whether a company can engage in a nationwide sales marketing and distribution effort for a software program and use a guide and then stand you'd when the guy decided as prior art to its ads here this it cannot simultaneously raise technical ever denture objections while concealing what it knows are the facts that undermine that subject i don't i don't know what i know that you're making general statements when we talk about this case because you're making pretty seriously serious sounding attwood accusations the board found against you in this case because it said that whatever use there was of this user guide was very restricted right that's correct your honor they said it was a closed a closed group that was the theory that the it time were to be presented and that the order excepted but that it was that wrong in your view is a matter of fact or is a matter of law both your honor because the evidence shows your honor that the m a p c agreement and other documents of records show that the user guide is available to any employee of the municipality you can make  of the evening or the board adopted the argument that it was a close group simply because there were restrictions i don't access right what are they talking about this availability on the internet did they were john talking about availability on the asked you about five minutes ago that we have what cases you're talking about we have a variety of cases where gardner if we strip to jesus and the ones that find it was restricted if the people getting the information who had access the information  some sort of confidentiality there's when you go to a show that you couldn't take anything with you couldn't take pictures etc why is this case different from those cases in terms of the restrictions that were place  people could remove these documents so is your argument that it was still publicly accessible because the restrictions still included a huge cat huge number of people definitely include a huge number of people your honor because how many los angeles county there's evidence of that in the record of a training session and hard for another one in flint michigan so another one in iowa so we have multiple inst to third party contractors doesn't the mac provide it can only do so under the supervision of the authorized users and only in certain limited circumstances isn't that  good afternoon your honour's please the court as this panel is already noted at the center of this afternoon's appeal is whether or not the documentation is confidential and we know that it's confidential because the dominatrix license agreement that we've been the license agreement says that all of the material is valuable to you it's only trying to that's more than one hundred actually crush there are limits to restriction i mean what if you've got you know selling pornographic material or something so you only distribute it you say you can't allow anyone under eighteen or anyone under twenty one to look at this so there are restrictions on the population and who in the population can have access to something but the restrictions on make it home leave open you know two hundred million people who are not covered by those so what is the inquiry about restriction on their number levels i mean this is there an app is there an area even though there is some restriction in terms of public access or competent reality but the universe that's allowed to see it is so broad that we quit still construe it is publicly available we've thought about this hypothetical your honor where when is enough when it's just too much and too many people have access to it so far the courts cases have gone and this court had a recent decision in tronics versus perry which was june eleventh twenty eighteen and in that case there were hundreds of of positions that had been exposed in a limited access situation so the prince of publication and that was not found to be enough to have removed the so the the record was not focused on this or on our opposing counsel did mention a couple of instances where there are numbers provided in the record for instance we know that map c has one hundred one municipalities we had thought that the record was devoid of any other agree the number might be relevant and if so why isn't the information there is that because they didn't ask for discovery and do it is because the appreciation of the discovery was precluded or the information was not rejected by the boy so they didn't ask for discovery on it it wasn't put into the wrapper what was put into the rock heard are things like the map see information they had shown that letterhead which said one hundred one municipalities we had thought it was to them now we have this additional information buried in the cohasset town report we know that larry our kids in the counties will have no idea how many employees are involved the only thing that ended up in the rocker about the dissemination beyond these restricted groups was information that we put into the rocker exactly where's our expert witness who is an expert in photogrammetry which is the european volunteer and has been an expert in this area for decades we asked him that his deposition which we put into the rocker before the or whether or not he had been aware of the offense user manual before he became involved in the i q article and his answer which we put before the briefing was no he had never been aware of it we also asked him whether or not he asked any of the people everybody knew with or that one dude is aware of it i mean how much relevance do you really think that has it has limited growth and you know really really limited i mean the problem is and it creates a really unusual situation for us this is much bigger didn't really follow or make a sound you know the fact that you're telling me what you guys says that's interesting i'm a contractor i was aware of it i never saw it if that's not the issue the issue is whether it's accessible to the public not whether someone did access it or whether it's so anyway the point isn't whether or not someone did access it i think the point is whether or not it was excessive bull and doesn't a mac agreement allow for really extensive  address that last point first and then i'd also like to address the points that came before so i was confused and in the of color rethink is that i believe there's a new argument they argue that after you take a look at three point one c that somehow three point one c it talks about uses and it says through authorized users only authorized users are defined in three i'm sorry two point three above that the licensee can use and operate the license software this comes from the predicate at the beginning of three point one which says that there time to trigger reg rants to the license see a limited license for the following and then we get down to through