the last case to be argued in is brokered genius versus drew g but the starting point is the court's interpretation of a standard copyright license expanding that into a lifetime ban on creating similar products whether that similarity is a copyright or much broader into the abstract ideas the court's interpretation of that language is inconsistent with the language itself and i'll address the specific language of the provision but more broadly a holistic looking at this of what the intent here the court reached inconsistent conclusions about what broker genius's intent was with respect to whether it wished to preserve exclusivity over its products it found on the one hand that there was this intent in this particular clause to prevent the directly from its interpretation of that clause the specific phrase derivative works that it found in the made in the may twenty eight team decision and the court if there's any doubt doubt about that in the j n o v decision footnote three the court repeats again that i was in charting the phrase derivative works not the provision your honor is referring to secondly the provision your honor is referring to still uses a different phrase and a different concept than what the court was instructing so the court in its instruction referred to that something being derived where the provision actually speaks of a user deriving something so there's a difference there but more importantly to the underlying concept of what they're going for a derivative work which is what the end product is what their case was based on it wasn't on mr gainer trying to learn something or violate acknowledged that this provision does not create an independent grounds that they were bringing their claim on he says that just learning all of these concepts means are very simple concepts you would see them just by using the product and that's not the violation that they were alleging against mr gainer they said it only creates an independent thing if you are then creating a derivative work at the end of it so he was not purporting for this to be an independent basis for violation so we have an instruction by the court on the charm derivative work and if you go into what this provision actually has in the license broker genius never claims to own the underlying ideas or concept it is titled ownership of data and content so not anything broader than the actual copyrightable materials and then it defines that in the introductory clause to be the visible components the copyrightable aspects of its product and provision that you are speaking of does this does go beyond what their case was actually based on which was the creation of a derivative work as i've just said there was no evidence that mr gainer violated the provision you are speaking of and that's where i say mr sherman acknowledged that the materials and you can go through the checklist are readily apparent to any user so buys that by the theory that simply looking at  web site seeing how it functions without taking any extraordinary steps that that would be a violation mr sherman rejected that he said you know that of course then otherwise every user seeing that it starts with an event menu and all of these things would be in violation that that's an unreasonable interpretation so he then says no it's only if you thereafter create a derivative work and then that's what the jury was instructed on by mr by the judge so as a result there was no independent claim that this was a violation by mr gainer because again the there is a broader question of what the court interpretation of whether broker genius intended to maintain exclusivity over these things and its expansive reading of the terms of use reached the conclusion that of course broker gene is wanted to prevent users from or competition and they wanted to have exclusivity but on the other hand the court had already found that there was no no provision in the contract to preserve such exclusivity so that a user exclusively and why would you say that any user is would under their interpretation of the judge's interpretation be guilty of some sort of violation they just use it they don't create a competing product well the way you ask that gets to exactly the the distinction i was hoping to make which is that the act of using it and learning the things which is the derive in taking steps to derive something that's not the violation that they were alleging they were saying creating a subsequent work a product because of that or based on that that's the derivative work term that's that they were using they were saying it's not an independent violation by mr gainor to have used it and to learn the very basic steps of you know that's alleged here it's the creation of a derivative work that was the violation is when you say it's also easy isn't it i think one of the things you argue in your br fact that they demonstrated this product for people potential customers means that there's no secret isn't there back jewel difference between what you can learn about how to create this product  from ten minute or in the half hour or an hour a demonstration of this is why this is a good thing for you and using it for months under a license there isn't conceptually if you are dealing with claims nuance claims about how to do this true i took mr sherman through this and we went through that the components that are alleged to be their claim and those were the items that are demonstrated with what you're saying is there's also evidence on the other side  that's what jury trials are for years and i cross examine them and i think i made a persuasive case that what he had previously testified to wasn't really right but isn't that what the juries were not when the  opponent is is acknowledging the absence of evidence they never pointed to anything that the user couldn't learn during this end more to the point getting to the judge's determination that there is nothing in the contract prevents the user from going to the competitors and saying broker genius has this wonderful thing they do this they go step eight to you know all of every aspect of the product was something that users were free to disclose to the competitors so even if you are if you are inclined to believe that there were some something that a user learns only after hours of using it that is still disclosable under this agreement brokered is a court found that it says intent in this provision and if the intent is not to preserve the secrecy or the exclusivity over this in other words it's irrational to interpret this plaza saying you as a user you're not allowed to do something on this but you're free to tell your other competitors about this we just come back to the issue that your instructions i'm reading it looks as if the jury was instructed on both the rule of works and the derived ideas provision and that judge signed in using that definition did not because if if there was an error in our view obviously is that this is a very specific prohibition on derivative work what it was is another provision in the contract and this has is probably construed in the way the some because we were not allowed to present evidence as to what derivative works mean so when we did tempted to question that elicit our interpretation of that provision the court did not allow us to do so that's at a one hundred and twenty five dollars and a one  only copyrightable materials and that it was a term of art and the court based on its pretrial ruling said i'm not going to allow you to get into the nd party subjective things and i'm asking about their