motions twelve of those got whittled away because they didn't have any facts and they didn't have any law to support them on appeal were left with two copyright infringement and breach of a separation agreement those claims must fail as well facts may not be copyrighted compilations have thin protection under the copyright laws and if you can't prove what was copyrighted what was the creative element because you don't put your database into evidence you haven't proven your case even if the other side prove it compares well your honor that's this that's the nd part what i'm talking about isn't the comparison well is it the st part does it all make one sentence with a comma even even when the other side prove it's going the plaintiff has the burden of proving what the creative elements are in a compilation the copyright certificate  clued rd party data there is no way for the jury based on that certificate to know what is the creative element in the compiled database they're guessing the only surely there so they had some help on this they weren't completely guessing well they had some help in the terms much up that they have they had help in terms of showing a comparison of factual contents if you if you name address phone number things like that this case this court in schoolhouse other circuits in numerous cases have said those facts are free for the taking well if that's all they had the jury still doesn't know what's the creative part of the copyright because the certificate excludes rd party data it says a copyright doesn't cover that so are you saying then that the presumption does not apply you don't know what element is there if i could direct your attention to the bell south i'm most the same facts there was a copyright it was admittedly valid there was admitted copying of the facts but because they didn't put the the they didn't show what the creative elements were there was no claim you can't if the jury is supposed to decide how did my client infringe on the creative elements that the facts we can copy the facts if you don't show what the creative elements are by putting the copyright into evidence so the jury can somehow make an assessment of it you failed in the initial issue that you have to prove you have to prove what was creative then you have to show copy the adverse inference doesn't supply the st part it at best only supplies the nd part of the comparison if you look at airframe generally universal systems and and to nick they all say that the failure to put into evidence the copyrighted work is fatal and they say that because it doesn't allow the jury to identify what you know as unique what is creative there can be no proof let's see what about this data stuff and the other stuff that the seed data stuff is it's made up facts you know likely but yet when you say made up we've had a jury trial at this point as you well know at this point of the game we don't have made up facts at this point we have the facts favorable to the jury's verdict well bell south the court said that's an th circuit decision that admittedly copyright admitted copying of facts including intentional errors was not infringement copyright protects creativity it doesn't protect hard work and at trial info group said were creative in two ways were creative in the selection and were creative in the arrangement and those are protected now on appeal they've abandoned the arrangement claim it page twenty six or twenty seven of their brief they say that what we're claiming is unique selection but they don't explain what they selected and never gave the jury a chance to assess its not like the key publications or experience that should have been argued that it was going to fin it was a jury rejected the argument that that the plaintiff failed to to identify explain describe what what feist says the uniqueness is and a compilation what true your honor and arrangement but juries when the jury reaches a verdict based on evidence that is insufficient this court can and does reverse that was the whole point of the rule fifty motions it should encountered as a law clerk was a doll case i suspect with that evidence of registration and no no one contesting that doll is not unique i'm not sure that you would have to have the doll and evidence in order to prevail in an infringement suit i would the jury true but dolls are not option i mean the presumption in the absence of anything else  most dolls are unique one way or another not all i've met dolls are clearly creative they are not compilations compilations under faisel have so what you're saying is that that compilations are unique in this requirement that you can't win if you don't put it in front of the jury i don't know that they're unique your honor but the idea that you can't win your case and lo if you show the creative elements of a compilation follows directly from feist which says the only protection is the creative elements and if you don't show the creative elements actually show them to the jury you don't get past the st step i don't i don't think that must mean doesn't logically follow to me i don't understand why the the present the presentment presentation and arrangement that is required for copy writing a compilation can't be can't be describe and i mean subject to the defense obviously the feeding that the either the description or the notion that what is described is unique well your honor i director attention to the antenna case which addressed that very info groups is not enough for the jury you carry it your honor what he said was the data was the same the reason the data is the same as they get it from the same sources but let's give it away they say the data are database union member which were to what i don't remember which we'll find out going to make your point well but the point is you can take every piece of data that they published and copy it your case schoolhouse says that there has to be something creative and unique to be protected if you put in the copyright certificate into evidence that only says something's copyrighted it doesn't say what that's the presumption and the adverse inference goes on lee to that copying element it doesn't go to what is creative and so when the juries asked were the creative elements copied they don't have any evidence the only thing they've got is a factual comparison they took seven out of three hundred seventy one dollars fields they picked thirteen thousand seven hundred and ninety seven dollars records out of fifteen eyes you know sampling sort of thing yeah i think i could look their point is that we did an overlap comparison of the facts for you and they also said we did it for dun and bradstreet and look your way higher than done and bradstreet well if and in mountains of data that's more subtle than that your honor the point is that they they they said at trial it's selection and arrangement now they've abandoned arrangement