copies of the copyright deposit materials or an affidavit from somebody anybody saying attached are pictures of what was actually registered with the copyright holder and you made that of objection in the prior to the homeowner injunction being issued yes we did and then you renewed it in a motion to stay it's important to get the did this trying to get the sequence where you're going to get a full chance to argument you've got about nine minutes to do it but that's the sequence isn't it argument to the court with regard to the materials that were actually registered to the copyright office there was an injunction was entered we thought of this in iraq and then a motion for stay was filed there's a hearing on the motion  stay on june nineteenth of this year at which time the trial court directed the point death to submit a statement stating whether the twenty samples that had been left with the court were the same thing as what was registered the next day on june twentieth the point of file that statement accompanied by for the first time for the very first time copies of the deposit material from the copyright office that declaration was served by mail i didn't receive my service copy until june twenty three however by the time i received my service copy the court had already denied our motion for us today so the defendants never had an opportunity to provide a single word of argument about the discrepancies between what the point gifts actually registered and the product samples they had watched with the court and how both were different from defendants products so a little bit of a self inflicted wound isn't i before this court right now is the propriety of the issuance of the preliminary injunction whether the court acted properly in issuing that preliminary injunction way back on march sixteenth without having before it any evidence is whether the preliminary injunction was properly issued anything that happened after that preliminary injunction was never a part of the notice of appeal let's assume that it was and that it is properly before us what's your your argument that you didn't have a chance to respond to the materials that were produced at the stain motion that's correct we never had any opportunity to point out the problems with the materials of they submitted to the copyright office for prejudice to your right to in district court to attack the information offered in support of the preliminary injunction what's your problem then well the problem as a practical matter is that by now the we would not have actually have time to bring a motion to stay or to address the preliminary injunction because the motion deadline is just too light and the  a scheduling order you don't think that the court would amend that scheduling order in response to our rule it may it may not the court has been very strict in sticking to the scheduling order today this is judge snyder correct your honor ok did you want to save a little time for a bottle yes i would thank him thank you for coming in this morning whatever may it please the court you know i went to a whoopi goldberg concert about a year ago and after the concert had started for fifteen minutes two couples walked in and sat in the very front row in which he looked down at them and said my ticket said seven thirty what did your say so your honour's the car gets here on time all these lawyers get here on time we would really appreciate it if you got here and i can do nothing more than apologize ok going i got lost ok may it please the court richard cypher from gordon recently in san diego and i hasten to add i have never made a contribution to any political campaign in san diego so appellant i believe the appropriate standard of review is that the district court did not abuse its discretion in finding a likelihood of success on the merits because there was substantial similarity between the parties to a packaging the district court had before it substantial evidence to make that finding in addition to colored photographs and detail declarations it had the actual toys it had the actual packaging it also had the copyright registration and as the court correctly points out alternately it had to certify copies of the deposits so even if you accept the of palin's argument it's now moot when the district court denied a stay it specifically found that the deposits were the same photos that it had examined previously that's in the supplemental excerpts of record one nineteen i suppose this is a technical matter the only thing the appellant's complain that was cured by the follow on hearing i think it's correct your honor that your position well it is part of my position but you need not even get to that position because there simply is no legal authority  comparing the items and finding substantial similarity that the court is under any obligation to examine the certified deposits were even if they were it was cured by what happened at the stay here excess of concern or caution it asked my client to do so my client did so the district court examined what was produced and found that the certified deposits were the copyright office were precisely the same photographs that the court had examined earlier what the appellant seems to be saying in this case is that the copyright registration doesn't conform to the item that the court examined well first of all that's impl it's never expressed the stated second of all the simply not true this record made a specific finding to the contrary there is no legal authority and none is cited that requires a court a district court to examine certify deposits before determining the likelihood of success on the merits especially on a preliminary injunction your honour's are entirely correct that the pelleas are the appellants are free to go back to the district court and if they feel there is i without any evidence that the materials provided to the court had been registered you know you have to register a copyright as a prerequisite to get into court and that for that these items are registered that is correct and then they had the submission and i thought the question was what was linking the submission of the actual physical items packaging and the choice with the paper that said certain things with him were registered with the copyright the copyright registration itself requires you to state what is being registered and in this case