[00:00:01] Speaker 05:
excuse me good morning ladies and gentlemen judges that when and sang and I welcome you to the ninth circuit and I'm just going to go over a few housekeeping matters before we start I'll call the cases in the order that they're on the calendar

[00:00:18] Speaker 05:
And if you are here for a case that's going to be argued, by your case, you have a time designation.

[00:00:25] Speaker 05:
And if you are the appellant, expect the time that you have is your full time.

[00:00:32] Speaker 05:
So if you want to reserve any time for rebuttal, then if you'll let me know, I'll try to let you.

[00:00:39] Speaker 05:
I'm looking right at the calendar.

[00:00:42] Speaker 05:
It counts down and then it goes up.

[00:00:44] Speaker 05:
And just because it goes up doesn't mean I gave you extra time.

[00:00:47] Speaker 05:
It means you've moved into overtime.

[00:00:49] Speaker 05:
So aspirationally, if you let me know what time that you would like to reserve, I'll try to let you know when you get to that point.

[00:00:58] Speaker 05:
The one thing that I will tell you that obviously I know you have things that you came here to say,

[00:01:03] Speaker 05:
and we of course want to hear them but you have to understand that we're deciding your case so my colleagues and I will undoubtedly have questions for you and so when the time runs out if any of my any of the judges are asking you questions you don't have to ask permission to continue please continue to answer the judges questions but otherwise you'll be left to

[00:01:27] Speaker 05:
state of your time limit as far as that goes.

[00:01:31] Speaker 05:
And then I also understand on one of the matters, I think it's the last one, that we have two people arguing splitting time for the appellees.

[00:01:45] Speaker 05:
Each side has a total of twenty minutes, meaning the appellant has twenty minutes total with any rebuttal time and that the defendants are splitting their time, the defendant appellees are splitting their time ten minutes each.

[00:02:00] Speaker 05:
Just so that you know, one of you will go first and you don't have rebuttal time as the appellees, but you'll be kept to your time

[00:02:10] Speaker 05:
But if you're the second one and you see that the judges are asking questions of the person before and the time clock is continuing, don't be concerned.

[00:02:23] Speaker 05:
I will let the second person have their full amount of time if the judges take the first person.

[00:02:28] Speaker 05:
So you don't need to leap up to the podium and pull them down if you think that they're taking up your time.

[00:02:34] Speaker 05:
If you're the second person, you will get your time as far as that goes if we take them.

[00:02:39] Speaker 05:
All right, the first matter on calendar is Norma Lejone versus Martin O'Malley, case number 23-3216.

[00:02:49] Speaker 05:
That's been submitted on the briefs, will be submitted as of this date.

[00:02:53] Speaker 05:
Second case, Chad Snyder versus Martin O'Malley, 23-3674.

[00:02:59] Speaker 05:
That submitted on the briefs will be submitted as of this date.

[00:03:04] Speaker 05:
United States versus Mark Samuel Baker, 24-1242 submitted on the briefs will be submitted as of this date.

[00:03:12] Speaker 05:
Gail Ashford versus City of Brownsville, 23-2804 submitted on the briefs will be submitted as of this date.

[00:03:21] Speaker 05:
Also, Eric Seitlin versus Natalie Wetkall, 23-4035 submitted on the briefs will be submitted as of this date.

[00:03:31] Speaker 05:
The first matter on for

[00:03:33] Speaker 05:
Oral argument is our nod first loose versus white pine circle and my understanding on this one is that's 23-3982 each side has 15 minutes total and it looks like It looks like also on this one.

[00:03:55] Speaker 05:
There is split time.

[00:03:57] Speaker 05:
So the appellant has 15 minutes total

[00:04:01] Speaker 05:
for everything on the defendant appellees.

[00:04:06] Speaker 05:
We've got David Amon, who has set for 10 minutes.

[00:04:12] Speaker 05:
And then we have Mae Amelia Stiles, who is remote for five minutes.

[00:04:18] Speaker 05:
And can you hear us OK, Ms.

[00:04:20] Speaker 05:
Stiles?

[00:04:21] Speaker 05:
I can.

[00:04:22] Speaker 05:
Thank you, Your Honor.

[00:04:23] Speaker 05:
All right.

[00:04:23] Speaker 05:
Everyone can hear everyone OK.

[00:04:26] Speaker 05:
And were we going to have, was Mr. Amon going to go first, or Amon?

[00:04:31] Speaker 05:
okay thank you all right so we're ready to proceed on that case each side has 15 minutes total good morning

[00:04:53] Speaker 02:
Good morning, Your Honors, and may it please the court, Scott Schaefer, on behalf of plaintiffs, appellants Arno Versluis and the Institute of Classics in East Asian Medicine.

[00:05:03] Speaker 02:
We refer to that as ICEAM.

[00:05:05] Speaker 02:
With the court's permission, I'd like to reserve two minutes for rebuttal.

[00:05:09] Speaker 05:
All right, well, let's hope so.

[00:05:11] Speaker 02:
OK, go ahead.

[00:05:12] Speaker 02:
We're in front of you this morning because the lower court disposed of a copyright infringement and pendant breach of contract case on summary judgment.

[00:05:21] Speaker 02:
But because so many facts were in dispute in the case, our concern is that the district court only viewed the factual record and construed it in defendant's appellees, which is White Pine Circle's favor, rather than the other way around.

