morning your honour's anthony korn errands for the helen said that henri the briefing in this case has been extensive and i do not want to simply repeat what's in the briefs rather i'd like to give the court in overview  provides an extensive amount of guidance to the court and understand the summary judgment should be reversed so you think it supports your position rather than go oh yes absolutely doesn't apply here of course and they say of course the work is not virtually identical under any circumstances we're dealing with a brand new recording that was made in one nine hundred ninety nine released in two thousand suit was of the doctrine of lassies for taxes the parties from stale evidence and key witnesses who have died and how would you prove the new infringement without relying on the same evidence that you would have had to rely on preexisted the writing of muskrat ramble but i want to focus i want to respond to your question but i also want to point something out that problem existed as is one thousand nine hundred seventy one and or nine hundred seventy three depending on how you look at it if you ignore the fact that there was a new infringement in one thousand nine hundred ninety and there was put that aside for a minute or its predecessor learned about this in one hundred sixty nine louis armstrong was dead as of one hundred seventy somebody to enforce an old copyright on the grounds that the author has passed away and therefore the evidence isn't available it's very easy in a copyright case to challenge someone's creation of the work it's sanded operating practice and office but also sound recordings when about to reveal any of you at the radio interview would be helpful as well but that's what we're talking yes but but but i thought the courts question focused on whether or helpful in that regard now in terms of infringement macdonald is there you have the records that were made in the sixty's and again i'm putting aside the nooses in the one nine hundred ninety s you you have experts competing mcdonald's as the court pointed out its missions you have the history his past knowledge of muskrat ramble you have what's common in common practices in the music industry at the time in so far as ok well part one then just rule does apply part to applying the dan judge rules leads to a completely opposite result and that reached by judgment why the rights are infringed upon in a different fashion one reason there's a new infringement it's a separate sound recording another reason a new derivative work is created under the copyright act and under mirage different from a new version of the james bond film involving a different plot line  and also using for mil year characters like well she reasons number one in india and just the bond films were all the infringement had to do with putting those films out on a different scene the date two characters are thirty years and yes there were eight or ten in a series but the point isn't in dan just confirms this by citing to this circuit's decision in hampton with approval if the news isn't virtually identical possible your honor that record could say given the fact that there may have been some reliance on an action that will affect the damages calculation in the case then just as in big you assume you have damage as right you were not asking word used by mcdonald in the word used in the course order dan jack and virtually identical test is messy and i should miss that virtually identical and consistent are two very distinct concepts in what the court and it's completely contradicted by hansen's completely inconsistent with hansen and again dan just did not disturb hampton versus paramount pictures dan just cited it with approval and distinguish it and that's a very important point here now your honor turning to the prejudice issue if i may briefly mr armstrong passed away in one thousand nine hundred seventy one we don't know that he would have had anything whatsoever to say about authorship the only thing we have him captured saying on videotape or on film is a kid or you wrote the song the only showing that armstrong me contradicts the point is double saxophone scale but that thing is shrouded in mystery because we know that ms henri claimed to have it and it wasn't turned over in discovery we know that there's some evidence about maybe it's around maybe it isn't we have an affirmative admission and i'm pointing out all these ambiguities for a reason we also have an affirmative admission unmik the action we don't know what we don't know what happened to us that we do not know that i versions of what happened and let's focus on something that macdonald said and this is in one of his undisputed material facts we'll never know what relevance that book has because kate henri is dead well again he's already passed away in but we have to see what you know because everybody admits it's a scale book it's like saying i had a book that's a primer for the alphabet or i had a dictionary and i wrote a song based on a dictionary and that's where the court i think got sidetracked i don't think the court focused appropriately on how probity the evidence would have been and a causal relationship between any delay and the of evidence that no one can produce those so that anybody can offer any testimony to either authenticated or to confirm what you just represented to us in terms of the fact that everyone agrees as to what it was we've got a dead witness who would be the key person i used to to lay the foundation for the admission of it why can a trial judge take that into consideration in deciding whether or not it's a critical piece of evidence because in order to invoke latches the defendant must prove that the delay was unreasonable and caused prejudice you need some evidence in order to make that proof if you don't make that showing you do not meet the dan just test and with respect your honor i think what happened here is that ms henri was put in an impossible position let's look at what would have happened had she filed her predecessor filed the case in one thousand nine hundred seventy three the same for her to focus on issues like this when she's trying to make determinations the law tells her she asked me or you have to focus on issues like this of course she was looking at the right things which is the way the court looked at this ability of evidence is to the hearsay abuse of discretion as to everything else the novel absolutely to no avail so and we don't have really miss questions of law in fact here because what we have judgment motion the never shifted the burden that did not show the not overcome the hurdle of new uses did not overcome the hurdle of lack of willfulness and did not show evidence cherry prejudice it alluded to it a jury to consider this evidence and perhaps rule in a certain fashion in favor of mcdonald putting aside the niece's issue the judge however weighed the evidence determined what was important and what wasn't important and i submit crossed the line into the domain of the fact finder i need