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Number 211542 SAS Institute Incorporated Against World Programming Limited.

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This is Sendali.

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Your honors, and may it please the court, my name is Dale Sendali, and I represent Appellant SAS Institute.

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In this case, it's undisputed that Appellee WPL meticulously.

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This is Judge Wallach.

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I have a number of questions for you.

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I'd like to get right to them, OK?

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On page 11 of the red brief, WPL contends, quote, it is undisputed that WPL never copied any text of SAS's source code or any of its structural design.

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Is that undisputed?

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That is undisputed, because this is a case of non-literal copying, which... Listen to me.

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I have a lot of questions for you.

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A simple yes or no is fine, okay?

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On page 1314 of the red brief, WPL contends that although you allege holding over 100 copyrightable registrations, your complaint fails to identify which registrations were asserted.

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Would you please identify which of those regulations you assert in the present case?

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We identified seven registrations in our case and in our opening brief.

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It is on page 21 of our brief.

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Okay, thank you.

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It says the SAS system is covered by seven copyright registrations, citing Appendix 345 to 371.

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On page 17 of the Red Brace, have you?

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Oh.

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Yes.

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I'm sorry, Your Honor, I can't hear you.

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Okay.

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On page 17 of the Red Brace,

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WPL contends that Dr. Storer admitted that he never reviewed the code constituting SAS's Asserted Computer Programs, the actual copyrighted work, or compared that code to WPL's.

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That's true, isn't it?

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Correct.

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OK.

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On page 20 to 21 of the Red Brief, WPL contends that Dr. Storer

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admitted that an exhibit purporting to analyze WPL's code was not prepared at his request, contradicting an SAS affidavit, averring it was prepared at his BS.

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Do you agree with that statement?

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No, Your Honor, it was prepared at his request.

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What in the record shows that?

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Because when I read his testimony, it sure didn't look like that.

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In his deposition testimony, he said that he had asked Mr. Leeds to prepare material for him in which he relied, which is very common for experts to do.

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And who was that?

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That's an attorney, is it not?

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No.

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He's another computer expert, and it's very common for testifying experts to rely on such things.

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In fact, appendix 13483, lines 21 to 22, Stora said that he directed the substance of his report, and every word in it was his report.

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On page 57 of the red brief,

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WPL contends that Dr. Storer never identified any code modules or data structures that might relate to the generation of such output design.

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Do you disagree with that statement?

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No.

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On page 25 of the Gray Brief, you contend that the district court's order

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never objected to Dr. Stoner's inferences or methodology.

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Do you believe district courts have to object to witness statements?

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And in any case, how is it true when the district court said, I'm quoting, in light of the particularly meager AFC analysis performed by Dr. Storer, which can at best be described as scant,

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It finds that his analysis and methodology are unreliable, which is reinforced and supported by the egregious conduct of Dr. Storer as documented in WPL's corrected motion to exclude.

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Wouldn't you agree the court clearly found the testimony questionable?

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I'm sorry.

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I couldn't hear the last statement your honor made.

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Wouldn't you agree the court

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Clearly found the testimony objectionable.

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You said the court must object to witness statements, but it seems to me the court clearly found it objectionable.

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The court excluded Dr. Stewart.

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That is true, but based on a fundamental misunderstanding of what his burden was, and that was in a misunderstanding played up by invited the court by WPL and the Jones report.

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as Appendix 1988 shows, the Jones Report, rather than doing what it should have done and meticulously go through everything that WPL admittedly copied and explained why it was unprotectable, instead repeatedly criticized Storer for not using his burden for not going through everything and explaining why things were

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on not unprotectable.

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That wasn't his burden, as our brief showed.

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In fact, Dr. Storer did do a filtration analysis and concluded that the main purpose of the program should be excluded and included that certain things with regard to the interface mechanisms were not protectable.

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But then he went on to say, and this is a core mistake.

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Council, you ignore the court at your peril.

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I apologize, Your Honor.

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I did not hear that you were trying to speak.

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I apologize.

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All right.

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On page 25 of the Gray Brief, I'm trying to keep you from wasting your time.

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On page 25 of the Gray Brief, you contend that the district expert for not performing the filtration analysis that it wanted or it rejected Dr. Storter's testimony.

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I say, Judge Wallach, your voice cuts out from time to time.

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So if counsel asks for it to be repeated, I think we all share that view.

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OK, let me take it off speaker and I'll try this.

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Is this better?

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It could be better.

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Much better.

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OK, I apologize.

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Thank you, Judge Newman.

