and next case this morning is alliance for water versus fryer straightforward questions that the district court complete did not apply discretion in his appropriately appropriately on the facts of this case and both cases we believe that this is a matter where both attorneys use and restitution are required as to the attorney's fish we believe that the evidence here is that we were the prevailing party that in fact we get the unusual situation where that the defendant receives twenty five thousand dollars in additional from the plaintiff  underlying case and the evidence at the input for the district court was simply and directly to mr fryer settled to get this case behind him so he could finally published reports that he had already written had circulated and was on that and he was jim plea waiting know the last opportunity for people to comment on but that doesn't mean you prevailed on the merits of a copyright claim but we've course we get because now you settled the case everybody compromised and went their separate ways that it doesn't that's not but if you're not a prevailing party pursuant to settlements yes we are because under the c r it c r s t case that the supreme court of the treacly noted that the goals of the defendant are and the goals clinton for the plaintiff may seek to have an exchange of money or something like that but if the plan defendant seeks to simply resolve the case and in that case resolving a case where the other side gets none not a smidgen of the copyright stuff that they were claiming in the underlying case is prevailing the problem here and to say that we're not prevailing because it's a settlement is to make the error that saying it says that every settlement is not a prevailing party can never prevail through settlement will spring court long work made for hire they know they don't have it and we point out they don't have it and they settle this case without getting a single copyright at issue not a single right anything not a single per bench and what mr pryor was writing which the prior  doesn't require judicial ruling on the merits now would we have a judicial we have a judgment in this case and that judgment would have would to pick up they would have issue preclusion in fact for any future claims to copyright to mr fr work and clearly final judgment issue preclusion we would if they came to us tomorrow and said we own your report report we own your work you can't publish it we could put that judgment down and say issue preclusion you people that judge had ordered that's judicial rulings right there were there have been traditional rulings on questions of settlement interpretation contract interpretation but nothing that the settlement did not include any merits resolution of the copyright claim at worst he just walked away and the only questions that have actually been litigated here are questions of settlement interpretation you know that don't believe that's correct because the prior expressly noted that there was no jurisdiction under the copyright act that wasn't a ruling copyright yes it was your honor by saying that you had no they had not legit or shown the facts necessary they had the evidence to support a copyright act claim or to have jurisdiction on that issue i don't see how it can be read with respect and i don't see how can be read any other way that fact that the prior repealed referred both to allegations and showing indicates it was not just looking at the pleadings but rather was looking at what had been shown in a district court or this or rose as you quarters from where after we made a motion to dismiss on that very grounds so that it seems to me your honor to say that that party quote walked you as you say walked that is not accurate because in looking at this from the defendant's perspective which the court must when somebody makes an allegation of copyright claims to your work and says we own it you don't and they walk away and you won't and they don't it seems to me winning in every way copyright defendant conceivably want to win in a case and why would a copyright defendant to get be entitled to attorney's fees need to have have some judicial ruling on this specific copyright claim in order to be prevailing under c r s to it seems to me the supreme court is completely rejected that and that somewhat that narrow notion of what prevailing defended it seems to me the c r c means that when you when the plaintive comes to court and says we want stuff and they don't get it and if however the defendant keeps what they have however defendant defeats that claim it would be settlement by litigation by ruling by ruling on a non other and another issue or ruling on a an issue not relating to the merits and standing issue preclusion any other issue that you could raise it seems to me that they have prevailed and this in the terms of so you're a dad strikes me as giving the c r s t case in the supreme court we have prevailed on every meaningful may of that term and the district court heard and not look applying that and instead looking at this notion that just because it's a settlement there was no there can't be a prevailing party i think that is simply dead wrong and i seems that your main problem here is who published first that is correct and the problem i have with that is that i guess i get confused so called had a right to publish first you just mentioned before everything was all wrapped up you had people look at it whatever and all of the sudden the other side i guess published and then your big complaint is you lost a lot of publicity and opportunity and you mean your client lost a lot of opportunity to really be an expert and a lot of people come to him and make some money and i think that's why it's mean that when you get this settlement it's  e of a lot of things away from the copyright and down to this really an issue of who's on first and and and it may be an unfortunate thing with your client to god but he didn't get to publish his first well honor if that if they had published two months three months four months five six months seven months eight months after the settlement you know i could sort of see that are you a proposed a year after the settlement and the reason the public were able to publish was because the district court's injunction against the content of my client's report so that the fact that my client's report was virtually finished including as we pointed out a district court shown with a variant judge with the very language in the knowledge and section acknowledging the participation of all the water professionals a the court said we couldn't publish that the fact that he then couldn't publish that report delayed things for a year while this appeal with the prior appeal with it was pending so that so there isn't a question of whether both parties could have published the questions what what what what changed between the day of the settlement which was the whole purpose of what so he could publish and what then happened because the courts injunction and it was the courts and junction that prevented him from publishing it in there was it took a situation where he could go forward with a completely written report ready to ready to do were they had no data they didn't they didn't even have basic data and certainly nothing written and then the court didn't blocks him from publishing well they can then put their report together and it's