maybe support the name spencer freeman i represent am a multimedia in this appeal i would like to reserve five minutes for my rebuttal and i thank you the key to understanding the issues in this case is the true and vast separation between the operations of the website time dot com and the language of the content partnership agreement j m owns many websites and displays only legal am a provided content on those websites pursuant to the content separate asset housed in different businesses it is a free video site owned and operated by the apologies in this case it just happens to utilize the traffic force as the  or business that controls the ads on the website if the website were to change its ad broker change the ad company it would function exactly the same as it does today traffic force is not necessary traffic for that they don't rely on traffic for us to operate the website the owners and operators of porn dot com illegally distributed illegally obtained am a content contractual relationship outlined in the content partnership agreement and the operation of porn dot com are in direct contradiction with each other the license ensures three conditions to be met one that i am a provides the content to g dot com only meets one of these criteria the utilization of traffic force i think it would be helpful to do the same analysis that this court did in britain versus caught banking look at whether or not there's assignment which the trial court in this county in this case found look to see if there is a third party beneficiary and if there is not move over and look to see whether or not the a polies in this case are the type of parties that were anticipated to receive protections or rights or duties underneath the content partnership agreement the assignment issue is the easiest issue in this case the when it comes to assignments of rights the assignee has to step in the shoes of the assigned or so here with the trial court found was that the assign or g i am assigned rights to cyber web sagan net media all three simultaneously that is an impossible assignment underneath the law intellectual property rights are not a bundle of sticks that and assign or can just hand out based off of a license it's in singular unit so the trial going have non exclusive licenses so you can have multiple  licenses and assignments i don't see any legal barriers to that maybe you can but in this case it's a nontransferable license and that's really key there is an assignment clause but there's a nontransferable license he only way to reconcile those two things is for the assign or to step into the shoes of the assignee so that they then become the licensee there's only one pair of shoes here the second problem is that i am retain the rights so gee i am didn't really assign rights because gee i am retained rights and that was clear that's impossible under the law as well i again because it's a singular right when you look at the restatement of contracts that we quoted section three seventeen it says exactly this that the assignees steps into this use of the assign or and the sign or relinquish is those rights well it depends how much assigned i mean and i see very little evidence of this is an assignment that i really question there's there's they like lives in a declaration that said there was an assignment of rights  and then the other one is to have the right to receive compensation money and those declarations do not say what rights were assigned well here's the question i had when when this was in the trial court and all this quoted and worked out did you ask for additional discovery on this point so by the time and i know you think that you got blindsided by the timing but at that point if you thought there was factual issue or otherwise did you ask for additional discovery would have it we took advantage of the discovery that was granted to us and we actually asked chris richardson from cyber webb during depositions about assignment and he couldn't recall any assignments but that doesn't mean it was an assignment in other words he's the signy and you don't have to have knowledge of the thing i need so there's that one piece of evidence but you have the declaration which on a face says there is signed so my question i guess i go back to is did you ask for additional discovery we did not ask for just on discovery on that issue you know but i would also point out that the establishing the burden or the assignment is not our burden it's the other side for now but i understand but if but if they put in the evidence and you don't do anything in contrast good then it then it's uncontroverted evidence but it's not and here's why when you look at the claims filed in barbados what the parties there do explicitly in those claims is say that these are g m g i m p rights giants the only one that filed a breach of contract claim the other the a pelleas here which i guess would be analogous to the plaintiffs there in barbados the rest of them they asked they're asking for a declaration that they can rely on j m s writes that means it's not a sign because it's a signed it's my right i understand but i think that doesn't solve that the question before this district court was what to do about the form not convenience clause and whether in fact should be in barbados so the the barbados lawsuit i don't think figures in to the determination here if it does to the extent of their own representations about whether or not there is an assignment now mind you this this allegation of assignment it didn't come up until several motions in and until we questioned in our own briefing that they had established assignment then there's this declaration with this assignment that has no date no from whom to what to whom and we don't actually have a written is signed no no and we don't actually have evidence  oral sign and i'm not sure i don't know that the contract said about whether or not it can be orally assigned it doesn't say anything it