i intend to focus on two issues today the st is the qualitative importance component of the substantial similarity analysis on my copyright line and the nd is the effective control the court knows substantial similarity is a test of both the quantity and the quality of what was copied in this case how much want to keep and a qualitative order of the schema that was copied did you or did you make an argument below about the qualitative importance of the schema to the district court i did in the context of my motion for summary judgment but mistakenly concluded in my motion that the only thing that mattered offending work the scraper with the data logger program instead in their motion for summary judgment they raised the comparison between the picture vault software and the data logger software that's the wrong comparison and so the trial court decided to sue a sponsor that scuse me she decided to respond to the question of substantial similarity and i was never on notice in the context of petulance motion that there was an issue as to the qualitative importance in connection with the comparison of the scrape burg and of the data logger program sabbat issue was decided sue a spot there which are raised in a motion for reconsideration but not my position is it was not waived must know them well but we're talking about the quick not the positive importance of david waters schema correct and in europe particularly when i would it would help me would be any can you give a record say to anything that shows a side by side comparison in terms of was the schema essential for the extraction of the drilling data or not it absolutely is the schema in the simplest sense is the road map it's a living road map to the data that i originality here there were two tables copied the survey table and the gamma table and in particular i'll focus you on the survey table two of the fields that were copied from the survey table or the t v field total or true vertical depth and is deleted field and let me tell you why they are important the main thrust of data logger is to assist a driller we know that when operated we know to get into the well to get ten seconds or minute if you chose a minute and every ten seconds there is a new row think of it think of a table as a spreadsheet with rows and columns and so on row on the survey table this is is inputted with the correct or the incorrect data and ten seconds later is row two hundred and ten seconds later is row three all the way down ok among those fields is the true vertical depth field part of each row includes the is deleted field and that field tells the program whether the row in question is accurate so that when data logger calls for by the user to see what is the accurate survey information it goes and looks for record might be on row thirty on this well row thirty row eighty row one hundred row five hundred whatever it is there are thousands it goes and looks for the row with the rows where the is deleted field has been invoked to both are cited in our briefing but the important set is in order what once i start on the horizontal fortune of the well and i'm trying to get into where the oil or gas is the drill string wants to drift up or drift down and a geologist will tell you i think that there's gas in the cheryl that for example seven thousand to seven thousand one hundred feet and as i'm drilling in real time that drill bit is going to want to drift up a little bit or drift down and the v as an example knowing what the accurate t v d is in real time tells you let me adjust and push it back into the middle of the pain but isn't it just still the relevant data is the corrected drilling data or does it's like if i say well there's a treasure there's something valuable buried over there that that obviously we can understand has that how that has value but it's the map that gets to that that creates even more value buried somewhere and so there are as i say four hundred dollars fields across twenty five dollars tables enormous amounts of information is generated by battle over ninety percent of which is used to geo steer and that ninety percent is living map that is created through the schema the schema tells it where where in the table is it on the road thirty row thirty eight row four hundred row five thousand and it's the ability to go back with that living map and identify where is the correct data that then gets supplied to the operator but without that living map that is created only because the dongle is inserted and it's interacting with the interface process that's the only way that the data can have value to that log or otherwise i've just got it would be the equivalent of putting all of my files my correspondence my pleadings my orders in one filing cabinet to go back in fi something would be extraordinarily difficult but once i have an organization reckon go find the data that i need that's why that schema has value to that lawyer pure and simple and that's why  page thirty i think seven in their brief the scheme is static you don't need a dongle inserted that is factually incorrect the scheme is not static the location of the accurate and necessary survey and gamma data to just your well can only be found by virtue of the living treasure map if you will that gets created in real time by that schem the definition contemplates effective control two important concepts in the ordinary use as intended and with the authority of the copyright owner the cases that picture link are relying on the  lexmark case of the th circuit and the blizzard case out of the th circuit essentially stand for the proposition that there's no effective control if you've got a house with two doors and you put a lock on the front door and there's no lock on the back lexmark which they cite in their brief is that other avenue has to be read only if the other avenue to get inside the house is readily accessible minute matters not that you put a lock only on the front door here there is only one door it's the dongle and interface process there is no back door or at least there was no back door and tell petulant wrote a program and then put that program on our customer's machines so lexmark and blizzard which were which which which are founded on this idea that a back door is readily accessible for the protected work is simply not present in our case but for there having put it there the nd distinguishing factor of those two cases is that the person who accessed the back door was the licensed user lexmark case that's the person that purchased the computer printer and with that printer in their