expressed words to the other side the so correct but when we attempted to understand from mr sharman whether or not a reasonable user would interpret this this way we were not allowed to do that examination but getting to your question about whether if there was an error or a a failure to properly  allow us to define what a derivative work is would that be subsumed by the other question and they i think the answer is no that under harmless error because there's a general verdict if there was a because i'm not sure that a derivative work being a necessary component of their claim about the act of deriving it it begs the question ultimately because their view again was not that you that he took action while he was a user of deriving and doing something violating that provision they said it's only later on when you create the derivative work so the derivative work was the scenic one on the barn eating working well i mean but as you know this is a ten day trial defendants don't mention the standard of reviews of the jury's verdict or the judge's discretion rather they focus on the real it again in the and also many of the arguments they make were actually waived for failure to raise them in the rule fifty motion as required by law read to city of syracuse having said the provision that says it derives he read he asked one question that's in his brief so these provisions of provisions that talk about deriving information non are violated dispy user is just using it in the ordinary course is that right yes what he doesn't do is tell you what the next question says even in the course of doing that they pick up even if in the course of doing that they pick up some of the underlying ideas concepts of how the product works is that right again unless they are using it to create a derivative product  with regard to the they were actually waived because they were not raised in the rule fifty b motion and this call as a district court properly interpreted the plain language of the contract and properly charged it ury and to the extent that the court wants to rule or consider the merits of mr heisenberg's contract interpretation arguments we rest on our papers is so much evidence in the wreck or to show that that's not true even if you look at what mr gainor did the proof is undeniable the product was not in the public domain in two thousand  chains mr gainer had a demonstration he went home and he drew out what he had learned and he now calls those the two thousand and fifteen more frames they're just a sketch of the elements that he saw in the auto price a product he could not build another price for them in two thousand and sixteen he signed up as a customer of broker genius he used the auto processor he used it for six months and then on january th he did what he called a brand amp and he wrote down everything he had learned as a user as someone who had been trained for hours as someone who had repeatedly asked technical questions of broker geniuses the technical service department and then he was still a customer of broker genius set up see scott's gave his brain dump to his employees and they started building command center mister gaynor lost access to his account because he was no longer pricing tickets and property in a shop at dawn in april mr gain could no longer make he needed access because he had difficulty completing the product in august there was a requirement to make the group feature they  required but they could make it in september mr gaynor in an e mail said that he wanted to get into broker geniuses product using somebody else's credential early october they actually got somebody else's credentials they got in and five days later they had completed this group's feature that they had been trying to make since august and then they launched the product so that he could build command center the jury heard all of this evidence there is no question there were charged properly there's no question that jury verdict should not confidentiality clause we have pointed him to that clause and he said that's not a confidentiality clause that would support a trade secret case that's all he he didn't say this case is a copyright case and with regard to the defendant's preemption argument that's absolutely waived because they only  issued before judge stein was whether the defense which was raised only days before the jury trial was actually waived and the standard  waive in a defense an affirmative defense that should have been raised at the end with the answer the standard for that is if there is a new delay then the judge has discretion law if mr eisenberg had raised it and asked for a briefing or asked for any judicial decision we would have opposed it if we knew it wasn't going to be an issue for the jury fifty seven lines one through four mr sherman says of course not it is not a violation for a user to simply use the product and learn things from that use and then in particular the claim that deriving and simply learning stuff from the product would create a violation of that and when you have under a harmless error issue if their primary interpretation was erroneous in that it is copyright you can't assume that this secondary alternative theory of violation which how it how can it be that the witnesses statement provision that says attempting to derive any dot dot dot underlying ideas doesn't go is and if his statement is of course you can't read it this way because otherwise every user via like that simply by using the product you learned with me doesn't mean that the question is you derive that information and then use it to the disadvantage of the license or right and that's what he means by derivative work and is moving in here that says i mean derivative work in the copyright sense right he saying of course you can't do that unless you create a derivative work would mean by derivative their position all along is that the riveted means something more in this context than it does in copyright law right and that is inconsistent with the interpretation of the just saying this provision doesn't prevent anybody from doesn't block derivative works because a mr gainer can go to any competitor and say create this because that's the way that they could have been  important issue of whether or not when you give a light a copyright license to someone you are also giving them the right the exclusive rights that are in there so and that we cited the case in our brief that as a backstop you have to affirmative interpretation of that i just see that i'm over time but if i could just briefly touch on the issue of damage in there you can have one minute one ok the issue of whether or not there is some material some aspect of this product that was undisclosed and during these presentations their damage model which we challenge on in women a motion was the entire auto pricing the basics the things that are disclosed right at the upfront to everyone that everyone agreed was disclosed during these presentations that was the basis for their damage model and our argument was if you're going to argue that there are some subtleties that you don't show to the public then you have to have matched that to your damage model and they continued with this mismatch of saying we're going to present to the jury a model that the basic steps that everybody can see that those things are the basis for command but at the same time we're going to say the jury should really only find that this tiny little nuance was was clipped and he was thinking thank you we have an argument will reserve decision the last cases on submission