reversal of the district court's order and judgment denying overdrives partial motion for summary judgment on very narrow grounds and granting i d p s motion for summary judgment both decisions of the district court were based on prevention ripeness this is after the district court specifically found article three standing for over driving its claims and we believe ignoring this court's holding in keizer versus reads equally important if this decisions left undisturbed the district court copyright protection afforded to authors in collective works and will leave the status of i d p s very important ip uncertain perhaps permanently in addition to the errors of the district we're here today because of i d p s dogged determination to dismantle itself and force through a complete transfer of the pub to w three c part of is a very important digital book specification it's the case you know that the agreements from what initially was going to go through in two thousand and seventeen we're getting close to four years later to spend a new agreement on what you know i don't want to push you to get outside the record but it's sure whatever to however things looked in two thousand and seventeen is surely a lot more in flux in two thousand and twenty one and that of course doesn't look at rightness and i'm happy to hear you talk about a pure ignore the credentials side of it but just focus on the core article three way of thinking about it that's fine by me but i'm still struggling with why it's right given all the moving parts say that is the asset transfer agreement which was which became effective on january th of two thousand and seventeen obligated i d p s both to transfer over to have copyrights in and all the ip frankly of  the copyright transfer i think they knew about it if you think they've known about it for twenty years literally twenty years but specifically between the time when the the approval occurred that was the sufficient preparatory step in other words i think that the district for requiring actual current infringement nobody doubts that when i d p s dissolves there will be actual infringement the question is what point before that i can't can i can i ask you why that's clear i thought one of your copyright arguments was that there can be interesting collective works and then the individual say overdrives could still have copyright protection so in other words under about theory of copyright law if you're correct so be it wait till the darn transaction goes forward wait til mit or w three c whatever you want to call it uses the pub in a way that infringes the separate copyright valar you can protect your interest i don't understand why you would want that concrete setting for the dispute the only thing that makes this even slightly questionable is the improper technique the improper leader license the specification license agreement that was not contemplated by the agreement that the members approved and was specifically designed to undo our litigation and i think that's where we fall into the davis vs blige world you can't undo an already ripe claim or an already infringing claim or however we want to couch that the holding in that case by giving a later license particularly one when there had been anything but it could just i guess on maybe just think about it a slightly different way how are you injured right that no one's going to claim you didn't protect your interests you right i'm sorry to interrupt you right now the contributions that all the authors me to to eat when it was actually before there was a g p s which is when this this specification was was  stay focused stay home isn't my point you're not staying focused on my point so i have no i understand the we do not want i d p s w three c to use our copyright at all they are using it now under license which we think is improper and they were exceeding the license that they were granted to the spec the original asset transfer agreement this isn't a money case so it's hard to say well they're selling our records or they're you know some books are or exceeding our copyright and that s we participated in the development of the specification no one we would have control over our copyright certainly we could wait until anyone you can say that we wait till the house burns down and we'll see if the you see what the damages but we want to stop that from happening the transaction was improperly structured it did not account for the but the transaction hasn't even gone through that's only because they breached their agreement with w three c to close the transaction by october th of two thousand and seventy eight i was the original plan in the agreement and it was after they breached that deadline that they gave the specification license agreement so the timeline as it is there's a certain there was a sit in grounds and this is on the merits and if that suit were successful what would well the only the transaction would be nullified and they would have to go back to the members have to find the members and they'd have to go back and seek approval again alternatives considered in this transaction was presented it was presented as a do or die for i d p s we have to go to w three c or else all is lost and we don't think that's the case and certainly the copyright  you were when all of that what would you add up with better than what you have now i don't think that in the original transaction we don't think that the alternatives were fairly considered and now that we've seen what i d p s forms are what w three c has done with the specification in the almost four years that it's had it i think that the members would consider the alternatives that we wanted to present back in two thousand and sixteen but were prevented from that and that alternatives was