house or their office accessed it in figured out a way to do whatever they were going to do and in the blizzard case is the licensed users who were interacting with their own machine to run this computer program in a way here the license users are digitals customers that it's not the person who put added a back door that didn't exist talk to me about i have a feeling on the other stuff we're going to hear about the firebird open source platform is it is it correct to say that the district court concluded that the that basis of the ruling after the original with the truck what i said there are three technological measures the password the dongle and the interface process the trial court disagreed on the password and i let did not pursue an appeal on that basis ok the but but the existence of the password does speak to the question of whether the protected work the schema as it was embodied into the database was readily accessible because it's not readily accessible both because a  party has no right to be on our customer's machines and because it was a password right may have been very effective but the test for effective control matters not on whether it's effective enough to prevent somebody from getting in there and doing what the statute is designed to prevent effective control is a is the question is whether it functions to control access to the protected work ok so your use may have been clear in your brief you're not appealing i thought there was a live  decision because whatever reason i made the decision that is just but the passwords and i just felt the other two were very straightforward and i thought clear as could be in terms of a technological measure that effectively controls you know there's not that's my point and i know i know but i thought you could access the schema separately and later and that was the district court's observation that the portion that is copyrightable is something that's accessible to the public it's not accessible to the public it's accessible to a license users after the fact the point of the downloader program is to assist operators in steering in real time it doesn't do them any good to go look at what the true vertical death was an on point your honor i think when you look at the definition of what a technological measure is under the d m c a both the dongle and you can find that that that that definition is a technological measure affectively controls access to work if the measure in the ordinary course of its operation and that's why i'm saying during drilling operations that your new course requires the application of information or process or treatment constantly checking costly embodying oh show me the accurate surveys go find them with that with i've said is the map or the schema and bring it back to the user so we can see where we are do we need to adjust down or just of to get where the pay is you know people i want to understand your argument is your argument that a texas unjust enrichment claim unjust enrichment claim does not require wrongful conduct is it i just want to understand your view of texas no i think taking an undue advantage of somebody is wrongful conduct if your if by that question your honor means a violation of a statute ok it does not require a violation of a statute or a lot of like of ours wrongful conduct why aren't you in the the radio globe ranger and the decision you know that i was on the thermaltake case where this jury was specifically told you need to find an extra element undue advantage of wrongful conduct the extra undue advantage is not an element to the copyright  of unjust enrichment fraud duress the taking of an undue advantage those elements are additional elements relative to a copyright claim and therefore it is not preemptive so that gets you by preemption if if that's correct that is  but you're saying also the wrongful conduct doesn't require the violation of the statute does or doesn't require right what so i guess you might get by preemption possibly that is correct doesn't that hurt you on the merits of the of the liability the question presented to the jury did petulant obtain a benefit from did it drop by the taking of it and to advantage the linchpin of that is that our license agreement with our customers prohibits the linking of a machine that's running battle over to any rd party machine outside of that machine and so what petro ling did without any authority is bound by the jury was to put this back door in there to obtain our scheme of the road map and the data link it to their servers and then send it off so they could sell it to our customers or compete with our customers for that in the license agreement between between between the data logger licensee and digital and it expressly prohibits the licensee the merely have a claim against the law against the people you have a contract with a bigger part and you certainly have a claim against the against the company you have a you have you know where the license runs to that company of a claim i would but they are the best not the party who took advantage and obtain an economic benefit by doing that they were being paid directly by the operator for the directional drilling services petulant came in here took our schema the map and the data and then used it to sell a service and made the money that i old well they prevailed on the two federal claims the copyright and the d c m a but you prevailed on unjust enrichment by showing that the copyright law didn't preempt is that the basis you would use for saying well we prevailed on up federal claim to the copyright so because if you don't get attorney's fees on just a rich man in texas apparently that's correct but look at the essence of what the cases say when it's appropriate to shift the fees they can't satisfy those taxes cases of federal cases the federal the federal cases that talk about the elements that are necessary a court should consider in deciding whether we should ship the petulant copied while quantitatively very small had so much qualitative importance to create a fact issue on whether peddling misappropriated substantial element of digitals work and thereby committed actionable copyright infringement but that argument overlooks the broader substantial similarity test the judge higginson referred to in his question in the no less biased designs case this court explained that the quantitative and qualitative importance of copied material is just one factor the court considers when it compares the parties work side by side to see whether the defendant's work is substantially similar to the plaintiff's