implied license for from a defense to a copyright infringement case in other words as teed up by this motion i am entitle my client is entitle to her copyright remedies unless may go can prove up an implied license to use the german language component of this online teaching tool the law dictates that the implied license exception to the general rule a requirement for a license for an exclusive license is narrowly construed it's a narrow exception this is not an equitable proceedings if you look at the effects case at nine o eight fed second five fifty five footnotes six this court indicated it's not an equitable proceeding what the court has to do is look at the totality of the circumstances and impose a contract on the pardons imply a contract on the parties based upon an objective standard in the totality of the circumstances those are the standards it's a very very narrow exception what is at issue in this case is rather unique and it and it comes out of the point in this in this appeal might want to ask my question and then you can explain well i think i think it presupposes that the parties are being upfront and fair and honest with each other i think that's a fair question to answer and i would have one  them based upon the false representations that they would provide her with commissions that's the point the point is the whole underlying for doing this work is mangal is telling her they will pay her commissions on the back  that's why she's doing the work but for that she wouldn't be doing the work so we don't even get to the question exact copy right question i'm sorry is that a copyright question or a contract question i think it's a contract question which and i think  country well i don't know if number one i'm not sure that there's a basis to create the formation of a contract or such you could sue but i thought that said that it was a contract question well i think it's a contract question in the connection with the creation of the implied license whether there are sufficient facts to create the implied license the contract issue is the creation of the plot of license on their side case not stating that there is a license under which they don't get to use our stuff unless they pay it's not a condition perceived and what evidence do you have that she did that she did not want them to use the copyright unless they paid her commissions well we have we have the concession in this motion for summary judgment they offered as an undisputed material fact in this case that she were lying in creating and turning over this work of this work she relied upon the promises of commissions they offered that as an undisputed material fact in this case that's established the purposes of this summary judgment motion so she relied upon the commissions we have the promises of the commissions we  out in about a twenty page declaration course of conduct between the parties that gives rise to tribal issues as to whether they were being truthful in the promises of those commissions those two are directly related it is undisputed in this case that we relied upon those promises with our evidence we'd raise triable issues of fact as whether those promises were truth and so the reason that i want to go back to judge walter's question about the difference between  to provide them with material which she knew that they would use that they would they would use in their business for which she was giving them an implied contract and she only did so on the promise that she was getting that she was getting commissions i think that all correct other than the insertion of the phrase based upon an implied contract because that's their burden and i think like every imply copyright imply copy i well i don't think it even rose to that she was creating this work and turning it over based on the promises of commissions and my argument is that if you look at the asset marketing case and the third element of that it requires and it's again it's a contract proceeding they have to prove up the contract they have to show that my client intended to give this up and allow the use of the word it is an eerie all make the mistake i'm sorry where did judge curial make a mistake well i think such curial made a mistake because he didn't even consider the argument we're making he analyzed this case based on it being a condition proceeding case in other words he analyzed it that we can't impose a condition proceed upon the use of our work being the payment of the commissions that's not our argument he also argued the the other argument for judge korea which he addressed in his is his his ruling was that full payment if they don't make full payment to me i can't come back and say the implied license voided they judge creel never address the argument that i'm making and the argument that i'm making is that the notion that you can impose upon a party in an implied contract analysis the intent enter into this implied license when the facts upon which she is operating acting are faults they are irreconcilable i cannot create the intent to do something if i'm acting on things that told me that is false there irreconcilable it's basic contract law and under this narrow exception i don't know how the district court could impose upon my client an implied license when my copyright requirement writing it's a jewish really creative exception and if the court is going to impose upon my client a judicially factually created implied contract then we have to the look at the law of the formation of implied don't know if i can prove up fraud at the time of trial but i certainly have raised travel issues based upon this long course of conduct between the parties this promising promising you've got to get it done what about my commission agreement well you got to get it done i want to pay you big money you to die and then we'll talk about this i mean those are the types of facts if you used to prove up fraud cases on circumstantial evidence or tried fraud cases and you very rarely prove a fraud of mouth of the defrauding party it's all based upon