aspects to this copyright case ms apps has two copyright registrations the first registration is on the well before we get that certainly what about u m g i being a proper defendant well that that that is why the court are initially through the case out but significantly the court said even if you do have the proper defendant i would still grant summary judgment because no matter who the defendant is in the district court's view is apps doesn't have to case well be back here in three years arguing the same things all over again and we're viewing the denial of the leave to amend is that what you're doing you know you're that's one of the denials that that's one of the issues that we've raised in our case but we did go to the fundamental  question of i guess i'm still struggling how do we get to the merits if we don't have a proper defendant in the first place because one of our questions is did the district court and i think we submitted some north i'm sorry ninth circuit case law that says the freedom to it to amend the complaint should be granted freely in syria which you heard him say is like this if you have we're dealing with a company that has two hundred approximately two hundred subsidiaries universal music group in turns out not to be what it sounds like they're saying the actual recordings are done by one of their two hundred odd subsidiaries so the we said that the district court should have granted us leave to amend the complaint to grant to name the proper so now to get the back to those readers a question there are two copyrights here one is on the words and the music and there's a separate copyright on the sound recording itself these i believe are in the excerpts of the record it are approximately  ninety six to one hundred something to fundamental to the sound of two copyright registrations the district court looked only to the first one this record so the only issue here in this case is the the words in the music and the district court look only to the words i need to know now and said i need to know now is not a protect the ball phrase and therefore black letter law the case ends here ms apps has no case summary judgment granted you get out of here and this was your question your honor the district court at least in the in its opinion said absolutely nothing about the copyright on the sound recording and made no one else's whatsoever of the extensive evidence we provided of the extrinsic the fund the objective similarities between the songs we have a two part test here in the ninth circuit before you got there why in the complaint  judgment the bulk of our opposition to the motion for summary judgment was a sound recording so the sound recording is not something that we brought into the case of the last minute it was there from day one it was an exhibit of the complaint i'll try to  for you during my my time what actual paragraph of the complaint says that but that was definitely in the case from the start and that was what this whole case is all about that is absent not complain because somebody copied or written notation or her lyrics she heard the song and said to herself hey that's a song i wrote six years ago she recognized it as her very own and this gets to the question of access not only was this a song that she had out there she actually emailed a copy of her song to tony swain who is an artist repertoire representative for universal music the evidence in the case says that she e mailed her song to mr swain at universal music he got it he responded sounds great sounds really good but what is the evidence that mr swain ever gave the song to anyone and island records we don't have direct evidence of that other than his connection isn't a crucial well no no your hon because i respectfully disagree under the i think the only print x case cases say that access is evidence of copying you never get it directly you're never going to get somebody that's going to say i witnessed this person copying the song order you're not going to have a memo that says here's a secret plan to copy the song access and copy it approved by inference so is the l a print takes cases i believe that access requires a reasonable  possibility that the song that they had access to the song was copied doesn't have to be a bare possibility but has to be a reasonable possibility you do not need mathematical certainty you do not need proof beyond a reasonable doubt or anything like that this is usually you can actually see and do a comparison we of course say that there are similarities between them g i points to the differences yeah well i you know i'm not completely tone deaf i'm not very musical but they didn't sound very much like to me well they don't have well again your honor that's why we have juries i mean it's not to do it i mean this is a this is a summary judgment case our whole position here is not that mishap should win and we want that the panel to say that mishaps when what we're asking for is can she have her day in court because these are fundamentally factual issues so you want a day befor ahead when you're arguing before the court you should always have your record available seven twenty nine so this is the exhibit that you referenced being attached to the  whether or not the sound recordings were included in the complaint when you told me that the registration was attached and that would denote the recordings but it doesn't appear that that's so  that but i do know that the sound recording registration was brought into the case and was considered by the court and was something we argued were looking the pages seven twenty four bomber seven twenty four and on seven twenty five words says the monster the video clip that compares the songs you know can be found at the particular website of you tube video my name is jeff gold and i represent a universal music group inc this is a case where the court does not need to consider any novel issues the case can be resolved simply based upon limited record before it is based upon the court's established precedence briefly on the issue of of the wrong defendant being named that obviously is a simple issue the court could could rule on the plaintiff was notified as early in the case as we could very beating of discovery they had to run defendant think could have looked at the cd itself and seen they had the wrong defendant all the publicly available information told them we were just a holding company and not the right defendant a district judge gave them urge them to serve the other defendants a dame day chose for whatever reason not to even attempt to do that and then they waited to the very end of discovery to even take a deposition to begin the process of in their view figuring out who the proper defendant was though it was right on the cd action of limitations run i'm not sure what it would run from well i mean i think that that at you know in the course of an ordinary ordinary songs life there are fewer and fewer performances of a fewer viewer purchases and and the revenue stream would be minimal so if they if there was no collateral stoppel here and they could refile the stache limitations would certainly limit their damages it might close the case altogether but what about bringing in a particular defendant would there be a staff limitations problems with a particular defendant i think that there might be a well might be it would depend on who they brought in but  you know the court can also equally disturbing this based upon the merits because this is a case where the court's established precedents right down the line show that this case was properly decided on judgment starting with this whole issue of the sound recording and the composition your honor is correct there was no sound recording copyright registration attached to the complaint that would be an s r filing not a p a but even if there had been there was no evidence in this case that the actual sounds of the plaintiff's recording were copied by the defendants