copyrighted work and here the district court did that side by side comparison on pages twenty four and twenty five of her opinion she wrote the two worst are quite different in multiple ways including their content function purpose and utility and no ordinary observer would review would regard the works as the same my guess is as i understand the argument he's saying that particularly mr benson will say that there really isn't a small portion and a separate portion divisible this schema is the only way you can make sense of all the rest of the data therefore its originality is essential to do any of interacts with this database is through a programming language called the structured query language to communicate with the database using that language the program has to tell the database i want to date up on this table in this field or i want to add data to this table in th to communicate with the database you necessarily have to duplicate small portions of the schema so that's how the schema plays in but what's really important their work is not the schema it's the drilling data their marketing materials are in the record they're undisputed they t the data logger program and these unprotected drilling data as being the key most important parts of their work they never i mean those words used are important even you necessarily have to use the schema to get access to any of that data that's right your honor we can see that you do but that doesn't mean that there's actionable copyright infringement any time that someone makes a query to a database or at any time any program creates a database it has to reference bits of the organizational structure but that doesn't and it in this case the data is what they say is most important to their work they go on and on about how you need the data to geo steer well the data is not a protective all element of their work the district court concluded on summary judgment is factual under feist and therefore is not subject to copyright protection and they have a challenge that holding from the district court in their in their briefs to this court so the data is not a particular part of the work that gets filtered out and excluded in the  analysis were left with is this scheme of the small portion of schema that we copied and there's no indication that that is an important part of their work so we think under no spice designs applying the principles of that case there's no substantial similarity here is a matter of similar minimal originality the schema is the structure for the database the organization of the database the primary organizational property that we copied is the basic fact that survey related data or data about the location of the drill bit in space goes at one place and gamma related data or data about the rock formation goes another place the two points council obviously helpfully drew our attention to the benson affidavit that was going to explain to us here is not whether the schema taken as a whole with all this intricate relationships is an important part of their work or has originality the question is they've brought up with looking at qualitative importance is whether the cop portions of database schema those are the copied protectable elements whether those portions are important whether those portions have originality and on the originality point the structural property we copied what data goes where is both obvious that you would take these two very different kinds of data and put them in different play places and it's disclosed by table seven and eight of the industry standard well site information transmission specifications the column names that we copied to mention the true vertical de v the these column names are largely obvious abbreviations for common industry terms like t v like him for measure depth like in esper north south he mentioned it is deleted column explains how it works that's functional it tells whether data has been deleted so the database schema portion of that we copy have very minimal originality and the database schema taken as a whole even if it has enough originality to survive the minimal vice test for whether something  protected it's entirely functional in the engineering dynamics case this court held that the user interfaces in that case had the minimal originality to be protected by copyright because they had some expressive function they were they organizational  schema is not static the schema is not static so the data is not static the data is what is updated every ten seconds a new row is added to the spreadsheet if you will but the schem data logger and put on the computer and whenever someone clicks the button in data logger to create a database the data logger program runs the commands in that script file and creates the schema so the schema is static and of course once they finish drilling the logging static as well so we would ask the court to affirm on the copyright issue because there is no substantial similarity but an alternative basis to affirm is that this case shouldn't be judged under the substantial similarity test at all it should be judged under the virtual li calorie test that this court endorsed in engineering dynamics and that case this court explained that were at work has minimal originality it's entitled only to thin copyright protection and the court inside a series of cases and secondary sources explaining that such a thin copyright can be infringed only by making a virtual and virtually identical copy of the original yours are of that argument the distributor didn't go that route the district can says are more much simpler organizational frameworks yes ok i agree it but but if your orders we don't think substantial similarities even a close call right but if you think it is we really should be analyzed one of the virtual unocal a test because this database is a the sima is the summary judgment motion petulant asked the district court to grant summary judgment because petru can copy only five percent of this database schema and copying such a small amount of the work cannot be copyright infringement as a matter of law thought that this small portion of database schema what quantitatively small had so much qualitative importance to create a fact issue on copyright infringement they were obligated to raise that argument in their opposition to  similarity that's what the district court said and if they didn't they really emphasized that they had dealt with the direct copying that we had directly copied parts of their work these fragments of the schema and so they had every opportunity they