if you look at our brief on page fifty three dollars you'll see why because they just don't look anywhere near so they have at page two thousand six hundred and twenty seven of their brief they've abandoned arrangement so the only claim they've got now is selection and they say it was creative but if you don't put your database into evidence and show what you selectively included you haven't proven your case and that's what distinguishes us from key publications inexperienced or or under nebraska law if you sue for breach of contract and it's like any other state you have to prove your damages damages cannot be proven by speculation if you only have speculation  damages then nebraska courts dismiss your claim here are the evidence of that the jury was instructed this is a jury instruction seventeen and what's known as the expectation interest in breach of contract and you get the damages that are caused by the other side not living up to the agreement here there were two claim breaches disparagement and use of confidential information there wasn't a single shred of evidence from their expert on the damages that flow here about the executives of the company mr i careen  said i don't know there's no science to it you know maybe two and four but there's no science to it he admitted he was speculating and the jury didn't believe they had what the jury said was i thought they said ten to contract right right and they all have value right right how much value for the non compete which mr go to honor i don't know how much value for the disparagement i don't know how much value for the confidential information i don't know and then he said i guess we paid ten and we should get ten that is what is known as a rescission area measure of damages that's not what the jury was instructed on but is incompetent evidence it doesn't support a verdict period end of discussion if you've got theory anyway and your only evidence is on theory b you lose and that's what should happen here i think i am my rebuttal time and i'd like to save thank you very much jani and elizabeth hoffman appearing on behalf of the appalachian info group may it please the court i've reserved our i've asked for a warning of eight minutes of my time left i'd like to address the issues counsel just addressed but i i believe that a lens of the review is important review i know the court practically has a memorized but it is for a new trial virtually unassailable on appeal is what this  we should avoid a miscarriage of justice and not here to reweigh the evidence the article three judge did tram almost forty three million dollars off the verdicts i'd say that's avoiding a miscarriage of justice judgement as a matter of law taking everything most favorable i'd like to emphasize this it's not only the conflict of evidence but it's also the conflict of interpretations of the agreements you'll see that we have competing interpretations of the non disparagement and the a legal proceeding is making a press release or a statement to report or a statement made during a legal proceeding they have a competing i think on reasonable interpretation or protection of patrick is a question of law even and in the middle of a jury trial i agree and they have not assigned that as they are judge gerard decided the a proper interpretation of that contract both as to the confidential information as well as the non disparagement and struck to the jury they have not objected to the jury instructions and they've not assigned any question of law interpretation of contract during structure ins as error so what we have here to offset the sole  insufficiency of the evidence assignments of error are the following statutory presumption of the lady of the copyright statutory presumption of loss profits will equal the gross revenue and it's up to them to come up with the doctrines although i put two deductions in the record form a permissible adverse inference to insider whistle blowers who blew the whistle on mr goup then database usa one of which was their national sales representative who was also a top executive our firm we have an extensive record created over a week and mr gupta who sat through the entire trial and heard evidence of his admissions over and over again sat through the entire trial of counsel table and never took the stand civil case right that's correct christie mr the caylee who was present in the gallery for at least half of the trial never took the stand to rebut what the whistleblower said so then twelve jurors and a very attentive article three judge who wrote over a fifty page opinion and took excellent notes at trial did not differ on the facts and that and the question you have to reach is could reasonable people differ on these facts thirteen did not and again on the miscarriage of justice they didn't get the benefit of the forty three million dollars cut off of their liability so i do want to address the issue of what is copyrighted i believe that if you have a registered copyright that comes with a presumption that whatever was copyrighted is valid that presumption is permissive and it can be overcome by contrary evidence i do not believe you have to put the work into evidence it may not be very persuasive to not do that and you certainly may need to do it to prove infringement but just to get to a valid copyright any case discussed this is the presumption of copyright only what if there is creativity within the work itself out of not apparent on the face of the work i do want to address the as any case discussed how the presumption of validity applies i don't know that we found a cases specifically answers the question if you put nothing in is the presumption sufficient but we didn't we went beyond nothing and i'd like to identify the quinoa while how what have they discussed then where do i file which case do i have circuit court case do i read to find the words presumption of validity in a compilation copyright case well i think it's broader than that the copyright law says if the true the answer is extravagantly broad assertion that the presumption of cap the presumption of validity covers this case after i've read feist and the and the limitations on the validity of compilation works  well certainly we cited experian and i believe the trial judge also cited an eight circuit case that gets into creativity and that's what it takes that takes us into a question i don't remember any of those three cases discussing the presumption of validity that's the only thing i'm worried of you know i can i can figure out the after more careful study of the record what you presented yes and whether if i was a jerk or what i think that show creativity or does it have does it have to show that to the judge what you say i don't worry about that i've got the presumption ability well and i'm just saying what's your case law support for that i cannot cite to a case i can only cite you a