circumstantial evidence and that's what we have in this case and i believe that and i think our argument is is that fraud being the basis fraudulent promises being the basis upon which we created  say yeah your honor it says footnote seven and it's that's what i was citing at the start of my argument this is not an equitable superseding we're not we're not coming here and seeking equity of the court this is an implied in law contract that they have to create they have the evidence  were equitable question list like a boner you know it goes into the analysis of the condition perceived and we're not arguing condition proceed and we're not saying that the payment of the commission was a condition proceed and t us to there being allowed to use our work we're not making that argument we didn't make that argument the district court that presumes that the condition proceeding was was find there was no false promise there was no fraud and bait and switch there and if that was the case here i would lose on that i agree i made that concession in front of judge korea all our argument is is that there is a direct connection between what my client did what she was told and the truthfulness of what she was told it's not a condition perceive an argument it's a fraud cari argument the fraud that we have proved up at least as to tribal issues vitiate my client's intent they're completely irreconcilable if you're going to claims and the claims in for this court right now are copyright claims this case is directly in line with the facts in the asset marketing line of cases the judge curi applied correctly applied the test of asset marketing and there is no subjective inquiry your errors are or correct there is no authority for the proposition that imply the license must follow state law again or in the area of copyright we're in the area of federal law we're not in the area of state law there is no authority in the central district the southern district of the ninth circuit for what opposing counsel is  proposing here but this as the theory been rejected has the theory been rejected i don't understand it you think that there's no authority for it is there any authority against it well i think by implication the effects and asset marketing is to cause these point was that the implied license is not a part of the copyright scheme that it is but it's been read into the act by the court and if that's the case then it seems to be not much of a stretch for somebody to to make that to make the argument that that such implied consent might be vitiated by fraud whether you can prove fraud i don't know but it doesn't seem much of a stretch to  of four talks about the transfer of copyright via written instrument we're not talking about the transfer of a copyright here we're talking about a non exclusive license there is nothing in the copyright act that prevents a non exclusive lightens license looking i think i look this morning and at the record i'm looking at the october conversation between the plane defend and her supervisor which they had a telephone conversation is memorialized in correspondence  e mail after that it looks to me like they are the two of them have a very different view as to what transpired in that in that conversation like doesn't that create a triable issue of fact well your honor  this complain about this being the worst pain job ever that's at your seven forty three if it was the worst pain job ever she's not talking about having a commission moreover all the documentary evidence did did judge perry all decide t s on the basis that there was no dispute as to whether there was fraud no your honor he of people this is a do your own you're not advocating a different theory for to us an alternative theory on appeal which is that there's no there's no evidence and therefore he didn't have to reach that counterfactual route there still wouldn't be any evidence of fraud based on the record before the court and you would have the authority to to affirm any alternative but i don't think you have to and i don't think  opinion it's not in his written opinion because just curial correctly applied federal copyright law case president to copyright claim opinion it was decided on asset marketing in effect says that that's right wrong so where where did judge curial decide the question is before us today the question about whether fraud vitiate implied consent i don't think did they raise it in front of yes ok and but you can't point to any place here where judge curial decided that issue your honor of course and he just didn't feel the need to go any further jeff is that a correct reading of what happened i believe that's right your honor because again it's a copyright claim that's in front of him on friday but it's not a contract but  even if you go through those steps if i've been defrauded in the process of doing this i didn't give my employer i think you can't get implied consent if fraud was a part of the process and i don't see where judge kerry l resolved that issue he could have been a couple of w you could have said well on the facts there is and there's no evidence for it and then and the record is clear he might have decided on the law and said fraud does not vitiate implied consent he might have said the fraud is subsumed in step number imagine if if there was fraud he stopped he said even if there was fraud there was alleged fraud here and that was something we had to analyze i think there are serious questions whether they could have even raised that because her testimony contradict the documentary evidence hey that is right he did he did not he did not decide that he decided on the asset market can you point to me any place in his order where he addresses the question of fraud or where he uses the word fraud when he talks about it with respect to whether the commission was promised and is i understand it and that's a whole basis of your allegation can you give me a page like this is an e r seventeen ok and which of which which page of his orders that that's page sixteen of a sixteen so you're