authorized users to use and operate the license software and need servers and workstations in the conduct of public business of license fee or the offer i subdivisions and to use the license product in the following activities and for no other and then continuing on to section two which is the point that exact where brings diversify so under the supervision of authorized users allow the representatives of persons doing business with the licensee or the authorized subdivisions on licensee projects to use an x acute the licensed software just the license software so the definition of licensed products which is used elsewhere is not only the licensed software but also the other license aspect point one and that paragraph continues on to say in the last sentence that the license here the authorized subdivisions shall cause each participant to use hard copies of the licensed images so the only things that the public are allowed to nationwide software that excludes them and or the definition of licensed software is and one point seven and it means any proprietary software provided by per time tree this includes but is not limited to so on the same computer as the software is an electronic copy of the manual it is in the same directory as the software it is not clear before the critical date it's not the rocker and we don't know we're talking about ten years ago what was going on ten years ago whether or not there was a way to get to the manual from the software it's just not the rock or it isn't the same exact directory as the software but i read about three point one b which also says under documentation they can copying use related documentation included in the license products absolutely your honor which is where i was going to not just and that is that the licensee has a license for the following and it includes in three point one the ability to copy and to use the related documentation included in the licensed products in connection with the activities described so this is this heavily slices and dices things examiner who wanted to allow the contractors to be able to use the images they needed to sit there with the people from the municipality for instance to say i need this particular image of the road i need this particular image of the mountain i needed from this angle the idea is that it's of interest to offer provides multiple angles in an overhead view and so it was important for the contractor to get the right angle and so they would need to be at the the elbow of the municipality user who was licensed and not only were they licensed to help these third parties used the software use an executable license software but they the licensees the employees of the municipality they were allowed to copy and use the documenting they weren't allowed to give it to other people and that is the message of three point one it divides this of cake so the can we get back to what we're talking about a while back which was what is the universe of people even if you slice and dice it even if we agree with ok so we're down to employees of municipalities right we've got massachusetts the map thing and we know the deal it absolutely could be but that's not in the record this is exactly petition they chose one of them and say we're going to put in the record in the board can only make a decision and this court can only make a decision based on the  about the discussion we're having here is that i don't remember what but some stuff in the board opinion really suggests that they were defining public use on one side and any restrictions on use on the other and i guess some of us are wondering how fine that line might be if even those that have restricted use the numbers are in the thousands or even one hundred thousand that's why one would drop even though we would all agree it's not technically public ings because we've got some restrictions under eighteen years old or something so can you help us with that i understand the struggle we struggle with the two i wouldn't want to presume for the court how to draw that line they didn't request any discovery whatsoever and the board noted that in the opinion that they didn't request discovery and said that if we wouldn't have given them discovery that they would have ordered discovery because really worth our company to put forward this manual  and i understand the assumptions we can make about the world but we have a rocker below that was in front of the word that exact word chose to put in front of them and that's what we're left with i thought you know i'm not going to stand here and say that there are lots more but i have no idea how many more i don't know the order of magnitude i think that intersects with a good problem for me is again the issue is public access ability not public access past tense and you know this it presents a case where based on this agreement the cess ability and based on the numbers we do have there was a large really large accessibility i mean even if you're talking one person one person the agreement allows for much more than that so i don't know how to deal with that because the question isn't how many people did access it the question is how many people had access to it he even if we if we assume that just take one hundred ten then i point out each one of those people who worked in the government had very severe restrictions on what they could do correct crumpton that's correct and there is a question about whether people from the the other government employees so it would seem to me that that fact finding half supported by sufficient evidence destroys the argument that the outsider is relevant at all i would agree on is the relative comes should copy and use the related documentation included in the license price and connecting with the activities described in the section three point one so we believe if that the user guide which was distributed along with the software and my brother at the bar since it's right in the same directory that that was that that was available and that's a different position than the whining in  in section c which is talking about concern about keeping the the software itself confidential and the image library had self confidence by the way did you find something in the record to support your statement decision to say was that private entities would have access to it by means of that mechanism dispair and i and i think that is the distinction here that this paragraph tries to dr boston how many people in the city of boston would have access to this software and to the related user guys probably already know that's probably one of the problem but the problem is exactly the statement you're magic you're asking a question how many you're saying probably i mean it's hard for the board to make a decision based on those kind of sort of assumptions or speculation right so you didn't