of the defendant's infringing actions were unauthorized or whether the defendant must prove authorization as an affirmative defense then if you agree with mr i'll leave that the defendant must prove authorization as part of an a permit defen second issue is whether the final call to imagine this is an open question i don't think it is not i think the law in suits have been going on for you know hundreds of years i completely honor i don't think this is an open question i think the law in this circuit is clear and i think when you talk about that you think that it so here's the problem and this is the opening page of your brief basically that the law is been very clear that this is that authorization is defense whether one has an express license an implied license you've been famous litigation over between you know companies like microsoft and apple and and so on but you have in the record the district court judges finding using mr ali for the purposes of the produce simply because it's shorter all right i mean i just want to get that right so thank you so the district judge says even if i'm wrong about thinking that it was mr lee's burden to prove lack of authorisation i'm now going to discuss what it would look like if in fact it was final call to bird to show that it had some license and he looks at a march two thousand and eight letter and he looks at some other evidence in the record and he says i think final analysis saying that even if i'm wrong on this burden issue the final call introduce sufficient evidence to prove some defense i mean i don't know that's entirely clear which defense but just records verdict is premised on that looks like i them to rely on the time we do defense and so that so why wouldn't there be so let me give you at least my best take on that you've got the march two thousand a letter you have the fact that a fair amount of time passes between the creation of this portrait and this litigation i know he's not trying to recover for sales to take over you know issues of reproductions from that time but you might think that this suggests a period of acquiescence like yes it's ok with me for you to be using these lithographs i don't know that maybe you should address may be granted where one the licensee requests the creation of the work the license or makes the particular work and delivers it to the i c c and the three have the license or intense the license the requester copying distribute the work no granted the final call and part of your argument there has to be the fact that women when minister farrakhan lets assume you know got his license through this area it's reflected or whatever in this two thousand  letter there's a rule that says holding that kind of license doesn't entitle you then to convey it further down the line unless you actually got of solace signing of a copyright which nobody says happened that's exactly right your honor doesn't come with the right to sub relevant intent is the license or subject of intent at the time of creation and delivery of the work well and also it's that the licensee so if we substituted for the word license sor mr ali and if we substituted for the word licensee freestanding corp i mean how i think mr powers may be able to answer that better but it's technically i think the propagation arm of the nation of islam and there's no corporate relationship between the two but the best but we're talking about is the problem with the  time of creation delivery of the minister farah khan painting on a basis of a separate distinct transaction that occurred nine years in the future i mean i'd think that's logically flawed let me ask you this that district court acknowledged in his loose and said now says that there is no corporate relationship as you say but he found that there is a practical identity of interests i have no idea you know between the destroy farah khan and the final hole and i have no idea what question as to who made those prints because if mr farah khan made those prints we may potentially be talking about a first sale offense if mr paragon did not make those prints and it was a file called and the only thing that would apply here this far as i can tell would be an implied license in for the reasons i s acquired those copies of mr always work in its inventory you know your honor the final call can't prove chain of title by saying it can't prove chain of title i think any finding to the contrary is clearly erroneous especially when there's no evidence at all so any discussion about any type of affirmative defense is the attempt to put a jacket on us that we have not put on ourselves but the problem with that mr power is that if you look at fice to mean we live in a hierarchical judicial system then when the supreme court has spoken  it really doesn't make too much difference what the just records there are four things i look at feist license is an affirmative defense could be an express license it could be an implied license mean and there are other affirmative defenses under the copyright laws as well that the plaintiff doesn't have the burden to anticipate affirmative defenses would be you shouldn't raise of an enemy you waived your implied license defense in the just record and i think you've waived constituent elements that are original which might not be the whole thing but you know constituent elements there's not a word in there about saying n three you have to prove that the use of the alleged infringe was an authorized that's an affirmative defense i would offer this in the on the same page that those elements are listed is the phrase from the feis court not all copying however is copyright infringement of course not because some of it's done under implied license some of it's done under the fair use doctrine some of it's done because there's been a first sale so the copier could certainly use a copy or can also say actually you're wrong to call this copying because i independently created so so yes there are a whole package of doctrines under the copyright law or it could also mean that the creator of the work authorized the receipt for the copy or to say i was authorized to do this i mean look there was a lot of litigation when microsoft first came out with windows apple's suited unsaid this icon based you know visual sort of display on a computer is something you copied from us and microsoft actually responded by saying aha you forgot that license to jeff or get what the year was but around one thousand eight hundred nine hundred eighty one or so apple had actually as it turns out in retrospect foolishly given facie case of copyright infringement the plaintiff must show one it is the valid owner of a copyright and two has the defendant has engaged in an authorized copy that's a that's a district court