recording that's you know basic sound recording law for it from the copyright act it's a new persist i'm in a case that th will scan what i believe you wrote so clearly even if there had been a registration for the recording attached it wouldn't matter in terms of the composition again we start with it so if you're talking about a recording you would actually have to copy the recording exactly  so that brings you to the issue of access and again we have a case that shows scanlon wrote it's directly on point the rights vs thoughts case where you have a and even greater showing of access in that case which the court found was not only not sufficient but was not even sufficient to trigger the inverse ratio rule one nine hundred thousand or seventeen thousand copies in that case sold here you had two thousand copies of the plain of cd that were  sold or given away or warehouse you had a case there where the i think and i'm confused why do we need to talk about access well because the on the issue of access you primary way to play to try to show access here was as i said through what joe scanlon called in the rice case a very complex and intricate web of inferences and again you had no evidence here that mr swain who they sent a copy of the plate of about the contact with mr swain what's your response to that as i recall mr mann said that it's quite reasonably the quite reasonable that the song got from going back to the rice versus fox case but in preparing for the hearing it's remarkably on point in that case joe scanlon the plate of had evidence that they had sent that their agent had sent a copy of the plaintiff's work to fox but they had no evidence that the actual copy got got into the hands of the people who made made the defendants work so while they gave it to mr swain there's no there's nothing in this record whatsoever suggested mr swain even knew mr newman in this or book or the songwriter's of the defendant song here let alone gave them a copy of the song or gave anyone else a copy of this up to the plate of could have tried to pursue that issue in discovery but for whatever reason she chose not to and so seven he responded by saying it sounds good or something like that and based upon that alone they surmise that well theoretically he possibly could have then taken that and given that to somebody else who gave it to the songwriters and six years later the defend the song came on that's clearly not enough under the established law for a fourth claim of copyright infringement to get to a jury and again so getting to the issue of substantial similarity makes is that well this record should have considered the declaration of the plaintiff in opposition to summary judgment where she listed a variety of similarities and there are numerous problems with that argument the first problem with that is that the district court could easily in this court could easily disregard that affidavit because it contradicted up her deposition at her deposition i blocked her out completely on the issue of whether the music was similar because she had no experts to we went ahead and created musical transcriptions of the two choruses the socks the parts that she said were substantially similar we presented those two were at her deposition she agreed with one minor change she made that those were accurate transcriptions and then i asked her about the courses and whether the notes or the chords were the same and she said no that's not what i'm claiming they copied and i moved up i mean i thought that was sufficient to move on and we focused the claim on the lyrics and the  original so i think that that and a declaration in opposition to a summary judgment motion that suddenly says oh i've now look back and i find a bunch of other similarities is disregarded like do we have to get there i mean that's declaration in that circumstance because we presented evidence that she had said in a deposition i'm not claiming that part was was copied in addition a list of similarities and again i went back to the rice versus fox case a list of similarities standing alone is not sufficient to meet a plane it's evidence free burden on summary judgment because if you're going to base your claim on a list of similarities for example the very first similarity she had she claims is both songs are in for four time i don't know that much about music but i do know that almost every song isn't for four time and usually percentage of songs so clearly for four times is not a copyrightable element of a song if the plaintiff is going to argue in this case or any case that a confluence of uncopyrightable elements and their selection in arrangement are somehow copyrightable which is permissible in certain circumstances if a plane is going to argue that then the plaintiff has to present something more than just a list of similarities for example expert testimony or some proxy for expert testimony which i've never seen in my years of doing this but i suppose a learned treatise or in the future a computer program that can analyze songs and there's there analysis that it would have to do and it's certainly not sufficient for a point just to say here's a bunch of similarities just to court you go figure out what's copyrightable what's not what's original what's not and none of that was done here so unless the court is any othe the argument goes directly to one of the primary issues here mishaps did not say that there were no similarities in the sound the actual deposition question asked her was is she alleging that her song was sampled samples that's an entirely different question than what ponens just mentioned so that's a that's addressed in our brief you have to look at the actual deposition testimony second thing the recent cases in the marvin gaye case and the skidmore  taking the actual quote exactly exactly as you're making or making a literal copy of the recording as opposed to emulating it with your own music and songs and instrumentation that was a question that was asked of her she truthfully said and that addresses why we did not going back to why we did not put the sound recording copyright in our complaint we didn't we've never alleged that they actually made a copy like a phony cd but when they started saying that the only similarities are the words we said no we also have the sound recording so that's that explains why it wasn't put into the complaint i was a refresh my recollection second question here is the reason we put the evidence in of the similarities is not just say court you figure it out that was to meet our  obligation under the extrinsic test it's our obligation under the two par test to point out what objective factual similarities exist between the songs before you get to the intrinsic test of how does this sound to a listener that is why we put that in to her declaration she was never asked about that in her deposition they simply asked are you alleging that she the song was sampled she truthfully said no they never said tell me why you think your songs are similar identify all similarities that you contend exist between the songs those questions were never asked to deposition so her declaration does not contradict that final issue is one that i think maybe a first impression in this court we raise in our briefed as weather expert testimony is an absolute requirement in of cases of the sort if you actually look back into the cases the three boys versus bolton case said that expert testimony is often require the original holding and this was not examined central to the cases all dicta the bolton case said expert testimony is often required now it has been transformed into it is always required sorta like the game we're telephone where you repeat something people repeated to each other and find by the time it comes around it's a very you know totally different than what it started with so case of first impression here whether expert testimony is required in these cases far as i know this court has never