park and paul m i want to start with a quick overview for you to glenn perspective to this case the importance of the overview is as follows the trial that i ended up  acting the lead in wasn't a copyright case but actually what it was was more akin to a trade secrets unfair competition case those claims had originally been brought by  and were dropped when you consider that and you look at the issues it adds context to what we were confronted with at the trial the first set of issues and by the way sorry i want to reserve five minutes d first issue that we dealt with in our brief was the dealt with in a copyright case you must show ownership of the copyright what happened at the trial is that you had and why say it's unfair competition and trade secrets you had the oric law firm for the first time in their history assigning their work product to the client moroccans then was trial counsel and brought the case the case was to eliminate the competition from my clients now when you look at what went on at the trial in terms of the first first basic thing of copyright law establishing ownership of the copyright what happened was they had two copyright filings and again i had used a simple graphic demonstrative for the jury to try and understand it what happened is as follows they copyrighted him get to the assignment in a second they copyright what they called the two thousand and thirteen blank forms when you look at the exhibit on the application and you look at the forms you'll see twenty thirteen in them when you look at the assignment it talks about blank forms they also had something called the two thousand and twelve financing documents at trial nothing was attached so what i was confronted with and tried to explain to the jury and then the district court was the following number one they had not proven an ownership  the copyright that at trial the evidence was geared to and the evidence i have multiple copies but if you can see it but basically the concept was the following the entire trial based on again what they thought was trade secrets and unfair competition was that mr him had worked for academia avant se and mr him had access at that school to what was the form utilized by c s c at your throughout the trial what they did that my clients went to after using a bare bones agreement that they called the legal zone to test it for the business and again this business is factoring it's been around for hundreds and hundreds of years there's no magic to it done every day but what happens to get back on point is that they looked at forms a couple forms that my client had utilized no expert testimony and they consistently said  here's a phrase here's a word here's something from a could mcconkey form where he's pointing to the akademi of on say form never once never once did they pull out the twenty thirteen blank form agreements and say this is where we have substantial similarity here is we have copying and we worked through in our brief in terms of well how could they possibly save themselves with respect to the assignment there was no assignment of the two thousand and twelve of on say agreement so then i looked at the issue well maybe derivative maybe they can a derivative work the problem is when you look at the record again the filing stock about that it is original compilation and tax and they failed they failed at trial to establish again that they own the copyright the form the legal form that what they claimed had been infringed upon they did not even draw a nexus how about now it's attenuated let's take the twenty twelve sure how  into the twenty thirteen blank forms and then show how it ties into the forms that my clients were using that had been drafted by counsel in utah that wasn't done so your me argument is that there was insufficient evidence believe is that right to prove copyright infringement i believe ownership of ownership of the copyright that is one of the arguments that we have that's not when you say maine i believe there are others that are just as important least in my mind when we get to ok some other items i guess when i wanted to ask is why the jury have found that the r p s were just versions of the generic four and my answer to you is that the following we're not talking about a couple paragraphs on a page they did not have access to a red line program it is virtually when we're talking about fifty pages i mean that it would be very difficult for them to try and keep in and do the the quote unquote i'll get to a side by side comparison the jury was left without a rudder they did not have the ability based on the admission of the evidence to properly do their job the evidence let them down in terms of they did not have and again you'd have to get out were they copying the twenty thirteen form that's the whole point i get it let's if you said it was maybe a couple of drawings and we could eyeball a couple of drawings that davis is far more complex and you understand the difference here that we have to give to the jury is   the denial of our motion for judgment as a matter of law we made a motion for judgment and so i believe that you have more authority on this than simply abuse of discretion and with respect you get to take a hard look at what went on so that to me number one on something so basic onder the statute when i get to you've got to show the ownership and you look at any testimony when you look at the form that now we're talking again aurukun laith i'm watkins they draft a form and they don't include in the assignment anything having to do with the yvonne say agreement is such a summary agreement specifically says that the two thousand various versions of the r p a that c s c an orc worked on and i would say no because then you were talking about a derivative work those forms preceded and look at the filing they said that the twenty thirteen form is the original they did not cite to that it's a derivative work of other forms that preceded it was it did you make that argument i did that's why i mean i don't want to have copies for you but my graphic is what i try to use to explain to the jury under this complex an oreo what was going on that they had not met their burden of proof now you say you explained it and that's why i jumped tail into the other issues because the context issue is as follows when we get to the other set of issues now this is abuse of discretion when we get to the issue of curtain mcconkey and again the issue i don't know if i was opening doors or falling through trap doors a trial but what went on is the fall could mcconkie was embedded in the case because there was a claim vicarious or contributory infringement i could not put ultimately at the trial not only that we had sued them and again i was not the original counsel on this when i came