last case on for argument today is latin american music company versus spanish broadcasting  you and thank you the district court made three reverse of all errors in this copyright infringement case the first was that the summary judgment stage where the district court found that the plaintiffs were barred from asserting were establishing ownership of the copyrights at issue and the sole fact that the district court relied on in that context was that there had been registrations done by a third party in the courts words decades before and so the court said that because cut the registrations provide constructive notice that that was a nuff to bar these plaintiffs by from being able to claim that they now own the copyrights are them on the basis of the passage of time or bar them on the statute of limitations and there is a three year statute of limitation on about ownership we are talking about ownership we're talking about applying of ownership so the sequence here is you have an initial copyright term and you have in the early one nine hundred seventy s a registration done by an entity called fa from the air as of the original composers and some of these rights are in the renewal term of the copyright renewal term  would be manifestly unjust there were all sorts of issues in the district court and many arguments were not made counsel is who would handle the case in the district court is subject to an order to show cause as to why he should not be sanctioned over much of the conduct in the district court so things went off the rails and the argument was not made but it would be manifestly unjust to hold it against this client to stay that they have lost their rights and this circumstance of these registrations is no a burden on a reasonably diligent plaintiff to have to search the copyright records to see the author and author there are walkers at work  copyright is not compelled to go there after continuously searching the records of the copyright office to see whether somebody else has filed a claim to the work that the author knows he himself created but that's a different circumstance from somebody like your client who comes in decades later and buys it and has the opportunity at that moment to look at the records of the copyright office and see that there is an incompatible claim ownership dating from thirty years ago well the if the claim is not necessarily incompatible and that also was addressed by your honor in the wilson case because if there is a registration that relates to the first term of copyright it's not necessarily incompatible twenty years later when you obtained rights from an era and so it will turn for the renewal term yes that's the point that you never argued understood your honor but as a as a matter of copyright law that makes a difference for starters just as it is a sort of abstract academic thing for us to consider arguments that had not been raised below and it is also a matter of law as opposed to requiring fact to all the information and that also makes it appropriate turning to the any evidence contrary to that no your honor it does not and again there was confusion about that point the rights at issue were all the ownership of the copyrights were in license first was in the records so it was part of what was before the district court number one but they did not lose it because of the bankruptcy the court did make that observation that there is a provision in the agreement that says it would automatically terminate should they go into bankruptcy but that is a type of clause that is barred by the bankruptcy code an argument made just once again that was not made to the district court and that's the same you that your honor once again it's that same issue where it is a issue purely of law number one and number two it would be manifestly on just not to take it into account and those are circumstances where this court may observe may take the argument  you would say that we need to take we need to address the ownership question and the standing question or whatever you are you want to phrase it but why isn't that just then you're asking us for an advisory opinion it would not be advisory for two reasons number one it's not advisory with respect to the family who works that's still a live issue and whether or not there was some frenchmen it was never decided for the fania works because they were dismissed on summary judgment as to the broader works where there was no infringement found that again would be because the issue is still live more broadly for the public and for the parties to this case even if there is no infringement it's the better practice according to the other claims will be sent back and reversed but yes even where it doesn't matter ultimately to the case yes you reserve two minutes for a while thank good morning your honor is and may please the court jim fitzpatrick for the appellate spanish broadcasting systems first i want to emphasize that none of the arguments that the appellant is currently making on this appeal were raised at the district court level with respect to the ownership of the copyrights they first took the position wrongly as it turns out that the appellant themselves were the owners of the copyrights and they failed in discovery despite it being called for to produce the agreement that showed on its face that they were not the owners of the copyright we only found that because it was filed in the bankruptcy proceeding in puerto rico and was publicly available then when their only witnesses cross examined with that document to show that his claim of ownership was in fact false he didn't he neither he nor his lawyer pointed the court to the clause they now point to to say that he got an exclusive license back they pointed the court to a clause that showed that he got a non exclusive license back which no one disputes is insufficient to bring a copyright infringement case in addition when confronted with the bankruptcy clause that your honor asked about they didn't make any argument about impermissible ipso facto clauses instead they're only witness testified that they had that he had entered into an oral agreement with the counterpart of that contract who was his sister in law and the secretary of the corporation where she had agreed that she would not enforce or she would not end the contract because of that clause that was the only argument to be made in response in addition