decision from the eastern district of new york it's not from the supreme court of the united states and it's i would suggest not compatible with our court and seems to misunderstand rule eight of the federal rules of civil procedure the copyright act authorizes an owner of a copyright to allow someone to make copies of its work if it that's correct and so would a license is essentially a promise not to sue you for infringement that's that's the nature of the license that's why it's different from an assignment but it not all copying it is copyright infringement we can also read that to mean that if the owner of the copyright authorized someone and that person stayed within the construct of the authorization that is not copyright in iran totally agree with you but that has nothing to do with who has a the burden of pleading that kind of exception or b who has the burden of proof and it seems to me in the sense of the risk of non persuasion if you will that a very large line of cases out of every circuit in the country says that authorization is an affirmative defense this is what i would offer to the of appellant was very well aware of its burden in this case the was very well aware that it had to establish an authorized no happy it's that's not been their position all along now of course if you are the plaintive before district judge that seems to be maybe not agreeing with you about what it is you're going to try to cover as many bases as you can that you guys with drew your implied bisons defense in the district court what the and i would be getting hammered right now by saying did the final call request mr riley to make  the the copy of the painting the answer would be not so to that extent we would be getting hammered on that element of imply money since hammered anyway i mean you know it if you didn't have a license and you know this vague section from the district court's opinion i alluded to earlier right before the loose ends language the part of a fourteen i have trouble imagining that on to the requirements for dealt with marketing of products that were sold overseas and purchased back from this foreign distributor in that case i believe it's just as great ginsburg say it this isn't on the usual copyright case because le ron's a does not claim that anyone has made an authorised copy so well let me just quickly give you a brief comment when things are made in another country copyright laws national so it can be authorized in france and not authorized in the united states and vice versa there's an international convention called the berne convention that covers these things but the problem the legal issues that arise when something was that was legitimately made in a foreign country is brought into the united sure that that helps us to the extent that if you say that in the converse the usual copyright case involves allegations of authorized copying but it's not reality she is going to say that that still doesn't catch take me all the way to who has the burden of pleading and who has the burden of proof let me let me change the subject for a moment because i got to know what the factual basis is that supports the finding that the hundred fifteen co made and even they discovered through discovery who if i could about in the original case there was a third party printer that was on as the defendant they dismissed them after they discovered that the printer acknowledged they have not made any of these copies in the last twenty years i believe it was so it's a bad extent the plaintiff what may some attempts to identify who might make copies and that printer acknowledged the dozens of other prints that it made on no one could remember and there were printing being made i mean there is no evidence in the record of when any prints were made said in a complete that is mr lee the question being did he in fact authorize copies to be made and once so you point that cannot be lost and can i ask you at what time you think that that authorization either happened or should have happened it happened at the time he said it is deposition which was at the time the original all painting was done he acknowledged that he lithographs were made at the same what if it's a true statement if it never went to if he never gave it to the final called why does that help you to the extent that he said that lithograph were authorized at the time of the painting was done but he did well for some of his other paintings like final call sell more copies i want five years later though i mean that's why i asked you about the timing and that's more salient because after twenty five hundred four trying to figure out what he was doing into thin hundred eighty three well that's a two thousand and eight letter help that's how you know twenty five years later m still did not have a problem with the final call selling those images he was attempting to help the final call sell more he acknowledged in his deposition that he wanted to offer his business background to the final call to help them sell more and quite honestly when the final call did not take him up on it but but something that you mentioned earlier that i believe that they should have argued in the alternative that if the final call was found to be and that if the appellant was found to have the standard to prove authorisation in the alternative is there any evidence that the license was transferred to the final call could the license be transferred because plan a says in footnote five of the opening freeze that it cannot be legally transferred and you didn't respond and i would appreciate if you could do that i want i won't make the argument that it can be transferred but what i will make the argument is so you agree that it  there is a license to a then it can't be transferred to the well i would offer this to the extent that the district court even mentioned that it does not say in fact who those who mr le to force copyright of course this three years but in looking at the i believe it's called the raging bull case there recently came down from the supreme court when it found that the copyright infringement started in the seventy's when when the activity still continued three years prior to the suit lachie was was not found to be a valid defense so that's why this is just three years worth of copies they're going the what the argument that they're making on appeal now is not the same argument they made at the trial level the attorney for the mr ali say it in the previous unsolicited bench memel mr ali agrees that copying must be an authorized to be actionable as infringement the next question say that the legal issue is who has the burden of proving they want to authorize who's action is it was mr lee's action ok i think we have that point so thank you very much thank you