honor is a ruling on a motion to remain and it has no effect or it has no stop the effect and we think it has never seen a certainly you certainly presented the argument that the northern district was the correct court and that's what triggered my original inquiry regarding if if there's a deference to be given you would think that the action that was filed in northern district would have been what our position is here is that order pray establishes a misappropriation process which like misappropriation courses of action in many many other states is on these facts yet we're not saying it's wrong we're not saying that it has to be over the world we're saying the congress decided that on these particular facts it is national copyright law and not a lot of individual fifty states that  it was back in one nine hundred eighty three we don't know why and i'm going to guess why i was saying points which were it was raised by any of the parties so it was on the side so you're certainly not foreclosed by board of trade as any other court has been t in the interest of the state to allow such actions before and there is no question about that your honor but that is true for the misappropriation the law of every other state in every other claim were it's been a real and take people versus williams is because those are the values that actually define what an index option is they define what it is that i assume would be doing if a committed to list these and there's options there and the plaintiffs have argued oh no it's about indexes not in states but as the recent banks court decision out of the southern district says both of those are within the subject matter operate over the need the subject matter requires indexes are fixed they are created is satisfied i think we've illustrated in our brief why we think it's about index value that values define what it index option is that they're used to determine the value of p traders don't trade in those options if and that's the equivalence the burden falls on the plaintiffs in a preemption case to show you that there is an extra element in their mission appropriation have any distinguishing characteristics from copyright infringement that would remove it from preemption let's let's say there is freedom what what happens is that a federal the governing body of all which is copyright law and we would then brief that issue and the court would decide to basically what you want us to do is week if there's a case that is on a horse with this case it's the new york mercantile exchange versus i c chips which was a copyright case and illustrates how this case with just a change of label on the complaint could have been question that has been answered under copyright law and because of preemption and only answer but they're not without i know they won't lose their day in court but let me make sure because it seems that in your brief you were seeking an alternative you were in fact were seeking a trial in the state court as opposed to a dismissal and so why don't we clear up your position are you saying that the issue that you are presenting to us is a question of law is are there invented material questions a fact that need to be resolved before we can resolve the question of preemption is a short question of law every federal court to decide your review on something the situation is motion but i don't see a separate motion other than the most for some reason well i'm going to say seattle your honor i'm i'm not absolutely foul we did move for summary judge right on a period of time to cure issues of they publish their index so well someone's persona may float around in the air so to speak and not be fixed that's not true of their value so the townie case is simply not applicable nor is the pla attempt and they're not the first ones to try this vague preemption by say we're not suing about how we're suing because you're taking the time money effort and labor that went into our creation of these index something every off there is reputation some way impute in his work and if that were enough to avoid preemption there would be no so the courts have consistently said you can't get around the  by arguing that you're not suing to try to use but about using my after best interest for profiting from my reputation we've cited the cases that one of the leading case of this in this area the circuit court didn't deal with it at all there is a copyright case in which every element every aspect of the plaintiff's eating is the same as these planes they argued that there are seven families were the product of their see intends to do with it prevails in this case the bat was a copyright and that shows you how easily these plaintiffs if they weren't trying to avoid a federal reaction could have gone into federal court it but one states last says you can't do the same thing that how the recreation exists so that there's one uniform national rule and considering that we're talking about national exchanges that function cross the country where traders will look at it across the country there is a real imperative for this national body of law and not any single state's law to make the two to be the governing body i just passed very quick as i said we're going to facts in those cases and the facts today in two thousand and eleven are light years away markets are different the nature of indexes are different but what why would we need a trial to resolve those sort of because the question was the question and in this case just like in the board of trade case which had a first trial rather it turns on expert testimony and we have experts that say that all the factors that were relevant in border fra favor us they contradict it it's but it's a you know it's a classic case where cross examination and if hearing of the expert testimony would be thank you very much i'd like to reserve as much time as i still have a lot of it the border trace decision precludes i c from trading options on these indexes without a license and secondly that there is no need for a trial there is no material issue of fact under the board of trade case since counsel has rested on the choice index provide namely how the index provider selects the stocks go into the index how it weights the stocks with once they're in the index and how it justs those stocks and those ways over time to make sure the continues to be a meaningful benchmark of the target market and this is a dynamic process the index recipe is always changing and it is that for that reason that this is a intangible creation of the core found with deserving protection people trade options or futures indexes not because of the number but because of what the index represents because that index represents something meaningful namely those judgments and that expertise that went into the creation of the into it let's let's talk about protection though because you say the financial protection and although they're they're claiming that the copyright law will protect them for the reasons detail why though this is not within the copyright law a copyright law says everything that is not specifically reserved to the federal system is reserved to the state system and there are some specific tests you have to follow before it's within the copyright law this satisfies neither of those tests and therefore it is like ninety percent of the disputes in the world therefore are going to be resolved by the state courts and what ideas you want to do here is to take this creation and use it commercially without permission of its owner and it's going to cause this is a fundamental difference between the cases that he is just which talks about they're actually going to create a new security a new instrument will come into being based on these indexes so that's a fundamental use of that underlying intellectual property and the idea of bias he has to force index owners to let their property he use against a company that the index providers have license to use that and the board of trade case said quite clearly that it is misappropriation to do that and that was a unanimous decision of this court that it and it's important to look at the policy behind that decision was it was to needs to be right there does not need to be a trial here as justice as you pointed out this really is a question of law there were there was evidence that was taken in the court when you look at the supreme court's opinion you realize none