support business in failing to find that the record before this court sat was a single triable issue just a court error in three overriding respects st the district court fundamentally fundamentally misapplied settle summary judgment principles the district courts refusal to infer an installed on day could mean installed on it in my eyes as this error but this error is seen throughout the court's opinion 'm really puzzled by our position are can you possibly argue that the document you know meant applies here when suspicious you had suspicion sufficient to trigger a duty to reasonably investigate honor let me answer that let me st make clear though that on the statue of limitations it's understood i believe that we can go back three years on the copyright claims and two years on the state law claims the only question is whether we can go back further constructive knowledge your honor and i think it's critical in working through this issue to appreciate that they have to show that we had knowledge of a cheese roll actual or constructive not simply knowledge of terex and what happened here your honor is what the documents show and this is an in extremely fact intensive disputed issue but with the documents show is that at the very most oracle has a suspicion that was involved in perhaps downloading  and installing or copyrighted patches at that point or investigated terror i doing what made perfect sense looking at its m o s website which is what it had access to and searching as to whether or not terrorists had fraudulent concealment sufficient to told a statute yes we did your honor but there was more than that there was the additional actions that they took to conceal their fraudulent activity using credit cards fictitious names and the like but on the customer audit i think this is really important the fundamental question for the court is whether was reasonable whether or close investigation was useful oracle is never and its history undertaking that kind of audit it would involve your honor going to customers and actually accessing their servers thousands of servers located across the country h p itself your honor resisted discovery in to its provision of services on the ground that this was unduly burdensome and time documentation permitted you to do that it did your honor of course there would be a serious cost to that as well in terms of the notion that we would essentially have to access individual servers and again it was completely and we asked them whether or not they were engaged and they were respecting our contracts they denied that we then did what was with their capability doing which was to look at our n o s website which is the gateway through which customers would get patches e focus of it and again and this is at a time where terence was denying it harks was taking extraordinary steps to conceal its its wrongdoing using fictitious names prepaid credit cards what we learned about h p s role in the course of our litigation against terrorists we sued terex timely in two thousand and thirteen and it was during discovery and that litigation in two thousand and fourteen that we learned through depositions of comcast that h p itself was involved in act agreement and we brought suit your honor if i could shift to the the merits of the claims which are presented as to the timely periods on indirect infringement our position is simply that there was show that a one hundred and eight instances patches released were patches were installed on h p s customers servers that were released after the date that the underlined servers came off contract this decision and designed out of makes clear that downloads are copies under this court case law a single copy is as efficient basis to go to a jury on a liability issue than this as the question would be damages that the jury so that resolves of the interactive claim just jumping back to the direct infringement claim briefly there's overwhelming evidence creating a travel issue on that claim as well st we have one hundred and eighty dollars patches that mr hicks explained with forensic evidence has a particular servers draw a reasonable inferences in favor of h p not morkel and to resolve disputed facts we have this court to reverse the grant of summary judgment on both all the claims before us and we also have a set of state law claims your honor the fraudulent conduct in this case is tailor made for the state law interference claims before you h p s own employees admitted that the scheme truly took revenue right out of oracle's pockets and put it into h p s as page twelve o three of the record your honor and it did it by encouraging customers to violate the terms of their support contract to go along with the scheme which you would put a single server on a support contract violation of copyright laws at the very least it was a tribal issue that precluded summary judgment your honour's and i think it i just want to stress briefly the business model here or more calls the port business is extremely valuable oracle makes clear in it thousands of patches for use unsupported servers goes to the heart of oracle's business models and mr as mr penton l r damages expert explained resulted in tens of millions of dollars of lost profits runners so the grant to the customer an artist was a right to use the software that is provided by us and later or then on the next page here three hundred and twenty five is the st of the three license destructions issue in this license to download deliver it is also as ashes and then it goes on to explain downloading and delivery and installation all is explained in the lessons not only in the license your honor but this was oracle all patches and they would have the ability to download them at their operation but if they had downloaded patches it during the contract they get is all that a future date and that's exactly what judge tiger r it was under contract to some of these people at the time it may have been judge royal who installed it too but isn't it a reasonable inference that the if the poor person who was under contract not at all your honor most of these contracts under the evidence