incorporated verses moses newman and all mr rahman whatever you'd like you can start and if i could ask you for a bit of a roadmap because there are a lot of potential issues and you have a limited amount of time which ones are you going to try to cover if we give you time  may please the court it's all roffman for campian life also here for computation is robert barny to answer your honor's question there's three core issues the st issue is actionable copying the nd issue is the duty of secrecy in continued use following acquisition the rd issue is the false advertising that the excuse me that the c ok go right ahead and perhaps to assist record understandably your honor it appears a daunting task but in fact it is not and why is it not because the issues of fact here that the court found support compu life claims but more importantly the defendants and the plaintiffs stipulated to those facts that are necessary to determine this case in compu life favor in the pretrial stipulation at one hundred and seventy seven in the record and in their answers to the complaint the defendants admitted in stipulated to the lack of authorization to both copy and access as well as to use and to misappropriate that occurred advertised in a ip and as their quote anshan so why then did the district court the honorable magistrate judge who retired a couple of days after the decision in this case why did the district court miss these undisputed facts one reason we believe is because the trial did not focus on them we had stipulated to them the contracts the agreements that contained the restrictions in the licenses those were in the record they were stipulated the fact that the defendants were not authorized that was stipulated we didn't spend time there for explaining the license issues of duty issues of use acquisition or lack of authorisation simply because they were in the record they were referred to by several witnesses it was understood and stipulated to so i mean let me ask you a question as i you obviously know this case and friedman those well much better than we do and i'm trying to wrap my head around the many issues so please let me see if i get this if i got this right you had a direct copyright infringement claim and a derivative contributory copyright infringement claim right yes ok as i read the order that's being appealed the findings of fact and conclusions of law here's what the judge ruled with regards to the copying in the parameters attempt to identify the protectable elements of the source code and failed to provide any basis for him to conclude that the copy portions for important and of sufficient quantity  or duplicative the for the fundamental structure essence of the source code as to that were their pretrial stipulations that took care of those deficiencies of the judge thought existed or not or that's a separate argument that as to that as to the copying the the testimony was from  those as well as her expert report which was put in evidence and was not challenge to there was but that and i take your answer and i appreciate it but so that alleged deficiency was not one that had been taken care of with the pretrial stipulation that was one that you presented affirmative testimony on and you just think the district the district judge has got it wrong but that was one that you met with affirmative evidence we beyond the pretrial stipulation we did ok but if i can clarify because you're think this is important in order for the defendant to commit trade secrets that to access my client's database something the lower court found was protectable in order to do that action copying was necessary they had to copy literally not not non literally literally copy my client's code literally copy the parameters from the code parameters that the court didn't say weren't entitle to copyright protection they had to literally copy those parameters in order to commit the trade secrets that that was the testimony so when the defendants ignalina age that they were not authorized to do what they did and when the facts come in and show that what they did was access my client's trade secrets they borrow my definition copied my client's code to do that this is it is this is where i'm confused ok at what i try to do to begin understanding this case and i have not gone into the record so that's a caveat understandable  on the trade secrets claim here are the reasons that i thought the judge gave for rejecting that claim along with the florida uniform trade secrets act claim those were based i think on your transformational database right yes ok here's what i think the district judge did st the the alleged misappropriation in the so called forty two case failed because the term life quotes did not constitute trade secrets that has nothing to do with whether or not there was copying right that's correct ok i'll let you all i've taken up your time someone let you have extra time but reason number two asked of the transformational database compu life this is the judge speaking did not identify how there is a duty to maintain the secrecy of that database or on whom the duty was imposed right that's your duty issue but not a copying issue either right or act ok number three there is no continuing use after the effective date of the so called d t s a right that's not a copying issue either or is it it is to the extent that the reason why they were able to continue using it is because they previously had copied ok i understand that and the last one was that there was allegedly no evidence of acquisition through what the judge called quote unquote improper means is that a copying issue or not a copying issue or a hybrid as well when you're talking about copying referring to copyrighted french meant no i'm referring to copying in the way that you're