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On page 28 of the Redbrief,

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WPL contends that you reproduce lines of free to use FAS language from non-asserted manuals.

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And FAS shows images generated by user written programs.

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Are these illustrations from non-asserted manuals?

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No, Your Honor.

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The manuals are part of what is used to show

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And it's commonly done what the expression looks like.

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Okay.

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I'm going to defer.

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I'm going to defer to my brethren.

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I've taken a lot of time and I have a lot more questions, but, um, counsel, this is judge right now.

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I have a question that I think it's, um, addresses what I see to be an unresolved legal issue.

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That's concerning the posture or the procedural posture of the, of the decision of the district court.

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I guess my first question to you is the district court decided copyrightability as a matter of law.

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And it did that after holding a hearing, an evidentiary hearing on copyrightability.

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My question is what do you see as being the correct standard of review if you disagree with that?

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And did the district court actually resolve any factual issues as a result of the evidentiary hearing?

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Thank you, Your Honor.

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The copyrightability hearing is, it was improper procedurally.

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The way, first up, copyrightability is a mixed question of law and fact.

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Engineering dynamics in the Fifth Circuit adopted Gates rubber.

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In addition, in Aspen Technology, the Fifth Circuit explicitly noted that the jury, as the ultimate fact finder,

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was entitled to determine whether the copied aspects of the program were entitled to protection.

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Here, the district court said it did not want to address the issues on summary judgment and ferret out what was a disputed issue of material fact or not, and had this copyrightability hearing that as far as we know, neither side decided any other court has ever done,

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And he said in his opinion that part of it was legal.

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Well, the problem in a mixed question of law and fact, the other part is factual.

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And that was taken away from the jury improperly.

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Did the district court decide any factual issues?

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The standard of review here is de novo.

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The district court did not.

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It's frankly very confusing what the district court was trying to do.

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The district court said that some aspect of the SAS copyrighted work was in the public domain, but it never identified which portions, if any, actually were.

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It did say that.

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Other than that, all the district court said was that WPL had presented evidence on various topics.

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It never grappled with that evidence.

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and said, because of this reason, this portion of the copied work is unprotectable, which is what a court is supposed to do.

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It totally didn't do that.

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And therefore, it's very difficult for this court in reviewing it because this wasn't a Rule 52 bench trial.

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There's no findings and conclusions.

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All right.

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Let me have a follow-up question here.

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Now, if your expert witness had not been excluded, would any of his testimony or the report have been used at the evidence or hearing?

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Yes, absolutely.

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He kept trying to answer because the court misunderstood the burdens and kept trying to ask Dr. Storer to prove the negative.

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He was trying to do that and explain in his comparison his copyright ability

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his section of his report where he did all the comparisons of all the side-by-side copies, et cetera, to explain the protectional expression.

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And the court wouldn't let him even refer to other parts of his own report.

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Okay.

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Here's another question, and then I'll fade back for a little bit.

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But one of the elements of proof here is ownership of a copyright.

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And it seems to me that your position is that once you have a registered copyright, that the entire matter is subject to protection, meaning all elements within that particular matter are protected by the registration.

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Am I correct in that assessment?

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Yes, absolutely, Your Honor.

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Please continue the thought.

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That it's pre-meat-fasci evidence of validity and as we cite in our brief, the House report says that the plaintiff should not ordinarily be forced in the first instance to prove all the multitude of facts that underlie the validity of the copyright.

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But that's the validity of the copyright, correct?

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I mean, it seems to me that in your first step of showing ownership, one of the elements included in there is whether the copyright was due in the issue and whether it was issued pursuant to all statutory requirements and things of that nature.

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But as to actual protection, I have a difficult time accepting that once you have registration,

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that you have complete protection of all elements within that.

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And that you don't have to argue later on that what's protected and what's not, just by taking the position that you have a duly registered copyright.

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And I think that that kind of runs afoul of the same notion here.

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In other legal disciplines, like even in tort, you have to show a particular injury and relate that injury to the defendant in patent law.

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You can have a valid patent that's issued by the PTO, and yet some claims, but not all claims, some claims may be found to be invalid and therefore there's no infringement with respect to those invalid claims.

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You seem to take the position that you don't have to

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designate or identify which elements within the matter are protected by copyright.

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Can you address that, please?

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Yes, Your Honor.

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The presumption is for the whole work and the Boyce case, for example, in the Second Circuit says that includes the constituent elements of the work.

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But what happens is that you identify as the plaintiff

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what within the overall work, which is usually larger, the defendant copied, which we did here, the input for this and the output designs.