statute that says anything that is copyrighted anything that is copyrighted comes with a presumption ability that's a federal statute and that was written before five and it's still in effect i don't know that it's been modified but i have more than the protests to be apply correct and i'd like to apply it now and we did not solely arguing we should apply it now but ok so that's fine the argue and i'm just trying to i always like to find out from the lawyers how much support do you have for an assertion that's you know the broadest interpretation of my position i would say and now i find out after too much back and forth none what i would suggest your honour's the question is not fully before you because the jury was instructed on the presumption of validity based on registration they did not object you want to appeal and have fallback narrower arguments that's quite appropriate and so it's not before you they didn't say the judge should not have instructed on presumption here they did not object to that and they did not appeal that are you're saying the presumption trumps their insufficient evidence are that and i'm going to part in part i have we have the presumption plus evidence so if we start with the presumption of validity what did i add to that here's what i added number one on creativity it's not a matter i agree with counsel sweat of brow is not appropriate that's where someone very diligently goes out and create  fax and copies and pastes them into the database there's no element of creativity it's just a lot of effort and you may even have to pay for the data that's not what we did what we did is the st thing we did at exhibit one  identified the categories of fact that we think the market finds attractive and we found that there were three hundred and seventy one dollars categories of data that the market would not only find attractive but they would pay for it so then once when that's like how many communities do i put my way it's not a quote quantitative number your honor it is what are the facts for example do people want to know the legal name of the kompany or the shortened name do they want to know how much revenue a company earns do they want to know the square footage of their lease we make business judgments on what businesses may want to know so then we create the fields that's like wait wait page publishers have to decide should i stick to just because it's the st start of it we say we decide what the facts are attracted to the market that is judgment and creativity then we get conflicting facts from multiple sources and we have to make judgments  testified that we take conflicting evidence conflicting facts and we can make judgments on what are the most helpful and accurate facts in addition we fill in gaps where there are no khana the other thing we do that is creative is there are gaps in these three hundred and seventy one fields there are gaps where no doubt facts exist and we create models and projections so for example we may say this dentist office based on our decades of experience has this many square footage of lease space they have this many employees and we believe their gross revenue is x there are that is no fact at all that is our modeling projections based on our expertise and experience so those are created facts then we have the seeds those are not there's not a single fact in a seed a seed is a fictitious business record that we create to monitor cheaters and so what happens is we i didn't that's the seeds or the copyright claim but they're creative they're not fact we created that information we and so and we have to create it in a way that will not be caught by infringers so we create a fictitious company at a fictitious address and we arrange it in a way that it will not alert an infringer that it's a fact that the defense against a compilation infringe is the creativity that feist requires and i'm sorry that that's standing creativity at my notion of copyright creativity and it's a year i don't agree on or what what the says that say is not copyrighted is simply a finding of fact and copy and pasted in it we did not do that we found twenty statements of what is believed to be fact and we made selection in judgement bring it let's get to that i understand your position let's get to the question of how you proved that they that they infringed the creativity in the work that was not before the jury ok so there there are several points on that your honor one would be obviously the adverse inference which was permissive that instruction fourteen alone is sufficient to support that point but we went well beyond that we had three comparisons done and the overlap percentage is important to note here because the overlap percentage shows uniqueness our main competitor is dun and bradstreet dun and bradstreet we did a comparison of our database and their database it was a little over fifty percent the same that and in particular that means their database is forty five percent unique why because they make unique selections in overlap so they had five percent where they purchased some additional data on their own we then did a comparison ninety three percent i'm sorry database usas was ninety five percent overlap that is showing that the uniqueness in the market with dun and bradstreet was forty five percent they were at a ninety five percent overlap that shows an element of uniqueness as well and where the comparisons based on the same quantity of data based on a sample that we deemed sufficient they did not object move to strike or assign a zero on appeal so the sample is pretty much the same for each one of these compare and so we put that forward that was not contested certainly in this kind of blends a little bit with infringement but finding all of our seeds every one of them in their database is very damning as well it shows a lack of uniqueness on there's a specific uniqueness on ours and then the copyright as well so i believe with that then we get to the direct evidence of the admissions which we have this insider who testified that the managers are spread the keeley and then took our database and then when they got it over there they then updated it with clandestine licens of ourselves jeannie license and they would have the sales rep their database updated and that went from the time they came over all the way through and then when you consider when we find they use their database to defeat our pulling in area junction they use their this was after the suit was injunction they used their database to defeat it then when we had the trial and we are preparing to have and a court appointed expert we're deep into the case we're having a court appointed expert compare both and they say fine let's do it so then we do a database deposition of mr good and mr connor to set up the protocols that we're going to hand to the court appointed expert and then on the eve of that well we don't