please the court name is tom risky i'm here representing to defend the defendant debtor dog walker mr walker appeals the decision of the united states bankruptcy court for the eastern district of missouri holding the debt for alleged copyright infringement non dischargeable as a willful and malicious injury the plaintiff in this case or the american society of composers authors and publishers or ascap as i will refer to them the defendant is a small town bar owner and restaurant tour who formally manage inappropriate legal standard and gave underweight to the plaintiff's evidence when ruling on the case specifically the court that mr walker contends that the bankruptcy court failed to employ the heightened legal standard determined willful malicious injury under five twenty three eighty six was promulgated by the supreme court in the gagra case and its progeny five twenty three six provides that any death for a willful and malicious injury by the debtor to another entity to the property of another eighth circuit case would be the in in remarriage that was a battery case in which there were unwonted advances and ultimately kisses at a court reporter by a judge despite the fact that the judge knew that the ohio chiropractor engaged in sexual relationships with patients despite his knowledge of the statute that prohibited such a activity and despite the fact that he had taken continued continuous education courses that that mr walker had no contact with ascap or no notice so his conduct could not be quote unquote knowing that the bankruptcy court held otherwise the bankruptcy court held otherwise we don't believe that the bankruptcy court had an that evidence in front of it to make that conclusion the court cited in re why not there's a trial there was testimony and she your client testified that she didn't believe the right the she found that she found that wives are clearly erroneous that's what you have to demonstrate here on that is not with respect to facts there was not evidence in front of the court to make that determination had there been someone at as had appeared and said i spoke with mr walker i advised him do not play these recorded these recorded songs are infringing on copyright and then this to walker testified and said i did not have that conversation that could have been a finding that the bankruptcy court had  but but the the issue is that the judge found your client's testimony not to be credible and that he did not have the information about the ascap claim stretch the stretch is there was one note there was one notice that was received and return receipt as certified mail by mr wasn't there a presumption that if the mail isn't returned that it's delivered there's a presumption that it could be delivered there's not a presumption that it was read that mr walker understood what was what was in the document this very well could have been other junk mail that mr walker and i'll bet you didn't record the client but isn't that didn't your client in that industry that was the only time in his career that he worked in that industry and that the business did fail we don't think he was a good business owner in that respect he said didn't the bankruptcy judge find that he did receive the letters and therefore didn't know the bankruptcy court made the leap in our opinion that since ascap presented evidence that they sent all these letters mr walker must have read those letters chosen to disregard those letters in the know it while he knew what ascap was and what his duties to ask have would be we don't our testimony and what we're arguing is that mr walker did not know what ascap was his limited knowledge of copyright law was limited to the jukebox that he had in the restaurant which he did pay royalties on in which he did testify that he would have paid as had he known of it we believe that the court went too far in saying because ascap put on evidence that letters were sent and people appeared at the restaurant that mr walker knowingly blatantly disregarded th knowing that he would cause harm to ask him your whole case really turns around this one point of fact that's correct your honor we believe that constructive knowledge is not is not warranted in this case we believe that you have to show intentional knowing injury who once she party was clearly erroneous you've got nothing we believe that was clearly erroneous you're on a wire and i understand there's really nothing else to hang your hat on your honor we stipulated to the majority of not all of the facts at the trial one of those facts was that the only notice that was received by mr walker or a glance they received the only notice that was returned to ask as received was the one that happened after the alleged infringer because he was  he was sued and it appears as though there were problems with the district court litigation and all is correct could be infringing contact conduct under the plaintiff's complaint where the performances in july of two thousand  that there was no evidence put on that prior to that day mr walker had notice of the alleging infringement and had taken affirmative action to not retain the license to geiger standard is the height one because it requires the actor to intend the consequences of his act or position is he could not intend the consequences of his act because he did not know what ascap was and he contends he did not receive any notice that he was required to have a license with them also believe that the court conflated copyright violations under title seventeen which need not prove willfulness copyright infringement includes constructive knowledge of infringement or reckless disregard we believe that expanding giger to rely on aggravating factors such as copyright violation is unfair and inappropriate extension of geiger we also believe that the decision cited by the court are not controlling because willfulness was found to exist in those decisions where the debtor had been operating already under an ascap license which was later terminated of course the debtor in those situations would know what ascap was you know that the rights were being violated and yet would consciously make the decision to disregard that and continue and therefore did not have the same knowing disregard of those decisions that were cited by the court in the court's decision the court concluded that the debtor was in fact aware of his legal obligation as an ascap licensee but that he did not take the affirmative duty to learn about w ascap was we do not believe that this is this was an appropriate finding by the court under the geiger doctrine the only evidence before the court that showed that mr walker had received notice was the september two thousand and nine return receipt notice nothing other than the testimony and document evidence which was stipulated to that showed that ascap had sent letters and called the establishment was put forward by the plaintiffs to show that mr walker had an intentional disregard for the plaintiff's rights he did not have knowledge of you might just thank you thank court my name is douglas copeland i represent