[00:05:34] Speaker 02:
Because here we are in summary judgment, where every reasonable inference has to be viewed in the plaintiff's favor.

[00:05:40] Speaker 02:
So we really want to focus on the factual record and to determine whether the district court really determined the factual disputed questions as a matter of law rather than letting it go to a jury.

[00:05:52] Speaker 05:
Well, now I understand on the PowerPoints or the slides that we had conflicting experts, correct?

[00:06:01] Speaker 02:
That's correct.

[00:06:02] Speaker 05:
All right.

[00:06:03] Speaker 05:
But can you tell us exactly which slides you think are being infringed?

[00:06:08] Speaker 05:
Exhibit two of May Style's declaration pointed us to the three different PowerPoint presentations, each about 40 pages with two slides per page.

[00:06:19] Speaker 05:
So, 80 total slides per presentation and 240 total slides altogether.

[00:06:25] Speaker 05:
You're not saying defendants are infringing all 240 slides, are you?

[00:06:31] Speaker 02:
No, Your Honor, there certainly are differences in the slides.

[00:06:36] Speaker 02:
So it wasn't a direct one-to-one copying of all the slides, but there was a significant and substantial taking and copying of the – not just the information, but the expression of those slides and the praxis, the way they were put together, the order

[00:06:55] Speaker 02:
of the quotes that were taken, the quotes that were selected.

[00:07:00] Speaker 02:
And in fact, it's important to note that we're talking about Chinese medicine, which has a 2,000 year history.

[00:07:09] Speaker 05:
Well, I don't think I agree with you that quotes or words used in the PowerPoint or slides or even their arrangement is entitled to copyright protection.

[00:07:18] Speaker 05:
So although I

[00:07:22] Speaker 05:
may agree with you that some of the PowerPoints are, but which ones are they?

[00:07:28] Speaker 05:
I mean, you just throw a whole bunch on the table and figure that out.

[00:07:33] Speaker 02:
Well, just taking quotes as an example, if you have 2,000 or more quotes in classic Chinese medicine related to, for instance, the subject of these slides, but only 10 of them were selected for Plano's Dr. Arnaud's presentation, it's suspicious.

[00:07:54] Speaker 05:
But it doesn't seem like just translating slides that are out there on the Chinese medicine makes them entitled to copyright protection.

[00:08:03] Speaker 02:
Well, not in if you take them on a one-to-one basis, but collectively, if you're talking about the selection and- I'm sorry for interrupting.

[00:08:13] Speaker 03:
Yes.

[00:08:13] Speaker 03:
The problem that I have with your case is that you're doing the same thing here that you did in the district court.

[00:08:20] Speaker 03:
They filed for summary judgment.

[00:08:22] Speaker 03:
They said that there's no evidence of infringement

[00:08:25] Speaker 03:
And the papers just really don't lay out where disputed facts really are.

[00:08:32] Speaker 03:
The factual basis of your claim essentially was

[00:08:38] Speaker 03:
because the experts disagree and so therefore we have disputed facts and so therefore we need to have a trial on this issue.

[00:08:47] Speaker 03:
And as I read the district court's transcript at the hearing on summary judgment, I'm not at all unsympathetic to the district court's view because the district court gave you so many chances.

[00:08:58] Speaker 03:
to identify exactly where the disputed facts are and as Judge Callahan said the same thing.

[00:09:04] Speaker 03:
So you've got to be a lot more specific than that because otherwise you're not countering their allegations on summary judgment.

[00:09:13] Speaker 02:
Right, so we have a list of some of the similarities in the briefing.

[00:09:19] Speaker 02:
And so I'd like to go through them if I can.

[00:09:21] Speaker 02:
You probably have copies of the documentation.

[00:09:24] Speaker 02:
So in volume three, 145, there's the statement that not only does Zech and Weissenbaum use the same classical quotes as Versluis, but they copy them.

[00:09:36] Speaker 02:
And he goes through some examples of where the copying is.

[00:09:40] Speaker 02:
Where the graphs are used as the teaching materials, this would be three, 147 and 148, that Zeck uses same graphs as Versluis to teach the physiology of two different concepts, the three burners and the three layers.

[00:09:56] Speaker 02:
And then just generally, just the order and arrangement of presenting the slides to express certain concepts

[00:10:05] Speaker 01:
Counsel, if you're relying on a compilation theory and that there is a selection and order and arrangement of materials under our case law, under the statutory standard, we have to view the work as a whole and they have to be virtually identical.

[00:10:22] Speaker 01:
So is there a presentation done by defendants that uses the same selection?

[00:10:30] Speaker 01:
Order that is virtually identical to any of the three copyrighted presentations viewed as a whole Yes, your honor, I think the reference of the copyrighted presentations you contend is virtually identical to the defendants Which which of that which of the slide presentations three copyrighted?

[00:10:50] Speaker 01:
presentations is virtually identical to the defendants and

[00:10:55] Speaker 02:
Well, I would say that the presentation of the Shangkun Lun and Jingwei Yalu slide presentations are essentially identical to one another and were taken.

[00:11:09] Speaker 02:
I think the important part is that someone in the industry, such as the experts who would be viewing those slides, would recognize them as coming from plaintiff's appellants in this case.

[00:11:24] Speaker 02:
And so it's not simply just the idea of it, which is what the contract portion of the case covers, but for the copyright portion of the case, the selection and arrangement and the ordering

[00:11:42] Speaker 02:
to create the praxis, the teaching of these concepts is essentially identical.