were put on notice main place where they raise it the other places they had a separate summary judgment motion to mr linebacker reference and that was on our affirmative defense of fair use and if you read that motion they did discuss the qualitative importance of the data but this court standard  waiver is did they raise the issue to such a degree that the district court could rule on it and hear the district court st dealt with copyright ability and decided what are the copyrightable works here in the district court dealt with infringement and held as a matter of law there's no measures the u s b dongle and the interface process of the obvious station architecture do not effectively control access to the database schema in the fire brigade a base files because those measures control access only to one route to the files and that's the route that goes through the data logger program those measures do nothing to control the alternative route of access that allows rd party software applications to make direct connections to the database and what's what's your i mean just  simply focusing on the statutory language what's your best case that would not support a finding of circumvention when it simply took weeks to get access to the data and it only became possible when you obtained the licensees laptop with  once we learned that it was stored in the firebird format accessing it was no problem we got in our st try because we looked at the website saw how to connect to a fire database and used the password listed on the website what's your response to their tech textual argument that technological measure effectively controls access to work if the measure in the ordinary course of its operation requires the application of information except for sure so this is their argument that this alternative route of access this other door either doesn't exist or you really have to be a hacker to figure it out in the ordinary course not in the ordered course i would point the court to do drills own website where they're outside of litigation when they're talking to their customers they say on their own website that their users they're talking about ordinary customs can directly access the open firebird database file using off the shelf software products and their vice president mr benson i would say you're not one of the users you don't have a license agreement right that's right but the issue for the d one element is lack of authorization but the issue for the m c a is does it provide effective control and if it digital's users can make direct connections using rd party software that's a door that's an avenue that's a route of access to the work and that route of access was not controlled by any technological measure here their vice president identified the microsoft excel spreadsheet program one of the most common software products on the market today as an example of a rd party software application that can make direct connections to these databases through this alternative route now did you draw also says that it's technological measures effectively controlled access to the databases while the well that's being drilled controlled this alternative wells being drilled in june of two thousand and fifteen this is for right at the at the end of the time we were using this program to access the databases their vice president stated in the email it's uncontroverted in the record that they had developed a mechanism was being drilled if their technological measures the u s b dongle in the interface process already controlled this alternative route of access to the firebird databases there would be no need in june of two thousand and fifteen to go out looking for a mechanism to do that in truth during the whole time we access these databases there was no lock on that door there was no technological measure that controlled that alternative route of access and where is in this case a technological measure leaves wire the blizzard case from the th circuit a case analogous to this one that court held that the computer programs did not effectively control access to the files on the computer because users could open those files using off the shelf software going to the video game and when the monster came up the picture would appear in the sound would play but the th circuit said that the user could also scroll through their computer and find those files that the game used and open them with another program and that means th access control measure of the computer program did not provide effective control to the work now in this briefing digital raises the other or human digital says that it's u s b dongle and interface process effectively controlled access to the database but that is exactly how those technological know peers are intended and designed to be used by their own design they give the dongle to their licensee the licensee plugs into the computer opens the software they're provided with and clicks the button to create the database and the database is then created on the file system at a location work order to their own website their users can access it using rd party software applications i want to make sure you get to preemption  know i want to ask you about preemption but i don't want to please you for making your argument i want to understand well here's a here's a real simplified version of the preemption texas unjust enrichment it requires taking undue advantage that's an additional element therefore not created by copyright so it requires taking it on to advantage and that adds something above and beyond what is required for copyright there's really there  cases saying that the undue advantage element requires a violation of the law or legal due to the rooster case as an example aside in the breeze there are cases that they cite that say generally there is a species of unjust enrichment claims that doesn't require any wrongful conduct we think it has to be one of the other we don't see any texas cases saying that you could have an unjust enrichment claim where there is no violation of a large legal duty but there some other sort of an equitable conduct or fishy conduct in the  court said that the conduct of the defendant may seem unfair to the plaintiffs but that's not enough to go to a jury and the mare's court case that we cite from this court that the argument was made that the defendants had gamed the system for recording property transfers in texas to get around the normal course where they would pay fees of the clerks and this court said you had the right to do that there's no duty in texas law to do that that's