in the you're in the second full paragraph on page sixteen the one that begins the court notes that the contradiction yes ok all right and that's where i am i just don't see that is resolved that question decide that question because asset marketing is the correct line of cases and in once it as a marketing address the question of fraud no your honor but this question of fraud comes from california contract this her intent when she when she gave it over and mr mr crosby hasn't talked at all about or denied that she intended to in the sense that she knew it was going to be used with mango that she knew it was going to be distributed that's not the speed of it that somehow because of fraud there was no kind of mutual assent of the mind right so let me try it this way which i believe is in the brief and i'm sorry it took so long for me to get here which is even in that case it doesn't prevent mutual assent all it does is create a contract that is voidable meaning it's not void at the formation it's void a bowl it could be rescinded but in order to rescind that contract you have to do it promptly and you have to give back your consideration in this context the consideration was already given it was already received she had that one thousand dollars she never ever offered to give it back to even under that formulation so it wouldn't matter because she didn't try to rescind the contract she didn't try to get it back she rescinded the cons are all these are all new arguments aren't that your honor i think i mean i know that i understand the fund that you spent a lot of time developing the developing facts but none of this is really been was put before the district court and it wasn't really put before us in the breaks no your honor i would s p forty five even if california contract law governs the formation of implied license the implied license is valid and cannot be revoked or rescinded contract and in here on the record it is undisputed she personally never tried to rescind the contract she never said you can't use it the first time any of this ever came up was in october of tw store was your understand your argument and i thought i was making an argument that helped you but you decided to contradict me so i'm not totally confused i think what you're saying is you have to have a contract and there was a contract and if you want to use fortune has to undo the contract by voice which is where i thought you were going but you have not completed the story that line of when lawyers answer questions before they hear what they are or give themselves a chance to think about i'm sorry your honor i would go back to the brief on page forty five i was trying to understand what you were meaning by that which is why i was laying out what i thought was going but you interrupted me and you said i was wrong tack so now i'm completely confused as to what this argument how this argument fits if it's not the contract that is  honor if it is a contract no no you said it's not you you know i said you had to have a contract and you said no no no that's not where this so now that's where you are so when there's  the best way i can answer your question is if it's a contract under in california law controls then it was not even just you know i was going in there and you contradicted me and you said no it's not so you contract law then let's look at all of california countries but you're saying we're not there were someplace else so were this other places why doesn't pose a council is in your eyes when he says well you can't really honor i'm not going to say that i would just say that those are not the facts that's not what the record reflects here it's you think of the first lawyer to point out that the hypothetical question is not facts of the case you know if i if i if i had a dollar for maybe next time you listen to the whole question before thank you yeah ok you've got a minute and a half left i believe now you want us to graft on the existing settled or at least the judge below thought it was settled nice circuit law now that fraud may be considered under copyright law that's what you want to see i think under an implied license affirmative defense to a copyright claim i think that's correct i think that is what i'm asking you and and your honor it is correct that we spent almost our entire argument in front of judge talking about this issue and he didn't address it in his order at all and that's one of the source of their reason that he thought it's been decided well i don't i don't know if that's the case or not but he does not chase the deals with this issue right we tana harris case but none of those addresses issues those are all conditioned perceiving cases failure hey cases i've been unable to find a case that makes this argument and i think just to address his void of billy argument i don't think that makes sense because my clients entitle the copyright protection and unless they prove a contract that's an affirmative defense we don't think that contract exists so i'm supposed to or we don't believe that but on that on that score they have the goods and it's only the fact that you claim a frog that makes an issue on the question of whether there was an implied contract there police are there elements of the only thing you bring against this is  that's big and they point out if when the state court what you do is if we have you know we've put up a contract as implied contract by the numbers for a contract if you want to if you want to get around it because of fraud you have to do the kind of things to make always an affirmative defense to the formation of a contract that there is no consent because fried consent i can raise that as an affirmative defense to a contract case without trying to rescind it's always an affirmative defense to a contract case that there is no consent because of fraud i don't have to i don't have my only remedy is not to go to them and say i'm going to rescind the contract i can set up fraud as a defense if this is not a copyright case i'm going to show well that's all it is is