of the agreements were the the portions that are redacted are our payment terms there are how many how many dollars are spent for twenty for forty thousand copies for hundred thousand copies the critical terms here are contained in the standard terms and conditions which are not redacted and are in the record and as in each instance they're also the earth has a representation made that they have not were not modified in the redacted portions there were no read there were no issues in the redacted portion there is nothing that relates to the kind of questions you're asking today for example an obligation by scholastic to provide information for the relevant terms about the numbers that were authorized outside the distribution area the u derivative publications foreign language additions and time limits all of those should be apparent in the documents that are in the record so so the often the so i'm not sure i the  about exactly what the scope of the licenses is often in the face it's on the face of the invoice that is sent between the corbis sends to scholastic at least there there is such information about about language and so on the redacted portion of the preferred vendor agreements is really just payment numbers how much is paid for those particular uses so i want to get back to a question that you did your honor asked earlier which is the example you gave about a book that the plaintiff sees in afghanistan well if the plaintiff saw a book in afghanistan and had an invoice or believed or knew that he hadn't licensed for for the work to be used in a foreign saw in a foreign country and the plaintiff came in with a sufficient level of proof to say say i didn't authorize foreign uses of this book and this book is available in afghanistan and here's a picture of the book yeah maybe that would be enough to state a claim he's used one but in what circumstances the plaintiff likely to be able to  say you know more than a suspicion that the numbers were exceeded that that is more difficult for a plaintiff but there's certainly instances where a plaintiff might know for example that a book of looking at more current times that a book was high up on the yeah your parents here had negotiated with corbis for an order doing a report based on his where his photographs appeared scholastic would have had to provide that to corpus if if corpus would have said to scholastic i want to see all this information that it was that kind of because it was not insisted upon and did not exist in the greens you can corpus in school was that's correct that's correct so scholastic would have had that information and would have had to provide it to corpus if he had if if plaintive had negotiated that clause in his licensing contract with corpus corpus would then have asked skull lastic to provide all that information is that correct i don't know what corpus would have done the you have contracts with people who do ordering clauses i am guess for example authors the authors of the book as opposed to photographers often will have audit rights and a publishing agreement between an author and a publisher and i'm sure that scholastic has other instances where it's license or is do in fact that it has to keep for size records of the use of the work well i think that the scope of an agreement may sometimes dictate what kind of records are kept but if you're going to go back twenty years and some of these these licenses where were the entities this classic didn't even own at the time that these licenses were entered some mention in the attempt to get them and complain it was some mention i think of a breach of contract now which was not i think addressed by the by the trial judge the district judge my simple question is was there an arguable contractual right by or corpus to get that kind of  information the kind of information we're talking about would have shown the problem is there any contractual provision which might be interpreted as require having required your client to turn over that scholastic to do to provide this kind of information a corpus now whether had corbis come in during the applicable limitations period and said i said we have a right to you know upon information belief you printed more than you said you did or we this right but based on the contract itself there was no there was no specific and i'm not even sure any implied requirement scholastic do the kind of things the plaintiff is asking for  requirements in his contracts with corpus because their teaching contracts in corpus would not have agreed to it and said here's the representation agreement that we offer to you mr gates established this big company if you want to come on represent a lot of photographers who have corpus as her license and they wouldn't allow it but importantly if we look at the record eighty three seventy six mr rosenthal just represented to you that there's no audit requirement that corpus imposed on it seventy six and what do we have big black removal of audit rights yet he just told your honor that there was nothing like that in the agreement between scholastic and corpus what it's sounding silly to myself but what country actual rights was it that when you wanted to amend your complaint was the contractual right you were seeking to assert well in part through our agent because remember how this whole thing started we were out in new jersey they said the right was and ok well i don't know your honor if i could read under this blacked out material then i could tell you because this is a contract between you matias agent corvus and scholastic they know what it says when they won't provide it to us you don't know until you see that you don't know whether that was a breach of contract well we've listed in our briefing what portions of preferred vendor agreements we think implicate a contract right that's breached here but also the more telling probably claim would arise and we would get this under discovery remember we're not here to prove the case we're here to plead anough a short simple statement the give them notice it was an infringement the actual act that they have committed that only they know about i agree it's not in there but are we required to prove our case in fact pleading in the complaint no right to relief above the speculative it's not speculative though they have they have the photographs they licensed the photographs apparently they paid for the photographs who knows if they licensed they we then sent them a letter there's inference from this and it was pleaded there's factual the fact is we sent them a letter asking them to disclose their uses if they had a valid license isn't it entirely possible consistent with your complaint that you don't have a right to relief that they acted within the scope of their license no why is that because they know given the volumes of licensing involved here and their research and their their look at this matter and other cases that they have gone over the license limits numerous times they've gone over the count the print run number on it in other circumstances and for that yes makes it and they've disclosed it they've disclosed it absolutely and we put that in our complain and mr rosenthal nor corporate counsel will not get up in front of this court and say we have not gone over those license limits and mr rosenthal says this is the scope of license matters this is not a scope of license matter if that were the case it would be a contract case he knows very well that new kids on the block said once you exceed the license limits of a limited license you commit copyright infringement we are required as feist says to show two things how could we have to plead beyond the prime of facia case requirement that how could possibly in our complaint we have to exceed what the prime a facia case requires copying ownership we know under else l cool j is not even correct anymore because registration is not an element what they're saying to us and what the panel is indicating in part you know with good question is that we somehow have to show proof essentially facts of how they exceeded a license yet we don't have to show they even had a license all we have to really shows they copied so is it plausible under what we gave them that whole list of images and how they purchased an invoice to use those images and when they did that is a plausible that they copied them absolutely unless they're in the business of buying the images to put in textbooks and then don't use them so we're missing the mark exceeded the scope of the license can you allege that we don't have to alleg because license is an affirmative defense they have to assert if they haven't even answered we don't even know if they're going to claim license that is an affirmative defense we don't have to plead around their affirmative defenses that's what muhammad ali  very clearly and that's why i'm willing to stand up here and have egg on my face about not briefing it but the but we're not here about my pride or anything other than finding you know coming to the correct legal conclusion about what is required of a plaintiff to file a claim a complaint that gives fair notice of the claims that were asserting if they can stand up and say they don't really know what's going on here and they don't have fair notice then fine let's see it but they know very well what we're talking about and mr yoo matia will have loose his day in court if the court requires us to show the facts that essentially we give a summary judgment in this case show those in our complaint at a time without discovery and they get away with a perfect crime we will hold on to this information that would show or infringement will pretend that we don't know what they are we're talking about here that we there's not been enough shown in the complaint we don't know that's a fiction and then we will have an injustice and as our pleading system permit and demand information they have soley within their records demand that the plaintiff get that and if the plaintiff can't access it lose not even get to go to the courthouse and have discovery when for the first time are we saying that we have to plead around affirmative defenses now look we're partly responsible for going down this path because we probably should have just pled copy ownership copying registration and forgotten about  know to the extent that they exceeded license limits and all that but we can't be faulted for having too much information in the complaint can we and we can't be faulted for stating a legal theory a judge would says that in mohammad ali that you don't have to plead the legal theory so yeah we we sort of got led down the path to and courts have bias i represent to you your honor respectfully if if the second circuit has said that an authorized copying that's a very