as your honor pointed out the the appellant's never made the argument that they were the owner of renewal rights to the district court in fact they didn't respond to any of the statute of limitations arguments at all in their opposition to the motion for summary judgment so for those reasons alone all of these arguments have been waived they were available to the parties below and they were not made in those circumstances this court ordinarily does not consider them as to the question of manifest injustice i think if your honour's review the record below with the pattern of discovery abuses that unquestionably occurred and if your honour's review the trial transcript where every aspect were judge sullivan found every aspect of the  only witness completely non credible it's clear that there is no manifest injustice here if the plaintiffs don't prevail on this copyright infringement the second issue is that this appeal should not and does not affect the outcome of the case certainly with respect to the works that went to trial there's two elements needed for copyright infringement one is ownership two is infringement they only had they only had one type of evidence on infringement because they failed to produce the recordings that they allegedly made and that was the appellants only witness and president after after cross examination judge sullivan and rightly so based on the record found his testimony to be completely non credible so those claims fail even even pursuant to appellants own admission it is true of course that the works where there were there were there was summary judgment before trial there was no testimony about whether or not those works were and were in french that's true but the record would have been exactly the same they weren't they would not have been allowed to introduce any evidence of recordings because they were not produced he had no notes he had nothing other than the sole witness would have had nothing other than that same recollection that he claimed to be able to recall having heard those work several years before the judge already found all of that testimony to be non credible and with respect to all the ownership issues that we've talked about those would have applied to the summary judgment works as well so even if there were any error in judge sullivan ruling on summary judgment which there were in which there was not reversing that summary judgment to send it back to judge sullivan to make the same credibility findings that he has already made would be a pointless exercise finally with respect to the summary judgment motion judge sullivan summary judgment ruling was correct and i think it's important to put into context exactly what the timeline was here every one of the new works and this is undisputed were authored transferred to find registered with the copyright office back in the one nine hundred seventy s and the evidence is also that this is a legendary salsa catalogue and while they may not be they may not be household names to your honor's or to me in fact to anyone who deals in latino music which the parties in this case do these are very well known work so it was very well known that these works were out there being performed being exploited by fine for several decades before the appellant's even claim to have acquired the works and register them with the copyright office they didn't put in any evidence that they did any type of due diligence to learn how it is that they could be acquiring these decade old works that were already owned by somebody else they put in no evidence they put in no evidence of that instead all they have is the bare registration which in many cases indicates that they acquired the works from from an author i'll take one work for example because it does vary a little bit by works i'll start with the work so was was written sometime prior to nine hundred seventy five and transferred by the author johnny  you registered that work in one nine hundred seventy five listing in the copyright registration certificate johnny pacheco is the author there's also additional evidence that both fun and johnny pacheco had actually been paid royalties on that work by by broadcast music an from there but first of all they never checked whether or not it had been registered they never checked whether had been registered before or how it is that they could be obtaining the rights this work that had been out there and well known in the salsa community for two decades nor did they check the copyright registration certificate from the one nine hundred seventy s which would have shown that hector lavoe didn't write it johnny pitch a co wrote it and that also shows the problem with their renewal term argument in addition to the fact of course that they never claim to own the renewal were i think at that point they had to do some do some additional inquiry to see whether the person from whom they were actually acquiring the work actually had valid rights at that point they could have checked i mean there's evidence in the regulars newspaper articles they could have the author of the original author and the owner of the copyright they at least would have had to do that within three years of purporting to obtain the work but i'd also argue there's even a step before they had to file the litigation because order to be a subsequent good faith transferee you have to have you have to have a good faith basis to believe the person from whom you're acquiring the work actually wrote it and they didn't put in any evidence whatsoever that would support a good faith belief that it was written by hector lavoe when in fact it had been registered decades earlier and exploited and been the rights holder are factual issues which the court did not get into on summary judgment the court relied on a single fact that there was a preexisting registration and said it was that registration alone that was sufficient to put these folks on notice and we have we argued before that is insufficient  in terms of addressing the arguments that were not made below this court in baker v dorfman and many others has said that a court has broad discretion to consider issues not raised initially in the district court and generally the standard is if it is a purely legal issue or if it is an issue that  is necessary to avoid manifest injustice and we would submit that in this circumstance it would be manifestly unjust to say that