basically  sale didn't the transaction did not go forward in seventeen they seem to be suggesting they end run they were and running things by creating a new license absolutely so how tell me how that infringe over copyright people say ok it's so so that doesn't really help you on the rightness point i guess is what i'm getting at right it does to the extent that the the clean was arguably ripe i still think it's right but it was arguably right before that i think the it list with respect to ripeness they could have structured the transaction any number of ways they could have given this license from the st day but it was after they could it really is they could not dissolve and closed after the litigation was filed that distribute some collective works rights that we actually separately young and we would like the federal courts to resolve who owns what before all these copyright interests are transferred to m i t now if you just stop it there wouldn't that have been a right dispute with article three standing and everything else i don't believe so your back actually they didn't do what i just described i'm trying to understand your theory of rightness what is your theory of rightness as to the question i asked ok so there would be right mess with respect is some of those rights are not for them to transfer right why couldn't they get a federal court to say that part of the agreement is not not legit in that they're allowed to take that out of the  will you do with with leave her out your words only say let me ask you this so you're saying that there you couldn't have a deck action or you couldn't have a copyright action that was about ownership only it would have to be there would have to be infringement it would have to be an infringement allegation correct i guess the can you i don't know whether i own this collective work or not we're having a dispute about our various contributions and what the result who owns the resulting work and can they you know why since whatever but i'm not saying there's infringement going on right now i just want to know i'm having a controversy about ownership you can't do that sell the minute eat eat hob infringes you know five years later that's when over dr seuss's that is that is that the point you're making that's the only way to do this obviously i think p f couldn't sell what it did known over drive for change what it don't and the way it protects itself as you wait for the infringements that that your answer that's exactly right exactly right because the the i mean they don't want to infringe either for ethical or financial reasons and they would like to know upfront who owns what that's not there's no way to do that under copyright law not whatever are known and certainly not in the way that this case wi and that's part part of what's the the problem i think that is the struggle in this case is the ends that you're describing are legitimate and sort of a quiet title situation here but copyright is the wrong tool for that purpose it's taking a copyright infringement claim which is what overdrive play the play and correcting contributory infringement and they're trying to fashion that the closing date for the transaction because of all the contingencies many of which are or drives on creation and so it merely reaffirmed the existing i saw the original transaction documents but how i don't understand how to litigation prohibits the transaction from proceeding in federal court litigation is giving you a thumbs up so far it sang it's not right so go for it and we'll deal with right kinds later and i'm not sure i understand what the district of columbia litigation stopping consummation because i think yes members of this board members i'll be frank about this and this might be slightly out of the record but they are trying to do the right thing they're acting and abundance of caution and at several points in litigation made regarding whether or not overdriven pursue planes for personal liability against board members if the transaction were to go through and overdrive would not make a commitment that would because we don't want to be in the crosshairs like that when we're just trying to do the right thing so it's an abundance of caution nothing more nothing less it's a little funny if that's the case that you're making rightness arguments at all i realize we have an independent duty but you would think your self interest would be sort this out and i disagree because what happens when i d p f dissolves is there's no possible infringement that occurred prior to that because the licenses and infringement that may or may not occur after i d p s no longer exists that's the contingency here that destroys rightness its rightness with respect to my ability that may or may not ar for that so infringement can occur until after the transaction closes the transaction closes when id p f dissolves and simultaneous of meant and so there's if you can say listen there's still too much of a cloud over his here we're going to drop a specification they might start over from scratch we don't know they might use parts of specification that overdrive doesn't claim any rights  try to hold contributory liable for today there may be infringement that happens after the transaction closed if so do i need p f is not contributory liable for that because attributes that seems a little doubtful that you own something with a clouded title and you clean your hands of any responsibility by saying well it's up to you what you do with it including whether you infringe someone else's rights that seems funny to me i'm struggling a little bit with your idea that there's potential contributory negligence going backwards but it ends the minute i terminate that seems funny to me but you know that this is all assuming that