[00:11:49] Speaker 02:
And this is the conclusion that our expert came to who teaches in this field as well.

[00:11:57] Speaker 02:
you know, keeping in mind that there is a universe of different ways to teach these different concepts.

[00:12:02] Speaker 01:
Well, a problem I have is I read your expert report and most of the expert report is focused on the content, which you can see it is not protected under copyright.

[00:12:10] Speaker 01:
It's focused on the ideas and the facts that are relayed in the presentations.

[00:12:16] Speaker 01:
So for the purpose of copyright,

[00:12:18] Speaker 01:
which you concede we have to focus on the form of the expression.

[00:12:22] Speaker 01:
So can you identify with specificity, I think as my colleagues have asked, which slides you contend are identical in form or at least substantially similar in form to the defendants?

[00:12:36] Speaker 02:
Yes, I think one of them is actually highlighted in our briefing.

[00:12:40] Speaker 02:
I don't have the page number, it's in my booklet right there, but it's in one of the briefing where they have the expression of the yin and yang symbol.

[00:12:49] Speaker 01:
But is that actually in the copyrighted materials?

[00:12:53] Speaker 02:
I believe it is, and you can correct me if I'm wrong, I don't want to speak out of turn.

[00:12:58] Speaker 01:
My understanding that particular yin yang slide is not in the copyrighted materials.

[00:13:05] Speaker 01:
If you have a record citation that you can show me that that particular yin-yang slide is in the copyright materials.

[00:13:15] Speaker 03:
a citation to the expert report, the ER, so that we can look at the exact same thing.

[00:13:20] Speaker 03:
So I go back to my point.

[00:13:23] Speaker 03:
I shared the district court's frustration at having to look through the expert report and figure out exactly what the disputed facts are, because you don't pinpoint to the particular slide or to the particular page in the expert report that we can look at and say, oh, OK, well, is this really sufficient to create a triable question of fact?

[00:13:44] Speaker 02:
Right.

[00:13:45] Speaker 02:
I think I gave some.

[00:13:47] Speaker 02:
It was three ER 145, ER 147, 148, and three ER 149.

[00:13:54] Speaker 05:
So if you go at ER 147, let's talk about the upper burner and the upper jowl slide.

[00:14:00] Speaker 05:
It has the three overlapping ovals, the heart, then the paracard, and then the upper burner mist.

[00:14:10] Speaker 05:
Do you need to present these concepts in concentric ovals in this way?

[00:14:15] Speaker 05:
Is there another way to express this concept on a PowerPoint slide?

[00:14:20] Speaker 05:
How does your client decide to present the information this way?

[00:14:29] Speaker 02:
All right, I have the booklet in front of me.

[00:14:31] Speaker 02:
So obviously there is probably a universe of methods of explaining the

[00:14:42] Speaker 02:
the orientation, the comparison, the interrelatability of these different concepts.

[00:14:48] Speaker 02:
It was the conclusion – there's lots of ways to display it, but it was clear to our client when he reviewed it and to the expert that these

[00:15:00] Speaker 02:
ways of treating these concentric circles, and I think this is probably maybe a better question for the defendant's appellees, is why they chose to express it in this way rather than in a different way.

[00:15:15] Speaker 02:
Because although it seems that without understanding these different concepts, that they are different in color and ovals are shaped slightly differently, but that the information within there is the same, and the way that they are arranged in this drawing to express that information is nearly identical.

[00:15:43] Speaker 01:
Well, if these are factual relationships, and this is a diagram of how one thing relates to another, there are only so many ways you can diagram that.

[00:15:53] Speaker 01:
And we're talking about a fairly simple Venn diagram.

[00:15:56] Speaker 02:
Right.

[00:15:57] Speaker 02:
We're talking about that.

[00:15:58] Speaker 02:
Now remember, we're operating under summary judgment.

[00:16:01] Speaker 02:
And so given the benefit of the doubt to the non-moving party, which in this case is the plaintiff, Dr. Versluis, you would give at least some weight to the conclusion of the expert.

[00:16:20] Speaker 01:
But where in the expert report does it say that it's

[00:16:24] Speaker 01:
that this particular diagram is creative and original versus something that's necessary to express the factual information contained therein.

[00:16:35] Speaker 02:
Well, the expert report, I don't believe, talks about that particular issue in terms of expression versus idea.

[00:16:43] Speaker 01:
And I believe the expert report says the content is the same, even though the form is not.

[00:16:52] Speaker 01:
And the content is not protectable.

[00:16:55] Speaker 01:
And the form is not identical.

[00:16:58] Speaker 01:
So my question is, and defendants say, the form is essentially this relationship

[00:17:05] Speaker 01:
this type of diagram is necessary because there's only so many ways to express the relationship between these things.

[00:17:13] Speaker 02:
Well, the expert certainly doesn't come to that conclusion that there are only so many ways to express this concept.

[00:17:19] Speaker 01:
We don't always need an expert when we have cases like

[00:17:24] Speaker 01:
Apple versus Microsoft, other games where we say there's only so many ways to represent certain common items or certain simple diagrams.

[00:17:35] Speaker 01:
There's only a certain number of ways to express something that's not going to be entitled to copyright protection.

[00:17:41] Speaker 02:
The bar, of course, for recognizing copyright is fairly low in terms of determining where the creativity lies.