of the sun gard contract is in the record for example where h p provided only a hardware break fix it or h p didn't actually provide the software support so that this shows everybody both pages of his order aren't even cited by oracle in either of his briefs on appeal they don't take issue with those they don't mention that he made those rulings they don't challenge them as a lawful they just pretend that they don't exist but just to give it if we do not find the true page reference to judge tiger's comments about the license to encode construing license than if we have a question about that and if we have questions about whether there is one or more alleged download would that not require a stand that back to the district card or burger or best big discovery and perhaps the prowl well you're issue but as i read his ruling it's the same ruling that underlies the rest of his summary judgment order which is if you have a nobody showed a particular installation of a particular pattern at a particular serve the orders saying if oracle could prove that a patch was a stall that a server after the contract expired and that that path was not downloaded during the term of the contract that is the middle of the eight they could area to the premise that there was no such proof he doesn't really say if there were such proof there would be a license to do this i don't think it is your honor for this reason you have to get through the downloads of the deliveries to get to installation of the importance of air or in the abstract you have to get to particularise glacially by the server because it requires a server by server analysis if i don't take even greater you agree that if there were sufficient evidence to show installation of a specific server which really brings us to what was brought up on appeal right oracle didn't challenge that standard on appeal that's our position they step to that standard and the only question is are a judgment and there's three customer categories as to the joint support customers or hundreds or thousands of servers under contract or so much of them the old ones have gone off contract or all the obligation was to show that it was the laces of patches were made by h p on an untitled server it took looking at the software that it claims to own and have an exclusive rights in it could have answered all these questions this case was litigated to the hilt millions and millions of dollars were spent to read years and years and they couldn't find a single server on which requires showing that the defendant but even if they could show that he did it we don't know when it was done it is whether it was under contract doesn't necessarily mean the day and this isn't an ambiguity in the sense that s a lack of her that i thought that the spreadsheet did have some date on it i gather there were three potential constructions what was there but one of them allegedly was the installation date is that incorrect is correct your honor one of the three is the installation date the other st one is the date the file was last access were presented to a jury and the jury had three pretensions ways of construing the spreadsheet and it concluded that the information necessary to show a violation was there w legally sufficient evidence clocks yeah something like that sam whoever's handling the tech thinking you has read boss mr perry yesterday it looks like he may have had a network issue i can try to call him and see if those servers to find out what was on them asking the customers who they subpoenaed the who they deposed who did any installations this is just a failure of proof they got some evidence but it was enough to go to the jury and they didn't follow up that's the reason they lost the case and the reason it should be in for the last quarter like to make before my time runs out is on this burden shifting point this is a license case this judge tiger was not construing the copyright act for every software download case every patch in case he construed these licenses and the way this version works is once license and interposed the judge construe the license and then the copyright holder has the burden of showing that the activity was outside the scope of the logical way to do it because the scope of the of the authorization was the i'm only for him is always the coverage holder's ultimate burden persuasion to show copying this court is an unlicensed copying isn't part of the crime if actually case rebuttal you got a little over two minutes thank your honour's a st on the licenses there's nothing in the opinion in which the judge purported to engage with the license terms this court can ensure should reverse on that and our opening brief we dressed it at thirty nine to forty two ist address in our reply revit was one of our central submissions and to be clear it was the downloads themselves that violate the terms of the licenses with respect to indirect infringement we don't have to show the installations and h p e's own counsel admitted below that a reasonable juror could find that installed on de menthe the date that patches were installed on servers that s e r thirty eight and h p is really acting quite extraordinarily in this respect this information is spread sheets were produced in response to requests for all information of its data the provision of services including patches to its customers and that information was or because h p dug his heels on this nasty order is at page two to seven for h p and now turn around and say that we should just regard it's own installed on dates spreadsheets is frankly remarkable now with respect to the evidence on the direct installations your honor mr hicks showed one hundred and means look at pages fight eighty five and for ninety seven it helps customers go to terex to find patches it was directly involved in this game oracle's seeking to hold h p accountable under the copyright laws and the state laws for interference with business relations is at the very least entitle present that claim to a jury we asked the court to reverse the grant of summary judgment for h b and return this case for a jury trial thank you very much