overdrive has protectable copyright interests and as a collective work the burden falls on overdrive to establish that it actually has some sort of interest in you and because it's a collective work not only does it have to meet what already claimed and meet the step normal standard for copyright ability of originality and and creativity but it also has to establish through gratified three of its employees who it says made contributions they were deposed extensively on this issue it was written discovery on this issue where i b p s challenge each one of them to identify by chapter and verse what they actually did contribute to the e pub specification and to a person they could not identify a single thing at most they could say if they were in the room when discussions were had denied summary judgment so there's a fact issue on this question right although he said there was no evidence in the record or there it seems like a mixed message i guess but ultimately he denied summary judgment right  i believe that technically you're right the way he took up this issue i believe if i'm correct in the context of analyzing overdrives motion for summary judgment and made the find in that there was not similar to their position on authorship and on contributions and on everything is with rightness we can't sue now but kids who later either and there's there is no they leave us no alternative and i think it highlights the fact well but just to be clear no surprise they've got a rightness argument and america's argument so don't when they say you can't sue later and they're not saying it's moot they're saying you don't have legitimate rights and he eat you know and i d p s will be p whether or not they'll be three c does anything which is which is of course ridiculous because they're working on the spec now based on the work that our copyright is included in they are saying they might just drop it and make do this they might do that we said  of all i want to correct the record we did move for declaratory judgment the the summary judgment motion was for a declaration that they can't transfer it's in paragraph b of our prayer and that's what we moved for summary judgment  so the situation that you were mentioning judge sutton is exactly what we want to do we want to sort this out before they go down the road before now it's been four years but what about what about the point mr mobius made that it's quite unclear how m will use this the point is the the rightness point that the that was it issue i guess before the district court is the transfer of our copyright i d p s let's be clear about something the record doesn't own any aspect pub they're not the collective work of owner they did not contribute to the selection of the material that that became the collective work that is that they didn't get it by a simon and they don't own it by the work for hire doctrine that's the only way you can own copyright  transferring these things that they don't own so you and i write a song justin and mr mobius sells it he has no right to sell that's what that's our point here that's the that's the that's the essence of our claim whether the you have to have an infringement claim to raise a two or four i've never seen a case like that it's movies doesn't citing those in his brief and we did say cases picking the movie cases i thought were d very interesting where they were taking preparatory steps to make a movie based on an infringing work that was sufficient to make the work they did start shooting they just hired the folks and they got everything right i think that that would be but that was not if you take the analogy here that's ok if it's been properly licensed for today correct you're saying first of all the other point that i thought needed our response on the movie says you can't sue later certainly all corporate long quitting i believe d c would allow a dissolved corporation to be sued after they dissolved so i don't think there's a point that we couldn't later on but that's that's that doesn't really talk about right this it's just a shell game keep talking the other thing that's interesting is that the way the specification agreements where israel is worded they never have to close it says that until they make the transfer right for set a date certain now you have the state or until you make the transfer so it is conceivable that an entity could be w three c could be someone else could keep this sort of corpse of i d p s alive they haven't paid their corporate franchise taxes down in d c or anything like that but that's not a big deal they can i means you win no no then they stay forever then they stay for win because we now have a nother entity actually pretending to be ibuki that's w three c or the successor what without our permission is long as the existing licenses are allowing them to do that you want and if you don't like existing licenses getting changed there are no members and there is no activity a wus there'd be no way to change those there's no practical way to do that or possibly for practical possible way to change that the license was done i understand  know i don't impugn him or his client but what the net effect of what's happened with this license is to to cause this suppose it and i don't think it is but i suppose ripeness issues that they can then perpetuate eternally and that that prevents us from getting any remedy in this when they were taking these affirmative steps long in the past you know definitive steps as early as january arrow's early as november of two thousand and sixty not quite grasping that last point they can perpetuate really a tricky case of grateful for the briefing which was good and thank you for answering questions which we're always grateful for so thank you in the case of the submitted