to reserve my remaining few minutes for a bottle thank you others thank you very much don't have to do it i thought i might add that to the issue of intentionality willfulness and the exception i will get to it's one of the five those funny areas are the assertion that there is no use the issue of was actually said on that tape is exhibit twenty nine of defendants deposition and in there and it's the page one fifty sort of a riff not that there was and what he wrote immediately after that were the lyrics also around page one fifty one fifty one clarification he did write the music down for several days probably more than a week now i'd like to contrast that with what kid or in the liner notes says himself about how kid ory wrote muskrat ramble he was studying saxophone a book that had scales and arpeggios and all of a sudden he had this inspiration and he wrote down the music did something with some notes that became muskrat ramble part was his original contribution there was support copyright registration we don't know we have never said the kid ory might not deserve a copyright for the work as a whole i don't know that but we are not claimed to be a wholesale pirate who takes must write my own bill as a whole puts it on a record sells it after our license expires that's what willful infringement is that's what the liver of piracy is that's one of the exceptions to that latches are the burden of proof would have been shifted on the other side what we have is a morph it's floating there's something in that song someplace that my father kid he did and yours sounds like it and therefore you infringed and in fact i would submit under the cross test it is impossible for plaintiffs to prevail it would be for two truths only because there's absolutely no twenty nine of joe mcdonald deposition is the quote and it is the quote that counsel for plain just agreed was exactly the s we are making something up in effect because we don't like the record the argument section virtually is not everything is cited to the record in the facts section five year time and i don't want you to run by it but it's some point i gather your position is that there is a case to affirm yes and i gather you have some one to three full of basis for it and it would help when he comes through but standard those two seem to be both in dan jack yarrow many other cases the difference between them has not been decided and every case i've read is that it doesn't make any difference or a high standard of deference for the judge below are reviewed for abuse of discretion and there was no let me go through some of the allegations you use even assuming that's an issue joe mcdonald has been singing and performing the same song for now forty ramble oh i'm sorry yes i believe that has been earning well and much more than reported is shown in some of the discussions about financial hardship and like the question of this being a new issue but what occurred to me only last night and sometimes what's most obvious is hardest to see is the plaintiff's own expert client mr las we think there's some deliberate questions with that professor at school and some other questions but on the front page of his report he says must read ramble versus quote i am i feel like i'm fixing iraq country joe hundred sixty seven vanguard records why do your expert report on muskrat ramble which he didn't do from the deposit copy but from some amalgam w fall in september so there there's there's no way to separate out there is no way could pass that prof test in the question of what happened willfulness i'll get back to you in a moment psychological principles among other things that say if something is pointed out you can find similarities there but the key issue is those similarities something originally contributed by kid or was shown very well by professor at school and those are theme the sounds of the riffs american beauty dardanelle that were around at the time if you look at virtually contemporaneously one of the stamps it sounds similar the question is not are they similar on a cross test you have to say what's protectable and there's no way we can tell which protect people when we move on unjust results so i get involved equity is the prejudice to joe mcdonald the same in the future it's the same song more on the deliberate piracy in i think the bolton case three boys music were found unconscious copying they were found infringing but not willful it is not willful and in fact i would say there is no way than twenty three year old kid putting together a rag out of the right of john could know that that was infringing the no way he knows what is  what is earlier things what if anything was proprietary there's no way that could be it is not an easy question for judges and experts now to decide you get willfulness when you wholesale copy a videotape of another program or run your license out through copy i've talked about and in terms of economical harm to him in terms of summary judgment you can spew that facts are kid henri derived his song from something else not to make any fuss about this song is not something that was hidden or unknown it was for a very brief time well known and all the ownership both kid ory after he died intentional infringement the defendant has to establish both the good faith belief in the innocence of his conduct and that he was reasonable in holding such a belief here we do have evidence of willful infringement on macdonell did not establish those factors the evidence of willful infringement consists of the sixty percent similarity insistence stories as to how muskrat was created failure to disclose must read on the copyright registration for a fix and knowledge jury issue and there is the jury should have considered or should have been permitted to consider whether or not the infringement was intentional the court i believe got sidetracked on the advance notice issue than  focused on advance notice because there was a prior existing relationship between the parties and the defendant and claimed to have a belief that that defendant had permission to use the wor you would have to prove authorship you would prove authorship by using our copyright certificate and we would rebut their contention that he didn't write the song by pointing out the obvious that is that  record broken out over notes and that a scale is a scale we would then figure out how much mcdonald's meat from the use we would try to prove willful infringement in order to enhance the damages we would do so with reference to his conflicting stories as to how the work was created we would ask for an injunction with respect to the one thousand nine hundred ninety nine recording everybody admits and agrees that the sixty seven recording isn't a part of the case notwithstanding the way the expert witness approach the report research parties not to be present actually they would have given the fact that we're limiting the case to the one nine hundred ninety nine recording mcdonald acted as the artist and the record company and the distributor