that effect in the words it's not a level playing field situation it's a court order tilting the playing field against my client and preventing him from publishing that leads to the issue restitution of things that just been the way they were march thirteenth if i had just gone forward on that basis he would have been able to looks that this court set aside that is what the issue is on the restitution and so it's not a question of what it's a question of the fact of the poor order and that's all it is  in his support of his case and make a case on his behalf it does not occur to reasonable people look the same facts and come up with a different conclusion what instead mr fryer must prove in order to prevail in this appeal is that the district court's decisions were fundamentally wrong and he has failed to do that in this particular case on the contrary the district court in this case wrote to link the opinions in response to both motions consisting of fifty four pages in which he particularly set forth the basis for his decisions the facts in support of his decisions and the case law in support of his decisions i would submit that this is as far cry from abuse of discretion as you can possibly get with respect to the motion for attorney's fees mr fryar seeking fees under the copyright act section five zero five for the appeal claiming that he prevailed in the prior appeal on a copyright back issue as a district court correctly found the underlying appeal that was before this court previously did not involve issues under the copyright act involved contract interpretation and what the scope of the settlement agreement was and whether the district court was acting appropriately in entering  or anything of the like in fact there was no dispute that there was a settlement agreement no one in this case mr prohack looted has ever challenge the fact that as of march thirteenth two thousand and fourteen there was a settlement agreement between the parties including a settlement agreement on all copyright issues both ways the only issue is whether mr fryer was able to identify certain pack members a political  project advisory committee members in his report who the alliance was preparing for its report on behalf of the district court carefully analyzed that issue and wrote a lengthy opinion explaining  there is nothing at that time that would suggest that there were any copyright issues involved under the copyright act in fact as mentioned those had been settled and as the court noted they were never even the only thing that was ever mentioned in the prior appeal in this case and in this to friar's briefs was related to whether there was subject matter jurisdiction under the copyright act and this court previously had ruled that based upon the allegations in the complaint there wasn't subject matter based on the copyright act but there was diversity jurisdiction that was it that was the extent of the mention of the copyright and that's the only thing that was ever mention about this case under the copyright act none of that by the way was litigated because the case settled before the alliance even was required to file a response to mr for years a motion to dismiss on subject matter grounds so to suggest that there was this idea that the parties litigated something under the copyright act that this is just incorrect the issue with respect to the santa rosa data was the other issue that was addressed on the appeal in the distressed by mr fryer but again that was not part of the copyright act and nothing to do with the copyright act and was not part of the prior appeal it's also important to note in the prior appeal that mr fryer didn't frame his arguments under the copyright act this arguments were based about first amendment and contractual interpretation issues and the court cording that out and ruling that this was not a case where mr frere prevailed on the piano under anything related to the copyright act party under the copyright act but the court went beyond that it said even if copyright act issues were part of the first appeal the district court did not abuse its discretion in denying a motion for attorney's fees because mr fryer was not the prevailing party under the copyright act he wants to suggest and he's brought up in his appeal and here again today that the alliance didn't get anything but if you look at what the alliance brought this case about it was to rid it of a report that mr fryar claimed he owned all the underlying data for even though the alliance was one of the major funders and had bade him to prepare this report he refused to turn it over and the reason the alliance and i brought this case was so that they could get the right to produce their own report which is exactly what they got as a result of the self the fact that mr fryer was allowed to part of the settlement continue with his report does not mean he defeated everything with respect to the copyright in fact you could argue that he actually gave up rights under the copyright he wants to claim that he owned that and he had all the copyright act all the infringement rights with respect to that report and yet as part of the settlement he had i read that the alliance could use the exact same diet data and create its own report so there's a contest with your contract who are all the work that he did  getting paid for between the alliance and his director of any kind yet i don't believe that was ok so whatever he's he's getting paid and he's doing a lot of research and doing a lot of other things and writing  us what you saying he doesn't own that he was doing under tham employment agreement to go stuff up yeah there were agreements between the alliance and the entities that provided the funding for this project and those funds were being used paid mr fryer to create the work to get all the data to do all the things that he was doing to create this report the report it provided the draft report it was p reviewed it came back with a negative peer review sub standard peer review at that point the alliance decided hey we'd like to get more involved with this we'd like to get the data we want to bring somebody else we're not getting good reviews from the peer review people at that point mr fryer took the position that he owned everything everything was his he was going forward with it regardless and that's what led to the first lawsuit it immediately settled within three months where the agreement was mr fryer you go your way draft whatever you want to draft provide us with all the data we're going to go our way draft what we want to draft everybody got something right and that's what the agreement was and then that became a dispute as we as after and that was already into the record then there was a dispute as to whether mr fryer could in the acknowledgement section of his report state that his report was sponsored by the people that the alliance was doing its report for and that's what the whole dispute was that went up to the the to your to this court previously and had nothing to do with anything under the copyright act so it doesn't support anything with respect to those speeds and as far as restitution goes there is a real issue as to whether this is even a case that involves restitution because what we have is that mr fryer did not provide anything of benefit as a result of the injunction that was entered by the district court that was later