good morning all our first case for argument this morning is fiddler technologies versus o p s real estate mr williams good morning your honor may please the court technologies he is here seeking a reversal of the grant of summary judgment by this central district because fiddler technologies prevented some presented sufficient evidence from which a jury could a reasonable jury could conclude facts of this case are fairly straightforward your honor l p s use began using fiddlers laredo system in approximately two thousand and ten at that point they determined first that they knew that they had to pay to take copies of documents they knew that downloading was not available and that the per page fees charged by many counties were in fact cost prohibitive to l p s his business model so l p in approximately late two thousand devised a computer program called that they called a web harvester that essentially removed the restrictions that laredo placed upon documents in order to be able to nationwide and fiddler is a technology company that sells software to make documents land records available online l p s uses these just as mr williams yes you're on  morning good morning you're on time here's what i've been wondering in what sense was this access an authorized because i would think sample or even by taking a photograph of what is on a screen so i'm trying this is the person and i'm trying to figure out here in terms of authorization under access for the c f a your honor  the main issue there is that first off l p s contracted with counties to use the laredo system and there were restrictions that were placed on that technique both by technology in terms of what the district court referred to as hubble's what l p s refers to as limited functionality there are in fact security features that protect that prevent this type of conduct secondly the unlimited access is limited to the functionality of the system it is not carte launch to go in and take everything especially when l p s knew that it when it contracted with the counties that it had to pay extra to take a copy and so what l p s in fact contracted for was unlimited minutes to search you know you just said something and it brings to my and it sounds as if from the briefing as that in many cases the counties did not charge fees for copies and so no one seems temple lost anything so where is the harm to fit lar the harm to fiddlers and its business and business reputation fiddlers software is supposed to generate revenue for the counties l p s knew this through the testimony of their witness linda taylor who said we knew we had to pay to take a copy fiddler in fact suffer damages because one county fired them and many counties shut off l p s as a user and therefore fiddler shared in those fees and fiddler lost revenue as a result of that and so the harm to fiddler much like the recent target data breach your on our target suffered lost business revenue as a result of customers not thinking that it's payment methods were secure fiddler stands as a similar actor as target was in that data breach that happened a couple christmases ago who for some period i don't to i don't want to be dead horse now and unlimited monthly subscribers from accessing every record and then using digital cameras to take a picture of every screen i just have great difficulty seeing what prevents that and that is essentially what l p s did all plant automatically and at great speed well your honor there's a disputed question of material fact as to what the term access means access under the laredo system which l p s admits by the way because they admit there were restrictions associated with laredo were in fact to search for view and prints documents much like a netflix subscriber gets to view movies the netflix subscriber does not get to keep the movie and save it to their computer because the movie is a thing of value and so similarly the documents here are a thing of value and so access does not mean and the evidence supports the contention that access only means everything and nothing in the software it would seen nothing in the contracts between the counties and things lower and nothing in the end user license agreement that hitler required subs bers to agree to prevented l p s from doing what they did all they did essentially was taking all that trying to photograph of each record that they had paid to see they didn't do anything to hide their tracks course they also did nothing to help that lerner or the counties track their usage of the system but i i really have a problem seeing fraudulent intent but i can always be convinced well your honor that's exactly the point what your honor just stated was that they paid to see documents they did not pay to take documents and the evidence in the record that l p s admits prevented photographic screen catches the prints green button and screen shots were prevented by fiddler the document displayed in a view was displayed in a viewer it was contained in that viewer much like a doll when you go to a jewelry store and if you want to buy a watch it's contained in the glass case l p s only signed a contract to look they did not sign a contract to take and the contracts with the counties that charge at specifically stated that they were charged a per page fee that is the evidence and the evidence is also that l p s knew they had to pay if they actually wanted to take a copy that is the testimony of linda taylor from that testimony fiddler can maintain and keep fiddler can survive summary judgment because a reasonable jury could conclude that l p s perfectly entitled to write down what they saw but that would not serve l p s his business model because they needed millions of documents very quickly which they shipped over a license difference between writing and down with a fact the fact that they knew that they would be charged your honor in terms of taking a picture taking a picture was not possible with the laredo software print screen was disabled shot was disabled those are the security features that laredo contained while they were able to take electronic