using ip ok there they acquired used and access the database ah i step one copy the code the code tells you here's how you access the database the code enables the accessing of the data you're saying to sort of in the nature of things if they accessed it they copied it exactly and then you're saying separately and by the way we put on some evidence about it we put on and we put our expert on the kind of belt and suspenders or whatever but you're saying technologically we didn't even really have to do that because the access was the copy of the access absolutely involved copying but because we're dealing with two different claims we needed to be able to show the court the copying of the code that occurred which we did in detail verbatim and then we explained how the copying that was done and abled the access of the trade secret was that clear good as mud yeah well no it's helpful we'll figure it out it's going to take us diving into this record to be able to do that stephanie could you please give him four more minutes and we'll give ms friedman the same amount of time extra thank you honor i would like because it would seem to me that there probably are other questions but i i would like to emphasize  really important issues here nat is that st all of the facts that are necessary for your honest to consider in order to reverse or not in the nature of disputed facts there is no reason why your honour's need to be concerned that this fact means perhaps might mean something different from the other fact we don't get into issues to discretion here it is quite plainly and simply that the district court mis apprehended those facts in their implication i will give you an example the district court said essentially that he didn't understand where the database was where is this database of quotes and because it it's not in it's on the term for sale website but but it's not in this other software he didn't understand and the testimony was in is in the record to support this the database is in the software right you create a piece of software that generates quotes you as mr barney did you create a database of of rates for insurance and requirements you put it in the software so that when you access the software it generates the quote so it's it's in the software itself it's in both the software that was used in the  st case to obtain the quotes to put on mr mcsweeney site and it's in the software that's used on the term for sale website to display quotes there and that was  so that's really important the nd thing that's really important here is that going back to a point i made earlier there really is no issue regarding the defendant's lack of authority and the fact that the only way that they could have done what they did and they did both in the st case in the nd case was because they violated license agreements they misrepresented who they were to my client claiming to be working for mr mcsweeney when they weren't they obvious gaited their way into my client's property and everything that flows from that is what the result was that would challenge and we didn't get honest answers in the beginning but by the time we got to trial we got the truth and that truth supports each and every one of the plaintiff's claims thank you  idea of what this is mr barney has a business that has a life insurance quote engine that you can get in your you know if you're depending on the kind of user and i don't want to go in on the details because you know you'll see that in the record but basically what this is it's something that you as an insurance quote that you get on a screen that asks you for five basic questions takes that information and sends it to a database the transformative database ok and that's what this says now what was their exact copying the h t m l that got the copyright was for the compilation it was for the entire h t m l there is there's actually a case that i didn't t makes a copyrightable the can i give you my that is my layman's impression of this record which is always not a good place to start they your client having escaped liability did a lot of stuff that and didn't look very good yes i got that don't have failed at trial yes so then that they may have skirted close to the line of illegality and maybe just survived it i don't believe that's tr and they do you need to you need to dissuade me i will disrupt that ok if you compare the two source codes ok they are remarkably different one is twenty five pages one is nine pages and it's the  as a whole it's not parts of this and that in that it's the whole source code and then when you look at the h t m l code computer code is not there's not a lot of variety it's like the phone book it's not a lot of variety but how you organize it as in the feist case it's how you organize it is what makes it unique there is terminology in there are there is instructions to the people installing it that doesn't necessarily go to the computer program and there's the organization so if you look at the h t m l source code as a whole and you compare it to the one the only one out of seven thousand eight hundred dollars websites from that and a ip dot org had at the time we went to trial they only produced one that was similar mr barney spent his entire life for many many many months investigating this claim and they only brought one if i was going to prove that somebody was stealing my copyright to that extent i have seven thousand eight hundred versions of it they only have one which leads me to believe that the life insurance quote engine on other websites were not a verbatim it has to be verbatim then if you look at the one that they show there health whether or not they smoke that order is not the same in the two h t m l codes though so can you help me just with one i think really quickly