vacated he claims that he had to turn over the santa rosa data but as the district court it didn't address the debt and as the district court pointed out the santa rosa data had already been agreed to be provided by mr fryer and the court specifically went through the agreement that was read into the record on march thirteenth two thousand and fourteen and pointed to the specific language that was used that said mr fryer will turn over all utility data to the alliance subject to any data that required a confidentiality release mr fryer commits and as the district court pointed out several times he did not have a confidentiality agreement with the city of santa rosa apparently that came as  well certainly the alliance did because mr fryer was to provide us with the list of all of the utilities that were providing him that he had a confidentiality agreement with and they were on the list but when the alliance went to try and get a release that we're not going to give you a release of mr fry we don't have an agreement with that and he brought that up in his brief first trying to make an issue that it was an abuse of discretion because the district court said that this was unexpected but at the same time said it was part of the agreement that they wouldn't have to get a release from santa rosa what certainly can be unexpected in the context that your honor just rose or a just raise by saying well we didn't expect it but that doesn't mean that automatically takes it out of the scope of the settlement agreement which was all data was going to be turned over and then there was certain data that the alliance would be to get releases for the city of santa rosa was not one of them and the judge went through that in detail it certainly was not an abuse of discretion for him to rule that it was a part of the restitution the other thing that other than that as a result of the injunction the alliance didn't gain anything that it didn't already have pursuant to the settlement agreement the settlement agreement allow the alliance to publish its own report in the way it's off it that's what it did so mr fryer now to come in and say that this injunction somehow or that the alliance benefited from the injunction which is what he needs to establish in order to be entitled to restitution it's not there was it delay the injunction would  i don't the time that that was abated whatever and just looking at who was able to act for do with it was he prevented from doing something he didn't know the business the injunction did not prevent him from publishing mr fryer could have published at any time and acknowledged the fact that he was doing a report on behalf of the california water reclamation dicked district i could've done that any time he chose not to because he wanted to include argument but i think it's purely speculative there's nothing in the record that would suggest that that is a basis for restitution in this case because if as we pointed out during this time california was in the midst of a major drought and he was his supporter was the california water reclamation district you would think that would be perfectly fine for him to go forward with that as opposed to having somebody from colorado or texas supporting that so the injunction did not prevent him from going forward but more importantly the injunction and the fact that it was vacated didn't provide any additional benefit to the alliance the alliance had the right under the settlement agreement to move forward and publish its report at any point it wanted to and as the district court pointed out there is nothing in the settlement agreement that provides a priority for who is going to publish when and in what word or and more importantly as i just mentioned  the basis upon which mr fryar is now seeking restitution is purely speculative there's nothing in the record that would suggest that he got would have gotten more publicity or that the alliance got more publicity or whatever i don't think we even get to that because there's nothing in the settlement agreement that addresses it but certainly if you were to find that there was some sort of benefit conferred upon the alliance as a result of the injunction that was then entitling mr fryar to restitution because that injunction which they did there's no evidence in the record to support a one hundred thousand dollar claim that he's been made in this case and i see that night dynas is up so if you're honest don't have any further questions exclusive ownership of the property that's a copyright claim the copyright claim is a claim for exclusive ownership and when you copy when a w a brings a copyright claim it is doing nothing other than claiming a right to exclusive ownership of mr fryers work there is no other reason to bring a copyright act claim there is no other copyright act after a claim that you can make if you're not making an exclusive claim to the work so the act the fact that they did not get the exclusive place not only is shown by a comparison of what they got to what they claimed but is by the very nature of copyright acting as to the prior appeal it is irrelevant to it is long been settled that enforcing your rights under a settlement or any other or under the law you don't have to get additional rulings on the merits it's enough for example that the horseman action flows out of the underlying case that's been commonly done for example in enforcement of consent decrees you don't get new rulings on the merits you're simply enforcing this consent decree commonly done and we've cited many cases where courtship repeatedly ordered  settlement agreements are cited in our brief involving all sorts of situations where they merit the actual good resolution doesn't demand inquiry redetermination of anything on the merits but weaken it but as we point out in the c r actually we don't have to have to be prevailing we don't have to have a resolution on the merits and if we don't have to have a resolution on the merits in the underlying case it wouldn't make any sense to say we had to get a new resolution on the merits when we're trying to enforce this case it's like saying that you have to that if that we don't that we prevail here by defeating copyright client we don't have to litigate the copyright claim each time we say our rights are being violated in terms of but in terms of the  so the prior appeal was to enforce the deal but that was the deal was to enforce the rights that mr fry retained in defeat against the copyright claim in trails of anything about ownership to me the settlement that determine ownership yes there's not a word for example when they say that he was employed is not the word employed doesn't appear in the complaint he was an independent contractor doing this part of a project he developed we put all that evidence in and all this evidence about the dispute and all this other stuff is evidence that we put into the record to mr ferrars decoration e mails and other factors what is of what is upsetting to me is that we continue to rely only on its own allegations and its complaint and that's never what's in response to any motion that we have made including our motion for restitution presented evidence to support any of their allegations that would you want to say that it's not right to get restitution why don't they put in some evidence on that point why did they come here and say this route go back to