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And then the burden, because of the presumption, is on the other side to explain why what it copied was not protectable.

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I think that's familiar.

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I defer to this court on patent issues, but that's similar to invalidity, where it's the defendant that comes forward and tries to argue

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issues with regard to validity.

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It's the same true with regard to obviousness, which is very factual.

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The defendant comes forward with trying to explain that.

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And that makes sense, as CompuLife says.

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So you would agree that SAS would bear the responsibility at some point within this process of coming forth and identifying which elements of its copyrighted matter is subject to protection?

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I'm not saying the first step or I'm saying at some point SAS has to do that, right?

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Yes, SAS had to and did identify that among my copyrightable protected works were these input formats and output designs and you copied that subset of my program.

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Then they had to say why it wasn't protected and then it was our job to respond.

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Was there any additional information other than using the statements, input, and output designs?

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Was there any evidence as to what those are and where they're located, where they're identified?

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Yes, Your Honor.

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For example, in the appendix at 13881, SAS provided a list of approximately 12,700 keywords that were copied.

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And similarly, Appendix 1373 to 1428, using one of WPL's own documents, the quick reference guide, 50 pages long.

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It showed on an input format by input format level what was copied.

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And then on page 865 of the appendix, SAS provided roughly 400 default outputs.

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In other words, side by side showing what outputs

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designs had been literally copied by SAS.

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So SAS.

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Okay, thank you.

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Thank you.

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I'm aware that I'm past my time, so if... We'll save your rebuttal time.

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Are there any more questions at the moment for Ms.

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Sandali?

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This is Judge Wallach.

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No, thank you.

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Okay.

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All right.

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We'll hear from Mr. Lampkin.

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Thank you.

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Good morning and may it please the court.

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I would like to start with a clarification, and that was that Dr. Storrs' testimony was not excluded from the copyright hearing.

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He testified from pages 3385 to 3485 for 100 pages.

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His testimony was excluded from trial because the judge found it was not reliable and would not be helpful to the jury.

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Backing up, before turning to who has the burden to prove unprotected elements or Dr. Storrs' exclusion or the failure to identify

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where the non-literal elements appear in the protected asserted code.

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I wanted to emphasize that judgment here was proper, regardless of who bears the burden, as we set forth on pages 42 to 44 of our brief.

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Everyone agrees that to find copyright infringement, juries must make a side-by-side comparison of two things, the protected elements of the copyrighted work against the accused work.

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Courts have to identify those protected elements that the jury can use for that comparison.

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And the district court here directed SAS to provide specifics as to the protected elements that could be presented as a jury.

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Just identify them.

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And SAS refused four times over.

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At the hearing, WPL presented overwhelming evidence from SAS's own witness.

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What do you say, counselor, to your opponent who just sided out of the record?

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different places where they did specify the elements that are subject to protection.

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Yeah, so all of those are things that are in WPL's accused work.

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They're not pointing to SAS's underlying code.

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They're not pointing to SAS's work.

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And they're not doing anything to identify what, in any of the screens or anything, is actually protected elements.

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So did SAS identify anything that they believe is subject to protection?

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Well, SAS's position throughout was that everything is protected.

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If you look at page nine of the appendix in the district court's decision, their position was that all of the screen outputs, everything that SAS's software will generate in response to user's programming, every one of those screens, potentially infinite, is protected.

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every element of those screens.

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But that's standard, straightforward copyright law as far as literary works are concerned.

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The work is protected.

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You don't look through and say, well, you use the word the or the word little or this or that, which is in the dictionary, and therefore it's not

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protected.

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What they were reciting is, as I understand, the copyright law.

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The difference between patents and copyright is that the work as a whole is protected from copying.

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And if pieces of it are plucked out, you look and see if that's fair use rather than unprotected substance.

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And so there

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The problem, of course, is that we're dealing with software and need to be very much aware of the possibility as to if there are differences in terms of the writings that constitute the software and the writings that constitute works of art, works of literature.

[00:21:53] Speaker 02:
Let's focus on that and on where the burden shifts in terms of copy here.

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Your position, I gather, was never that this was fair use.

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Is that right?

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But rather that these aspects that were copied are unprotected.

[00:22:14] Speaker 01:
So we never got to fair use, because as you point out, when you're dealing with software, you have to do what's called a filtration analysis to separate

[00:22:22] Speaker 02:
I'm also sure you certainly don't get that from the way the Supreme Court has been looking at copyright recently.