of the evidence was driving that decision the decision was driven by prof policy question whether it is where to strike the balance between promoting innovation and giving they were writing our decision in hypothetically or just assume that we would go your way would we write the decision beginning with misappropriation law in the state of illinois where would we first address whether or not preemption applied for reading the opinion your honor i would point out facts in order to address the copyright preemption issue i think you do need to start with the further what the supreme court was trying to hurt or encouraging innovation well if the innovation now if the property right becomes so uncertain that it depends upon the particular circumstances that take their index take their point in time it becomes so uncertain the incentive is a vastly diminished and the goal of more trade can't achieve and in any event i'll just point out briefly your honor that there's been no demonstration that there really are any change cert one thing we hear is that the two indexes in question here are just too unbeatable but that isn't what the portrayed case was about the portrayed case it wasn't about preserving the of a bill and get people to be able to match existing index that was designed to encourage saying there are lots of ways you can do that and if i ask he has a better way to build a mousetrap that's what they should be doing rather than just saying i need to have your property in order to do it that's just not the way to do things  providers have been there in an interview about the supreme court already balanced up of arms when it said that it considered the possibility of any detriment to the public which might result from our holding and concluded that it was outweighed by the public benefit indexes as recognize important trait but that case involved was a futures exchange that was offering futures on oil and gas models which you know intellectual property and here is in the commodity so terms of the interest that underlies the auction instead of having an index you had or gas and what the futures exchange asserted there since it didn't have any proprietary rights in the commodity itself was that the summer now they want a copyright interest in the settlement stock exchange that offers trading in apple stock telling i se they can't offer options and apple stock is somehow the price of apple on the new york exchange is proprietary to the new york exchange that's not what we're talking about here and really the question as to whether or not the index numbers are published at any particular moment in time it's a snapshot in time it is true that you can go on the internet and and find a report of right the value is what the number is a time to change constantly throughout that the trading day when mr burgess firstly index is being fixed precisely because they move and index traders are constantly making judgments about what new components to add how did just the structure how to calculate it cetera but copyright claims that are granted under the under the copyright act is this is not about copying the numbers and we disseminating the numbers that's not what's going on here the complaint is about the use of of the intangible assets right n of this new securities product that they're offering and as we explained in the briefs this is not about cracking down the numbers they need that they need to know monitor the structure and the components of our index in order to comply with their own rules and the f c c rules it simply trivialize the claims to suggest that what we're complaining about here is somebody copying down a number off a website or even telling somebody else what the numbers i suspect of people e mail each other the value of the s and p five hundred every day that's not enough to give rise to a claim for misappropriation on the portrayed and it's not about me public n it's not about the republican informations but the use of our indexes as the commodity instead of oil or gas they're using the index that's what they're building they're trading off and we think the case was quite clear that that stock plant is not equivalent to the protected rights of the copyright act of copying and dissemination and that's a term have briefly to the subject matter prong explain why they don't meet that wrong either as both judge gellman found as the circuit court found and as ship and fixed in a tangible medium of expression examples in a copyright act of that satisfy this are literary works like a book or a poem a sound recording a motion picture that's not what we're talking about here and  ation of information and there were two types of claims at issue in that case and the offending conduct fell into two categories the plaintiffs in that case were prepared copyrighted equity research reports you know the five page or twenty page white they were sued for that the other thing that the defendant in that case was going to have real copyright reaction was limiting taking the expression the written expression in those reports and simply going down to read is the recommendation did they say they write begging the stock that they say they were downgrading the stock and they were telling that they will be publishing that information there's no copyright claim that applied when they were taking the expression just simply that the mere statement of whether we telling people that the stoc been updated with a new target price wise etc there there is a positive action for hot news misappropriation when you're copying information but again that's not what we're talking about here is the offending conduct in by piece was all about just simply republishing the information it had nothing to do with creating a securities product using the in that's to to sell contracts here concerts etc it was a strict use you provided written top rated information the defendant is we publi some portion of that that's the type of thing that's i don't have a back copyright law for this very particular exception for hot news where you've met both the subject matter prong which was conceded in that case there's no question that subject matter promise as fide and the question  whether or not there was in the hot news variant of misappropriation provided an extra element beyond copying and republication that made it different the court there said no i disagree but the court there said now in this case it's not the kind of copying or the publication of bit of information that's the problem as i said we think that happens all the time and that's not the offending conduct that was recognised by the court in board of import of trade it's the intangible assets that they're using going on and it doesn't we're not seeking to protect the same interests it's not within the subject matter of copyright and just briefly in advance for case which again is is a very different kind of case that doesn't embed all of the creation of a new security  the claim was simply that the defendant was taking head of the data and improperly distributing all of the data that isn't what's going on here and again in banks where they asserted a copyright claim because it was the post information that plaintiff in that case claimed was copyrighted they can see that the subject matter prom again and they said if pending x year is that you're copying our information that's not again what we're complaining about it's not the copying here that's the problem it's that they're creating a new security product that proprietors free that requires them to use all of our judgments or repetition of good will the numbers have no meaning except that they come from us that's why they want to use our numbers but let me just spend one minute addressing the  creativity and its core judgment and that the plane defendant because it was offering competitive futures exactly what mr marks says i see is going to do well as a free riding on its own reputation what good will copyright what is the same is that driving the trade of misappropriation balancing the need to provide economic incentives for after ship against the preservation of the freedom to imitate even the identical barrels of the to did not declare a policy they construed less as it applied to a particular set of facts in a particular timeframe and if we have to try this case of the board of trade then we need a firm record so that this court and maybe the illinois