so you've are saying that they have to be verbatim what is the substantial similarity bit i thought that they had to be substantially similar but not necessarily verbatim that applies for non literal copyright isn't it is that a live issue here is well it's not they say in there that they're talking about literal verbatim copying and this h t m l code was not literally verbatim there were only two lines and that's something that the district court pointed out shall so be aware that the district court has computer background he was actually in the best position to decide on this case  the other issue is that then you can look at fragmented copyright so ok there's a portion of your again trying to and i'm not a computer person ok so take a code a computer code that's developed by a programmer and let's say you can break it up into chunks of twenty five percent twenty five percent twenty five percent and twenty five percent  someone in your client's position takes three quarters of that code and copies of verbatim changes the last twenty five percent is there copyright infringement i would argue based on the impact of that code that was taken because it also has to be significant to the code itself assume that it is significant but it's not literal in the sense that it's not all that well literal is literal you have to show that they're protected and in computer program not everything is protected which is what i was just getting to some of it has to be the way it is order to get the computer to work so for example and this was testified to a trial the the inputs that you need in order to get a quote as i was saying sex whether or not you're smoke or that you need so anybody that's going to create a life insurance quote engine has to ask those questions the only thing that's protected is the expression and that's the h t m l code because the h t m l code is the programmer's way of of expressing how to take these non protectable elements such as parameters that you need in order to get a quote for insurance and put those into a menu that someone could come and check so and that's what they're alleging is done but even not was not literal literal and they didn't prove that any of those parameters were protect what they did was they gave an expert opinion that from somebody who did not research what needs to be done in the insurance agency knew nothing about copyright or only said a looking at this code it looks original because mr bruner read it nancy miracles entire report and i have no doubt that she's an expert in the computer and computer industry i don't challenge that at all but her report was all based on bob barneys testimony and comparing she it's seven of the seventy eight thousand websites and only used one as an example of a literal copying of which there were only two lines now i agree with you that my client definitely has some credibility issues and maybe you know don't do things the way that that some of us would handle ourselves but just because of that doesn't mean they committed copyright infringement and in this particular case they did not there is no literal verbatim copying and there  no evidence that these parameters are protected ball how can they be protectable if every single competitor has to ask those same questions in order to get a quote so what about his argument early on that he said you know the stipulation of access sort of of itself proves copying because the only way for this thing to work the only way for them to get the access is to have the the literal copy that of ace ok well obviously it's not the only way because the website they rely on is not literal it's not verbatim and st of all and you needed to be verbatim nd of all the access is an issue an interesting thing my client admits that comp it life never gave them permission never license to use stars the testimony shows that i mean mr mcsweeney came to the court room and testified yes i asked that this be put on the website and i asked i mean they gave him access there's no dispute about that so to say to this court wall we agree that they never were entitled to access is not true we agree that bob barney did not give my client access and they will also say well jeremiah who gave the code initially to steen you know it was under false pretenses it wasn't all under false pretenses mr watson says in the e mail which is in the record i'm a separate website then then brian mcsweeney i'm separate and mr coon did not catch onto that he believed they were one in the same so he sent the code over that's not misrepresentation by my client that's misinterpret and mis interpretation by mr code so i would argue that a whole line i mean even in their brief that whole line of well they didn't have access and they didn't have authority is not true they just weren't given authority by campian life the other thing is the licensing agreement for vandy was never produced and you know i will actually concede that mcsweeney the court didn't find that it was produced but i based on the test i walked out understanding that mr mcsweeney had a licensing agreement but fandy b is an interesting one because they only showed the licensing agreement from two thousand and eleven yet the testimony was that he'd been a customer for at least ten years and this was october of two thousand and seventeen so what was he governed by nothing was ever shown so we don't even know that he was under a licensing agreement that prevented my client from taking that that there was any duty even there but what we do know is that my client didn't have a duty to comp you live that he knew of to protect anything the other thing is my client never got access control it got access to the database just like the public could on the public there's a public website that compromise has