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From your view, must we affirmatively endorse the concept of filtration?

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I think it's interesting that patent experts have been reviewing these issues because it brings us really head-to-head

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with the differences between copyright and patents?

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So there's two things.

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First, because we're governed by Fifth Circuit precedent, and the Fifth Circuit has adopted the AFC, the Abstraction Filtration Analysis, this court is bound by it.

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The Eleventh Circuit precedent, which SAS invokes, says that you do the abstraction filtration.

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And even Feist says, look, the entire work may be deemed protected if you have a copyright registration, but when non-literal elements

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are being asserted, something that's an extrapolation from what's underneath, you're going to have to determine what the protected elements are.

[00:23:28] Speaker 02:
Even though it's copied?

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Even though it's copied verbatim?

[00:23:32] Speaker 01:
Yeah, even if things, outputs look the same, you have to determine, it's important for software like software like this, you have to determine how much of that, for example, came from the user program.

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what the user wrote to make the software operate, and how much of it came from the software itself.

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But I don't recall any assertion that these programs, these codes, were independently produced.

[00:24:01] Speaker 02:
I thought that it was accepted that they were copied.

[00:24:05] Speaker 02:
Is that not accurate?

[00:24:06] Speaker 01:
It's precisely the opposite, Your Honor.

[00:24:09] Speaker 01:
The software code.

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is completely and totally independent.

[00:24:14] Speaker 01:
There is no evidence that WPL ever looked at or had access to SAS's code, and there's no, admittedly, there's no allegation whatsoever, and I think opposing counsel conceded it, that our code in any way, shape, or form looks like or resembles their code.

[00:24:31] Speaker 01:
This case is not a literal copying case.

[00:24:35] Speaker 03:
This case is a non-literal copying case, exclusively, correct?

[00:24:40] Speaker 01:
It's exclusively about non-literal elements.

[00:24:43] Speaker 01:
Exactly.

[00:24:44] Speaker 01:
Not underlying code, but extrapolations from it, things like the format in which it presents the outputs.

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But when you do that, you have to determine first how much of that comes from the user's program.

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Because this is a software that's basically a developer software.

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Someone else writes a program, inputs it into the SAS system or WPL system, telling it

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what analyses to do, how to present the output.

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And then you get a result.

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And so you have to figure out how much of that came from the software that, excuse me, the program that the user wrote, and how much of it comes from SAS.

[00:25:23] Speaker 01:
How much of SAS the system comes from SAS 76, which is a public domain element?

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How much of the structure is dictated by SAS 76?

[00:25:32] Speaker 01:
You have to do that filtration.

[00:25:33] Speaker 01:
Otherwise, if you just throw up in front of the jury,

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These two things, they say they're the same.

[00:25:37] Speaker 01:
Well, they're the same because the same program was written.

[00:25:39] Speaker 03:
All right, counselor, what's your response to my question as to whether copyrightability is a pure question of law?

[00:25:46] Speaker 03:
Are there any factual underpinnings in that?

[00:25:50] Speaker 01:
So there may sometimes be underlying factual questions, but I think it's universally accepted that determining which elements are protected is something that the court must do in advance of the case going to the jury.

[00:26:04] Speaker 01:
And I think I maybe start out

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with CompuLife itself, which is what we need.

[00:26:10] Speaker 03:
Why did the district court entertain expert testimony during the evidentiary hearing?

[00:26:15] Speaker 01:
Well, I mean, first, I don't think SAS can claim to be prejudiced by that, since they had just simply failed to address protectability in any way, shape, or form before the hearing.

[00:26:25] Speaker 01:
This was like a last chance for them to actually give what the district court was asking for, which is, and I'm going to quote, to know exactly what the district court was asking for.

[00:26:32] Speaker 03:
I guess what I'm getting at is,

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A lot of the case law out there deals with actions that are taken on the pleadings.

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And this didn't happen here.

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And here, the parties actually requested for a summary judgment hearing.

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And instead, they got this specialized evidentiary hearing.

[00:26:53] Speaker 03:
And I'm trying to decide if this was a mini trial or if it just addressed and involved pure questions of law.

[00:27:03] Speaker 01:
Yeah, so I think it's hard to actually sort of tab in this, whether it was a bench determination, summary judgment, or what's best to description in my view is it was a pre-trial determination akin to Markman or a jurisdictional determination or an evidentiary determination like Daubert where a court will might find facts and make determinations as to what goes to the jury.

[00:27:24] Speaker 01:
The one thing I can tell you is it just doesn't make a difference because it's an issue for the court.