in and saw that you had a third party complaint against your lawyers plan of could sit back and watch the shooting match i wasn't about to be a party to that i was able to get that done and i only came in about two now months before the trial i got rid of couldn't conky i try kicks going to the district court how important it was not to have them in the local what happens not only that we them but we had dismissed them then i have to put up no money changes hands and then in the closing argument what do i get hit with that my clients are going to pay a penny because what's going to happen it's going to come out of curtain mcconkey so that's an overlay when you're trying to explain what's going on it goes further when i get to the issue of the supreme court cases these are feisty if i'm mispronouncing it sweat of the brow try just briefly that copyright infringement and lapeer the damages are tied to in this case basically the indirect profits because we're not selling their form the indirect profits attributable to a form get i made the arguments i mean legal forms in terms of people getting with their credit cards or a car rental company that that is not something that people look at while now i want to do this but the point of it all was was that under the supreme court decision you can't talk about how little or how much effort time and mine you spent in developing the copyrighted work instead that's what i got hit with oh i wouldn't as with the thousands of dollars to work i apologize yeah i just want to have limited time and there's a number of question the prejudice your client in and provide for support in the record absolutely they called my clients the pointless free riders when that evidence comes in about what you spent on the legal fees that then is oh you didn't spend as much it takes you away the prejudices is that is something that is in the jury's mind that is prejudicial prejudicial to my clients because the jury now is and find that they're saying a spent hundreds of thousands of dollars on this fellow arm and based on that wow you guys are using the form and that's not the correct analysis that i couldn't on ring that bell if i tried at that point when you look at think about the two the two issues here on the abuses discretion could mcconkey these guys aren't going to pay a penny because their their former lawyers are on the hook number one and then number two oh gee they spent all this money on this form and so then you know the jury then is driven because that then ties to as i said maggie grab some water i  apologise that tice too when we look at what's happening with the district court we get instructions at ten pm on sunday night we come in and although some the district court even though listen anything as a matter of fact i was very careful what happened was on cross they were trying to pull that out of my clients but there was nothing in the record that what we were doing and again you have the vicarious liability in contri case wasn't tried about an empty chair you can go through the entire record that's not what went on the curtain mcconkey issue they say they brought him in they didn't sue him they have they want to establish liability through is a fed back position against my clients i cannot not mention them it's not like harry potter both of them are don't say the word so what i did was yes that's imbedded in the fa it they were in bed in the case it didn't is in a fair game to explore everything regarding the firm absolutely not what relevance does it show that we sued or former lawyers whether we had sued them or dismissed them or got any money out of them form the evidence was the evidence was that they copied a form that came to them from another firm called tack rock but that isn't the jury entitled to sort all of that now that it's not those distinctions i think that the jury was inflamed my belief is is that what i was trying again and we get to it when you see they awarded one hundred percent of every profit my clients made from the beginning when they started using the alleged infringing form up until they stopped using it one hundred percent on a form everything else was discounted that's why i say the overview that's why i say everything is tied together the jury instructions that i was getting at is that the court no one asked for it it's not in the model jury rules said all of a sudden you've got to do a side by side comparison so now without shoes me the ninth circuit that the court should craft instructions on substantial similarity based on the particular works that issue the copyright in question and the evidence to build the trial so they give permission to the corps to dva or expand on the model instructions no question my issue was you give it to me at ten you've sat through the trial is that just record judge you're also looking at what the evidences you give me an instruction on a side by side it ten pm no ability then what should i do in the defense how am i going to react to that that assisted you read it early in the morning or late at night and then you object the there's a lot of pressure i was closing that day there was a lot going on i understand i'm not going to cry here i mean i'm not making excuses all that was allowed to be a reason to overturn somebodies verdict then we'd be overturning verdicts all the time and people were tired during trial i didn't mean it that way what this is of the issues i would put this one as the it is an issue i'm not saying that it is the most important you what about joint authorship he and both sides said they didn't want an instruction on on joint authorship and yet it was put into the case i'm still have i'm having trouble how that instruction prejudiced your clients to fit can you point to anything in the record showing that the jury actually relied on that instruction did a c s e rely on the joy authorship theory in closing argument they did not but because it was in there it might have overcome the issue of the lack of they would have overridden the copyright application filings and the assignment so that question i would like to ask you about before your time goes is over is  regarding the profits are under the copyright act the jury was allowed to board all of cam's profits it cam built to prove that some of the profits were attributable to factors profits yes the way the process works is you negotiate upfront what the deal is so we're willing to give you one hundred thousand dollars explain the factoring that of that one hundred ten i'm just making up numbers one hundred ten thousand on the receivable will come and we're going to get the hundred in town it's all explained up front then it's documented so what does that go to my clients talk about their marketing their personal service that c s c did not