to focus on two issues relating to the summary judgment motion this morning but i'm happy to talk about anything else that comes up the first is the copyright the statute of limitations issue and the second is the district court disregarding witness testimony regarding the copyright the district court dismissed the copyright claim based on the statute of limitations the problem with that is he found that an ownership dispute had arisen six years before the defendants in fact invented the the ownership dispute there's irrefutable evidence of this in  the in the record right after the case started i received a letter from defendant's counsel saying that there were that they had evidence that they would a deuce that two individuals had created the logo that evidence has never been a deuced because it wasn't true later on after they found the man in california they changed the story to one to one individual who created the logo allegedly and even that man adrian vargas in his testimony says that he did not hear from the defendants until after the case had been filed and secondly in a court filing the defendants stated to the district court that they had no knowledge of where the logo came from until they started looking into it after the case was filed so it's simply impossible that there was an ownership dispute six years earlier in two thousand and seven they didn't invent it until six years later walker on the other hand has always maintained that he owns the the logo in particular there are two articles in magazines hip hop prominent hip hop magazines from  hundred eight and two thousand both of which state that walker made the logo and in addition there are multiple conversations with witnesses about the logo back at the time that it was created in  because the writing was lost that's why this is an evidentiary question the writing was lost when my client was living with his uncle and he moved to visit some other family for a while in atlanta and during that time unfortunately died before he was able to come back his uncle's family had cleared out all of his property including the contract that is undisputed there's no dispute about that story they haven't raised any kind of issue with it and the statute of frauds the best evidence the best evidence rule relating to that says that unless as long as the if the story's believable and there's no problem with the story then then we move on to the best evidence court find insistences between lockers recounting the existence of an agreement and mr c r s yes and that's the point and couldn't the court find that based on that to apply the sham fact doctrine it has to be it has to be real unequivocal and inescapable disagreements in the testimony and that's not what the district court found sears testimony about that was he said i had not sure maybe the two thousands i don't remember so it was very vague about the exact time the and that this sham fact doctrine requires that  district court cannot engage in searching skeptical analysis of the testimony that is for the the jury and also in this case the same fact doctrine it's only allowed to  disregard testimony if there is an affidavit that's of that's submitted in response to a summary judgment motion in this case mr sierra was named in the complaint mr walker's always known about him but they haven't spoken in years it took us a little time to locate him he was located by two thousand and fourteen he was deposed in two thousand and fourteen the summary judgment motion didn't happen until two thousand and sixteen the defendants had all of this testimony it's its for the jury to decide whether it is  how much weight to to give it and the credibility of the witness if there are no further questions that's that's everything that i want to talk about today i can reserve the rest of my time such as  please the court i represent one of the defendants in this action my co counsel of misurata will handle the cross appeal portion and i will take questions pertaining to the defense of mr mr walker mr barry's appeal i want to address a couple of points that were raised here first of all is this concept that the statute of limitations does not run until there is the defendant affirmatively disputes claim  it's that's impossible just as a matter of logic you can't have a claim you can't raise a claim that doesn't exist until after the defendant answers but the judge carter was very clear and said this twice both in the original order and in the motion to reconsider made it clear that it is not when the defendant disputes the claim of ownership where the clock starts ticking it is when the plaintive is aware of the fact that the claim or the defendant does is not acting consistent consistently with ownership in other words or simply its actual or constructive knowledge as a test for when the statute of limitations accrues judge carter went through identified even earlier dates of which that could have happened but basically as mr walker's own testimony two thousand and seven was when he was supposed to be paid he wasn't paid and did not sue until five years later on the contract claimed the couple of corrections here nobody ever said that the contract existed no one ever on the defendant's side no one ever thought the contract existed we believe that this is a the whole thing is a bit of a sham they'd license defense was asserted in the alternative because a claim was asserted and in fact to the standard here there's a high burden to overcome the statute of limitations when the writing is lost new york courts have been very thorough on that the only time they really allow an exception is when someone was there identified as a as a witness and until the defendant said we need to we want to move for summary judgment on the statute frauds all of a sudden mr sierra comes through and even though he's represented by the same council he can't get the story straight he first said he hadn't seen it that he said he had then he said there are two signatures in there being mr walker said there's there's one and all kinds of things were incorrectly detail that in our brief including the difference of the amount that was supposed to be paid this was not a searching analysis like in the in matheson versus kitchen which mr walker cites this is much more like row house versus roman catholic diocese of rochester six sixty f thirty eight f third ninety eight at one zero four one of six in which there was no there was no credible testimony there the court properly excluded it and found that there was certainly no corroborating evidence all we had left was mr walker's testimony which had the court i'm cynthia rod and i represent the corporate defendants in this case and i'm going to address our cross appeal and i'm going to be speaking on behalf of all of us if the denial of fees sanctions in this case is not an abuse of discretion it's hard to see when a denial would ever be an abuse this is the poster child case for the overly