because the original data was with the clerk here the data you obtained is from the plaintiff here here the data we have tamed was on a laptop computer belonging to the end of each company and we had permission from the end of the company every time we went on their computer to do that they gave us permission to do that there's no evidence in the record and if they never told us that they had a license agreement it would forbid this they were paying for that it was on my meacham through before the jury was instructed it did have to find the element of undue advantage did you pose that we asked for an instruction that to find an undue advantage under texas law the jury would have to find that we violated a law or a legal duty and the district court refused that instruction and you have an appeal that we have noted in our brief that we raised that we can appeal of that issue would give us a new trial  don't think it's a new trial point we think it's a rendition of judgment point because you know again because i was employment i thought it was very significant whether or not texas law an element was given that was beyond the copyright element that's right the extra a claim that we didn't have to do anything wrong as long as we copy the data without their permission or liable for unjust enrichment and then they're not saying just copywriting alone they're covering could just be take somebody else's product you copyrighted it here you had to according to them  intent to interfere there's no evidence that we knew about this particular provision their license agreement they point to and it doesn't say that i thought there was trying to the time st to try to get a license yourself and then you backed off and went through their preemption also use i'm sure you know the case exclude ranger in globe ranger there is this statement or court said if the intellectual property issue is not subject to copyright protection then obviously the copyright act would not preempt a state law cause of action that statement which you know is just an erroneous not supported by citations just roll i think the court has no gold on that position yes and i don't get i don't think it's correct to say that it's not subject to copyright protection that it cannot be pretty if i can understand your position on preemption we obviously have to look at the elements of the texas claim that you want to also say we have to understand the undue advantage part of the texas claim by reference to the conduct alleged but in this case because i know that i think there may be some tension are cases about to what extent we can look beyond just the sort of hornbook elements so that the element test extra elma test is a question here we think one of two things has to be true under the law either maersk or in villareal and sion mean what we say they mean and they have to prove that we violated a law or a legal duty that saves them from preemption but then they don't have any evidence to recognise the tension between these two issues of the difficulty in making the erie guess and a texas law on what that undue advantage element what is the substance of it that the easiest way to dispose of the unjust enrichment claim is to hold that there's no legally sufficient evidence of damage said for the copyright act for damages it doesn't matter whether you're a plaintiff or defendant everybody is treated the same the nd case that the ball the case in the th circuit in that case the roles were reversed so the plane to prevail on a copyright claim and the defendant prevailed on a state law claim and the court said we're going to award fees or analyze the request by both parties based on the claims that each party won so plaintive you won your verbally party to the copyright claim so you're entitled to attorney's fees for the copyright claim defendant you're the prevailing party in the state law claim let's look and see whether state law provides attorney's fees for this claim so here the roles are reversed we prevailed on the copyright d question we're assuming we all poll summary judgment you on copyright on the other com but we are told there are awarded unjust enrichment so they have overcome the defense that we have sort of the copyright act but th they would be the prevailing party on that claim is because they have taint some recovery and they retain some recovery under texas state law and restitution and so their entitlement to attorney's fees for the unjust enrichment claim should be based on texas state law are entitle me to attorneys fees for defeating the copyright claim that the n c a a claim should be based on federal law but but then you have the courts discretion awarding the permit fees and maybe that's what very brief hours engineering dynamics case they rely on for the proposition that i have i should only get fan protection founded on feist feist has three facts name address and phone number you can organize those three facts six different ways that a lawyer has twenty five dollars tables and four hundred dollars fields billions of combinations night and day engineering dynamics says structure and organization of on protected facts is that we're not talking about structure and organization of unprotected facts it's the schema it's the living roadmap considering so that was a subsidiary alternative argument keep going yes  off the shelf our website does say that the test is the ordinary use of the product no user i believe you'll find that mr benson's affidavit has ever used an off the shelf product to access the database other than the data logger program the ordinary use is the data logger program with the dongle interacting with the interface process no listbox engineering dynamics this is out of engineering dynamics to determine substantial similarity the court should quote focus on whether the defendant copied any aspect of the protected expression the aspect they cop the critical living map of the schema to find that out of that will allow you to geo steer well it's not every aspect it's not thin for the reason i just said it's any aspect and in this case the aspect that was copied is critical and you cannot geo steer without using that living map of where the accurate that is located as embodied by visual study the longer finally the jury they they  made all kinds of arguments about why the operator gave them permission why the customer gave them permission and insisted and obtain a question at the trial of as to whether their conduct was authorized whether they had authority to do what they did and the jury said no and that's not being appeal