that's part term for sale i can go run quotes your honour's can go right in quotes and it wasn't until september of two thousand and sixteen that there was anything restricting the use of those quotes so to say that my client took something that they weren't allowed to take is not true any one of us could have taken it there was nothing restricting that that didn't happen until after september of two thousand and sixteen and that's what nancy miracle viewed when she did her report she reviewed the site after when they added that information so prior to that time anyone could go and access interesting also to note is that internet there are sixty internet engine users who like the n d p who can put it on and someone can run sites through them those the use of those quotes are not restricted life does not require its own you service to restrict the use of those know their own users to restrict the use of other users of those quotes so i would argue that the court completely got that right that the quotes themselves which is all my client ever god the derived they only got to get the quotes themselves the not the process it's the database of information that's what was deemed a trade secret so somewhere on a server or on the internet engine is this database of software and the only way that my clients got access was through other people's entry one vandy van de b which they had permission for and the other one was term for sale which was an open public site that anyone could pull quotes on i went and pulled some quotes i mean it's open to everybody with no restriction now there's a restriction but there wasn't back then so my clients didn't steal any trade secrets they there was an open computer program that anyone could use anyone could go and run quotes  and that's why that the court found because it was public it was not a trade secret i would also address that the false advertising the district court never even got to the five elements of false advertising he just found that it was in false advertising i would agree with that of course but i would also say that part of the false advertising is the damage is and the injury at the end of the day compilation was only able to prove that twenty five of its one thousand five hundred customers or i think at one point they might had two thousand customers only twenty five paying not free trial customers paying compu life customers were also customers of any i paid twenty five that's it so even if there was false advertising and so that's why i don't even want to address that because even if there was a there were no damages to demonstrate how compu life was injured in any way whatsoever so i would argue that the that the district court correctly found there was no false advertising cla i guess i mean to use my additional time to focus again on the h t m l code if you are not a computer literate person and i am not i've learned a lot from this case there is a case  california that just explains what h t m l code is it's media net just for informational purposes and what it explains is what i've said earlier that the i have it over there i'm sorry that what it explains is that the h t m l code is only original in the way that it is that's it once you start taking pieces out it's not original and i would also ask that your honour's compare the two code side to side i have them and one of them is nine pages and one of them is twenty five pages and when you compare the portion that deals with the life insurance quot different yes the states are alphabetised but i would argue there's really only one way to organize states in alphabetical order there are signed numbers instead of letters and nancy miracle says well that's unique i don't agree that that's unique and she didn't say in there besides her opinion that it's unique why it's unique there's only certain ways to program and again i would argue that these parameters that we are talking about are not protected all because those are the primers you need to get an insurance quote and you know when you look at that and you look dates of births then all of that has to be the same then at the end of the day when you look and you compare what's really competing it's very not seventy five percent de minimus then you don't have copyright infringement but beyond that you also have to look and see whether there are you know here it's not an issue of being substantially similar here it's an issue of it being literally district court seemingly ignoring pages fifteen through seven of the seventeen of minutes of miracles report yes it was i went back and looked at that i'm still thing saying to myself ok if i'm looking at as if i'm the district court judge does it really shows sufficient amount of the copying does it really establish copyright infringement and i'm just not sure that it does from my limited perspective i completely agree with you but  i agree with you i don't think that is that because the issue of it needs to be completely verbatim is that why because she really seems to just well a few few lines if you will and that's her the basis for her opinion and that seems to me to be does not establish copyrighted fridge well i would agree with you that they're saying initially the literal verbatim copying and then i and it's a complete compilation of codes that you necessarily need so that would be a thin copyright to begin with compilations are very thin it's only about the organization but in addition as far as you know you can look at fragmented literal similarity which is what this would be it would be ok well this parameter is the same and when you look at that it has to be sufficient to the copyright as a whole as part of the compilation i don't think she does that i don't think she explains what these items do and i don't think