doesn't address that particular issue what would happen what would happen if his went back to the district what we're asking you to is find that the assignment did not occur that this that the finding of sime it was abuse of discretion that there was no assignment so if we go back in the trial court's determination of the application the form selection cause was based off of a finding of assignment right so this court it if you find that there is no assignment you really have two options at that point you can send it back down for the trial court to hear further argument and evidence on the issues of implied licenses third party beneficiaries and then the next step under britain which is this court looks at is whether or not the transaction parties are meant to be protected by the by the by the content partnership agreement you could make send us back down for those determinations or you on this record you can make those determinations and i think on this record there is no implied license there could and there could be no implied license the law on third party beneficiaries is clear if both parties don't intend the benefit of the third party there is no third party beneficiary there's it's clear when you look at this content partnership agreement that g i am is supposed to be doing all the work of running the websites section five absolutely delineates that so there's no anticipation that there's other entities involved in the operation of anything to do with the content partnership agreement so then that leaves us with the issue of whether or not they do pallies in this case are of the type that are meant to be protected under the content partnership agreement and i think would say that there's no evidence at all that they would be now with they try to do is they try to conflate this course of conduct about videos that were discovered on porn dot com that am a didn't submit that they're now trying to attach over to the content partnership agreement but those actions never took place when you look at the skype chat logs and you look at a m a absolutely saying piracy needs to come down we want to be paid for the revenue you generated based off that piracy up to the point you take it down but it needs to come down it's unequivocal in those logs that this course of conduct represented by the opposing is just simply did not happen and i'm now into the time i'd like to reserve the right thank you even argue that they were so close in opposition to motions to dismiss that they were in fact alter egos of each other here the contract the c p a expressly contemplated that g a m would work through you yes your honor i would point the court to section ten point three of the agreement which states that the licensee may assign the agreement without consent to an affiliate parent or subsidiary and i would point out that it actually says and ten point three permitted assigns so it contemplates plural assigns to the agreement i'm here as your honor stated earlier the aston nor put in evidence that there had been an oral assignment between g a m and apple e's and under britain vico up all that is needed to establish evidence of a sufficient assignment is evidence that the asked and nor intended to make an k the date of the get go doesn't own any websites right i am only a software program called traffic force that provides an ad ad revenue share program that can be used on various websites so they entered into the license agreement with g e i am busy like magic it was with everybody and everybody had the benefit of and it's not going to simon if not everybody but you know the things you said it was everybody because everybody was affiliated well not everybody is affiliated but these particular parties are closely related to she i am in this we still separate entities however so there still needs to be some kind of legal manifestation or rearrangement of rights if you're going to actually have an assignment yes your honor i mean but i also remember that we argued multiple grounds before me actually change your position multiple times and finally landed at the end of this series of positions you took on our declaration that there was an assignment to write without any detail about this whatsoever what we put in evidence that there was an assignment a declaration by going or what other evidence would you put in of the assignment of the course of performance evidence in fact we put in saw that but that's that was kind of misleading wasn't well when you say when he had them when he didn't have them emitting certain sections and it was read in full kind of told a different story what it showed is our my clients understood it that way and it's important member the a m a did get paid for the time that it's one hundred ten years down to for me to say if this is truly a legitimate assignment there'd be an assignment in the don't think it adequately applied the burden of proof plus it was  six point two the court also correctly found that apple lease were were corporate affiliates and were closely related to the infringing conduct there's another you're saying is that there is sufficient here to invoke the form selection clause and whichever court if it's the us court it's going to have to go through everything if it's the barbadoes court then needs to interpret the agreement and figure out whether this council has indicated only certain items were actually intended to be licensed and not just everything that's on the website that's right your honor and it's also important to remember section three point nine of the agreement expressly states that it's not only content provided by amie to g a m but content originating from a website is also treated as licensed content under the agreement but isn't that a question of liability under copyright law per the agreement as opposed to the court found not just on assignment but also found that they were closely related parties and that the conduct at issue was very closely related