aggressively filing of losing claims copyright holder that the supreme court in curtseying citing the sixth circuit in bridgeport explained a fear ward is meant to deter affirming the denial of fees on this extraordinary record will set a hazard that tells plaintiffs  their counsel they can file objectively unreasonable copyright claims and pursue them relentlessly with impunity in the hopes of extracting an unwarranted settlement from defendants that aren't willing to stick it out over five years and ultimately prevail like we did here the district court ignored the record and relied on an erroneous legal standard in denying our application for fees and sanctions that the district court relied or the correct standard the district court stated in a catchall sentence that it was not prepared to find that either party's actions were objectively unreasonable frivolous or entirely without merit and that's  supplemental appendix eight nineteen the court focused on three purported reasons related to the parties actions but that's not the standard under the copyright act under the copyright copyright well it's a it's a non exclusive list of factors but the first and the one that the supreme court has told us should have primary importance is whether the claims are objective leean reasonable in either their facts or the law it's not that actions that are you can look to the on reasonable actions and we believe the actions here were certainly on reasonable and we put that all in our brief but the standard is whether the claim was objective leon reasonable and the district court didn't address that in his sanctions ruling although he did address it when granting summary judgment in our favor and he did find that the claim was objective only unreasonable in that room and the district court found that the copyright claim that walker and his counsel had advanced spurious arguments that this was not an ownership dispute and that the statute of limitations had expired the district court said in granting summary judgment in our favor walker cannot plausibly maintain that this is a pure infringement action and that it was clear cut that walker's claims were time bart in addition there's evidence that walker did not even have clear evidence that he owned the copyright he made false statements to the copyright office in false allegations and his complaint in the district court that knowledge what i heard thought was this was not dismissed at the pla in particular on the copyright claim because he found that there might be a factual fieri that the plaintiffs hadn't even advanced in opposing the motion to dismiss that maybe there as infringement after this purported contract period had lapsed but the testimony in the case made clear that that was completely inconsistent with walker's own fantastical story about this supposed contract that was worth over seven million dollars by his account and that had a convoluted pain to put in ten and then he changed that to eleven years and under his own version of the facts which he always knew which why they they don't support finding that the copyright claim has merit under his supposed facts he claimed that once that ten or eleven year period had ended the copyright was transferred to our clients so are you  the objective validity of the claim i'm saying that there's an a b that it is an abuse of discretion standard but that discretion is abused in several ways all of which were present in this ruling one of which is that the court has an erroneous view of the facts which we think here the judge completely ignored all of the factual record but also where the court fails to meaningfully or properly evaluate the legal standard and we see here we save the just for a court failed to do that because one it's stated a legal standard that is not the legal standard for the awards under copyright act and even under that standard the ruling had no analysis whatsoever it was just a cursory one sentence and all the cases in our brief demonstrate that circuit courts do reverse for abuse of discretion under any one of those standards and circuit courts have reversed for abuse of discretion the failure to grant fees to both prevailing defendants and prevailing plaintiffs  also think that sanctions were properly awarded here i should have been awarded because of the unbelief noble conduct and i mean this the the fraud case the contract case has an circumstantial stench of fraud it's on mistake and the copyright claim is just a lie on that why and even under their own admission they only pled the copyright claim because we disputed that this contract existed but the contract under their testimony gave my client's a license so there was no legitimate basis to sue under copyright except their attempt to extract an unwarranted settlement  threatening that if they won the copyright claimed they'd get a permanent injunction so it was completely misguided there was an improper motive and we think that that warrants not just not just to be manned but a reversal because the record here is after the case started that both carter and ash do not even corroborate that anyone other than walker did they know walker did it and and furthermore the case itself was dismissed on the narrow grounds of the statute of limitations that in order to that he should have known in two thousand and seven that they disputed ownership so if anything it's been it hasn't been adjudicated that the case is is is obvious at all because it's been it's only the statute of limitations there's no way that walker could have known about the statute of limitations claim when they didn't decide to dispute ownership until two thousand and thirteen and again walker has four claims an ownership dispute only surfaces one time for instance in one thousand nine hundred eight when there's an article stating that there's someone who claims he made the logo if they had an ownership dispute with that they should have done something about it they didn't they didn't in two thousand and seven they didn't in two thousand and ten they didn't even start looking to see if they could dispute the ownership until after the suit was filed this isn't an ownership claim at all it's a infringement claim they know he'd make they've made it they've always known he made it your honor the others use mind if you understand the other the other issue that the court that the district court must take into account is the defendant's conduct in the case i hope this court will agree that the defendant's conduct in this case has been far as i know what this court and the district court would know ok that there are statement you just made use further illustration the point   felt that both that both parties did not act at the highest level of the profession but that it was he was not prepared to find that either party acted badly enough to sanction either party claims were not reasonable he says that in his decision about that about the motion for sanctions thank you