she explains why they're protected when in fact as i just said in the insurance industry you need those items so even if she were to say that the class names you know sex instead of gender or date of birth instead of birth day were you know the unique way because this is how they organized it at the end of the day is that really that important to the program i mean anyone could put gender anyone could put you know that you only have two options sex or gender so i would argue they're not protect and nothing in here indicates that they are she just lists out some similarities but doesn't say why they're substantial to the copyright itself why it's the meat of the cost of copyright i would argue that the meat of the copyright is the terms of the organization and those items and that's why i think the court completely got this case correct even in spite of any issues he may have had with the with my clients thank you thank you very much so somewhere along the way wherever you want to but we you help to clarify for me whether or verbatim copying is required or substantial similarity is required why so substantial similarity in general is sufficient for copyright infringement we alleged verbatim copying here what's important or stand is that the forget how many pages she said our client's code is nine and and twenty five the twenty five includes the nine that's the point in a verbatim way in a verbatim way so there are so there are nine pages let's say between right that portion of our code which was copied was copied verbatim let me tell you where in the record you can see this so st of all the copyright certificate is at one hundred and ninety three dash eighteen the certificate is not registering a compilation contrary to what council says the madison was the user one hundred and ninety three dash fourteen that was what ms miracle compared it to why didn't she compare it to all the  testimony was and it this was unrebutted they're all the same why are they all the same they must all be the same to work they will not work if they aren't all the same now where chris oh if that sorry that's right they won't work unless they're exactly the same and the twenty five includes the nine such that you can take pages eight through seventeen and map them onto the nine and they look just the same you can hold them up to the light and everything's the same this would have been the easiest case of all time to prove right and that's what this i'll do think in like five minutes i don't disagree with you and i guess the thing that confuses me though is when you say here's where you can find it in the record and then you start pointing to different record documents why isn't there just like you judge here's where you find the twenty five here's where you find the nine hold them up the light you're done yeah and that's what the testimony was and the test and i know why judgment absolutely we because for what reasons unknown it was not clear to the district judge because he didn't read those pages of ms miracle's testimony and because he didn't showed on our motion for new trial to the district judge which you can read what she said about that we showed how we had showed the district court comparisons of the code we created for the district court what the magistrate judge had missed and we showed here your honor because our magistrate judge didn't look at the two in because this would be in a bench trial and there being no copyright expert on the other side none because the terms and the organization was copied i there was no need to go through this let me let me follow up now on judge nuisance question line help with the next portion so great significance comes in in whether or not and i may not be using the copyright terminology correctly whether or not those nine pages were integral are significant to your protected expression if they had copied three lines out of twenty five dollars pages you would lose for what reason because the amount of copying was de minimus ok but you want or to phrase it in the other of an injury way that you had shown that whatever they copied was significant too and an integral part of your work there or that could be or there are many other potential defenses under you know could have been a fair use could have been this could have just a been you know a non  actionable copying because it was an idea under or section no assume assume assume that they took they they thought man this page of code is really good right we're just going to take that one page of code and they took one out of your twenty five pages but to answer your question directly the reason why it's infringement is because it wouldn't operate with the quote engine if you didn't copy it identically council referred to a list of states will guess what new york appears twice and not in the right order why because in the insurance business there are two types of new york's there's newer personal and new york business and they're not in the same order everything in the code is organized and written in a way specifically to operate with my client software and if you don't copy it forbade him the terms the parameters if you don't make those copies that way then you cannot get the result that the defendants got which is and operating what engine i am stunned that the claim is being made here that there was authorization went on you know in you know it's not really false pretenses when it was stipulated that there was none when on cross doing so because he was violating his consent decree so mr roth and we've let you go on and to have a little bit over your time apologize so no no need to apologize we thank you both very much for the presentation it was very helpful we'll try to figure it out oh we're in recess until tomorrow morning thank you thank your hono