to the c p a so what happens if this goes to barbados barbadian attorney but you know barbados is a signatory to the berne convention so and this is a us copyright my understanding is that barbados would apply us copyright law in determining standing to invoke the clause that's right your honor that they're closely related that they're agents of g a m as expressed by six point two you that they're implied licensees that their third party party beneficiaries support the argument that federal contract law should apply where a contract contains a form selection clause explicitly selecting a longer foreign country yes i believe that  effect and scope of a form selection clause and it's important to remember that atlantica marine instructs that and inform a form selection clause should always be in force absent extraordinary circumstances and there really related as as in the eighty's it was talking about different types of claims that were related and it yes so by non parties i mean a non breach of contract claim versus here a copyright infringement claim and actually honor which part of any fair did you want me to point you to with the part that supports your position yes this seems to me to be just relating only to the question of whether the claims are sufficiently related not parties at all see the language about a range it seems that the point pharoah next trade jones doe one v a a well they all state that federal law should be used to construe whether or not a federal a form selection process and forcible thank you there's one point i want to clear up a factual point and that is the statement that jai am no websites that's not true and the record on page the excerpts of record on page twelve fifty seven  websites and a philip of affiliates for over fifteen years answered yes so if any of this court's analysis based off the fact that g m doesn't own websites that's absolutely not true i don't know how that got created sure how it would matter well so it matters in looking at the content partnership agreement and whether there's any anticipated third party involvement in the operations of it the appellee is want to say because g m no bones no websites we've got to involve third parties to referred to that says a range of transaction participants is footnote five in the ruling and it cites two coastal steel which is a third circuit case and in coastal steel the plaintiffs contracted with an english company to build a steel factory that english company then caught subcontracted with another english company to build a heat blast that heap last cost dat caused damage to the plaintiff's steel factory they sued the subcontractor the court said that the form selection clause between the contract and the sub contractor was dictated england applied because everybody knew that the the steel company going to be a third party is this a party is this a transactional party and they should get protections of the c p a and then the next question is are the claims related and that's where the closely related language comes in that everybody is kind of relying on that closely related has nothing to do with the parties themselves right the parties themselves could be that is the arising out of a closely related as to what's covered correct the claims that are correct but then footnote five say as a range of transaction participants parties and nonparty should benefit from and be subject to form selection clauses and then go on to say we agree with the district court that the alleged conduct of nine parties is so closely related to the contractual relationship so that's a kind of a different closely related statement you know it's like no five in minetti as opposed to the contractual language of arises from or is closely related to in the contract know actually i think that the subtle the last portion of that footnote does go to the closely related issue of the form selection clause i think that's exactly what it was judge but it goes to the relationship of the parties visa be the contract right it could but when you go back and you look at that coastal it's a third party beneficiary case and then they analyze it from there if you have the district court it's order says a m a has accepted the benefits of the pay per view dot com account and cannot now this affirm the contract simply to avoid the form selection  the response is that the statement that i am a the only way that that would be true is if a m a had been paid on pirated content that was assigned to the c p a account that never happened the only way that that's true right because if a m a did receive benefits from the promotional content that it provided to g i am through the pay per view account and which was displayed not only by the way on porn dot com but a myriad of other g i and websites this promotional materials provided to the c p a yes they receive benefits through that but the owners and operators of porn dot com went out and stole full length videos full length movies put those on to porn dot com and now they want to take advantage of the content partnership agreement to say two things one is we belong in barbados and two by the way provide by means we can go get it anywhere i mean it's really a disingenuous ads and that gets into the merits of it does  ok but i do think that the court the statement that many pharaoh doesn't allow you to analyze the form selection clause or the content partners agreement that's wrong with when you're first making a decision as to whether or not a party is subject to that agreement you get to look and analyze that agreement you don't get to see the law isn't that all because somebody claims that they are if you're going to look at analyze agreement to determine whether or not you've got to go back to the form that's not what the law says what the law says is whether or not the form selection clause me whether or not there's liability and you've got to make that determination that's got to go to the to the for