[00:17:54] Speaker 02:
presentation is that this rises to that level, that not necessarily just taking it out of context with just one-to-one slides, but when you take it in the context of everything together, especially in the order in which they're arranged, and to hold otherwise would kind of discount copyright and really any educational presentation.

[00:18:17] Speaker 02:
Certainly somebody would say that a history book is not entitled to copyright,

[00:18:22] Speaker 02:
or a PowerPoint presentation in certain ways would not be entitled to copyright if presented in a certain way.

[00:18:30] Speaker 02:
And we're saying that although it presents factual information, it presents it in an order using words, using diagrams that are unique.

[00:18:41] Speaker 01:
Are all the slides that you contend are infringed in expression, identified in your brief?

[00:18:50] Speaker 02:
In our brief, which includes the expert reports, yes.

[00:18:55] Speaker 01:
Identified with specificity in the brief, not by referencing generally expert.

[00:18:59] Speaker 01:
The expert report is very long, so I'm asking, does your brief, and you gave some examples of a handful of bullet points of things that you pulled from the expert report.

[00:19:10] Speaker 01:
Have you identified with specificity?

[00:19:13] Speaker 01:
each slide from the copyright materials that you contend were identical in form or substantially similar in form.

[00:19:23] Speaker 02:
We don't necessarily believe that it was a comprehensive explanation of every single similarity.

[00:19:30] Speaker 03:
Let me ask the same question another way.

[00:19:32] Speaker 03:
What do you want us to look at?

[00:19:35] Speaker 03:
Because saying, I want you to look at the entire expert report is not

[00:19:39] Speaker 03:
It's not our obligation to search through the record to figure out where the disputed facts are.

[00:19:46] Speaker 03:
It's up to you to identify where the disputed facts are.

[00:19:49] Speaker 03:
So what do you want us to look at other than the slides identified in your briefs?

[00:19:55] Speaker 02:
Well, those are the ones we wish you to look at.

[00:19:57] Speaker 02:
And so these are referenced in the pages that we're looking at right now in terms of the concentric diagrams, the labeling, the terminology of those slides used, and they're ordering within the presentation documents itself.

[00:20:12] Speaker 02:
And as well, not just the fact that there are short quotations that have been translated, but also the fact that

[00:20:22] Speaker 02:
out of the universe of quotations that only certain ones were selected.

[00:20:28] Speaker 05:
So you're in overtime.

[00:20:30] Speaker 05:
So you've used all your time.

[00:20:32] Speaker 05:
Do either of my colleagues have any additional questions?

[00:20:34] Speaker 05:
All right.

[00:20:35] Speaker 05:
I'll give you two minutes for rebuttal.

[00:20:37] Speaker 05:
OK.

[00:20:37] Speaker 05:
Thank you, Your Honor.

[00:20:38] Speaker 05:
All right.

[00:20:43] Speaker 05:
Good morning.

[00:20:44] Speaker 05:
Good morning.

[00:20:46] Speaker 05:
Go ahead.

[00:20:46] Speaker 05:
Take your time.

[00:21:05] Speaker 05:
Are you specific?

[00:21:06] Speaker 05:
Go ahead, state your name and appearance and tell me if you're dealing with a certain issue.

[00:21:11] Speaker 00:
I'm going to do that.

[00:21:12] Speaker 00:
OK, thanks.

[00:21:13] Speaker 00:
May it please the court?

[00:21:14] Speaker 00:
My name is David Amon, representing the appellees who are the defendants below.

[00:21:19] Speaker 00:
My co-counsel, May Stiles, is here remotely.

[00:21:23] Speaker 00:
She's going to be addressing the merits of the copyright infringement claim.

[00:21:27] Speaker 00:
I'm going to be addressing the issues of waiver, both on appeal and at the district court level, and the contract claim.

[00:21:35] Speaker 00:
Okay.

[00:21:38] Speaker 00:
So the district, excuse me, this court can and should affirm the district court's grant of summary judgment on three separate grounds.

[00:21:48] Speaker 00:
First, the appellants have not properly raised and argued the issue of waiver at the district court level in the opening brief here on appeal.

[00:22:00] Speaker 00:
Second, the district court properly found that the plaintiffs had failed to meet the arguments that had been made on summary judgment.

[00:22:11] Speaker 00:
Now on that basis, the district court properly found that there had been a waiver at the district court level as well.

[00:22:18] Speaker 05:
Well, can you honestly tell me that you think that Dr. Versluis intentionally relinquish, quote unquote, his right to argue that your PowerPoint slides are substantially similar to his?

[00:22:28] Speaker 05:
That's what waiver requires, an intentional relinquishment of a known right.

[00:22:34] Speaker 00:
We do, because at the district court level, Your Honor, the plaintiffs did not articulate

[00:22:44] Speaker 00:
with in the briefing that they provided to the district court did not articulate what evidence was met, the arguments that had been raised by the defendants, and did not articulate responses to any of the specific arguments that were made at the district court level.

[00:23:05] Speaker 05:
But not doing a good job is different than intentionally relinquishing.

[00:23:11] Speaker 05:
And that's where I have problems with your waiver argument.

[00:23:17] Speaker 05:
I mean, I already articulated like dumping a whole bunch out there and expecting the district court to wade through that is not the best way to present an argument.

[00:23:27] Speaker 05:
But waiver requires intentional relinquishment.

[00:23:32] Speaker 00:
So I guess, let me respond both on the contract claim on that issue and on the issue on the copyright claim.