photographs they were not your honor that is incorrect take aleck tronic photographs and couldn't take them out like trying to cut a grass on all the records in each county they could not harm that's why i think that i thought that's what they did and then had typists enter the information they need from those records into their own computer in order to obtain a thing of value l p s was deceptive here because they hid their activity they essentially turned off the security cameras of the fiddler servers in order to invade fiddlers computers and take massive amounts of files and as opposed to digital copies correct and by limiting it to paper copies it overlooked digital copying which is what they were originally paying for with some counties and when they worked out this bypass they were no longer paid and it's because they knew that transition that they were previously paying for and no longer paid for the bypass means they knew what they were doing as opposed to some copy and print some of the county contracts say print some kind of contract since admitted into evidence a copy so what is the definition of taking a copy or taking a print essentially to laredo system function with restrictions and those restrictions were the only way to obtain actually obtain a copy of the document was to click print button in the viewer l p s removed those security features because if they click which is it seems to me that there is that the maybe where the district court can find it to a print copy correct and not look at what the digital copy which is the one you can do instantaneously and copying portions of laredo taking certain commands that were contained within a credo placed into its web harvesting software that would allow to get documents but not be tracked there thirty six witness john mccain said we perform the same transaction just without the restrictions and so therefore the c f a as was held in the first circuit cultural and by the sixth circuit determines authorization for access by actions taken by the owner of the computer to prevent such access fit or both technologically and i contract specifically took measures to duplicate the locking process as well what required them to do so the the law of the c f a your honor they were not ever given authorization to fiddlers computers by any other means then laredo each contract that they signed require they sought to use laredo they attempted they signed these contracts in order to obtain a password to then put harvester now prior to their using of the web part of their use of the web harvester they knew all of their minutes were tracked and they also knew which documents they were charge for which documents they took your honor so l p s it by its prior conduct before using a web harvester was on notice through the billing generated by laredo the invoices that were submitted into evidence and therefore o p s was on notice what the restrictions were and what how laredo worked they chose they made a decision for whatever business reason to circumvent the security features circumvention of security features is the classic c f a subscribers to create two prevented l p s from doing what they did well at i could not find it well you're on to the end user license agreement is the evidence of that l p s agreed that it copied portions of laredo and used portions of laredo to best buy you yourself said that they could write it down by hand thank you that's called copying isnt it but your honor actually taking possession of a document is and wrote everything down where did what they did you can you help me with that of course your honor they can resell the documents they can not resell what they wrote down by hand l p s has a line that they can't be thank you write it down by hand and then they can type it out thank you do a lot of different things well i'm not sure a title surance title insurance company would grant clean title on handwritten is any way impact the question of intent not at all your honor because l p s knew it had to pay to it had to pay to take a copy in other counties that's the testimony well we were certainly weren't trying to conceal it they were doing right they absolutely concealed what they were doing your honor when they show no minerals they continue to pay for the a member that's a scripture correct and the reason for that your honor is that if their pet if they didn't pay the subscription participating in a paid subscription you're out of the testimony in the evidence is that they were using the system they knew that their documents that their activities were tracked and what documents they took were charged the concealment here is every every time they took a document that did not register on the radio they concealed that activity from both fiddler and the counties in order to in order to not be billed for taking those documents in the counties the charge access it pay a substantial monthly fee to each of the two counties were accessed through if l of all documents are database there's no evidence that up p s went behind the fire wall went into other parts of the computer system for breach of contract fiddler could have sued for breach of contract it's the nature of its claim really is that l p s somehow copy that software so calls are not software by the way so calls are communications and that's in our brief but if in the wanted to make a claim that l p s was somehow creating a program that copied theirs in violation of the end user agreement the claim was for beach breach of contract or some sort of intellectual property claim they didn't bring that claim that claim says nothing about do you think well actually that the agreements are silent as to there is no agreement that requires further kept saying a minute ago that l p s was required to use the laredo system it's silent about that each of those agreements is silent for there never brought that to the attention of the court there was no requirement that l p s use the laredo client fiddler entirely left access up to the counties we've got the citations to their people who said we didn't look at any