give their negotiations how they handled the schools all of these things to say that a legal form is the that's the infringement of a legal do can present trial that currently prove that there were other factors i just gave you it's all in the record how the deal was done what they did in terms of marketing how they approached the schools what they were offering in terms of the service component the personal touch and what you had was a little guy versus as the we put on evidence from one of the teachers that said the form was meaningless to me ok that was after the fact that's what we put on in terms of evidence so i jumped believe a foreman by the way what's that form if you want to know the heart of it i'll give it to you it's all about the true sale doctrine they said the magic of how do we avoid the bankruptcy court if the school goes addressing an argument that was emphasized in cam's brief and again argument just now and that was that there was no evidence in the record to support a finding that c s e own and registered a copyright in s e received back from the copyright office wasn't read wasn't evidence and c s c is general counsel miscarry job and you testified that she authenticated the copyright application and testified specifically that it related t say grimmett which of course was also in evidence and in fact her testimony was the staple that held those three exhibits together and although this isn't the only evidence that supports the jury's verdict this alone is enough because a copyright registration creates a prima fashion case that the plaintiffs both own and registered the copyright at issue can doesn't point to any evidence that contradicts this finding although the registration document is sufficient on its own for the jury to find both ownership and registration there was also direct evidence at trial that c s e phoned the yvonne say agreement the assignment agreement between c s e and or it was and was to see estie they know better than anyone and certainly better than cam who's an outsider to that agreement what the document means and there was no evidence in the record to the contrary additionally c f c for the planted evidence that whereby the jury could have found that cam in french form agreement the jury was properly instructed as i'll get to in a minute to conduct a side by side analysis of the copyrighted work and the infringing work and even bring on a sign if there was evidence from c f c s general counsel mr jobrani that she had performed comparison and found that the infringing documents were quote copied and pasted wholesale  kim because you argued to the jury that can would not and pay in the judgment against it can you explain to me why this evidence was admissible and why you think there was no prejudice sure so the trial court initially agreed with your honor that this evidence was not relevant to the case and cautioned cam at that time that if they if they intended to pursue a strategy of blaming their lawyers not just mentioning up their lawyers were the ones that drafted the form but blaming their lawyers at the door would be open at that point because blaming the lawyers leads the jury to it confuses the jury into thinking that they can't award against cam because they are innocent infringers but there is no innocent infringement to defense to a copyright claim and in fact to help clear up this issue c s e also requested a jury instruction on innocent the lie by the record in opening cam argued that their own lawyer had told them its not improper to use the form and they argued they had a right to rely on an attorney and they did so then they went on in testimony for hours as the trial court properly noted they spent an inordinate amount of time blaming their lawyers saying over and over again that they never gave the r p i to their lawyers that advised them it was legal to use the form that they never copied anything that they would have never done any of this if current mcconkey didn't tell them it was ok to do that testimony was that it's actually crazy that we are here because of advice we got from a lawyer that we trusted  noted this was the main trial strategy of cam and it was sewing a lot of confusion in the minds of the jurors about whether they were in fact permitted to award damages against an innocent infringer the questioning that c pursued after the trial court determined that the door had been opened was limited it was simply did you see your lawyers and then later was that lawsuit dismissed the comments made during closing were merely inferences made from the why wasn't that joint authorship instruction problematic know that the rebutted evidence at trial was that the law firm orrick was the owner of the copyright that the lawyers that orrick testified to that effect argument that individual lawyers were the owners of the work c s c intended to rely upon a work for hire instruction to overcome that argument which the trial court did not give even  requested it but his primary theory is that it was the partnership that owned the copyright in the first  received by kim g p and kim so first as a clarifying point position has never been that mr and mr park received income separate and apart from the income generated by the entity the camp entities instead our theory is that the cam entities earned a certain amount of profits attributable to the infringement a portion of which flowed through to mr parker mr m as the controller the sole owners and the controllers at the general partner and also because of their interest in the limited partner to answer your question more directly at trial c s e put into evidence the financial statements of both  limited partner and the general partner which showed mr m and mr parks names next to dollar amounts the jury could have reasonably assume and c a c has argued that that a reasonable inference from their names next to  yes i mean other than what i just mentioned that there were portions in the the financial statements of both the lp and the g p which designate certain dollar amounts from within the entities profits that were designated and held separately for the individuals additionally mr park testified that the investors in the lp gave him twenty percent of their profits in the form of carried interest so that those are the two pieces of evidence that we rely upon the financial savings with their names next of dollars amounts and the testimony from mr park and as i mentioned it if they felt that that was an accurate representation of their financial statements they should have clarified that at trial and not here on appeal which they didn't do they spent no time explaining their financial statements they're clearly in a better position to be understanding what those financial statements mean and a final point on