have a database after they used it to defeat the pull in marion junction they defeated it not before trial case but during the case and after they used it for their advantage so i'd like to comment briefly on mr gupta's judgment if there were two breaches that we identified there of the non disparagement and the non confidentiality portion of the agreement and i've understand counsel is focused on the damages what we have there are really evidentiary questions what he was saying is the evidence from mr i corrino and the evidence from m in some some of our states we have a law the damages case and you can find one that kind of looks like this is there a new brask a case that looks like this there's an iraqi case where a party is asked what is the value of this contractual term to you corrino said two to four million and mr hoffman said ten because that case in your brief i don't know that it is ok so the but the point is that testimony came in they testified on what they believe the value was judge gerard then analyzed it and he also found what i argue to the jury is they the parties and an arm's length transaction already placed a value that's like purchase of real there aren't but there were said there were different parts of this contract correct correct and so that it's almost then you know an all or none i think is the argument is that if you don't have a value to each portion it doesn't really make a lot of sense so what we did if you look at our brief you're on your honor and i know you have is where dennis by the other consideration points so they want to call it recession this was not recession one of the most substantial that resulted in found misconduct which resulted in multiple class action cases it also resulted in lots of trouble with the i r s we paid and this is in the evidence over fifteen million dollars for the tax misconduct that he brought on the company and we agreed in that agreement not to not only not seek that advancement from him but to defend him and we did defend him in those class action cases we didn't ask for any of that to be ica reno put that number in excess of fifteen million so he got to keep the fifteen million a benefit he got to keep the health and dental bent benefits for him and his family he got to keep several other items that were listed there the only item that they brought up that they said there wasn't a value on was a nine compete that you didn't put a value on the one complete mr i corrino did he said after this consent order entered by the f c c he was not going to be trouble started hitting and he had to leave the board part of the f c c order was a management director barr so that's why he departed the company council when we look at the jury's instruction i think it's number seventy what theory of damages submitted to the jury would you say be the fair assessment and to brasco law yes they have standard instructions i'd bet on that what the rate was it the theory was make info group whole what would make them whole from your breach of the confidential information using our trademarks where he's saying i'm the guy on two thousand and twenty i've had this database since one thousand nine hundred and two and i can sell it to you database usa so he used our trademarks in it also the miss the phone it's associations he made to our company and a disparaging comments we said make us whole and we said he can keep the fifteen million tax fraud this and the other we want the ten million back and yes there i was asking what the instructions as judge benton you asked for a nebraska case lang cited in our brief says this it is a basic concept that any damage action for breach of contract the claimant must prove that the breach of contract complained of was the proximate cause of the alleged damages there must be a causal relationship between the damages asserted and the breach relied upon proof which leaves this issue in the realm of speculation and conjecture is insufficient to support that it's minnesota law but i don't know that there's any difference chrissie the point is this if what did they say i don't know i don't know i don't know if they ask their expert hoffman what's the value of this i don't know what's the value of this i don't know what's the value of that i don't know the end in the end he said i guess we paid ten we should get ten but that is if you look at the entergy case that they cite it has a long discussion of the restatement of contracts are three elements under the restatement of contracts there's expectation damages which is what the instruction seventeen is there is something called reliance damages which is if i make a contract with you and i've got to go buy a bunch of stuff to fulfill the contract and then you bail i get to recover the expenses i incurred and then there's restitution which is i got a benefit i should have gotten i have to give it back they didn't ask for the other two but that's the only basis for their claim now on appeal that is as a matter of law insufficient if we were in nebraska the judgment would be vacated i want to talk again about the copyright  overlap they said here are the fields that overlap and here's this dun and bradstreet stuff he was talking about and at the bottom it says fifty nine point three percent overlap for dun and bradstreet ninety five for database may say see that shows that we've substantially verbatim copied but it's all facts it's company name and address and what you see is there are zeros for dun and bradstreet because they don't put in phone numbers the the the  determination of what is the most accurate phone number where the most accurate address is simply that creative and if you look at their brief  to the businesses feist schoolhouse well the cases we cite say look dagon stuff out and making sure it's accurate is simply not what about their modeling at argument there my best argument is we model some of the stuff and they do every time we look at the internet not not them personally but i mean i least people do the highest and that's out there anybody assess that when they don't put their model in the evidence it would be like saying i didn't put the doll in the evidence but i'm telling you it looks a lot like that doll that's the that was the whole point of my initial argument if you don't make the predicate step the presumption that there's a valid copyright i don't have a quarrel with that copyright of what you have to put it in so the jury can see well what is created because that certificate itself says we don't cover rd party data and that is precisely the analysis bell south in airframe in general universal systems and anthemic and he asked consul if he had cases i've got cases i trust you'll read them i know you'll give it careful consideration you should reverse both judgments you should remain and with instructions to enter judgment in favor of the defendants thank you very much thank