[00:23:41] Speaker 00:
So starting with the contract claim, there was no argument provided in response to the summary judgment motion on the question of over-breadth on the restraint of trade issue.

[00:23:53] Speaker 00:
There was no argument provided.

[00:23:55] Speaker 01:
I mean, I think we have cases that say that the terms waiver and forfeiture are waivers overused.

[00:24:03] Speaker 01:
And waiver really means what Judge Callahan said, but we can have something called forfeiture, which is less than waiver, which is generally, I think, what we could talk about is when someone fails to adequately respond to a particular

[00:24:16] Speaker 01:
argument, but that we have discretion to overlook forfeiture.

[00:24:21] Speaker 01:
So without getting overly concerned about the semantics here, summary judgment, you were the moving party.

[00:24:28] Speaker 01:
And we also have case law that says as the moving party, even if the other side doesn't respond at all, the court has an obligation to determine whether the moving party met their burden.

[00:24:37] Speaker 01:
So I think maybe we just

[00:24:41] Speaker 01:
can move on from semantics to whether you met your burden as the moving party and then what arguments were raised in response to that.

[00:24:53] Speaker 00:
Certainly, honor.

[00:24:54] Speaker 00:
And that's why one of the things that we're doing here, and you could hear it in the opening, was that we're going to address the merits.

[00:25:00] Speaker 00:
And frankly, what Judge Mossman did below is he did address the merits.

[00:25:06] Speaker 00:
And he looked at the arguments that had been raised on summary judgment by the defendants, evaluated them, and then asked the plaintiffs what the response was.

[00:25:15] Speaker 05:
Well, they did file a response.

[00:25:17] Speaker 05:
And the part that probably sticks the most

[00:25:22] Speaker 05:
Is it in the claw, the claw?

[00:25:24] Speaker 05:
I don't know where it sticks in.

[00:25:25] Speaker 05:
But anyway, you've got the dueling experts.

[00:25:33] Speaker 05:
And you do have an expert that said there is a substantial similarity.

[00:25:40] Speaker 05:
And so for me, it's hard to get past how

[00:25:47] Speaker 05:
the district court didn't weigh those declarations or those affidavits or whatever.

[00:25:55] Speaker 05:
I mean, even if they weren't, because I think your friend on the other side raised that it's not a very high burden that substantial similarity should go to the trier of fact and not be resolved at the summary judgment stage.

[00:26:11] Speaker 05:
And so if you've got two experts, which

[00:26:14] Speaker 05:
have more expertise perhaps than I do and one says they're substantially similar, the other says they're not.

[00:26:20] Speaker 05:
Why is it not just Wayne, those affidavits, and that's not appropriate at summary judgment?

[00:26:26] Speaker 00:
Well, it's not appropriate, because if you look at what the motion for summary judgment did, what the defendants did below on the motion for summary judgment, was walk through in detail.

[00:26:38] Speaker 00:
And Ms.

[00:26:38] Speaker 00:
Stiles is going to talk about this a little bit more.

[00:26:40] Speaker 00:
But walk through in detail kind of the waterfall of arguments about what the expert report and evidence from the defendants said, or excuse me, from the plaintiffs said,

[00:26:52] Speaker 00:
did not make out a copyright infringement claim, and then did not make out a contract claim.

[00:26:58] Speaker 00:
And that showing in and of itself was sufficient to grant summary judgment.

[00:27:03] Speaker 05:
Well, I might have a different view of the copyright and the contract tentatively.

[00:27:08] Speaker 05:
I mean, we don't conference on these cases before we come here.

[00:27:11] Speaker 05:
So that's just, it seems to me that on the contract claim,

[00:27:18] Speaker 05:
that if I don't accept your waiver argument, it does seem to be a restraint that isn't allowed under the law.

[00:27:31] Speaker 05:
And that's what I think your strongest argument would be.

[00:27:36] Speaker 00:
That is the argument, Your Honor, on the merits, which is, under Oregon law, if you have a restraint of trade, it has to meet certain elements.

[00:27:45] Speaker 00:
And here, we raise the argument on summary judgment that it did not because it was overbroad in scope.

[00:27:52] Speaker 00:
And it was unrestricted in terms of time limit.

[00:27:56] Speaker 00:
And there was no response to that.

[00:27:58] Speaker 00:
And Judge Mossman correctly found that under Oregon law, that restraint is unenforceable.

[00:28:04] Speaker 00:
And so the contract claim had to be dismissed.

[00:28:07] Speaker 00:
We also raised in the summary judgment motion below, and Judge Mossman did comment and state at the hearing

[00:28:15] Speaker 00:
It's not in his opinion that the contract claim that there wasn't sufficient evidence showing here's the kind of following up on your questions.

[00:28:25] Speaker 00:
Here's the specific slide.

[00:28:27] Speaker 00:
Here's the specific information.

[00:28:29] Speaker 00:
It's confidential.

[00:28:30] Speaker 00:
Here's why it's confidential.

[00:28:32] Speaker 00:
And here is where and when it was used by the defendants.

[00:28:36] Speaker 00:
There was no evidence of that presented.

[00:28:38] Speaker 00:
And it certainly wasn't articulated in any of the papers below, but it wasn't presented

[00:28:42] Speaker 05:
Well, the expert did say there was substantial similarity, though.

[00:28:46] Speaker 05:
That conclusion's there, right?

[00:28:48] Speaker 05:
So how can I disregard that without just saying it's a sham affidavit or that there's no...