this issue there can decide no case law that says of cash to them separately and apart from the they individually receive cash we don't actually know whether they received cash but evidence that we have which is produced to us during discovery which we put on a trial has their names next to dollar amounts and we think a re asonable inference from that is that this is the profits they've earned but if they were never distribute it to them yet we don't think that makes much of a difference here because to hold to hold to the contrary would allow a copyright infringer to essentially hold all of its ill gotten gains in a shell company then wait for the trial to be finished and then dischord or then distribute it but you got the profits from doesn't that make you whole the jury found that as a whole all the defendants were liable for one point seven million and that's what the jury determined would make us whole the trial court later  granted a motion for a minute or reducing that to one point two we don't believe the one point two makes us whole because we believe the jury found and the jury did find according to the verdict form one point seven million of the defendant as a whole their profits were no we don't know no well why you say no there were no questions on the jury form which explained what that number was supposed to represent i is one hundred percent of the profits during the time that the defendants were using the form and in fact the jury verdict implies the exact opposite that the jury found that it was actually more than that one point one seven that was attributable to the infringement s to assign that specific number as one hundred percent of the profits i think is an accurate it's speculation into why the jury chose the number that it did which is not the province of cam or the trial  so remind me where that that figure comes up with the evidence during the infringement period as reflected  and so you're saying it's speculative to infer that the jury picked that figure to the dollar from something other than the exhibit maybe it is speculative to assume that what that or that number was intended to represent in the context of the jury verdict that it was intended to represent one hundred percent of the profits earned by the cam entities during the partnership and so the partnership is specifically for limited liability purposes and without some showing that the money from the premiership was actually distributed to the park yours how can they be held liable for a partnership like billing this is not a case where the it's worth attempting to hold the owners liable for the partnership liability both of the owners were found individually directly contrary totally vicariously liable in terms of damages in terms of disgorgement if you can't show the flow from the partnership to the partners how can you establish that they should be held liable for additional damages in addition to the partnership that's the problem there are forms that exist to show distribution to partners and those were in the record what was in record was the financial statements which had the dollar amounts that were attributed to those individual attendants right next to their names and it doesn't track distributions that's showing how much they may or may not be entitled to it from given point in time but that's not an indication of what was actually distributed to those partners and it's only at and in the in the scenario where you pain is what would happen if we of judgment of collection of judgments and going being able to pierce through that kind of thing is standard in virtually every jurisdiction that i'm familiar with because people always play that actually supports our point which is that the jury found that these individual defendants profit and the fact that it wasn't cash in their pocket shouldn't be far from collecting on that that's a different point but and but my point is th e scenario you were raising was oh if there's no distribution to the partners and we say therefore they're down and tunneled the plaintiff is not entitled to anything then allow people to commit copyright infringement through cesar l p's or what have you and in this case the jury that's that's forgive me for interrupting the the  is that what limited liability is all about i mean i think you know last i heard that even before a corporation was determined to be a person it was determined to have limited liability and that that's not incorrect but in the copyright law is clear that if the individual owners are directly in the right infringement they can be just gorge of their ill gotten profits of what they got in addition and here they got nothing here that the evidence shows that there is a risk they had an increase in equity in the two companies that happened to also be defendants in this case but the jury determined that these two individuals had profited five hundred fifty thousand dollars and by remitting that they are able to disperse the profits from the two entities at any time without having to  thank you ron i know a long day for you very quickly to hit the points that we're made number one with respect to the concept that the general council acted as the staple among the documents what about the best evidence rule how hard would have been for them if in fact the two thousand and twelve financing agreements included the twenty twelve on say to simply show the documents it was never show more importantly if you go back to go back to the assignment we put skidrow on again your fifteen eighty six hole they assigned was the twenty thirteen for on the twenty thirteen form they did not there is no assignment there is no ownership of the very document that was at the heart of the entire case i believe i don't have to give you much on with respect to the damages we laid it out in our brief the one thing was if they were going to put on evidence a bank account tax return a k one anything showing that the individuals actually got dispersants and what we showed through the financials was in fact that was an adoption that was they basically we showed through our brief that none of that ties into any profits one hundred percent of the profits from the g p the jum partnership and the lp that was awarded again i disagree when we're talking about a form after the fact i understand about the leeway of the jury i just want to leave you with this i think that this case from my perspective again where the train jumped the track is that the district court and rightfully so when they came in and sought injunctive relief and saw that someone was using someone else's form the district court was upset but the point is is that what the case was tried on was simply a copyright case and i think we've shown through our brief between the ownership curtain mccon