agreements we didn't get many languages  we just let them do what they wanted as a result these counties are county recorder's they're good at their job but they're not sophisticated about technology they didn't include anything about how l p s had to go about accessing or that l p s had to use  keep in mind these counties win and that's in our got our papers as well when the when when the counties there's no negotiation the county says here there are terms and condition if you want to get access to our documents you sign this so the counties is going to the extent there's an ambiguity as to whether a print is a copy it's got to be construed against the counties part of the problem for the district court was that fiddler never ever said here judge here's language from county here's what it says here's why you should equate printing copying and downloading all together for there never directed the court to that language and that was its burden if access is the term and by the county agreements then the only way to determine whether l p s somehow want computer so it's damage to a computer and damage to a computer is defined as including damage to a system if it wants to say that the way they see if they use this system is it's looking at a system of two computers but that's not how the language is used and what the so i thank you i would agree that the only damage was depend there is reputation with its clients with the counties because the counties realized that the range in system contained some gaping homes would would you agree with that well it's a little more complicated i think that the father didn't do a good job either devising its counties it didn't really lose reputation that lost one customer because they didn't renew part of the problem here and the reason for their filed the lawsuit and there's documentation on not just coming it knew that l p s was it an expansion product project in other words it's going from about eight hundred counties the twenty six hundred counties there's thirty one hundred counties in the country and you knew that again i mean there's thirty one about how fit the track usage in fact l p s usage was tracked on the surface for whatever reason fit their tracks for billing purposes on the client that's the thing on the user's computer but they had l p s as usage on the server side l p s that is a dummy password didn't used a dummy user name didn't go out through some eastern block internet address and come back in the back door so that what happened was when philip decided to sue l p s it's a two or three people to have been which it's not is that l p s knew that to get a digital copy you had to pay for it through laredo that was in her testimony whose was it was nobody's because in their opening brief what they said was let me find it here in their opening brief they quoted part of her testimony and they said and l p s new quote it had to pay extra if it wanted to actually get a copy of an image but that was not a complete testimony so we came back on our response and what we said was here's the next question and answer the next question was now this is a question did you know whether laredo allowed l p s to take control the digital image answer i had no knowledge of that their life now is going to get the last word they said wait a second help us there's more of a testimony and so they added an extra question answer except they gave they didn't quote the testimony correctly and they didn't give a complete answer and that has a serious implication of potentially misleading this court what they said in a campaign the precursor question which l p s quoted in its response was the question now  it didn't period well it's not a furious it's a dash and there are eight or nine more lines of testimony after that punctuation matters it wasn't a declarative statement  she thought that she couldn't doubted it digital image because here's what she said here's the complete answer meaning it didn't dash all i knew was what was in the supreme and all i contemplated was going on don't know now it accurately not to change to dash period and to to include the complete halves we find ourselves a little bit obsolete because the circuit rules ordinarily require we go back to the district court to supplement the record we the the testimony but it's not right and it doesn't establish that l p s knew that it only a fee for a cop will give mr williams an opportunity to respond to it and then will make a determination whether or not miss taylor's testimony first thirty six witness john mccain here's the direct testimony are you able to download a document through the user interface without incurring a pretty yes how do you do without incurring a print rate interface that shows up on your computer i'm sorry it would require a third party software package to actually capture the image on the screen that is their thirty p six witness and  taylor didn't think downloading was available judge how do you if it were controls which l p s admits that the restrictions controlled l p s his ability to doubt and if you can't download and the only way you can get a copy is to print that is the evidence that is sufficient for a reasonable jury to conclude that l p s act with intent to defraud because it was getting something you could get and it knew it had to pay for it otherwise so down was not possible now mr next door brings up an interesting point and it's frankly a little confusing as just wrote her was asking earlier they had access to documents this kind of magic term here the see if a talks about access to a computer and so they're for fittler set limitations and restrictions on its access to its computers the object over which was to get documents but access to documents is not defined by the county it is defined straightforwardly in the fifth or in user license agreement and in the software courts around the country including northern district in tampa or oh united states versus force in the second circuit and associated press for smelt weather in the southern district of new york have all rejected l p s its defects just