[00:28:59] Speaker 05:
you know, I'm sort of getting to that I have to weigh the evidence to completely disregard that.

[00:29:05] Speaker 00:
So I think, first of all, a blanket statement of substantial similarity from an expert does not meet the standard of summary judgment.

[00:29:13] Speaker 00:
And that is exactly what the defendants did in the summary judgment papers when they walked through for the judge kind of the multiple steps to reach that conclusion, starting with

[00:29:28] Speaker 05:
Well, I see more of frustration on the district court's part that you've got 240 slides here.

[00:29:38] Speaker 05:
You're not really explaining to me which ones are and which ones aren't, but you still do have the conclusion.

[00:29:43] Speaker 05:
It reminds me a little bit of a medical malpractice case that one doctor says that it's below the standard of care and the other one says it meets the standard of care.

[00:29:54] Speaker 05:
It seems usually when you're in that situation, you've got a tribal issue.

[00:30:01] Speaker 00:
That may be the case, but here, saying they're substantially similar without walking through the analysis is not enough to satisfy the plaintiff's burden on summary judgment.

[00:30:12] Speaker 05:
So as an example, as you start to walk through... Well, so do I just... So do you have to just disregard that expert's testimony to reach your conclusion on summary judgment?

[00:30:24] Speaker 00:
No, you don't, but what you have to do is look at the specific information that's in the expert's report.

[00:30:31] Speaker 00:
So for example, starting with which elements, you start with what are the information, what are the slides that are in the report are actually works that are protected because there's a lot of the testimony that does not relate to copyrighted material.

[00:30:49] Speaker 00:
Second, then, is in looking at each one of the specific slides, and Your Honor's already asked some questions about this, what elements of it are protected and not protected?

[00:31:00] Speaker 03:
That's why it's, I don't know why you're leaning so much on the waiver doctrine, maybe because the district court had styled it as a waiver.

[00:31:08] Speaker 03:
But to me, this is an application of the normal summary judgment standard.

[00:31:13] Speaker 03:
You filed a motion that identified specific slides and walked through why there's no substantial similarity.

[00:31:22] Speaker 03:
And the district court asked them to come forward with and identify some with reasonable particularity where the disputed facts are, and they didn't do it.

[00:31:33] Speaker 03:
So I think that that's one way to look at

[00:31:36] Speaker 03:
the record and see why the district court's analysis was much more cursory than we would normally see on summary judgment when you have two expert reports side by side.

[00:31:47] Speaker 00:
We agree, and we think that on the merits of the summary judgment motion, forgetting about waiver, that the court reached the right decision.

[00:31:56] Speaker 05:
Let me find out, do you have any additional questions of this?

[00:32:00] Speaker 05:
Your time's up.

[00:32:01] Speaker 05:
Thank you.

[00:32:01] Speaker 05:
All right, so we'll go over to

[00:32:05] Speaker 04:
miss stiles you have five minutes uh... may i please the court my name is may styles on here on behalf of defendants white pine circle defendant elli's white pine circle sharon weisenbaum and nadine zesh uh... i want to address the topic that we've been discussing now because the most important thing about our argument below and the reason that it's

[00:32:33] Speaker 04:
In my view, not important when the other side says, hey, we have competing expert reports is our analysis took as read.

[00:32:43] Speaker 05:
zev rosenberg's report is a hundred percent true we do not rely in anyway on our own expert and the presentation we made but but okay so like if you look at our case on that the different yoga case okay then i think it recognized that the pictures are words of mister bricker news in the book was copyrighted copyrightable and protected but the actual practice of

[00:33:07] Speaker 05:
the yoga sequence was not.

[00:33:09] Speaker 05:
So his expressions in the book were protected.

[00:33:12] Speaker 05:
Why isn't Dr. Versluis' expressions in his PowerPoint presentation protected?

[00:33:18] Speaker 04:
Well, there's several reasons why copyright protection, if available for Dr. Versluis at all, is quite thin here, and I think Your Honor's touched upon sort of the last piece of that logic in your questions to Attorney Schaeffer, and that is that this is a compilation of otherwise unprotectable facts.

[00:33:37] Speaker 05:
Well, but you've got the slide, okay, I went over the upper burner and the upper jowl slide.

[00:33:43] Speaker 05:
It's got three overlapping ovals, the heart, the paracard, and then the upper burner mist.

[00:33:49] Speaker 05:
Do you need to present these concepts in concentric ovals?

[00:33:54] Speaker 05:
Is there another way to express this concept on a PowerPoint slide?

[00:34:00] Speaker 04:
That question is directly answered in the expert report on page 3R147.

[00:34:07] Speaker 04:
Mr. Rosenberg says, the use of this doctrine, meaning these concentric ovals as I read it, is required to conclusively teach the pulses of the Jingwei-Yaoli formulas.

[00:34:19] Speaker 04:
And that is the repeated refrain of this expert report.

[00:34:24] Speaker 04:
The reason he concludes that Ms.

[00:34:26] Speaker 04:
Zesch's slides are infringing is because they are expressing similar, not the same, similar ideas as Dr. Versluis expresses.

[00:34:35] Speaker 04:
And that is his whole thesis.

[00:34:37] Speaker 04:
You see at the outset of his expert report, he

[00:34:40] Speaker 04:
says, very clearly, his thesis is that Dr. Versluis has the right to own the idea of his system.