the reservation state's packaging for the dropped off her toy and was there enough information in that paper that was before the defendant and the party charged with infringement believes that there is some discrepancy in the registration that is put before the court then the burden is on that party to make some showing of such discrepancy the district court is entitle to take a copyright registration at face value in this case the registration which was resented the court said drop copper packaging there were declarations in front of the district court from my client that said this is what we made this is what has been infringed here the photographs there was no showing whatever by the defendant and the appellate here and that there was any discrepancy or inconsistency in the technical registration and in fact when put to it to satisfy the pelleas desire to make everybody jump through hoops it turned out that what had been deposited was in fact precisely what the court had examined we as i as i  copyright after the claims in this case are claims for infringement of copyright it's not infringement of a copyright registration as your honour's no copyright arises automatically as a matter of law and the registration requirement is simply a paper requirement as a prerequisite to the suit the appellant's argue without authority that the district court has to require certified copies there's no legal basis for that in any event we satisfied so that even if the a teles are right and they're not that issue is now moot now the pelleas the appellant's don't challenge the validity of the copyright nor did they below the registration for the copyright that was found to be infringed was within five years of the first publication and under the applicable law on the copyright act that is prima fascia a evidence of validity that section four a one cd of the copyright act that was evidence of what was registered there can be no finding of substantial similarity close quote well as the district court found that is a pretty startling application of that case what happened in siler was that the plaintiff was found in bad faith to have lost or destroyed the original work and the plaintiff was trying to get permission from the court should quote reconstructed that has no application to the facts before this court and i'd like to make a couple of points first of all we've never made the argument that the defendant has an obligation to tender certified copies of the deposit materials to the district court that may be one way to get evidence of what was actually registered before the before the court but it's not the only way and particularly it wouldn't work for very old copyrights which for which the copyright office may no longer have it about materials all they would had to have done would be to get an employee of one hard to simply sign an a davit saying attached is a picture of the exact same material that was submitted to the copyright office in connection with this application that's all they needed to do and they failed to do that seem to indicate that the burden would be on the defendant to prove that what was deposited into court was not what was registered you disagree with that i do disagree with that the point death has the burden of showing what it is that they register what mr seibert was talking about was merely the information that appears on the face of the copyright registration certificate and he is correct and that that textual information the name of the work the it was published the title of the authors of the work that information can be entitled to a presumption but that presumption is not extend to the nature of the underlying work that was deposited because there are not pictures of the underlying work attached to the copyright registration certificate that has the point of has the burden of tendering that evidence to the court in connection with employment or injunction in the point of sale to carry its virg the defendants have never had an opportunity to actually see what it was that we had been registered by the point us until it was too late  the product packaging that had been previously distraught oz and with the court that simply is not the case and if you look at the supplemental excerpts of record beginning at age one twenty eight which are the sort of five copies of the deposit materials there are pictures of those products and if you look you can search every single page of the other excerpt of records for everything that was before the court in connection with programming or injunction and those pictures appear nowhere moreover moreover the preliminary injunction that was entered by the court in at least one respect contradicts the scope of protection that the point it's requested by virtue of their deposit materials specifically the the district court entered a preliminary injunction that prohibited the defendants from selling the products with the toys in the same configuration on the packaging ok so it had to be a combination of the toy and the packaging together well if you look at all of the deposit materials nowhere nowhere did the plaintiffs get a copyright registration on any combination of the toy with the packaging so to that extent the injunction in another itself exceeded the very scope of copyright protection of the plaintiffs asked for there are also several other respects in which the deposit material was inconsistent with what had with the toys that had actually been deposited for example the  argued at the preliminary injunction hearing that the scope of their protection extended to the color scheme of the toys well if you look at the deposit material all of the pictures they submitted to the copyright office are all black and white there is no color there are also discrepancies between the text of the copyright registration certificate and some of the information on the pictures for example the big pictures contain some dates indicating that they were manufactured in two thousand and three whereas the copyright registration certificate says the product was first published in two thousand and two so we never had an opportunity to address  trial court the defendant never tendered copies of what was registered to the trial court and accordingly the injunction should be they get it thank you thank both sides for their argument the case just argued will be submitted for a decision