the plaintiff sale of music and five other owners of copyrights they're all members of ascap and but the suit was not brought in the name of ascap is brought in the name of the individual copyright owners what i'd like to start with is in the brief of the palate they suggests a standard of review that is to novo on the facts and i think we've already had some discussion here this morning that that's not the proper standard of review and that instead the rule eighty one zero three rule of a clearly erroneous needs to be applied in this case there's no question of the discharge ability needing to be a finding that there was a injury and the fact that willful this in the licious this is a question of intent therefore question of fact the case is that all the cases that i could find from the eighth circuit and elsewhere indicate that after appeal from a motion for summary judgment obviously there wasn't a trial that was just paper evidence and in fact in that case the court did not attempt to base a ruling upon the facts in that case but instead send it back and re mandate it for trial we've already had our trial we've already had our findings we've already had our testimony before the court so i could not find any cases in the eighth circuit or elsewhere for that matter that after a trial of the case an appeal to to this panel would involve a de novo review of the facts the court specifically found the injury to the plaintiffs was willful and malicious all of the were fourteen letters sent by ascap to mr walker twenty eight phone calls and at least two personal visits the defendant's evidence was i didn't get a letters i didn't take any of the phone calls and i didn't get any messages as has been indicated the court specifically found that that testimony was not credible the defendant would not even admit that trial they did receive the one certified letter that he himself signed for all he admitted was that was his signature but he wouldn't even admit i got it as has been indicated willful willfulness is deliberate act or intentional injury i don't think there's any question there's many cases out there that infringement of a copyright of songs or other copyrights is willful it is a deliberate act and it is an intentional injury the maliciousness aspect knowingly wrongful and without just cause or excuse or annoying disregard for the rights of others again court went into great detail in looking at the evidence in this case and found that to be maliciousness as well there's some discussion in some of the cases about aggregate aggravating factors  in coming to that maliciousness determination one of those can clearly be a violation of federal law the wrongness aspect of maliciousness there are other cases that specifically find that intentionally ignoring correspondence in vising of copyright law in obligations is another aggravating factor and one of the things that did come out in trial one of the very few things that the defendant was willing to admit to  knowing of he admitted that he knew that royalties were owed to songwriters when songs were played he had a jukebox in his establishment and he had a deal with the owner of the juke box establishment was going to get thirty percent in the owner was going to get seventy percent we understood the reason was because there needed to be a payment of royalties so this to the performance of the the owners of the copyrights of the song so he even knew the concept  even admitted he knew the concept we would suggest that ascap far and above any required standard of trying to inform this individual of his obligations obviously as cap is very interest in people using music but they want them to comply with the copyright law so in this case sent in fourteen letters and i don't know if you've had a chance to look at any of those letters but they very clearly demonstrate to even an unseasoned bar owner that there is a copyright law that you can't use these songs without getting permission and if you do you stand to have significant penalties and consequences to it there are also there's also as we as we stated in our brief that an act can be malicious even and they asked absence of a specific subjective intent to injure and that the court may consider circumstantial evidence when making factual we've obviously been around the block a bit with mr walker we had a district court case we had the bankruptcy trial and then we've we've had had these peals you know looking back at the district court case you'll find that the exchanged no documents when we did the rule twenty six a change the defendant refused to respond to plaintiff's request for production of documents defendant failed to respond or comply with the order of the district court compelling the production documents and finally the defendant failed to respond to the order to show cause as to why you're not producing the documents that are requested or even responding to the request for documents throughout the contact by ascap of mr walker the district court action the bankruptcy court case it's been clear that defendants plan and intent was to ignore ascap and all the information and warnings that were provided to him and steadfastly claim to know nothing that plan and defendant's lack of truthfulness was painfully obvious in his testimony before the bankruptcy court before judge fraud states and the scores specifically recognized it and found that the defendants testimony lacked credibility on not only the issue of knowledge but with several other issues as well as a consequence that would be our position that there's no clear error in the findings of the court in this case you have any questions or be happy to answer otherwise i'll thank you sit down thank you we kept like two minutes of malice and thus that the debtor acted maliciously within the mean in order to five twenty three eighty six in the eighth circuit this is interpretation of the law it's not a finding of fact we don't believe that the court acted properly in stating that it was debtors duty to know and comply with federal copyright law we don't believe that that is what a six con create a nine we don't believe that unknowing copyright infringement rises to the level of malicious again we don't dispute that mr walker business practices were careless reckless possibly even negligent would not be unreasonable conclude that his actions in failing to obtain a license in the bar is negligent in the absence of concrete proof that he had knowledge of the copyright infringement taking place in the establishment we believe it was a far cry for the court to presume he had the headstrong in no way an intent to willfully harm the pla allowing the standard of recklessness or negligence to govern the determination of five twenty three a six discharge ability we believe lowers the heightened standards set by geiger ignores the high bar for certainty of harm in the circuit and furthermore we believe the court gave undue weight to the evidence presented by ask app and created an implied malice factor that we did up believe was appropriate under the circumstances thank you aren't you