[00:34:46] Speaker 04:
And then he proceeds to analyze not just the slides, not just the works, but the entirety of Dr. Versluis's teaching and the entirety of Ms.

[00:34:54] Speaker 04:
Sesh's teaching, including her oral words, Dr. Versluis's oral words.

[00:34:59] Speaker 04:
And what that comes together to show is that as a compilation, all we're looking at is a set of very similar ideas.

[00:35:08] Speaker 04:
and what the court in Bikram found was that when you have a copyrighted work that's just presenting a recipe.

[00:35:18] Speaker 05:
But if some of these are ideas, let's say I agree with you, if you just translate things, okay, those might be ideas, but slides are not necessarily just ideas.

[00:35:30] Speaker 05:
They can be copyrighted.

[00:35:32] Speaker 05:
So how do I get past

[00:35:36] Speaker 05:
that one expert says they're substantially similar, the other expert says that they aren't.

[00:35:41] Speaker 04:
Well, our analysis is based entirely on the fact that taking Zev Rosenberg's assertion as true, that they're substantially similar, there's still no copyright protection for them.

[00:35:52] Speaker 04:
You could have similar ideas in two different compilations.

[00:35:56] Speaker 04:
Look at phone books.

[00:35:57] Speaker 04:
But those ideas, those similarities are protectable and what we can't get to and what Dr. Versluis and Ikeem can't get to is a reasonable legally underpinned argument that says these ideas are protectable and here is where the two, here's where that protectable idea is infringed by Ms.

[00:36:17] Speaker 04:
Zesch.

[00:36:17] Speaker 04:
That information is never provided because it doesn't exist and you see that in the chart that we've presented in our briefs.

[00:36:23] Speaker 04:
Those eight slides are the only places

[00:36:26] Speaker 04:
in the entirety of the copyrighted works that Mr. Rosenberg alleges there are substantial similarities.

[00:36:33] Speaker 04:
It's eight examples in much larger slide decks that are not identical.

[00:36:38] Speaker 04:
And the content of those slides is these diagrams, which their expert admits is they're required to teach these ideas.

[00:36:46] Speaker 04:
And then translations, which again, these are not protectable translations.

[00:36:50] Speaker 04:
So there's nothing in the art of these slides that is protectable.

[00:36:54] Speaker 01:
Council, so I think it's been conceded that the

[00:36:58] Speaker 01:
Content, meaning the information being relayed in the presentations, is ideas or facts that are not protected.

[00:37:06] Speaker 01:
So then I think it comes down to diagrams and the similarity between the diagrams.

[00:37:16] Speaker 01:
I understand your position to be that the sans-et-faire or necessity doctrine applies to the diagrams.

[00:37:26] Speaker 01:
But we don't have expert testimony saying that the relationship between the stomach and the middle burner is such that the only real way to diagram the relationship is to have this type of Venn diagram or concentric circle.

[00:37:49] Speaker 01:
Is that testimony necessary for us to apply that defense here?

[00:37:56] Speaker 01:
If not, do you have a citation that you can give us to say, or what is your argument as to why we can find the necessary defense supplies?

[00:38:06] Speaker 04:
Well, I think that information is rooted right in the expert report that we're talking about.

[00:38:12] Speaker 04:
And again, I'll point to the citation.

[00:38:14] Speaker 01:
Well, I read it, and it doesn't... I mean, it says the use of the doctrine is required to teach the pulses.

[00:38:19] Speaker 01:
It doesn't say that the relationship between

[00:38:22] Speaker 01:
you know, these two items in the diagram is such that there's really no other way to diagram it.

[00:38:29] Speaker 04:
I understand that.

[00:38:31] Speaker 04:
And I would argue that that's a bit of a fine line to draw.

[00:38:33] Speaker 04:
But at the same time, what we're talking about, and I think what Mr. Schaefer

[00:38:39] Speaker 04:
was arguing is that, again, this is a compilation.

[00:38:42] Speaker 04:
And so when we talk about comparing substantialist similarity in a compilation, we're talking about the necessity of providing exact copying.

[00:38:50] Speaker 01:
My understanding would be those are two distinct theories.

[00:38:53] Speaker 01:
They could have a compilation theory, which is that as a compilation of factual information, as a whole, it's copyrightable.

[00:39:03] Speaker 01:
And your defense would be is the compilation is not

[00:39:07] Speaker 01:
similar enough as a whole, but then they can have a distinct theory of saying particular parts of the copyrighted works have been infringed, which would be separate.

[00:39:19] Speaker 01:
And I think I'm focusing on the latter, which would be that what I understand to be the claim that particular slides have been at least in form

[00:39:31] Speaker 01:
copied or are substantially similar.

[00:39:34] Speaker 01:
So, and I understood your main defense on that part of the claim would be that there's really no other way, the sans-et-faire defense, there's really no other way to express the relationship between these

[00:39:51] Speaker 01:
There's really no other way to diagram it, and they're not so similar that it's not a virtual copy.

[00:40:01] Speaker 01:
I understand that was your argument in your brief.

[00:40:07] Speaker 01:
What I don't have is, I think the missing part for me is something saying that this really is a relationship that can only be diagrammed this way.

[00:40:19] Speaker 04:
I concede that that is not present in Sebs Rosenberg's report, and we did not cite it from Andy Ellis's report.

[00:40:27] Speaker 04:
I think that what we took was more of a 30,000-foot view and view of Bikram that, yes, in a view of a compilation, these similarities are not problematic because of that necessity that Rosenberg admits, but

[00:40:41] Speaker 04:
in a separate scope and under a separate lens, if you look at this in the view of the Beakroom Court analysis of what is and is not copyrightable, what these diagrams are talking about is the same thing that all of Dr. Versluis' slides are talking about, which is the formula, the recipe, the facts behind pulse diagnosis.

[00:41:03] Speaker 04:
I understand where you're saying, okay, we have these charts, and maybe Ms.

[00:41:08] Speaker 04:
Sesh could have expressed it in a different way, but I would argue that the similarity between the charts is not so apparent such that it's obvious that she copied from him.

[00:41:18] Speaker 04:
In fact, if you look at the upper burner chart, this is a great example.

[00:41:21] Speaker 05:
Well, when you say it's not so apparent right now, my cross-examination wants to say, well, isn't that – doesn't that make it a triable issue?

[00:41:30] Speaker 05:
So let me ask my colleagues if they have any additional questions, because you're a lot over time.

[00:41:36] Speaker 05:
No, they don't.

[00:41:37] Speaker 05:
So we'll conclude your argument on this.

[00:41:39] Speaker 05:
Thank you.

[00:41:41] Speaker 05:
Thank you, Your Honor.

[00:41:42] Speaker 05:
So we – both sides went over, and so I'm giving two minutes just for rebuttal, and that's all.

[00:41:49] Speaker 05:
Thank you.

[00:41:50] Speaker 02:
Thank you, Your Honors.

[00:41:51] Speaker 02:
I think it's important to recognize that what the genesis of this lawsuit was based on an admission by one of the appellees in this case that basically said that she's teaching, not basically, explicitly and unambiguously said that she's teaching his system.

[00:42:07] Speaker 02:
And I think it's clear in looking through the slides, the presentation, the information, which is more the contract issue of what that similarity is.

[00:42:14] Speaker 02:
And I'll just go ahead and reference the slides on 147.

[00:42:17] Speaker 05:
Well, I think I saw in the red brief it said, and I'm asking

[00:42:23] Speaker 05:
white pine if you concede and that quote expressions about pulse diagnosis Unquote are similar to those of dr. First loose PowerPoint slides.

[00:42:35] Speaker 05:
So That's what the concession you're talking about, right?

[00:42:42] Speaker 02:
This is – that quote is just in further explanation of some of these slides.

[00:42:47] Speaker 02:
I just want to go ahead and reference very quickly the one on 147 and 148.

[00:42:52] Speaker 02:
That's the upper JOW slides and the middle JOW slides.

[00:42:56] Speaker 02:
And you'll notice that in addition to the kind of concentric ellipses that

[00:43:02] Speaker 02:
there is concentric ellipses on the left-hand side with the same information, the same expression, the same wording, and in the middle Zhao, the concentric ellipse, the single concentric ellipse, is in the upper

[00:43:17] Speaker 02:
left-hand side.

[00:43:18] Speaker 02:
There are of course many different ways to express kind of concentricities and the fact that these are so similar and identical in these instances of teaching this concept shows that and especially in the context where she says explicitly that she's teaching a system, I think it's clear that she was in the act of copying.

[00:43:37] Speaker 01:
Council, you've conceded that the system under our case of Bikram Yoga and under the statute is not

[00:43:42] Speaker 01:
protected under copyright.

[00:43:44] Speaker 01:
And you've said over and over again, you're only arguing the system under the contract claim.

[00:43:48] Speaker 01:
So under the copyright claim, we have to focus not on the content, but on the form.

[00:43:54] Speaker 01:
And you're saying there's only so many ways to express concentric items.

[00:44:01] Speaker 01:
I don't know of actually any other way other than concentric circles to diagram concentricity.

[00:44:06] Speaker 01:
Is there another way?

[00:44:07] Speaker 02:
Yeah, well, so first of all, you could have boxes, you can have any particular shapes, you can have different... If they had used squares, you would not be here?

[00:44:15] Speaker 02:
In addition to that, I'm sorry, Your Honor, because I'm trying to be cognizant of the time.

[00:44:21] Speaker 02:
Well, you're already over time, so just answer... I'm sorry.

[00:44:24] Speaker 02:
Yes, just the location of being in the upper left-hand corner shows that that was a...

[00:44:31] Speaker 02:
a conscious selection of where to put those, where to place those in this expression of this concept.

[00:44:41] Speaker 03:
So let me ask one clarifying question, if I may.

[00:44:44] Speaker 03:
So when we go back and look at this case again post-argument, what you want us to analyze is a compilation theory, right?

[00:44:53] Speaker 03:
Yes.

[00:44:53] Speaker 03:
And then as to specific slides that you claim are infringing, you want us to look at your best examples would be 3ER 147, 148.

[00:45:03] Speaker 02:
That's correct.

[00:45:06] Speaker 02:
as well as the selection of the particular quotations that are used in the slide presentations as well from the universe.

[00:45:14] Speaker 05:
That would come under your compilation theory.

[00:45:15] Speaker 02:
Yeah.

[00:45:16] Speaker 05:
That's right.

[00:45:16] Speaker 05:
All right.

[00:45:17] Speaker 05:
Thank you for your argument.

[00:45:19] Speaker 05:
All right.

[00:45:19] Speaker 05:
Thank you both for your argument.

[00:45:20] Speaker 05:
This matter will stand submitted.