[00:27:29] Speaker 01:
and the court decides it.

[00:27:31] Speaker 03:
And I don't think that... Well, if it was a summary judgment hearing, then it seems to me the cat and dog case comes into play here.

[00:27:43] Speaker 01:
No, I don't think it's a summary judgment.

[00:27:45] Speaker 01:
If it's a summary judgment case, the question becomes, is there anything that they've presented to the judge, which the judge can now present to the jury, resulting in a decision in their favor?

[00:27:56] Speaker 01:
And after we presented overwhelming evidence that their entire set of asserted works were shot through with unprotected material.

[00:28:04] Speaker 01:
They didn't come back and say, actually, you're wrong.

[00:28:06] Speaker 01:
That materials protected and I'm going to go to page 17 of the appendix.

[00:28:09] Speaker 01:
Mr. Court's opinion.

[00:28:11] Speaker 01:
SAS has not attempted to show what WPL pointed to as unprotectable is indeed entitled protection.

[00:28:16] Speaker 01:
So everything we've shown is undisputed.

[00:28:19] Speaker 01:
Next sentence.

[00:28:19] Speaker 01:
Do they come back and say, well, you know what?

[00:28:21] Speaker 01:
You missed something.

[00:28:23] Speaker 01:
There's something here that isn't shot through that is protectable, and that's what we can show the jury.

[00:28:27] Speaker 01:
Similarly, SAS has not shown the existence and extent of any remaining protectable work.

[00:28:32] Speaker 01:
So they haven't come back and said, yeah, OK, WPL made its showing, but here's what's left that we can give to the jury.

[00:28:40] Speaker 01:
So burdens aside, if a party doesn't identify what it can present to a jury to support a judgment in its favor, if it doesn't even tell the court what remains that's protected after the hearing, it loses under any federal rule.

[00:28:54] Speaker 01:
You can't just hand the district court an undifferentiated mask.

[00:28:58] Speaker 01:
and say, something in there might be protected, Judge.

[00:29:01] Speaker 01:
I'm not going to help you identify it.

[00:29:02] Speaker 01:
I won't tell you what the individual elements that are protected in.

[00:29:06] Speaker 01:
You figure it out.

[00:29:07] Speaker 01:
They have to tell the court, at least at the end of the hearing, here's what's left.

[00:29:11] Speaker 01:
And they simply didn't do that.

[00:29:13] Speaker 01:
And it's particularly aggravated here because the court could not have been more clear.

[00:29:17] Speaker 01:
At the beginning of the hearing, the court said, I want to put you on clear notice right now.

[00:29:22] Speaker 01:
That's a quote from 3371.

[00:29:24] Speaker 01:
I've got to know exactly what you're asserting, page 3317.

[00:29:28] Speaker 01:
I've got to have specifics by which I can ask the jury to make a proper comparison.

[00:29:32] Speaker 01:
Now, mind you, that's a comparison between the protected elements

[00:29:35] Speaker 01:
and the accused work and render a discreet factual finding.

[00:29:38] Speaker 02:
Again, page 3317.

[00:29:45] Speaker 02:
has been troubling me throughout, there's been an awful lot that's been written about software and the different kinds of protection through copyright and through patents.

[00:29:58] Speaker 02:
And their position seems to conform with the development and the understanding of those differences that the entire work, the entire literary work

[00:30:13] Speaker 02:
is what's protected by copyright and that this filtration that has gotten into the cases and so on really are conformable to copyright law only on a principle going back to fair use and I agree I didn't see any

[00:30:36] Speaker 02:
reference to fair use and I assume that's because that there's so much similarity that it would be very hard to prevail on a theory of

[00:30:47] Speaker 02:
of fair use and so to figure out where these lines are to be drawn if in fact I think it was not disputed but that the various stages, the functions, now looking at it from the patent viewpoint, that the functions are the same, that the steps from the viewpoint of being copied are not disputed and so it is necessary as did the district court

[00:31:17] Speaker 02:
to sort out and look into the details, look under the surface to see what actually was or was not copied.

[00:31:28] Speaker 02:
That's the impression that I've gotten from this case.

[00:31:33] Speaker 02:
Now, what's your response to that?

[00:31:36] Speaker 01:
So I should start out and say the fact that you have a registered work means that the work as a whole

[00:31:42] Speaker 01:
So the entirety of the work is entitled to some copyright protection.

[00:31:46] Speaker 01:
But that does not mean that every little element, every piece of that work, if it's individually excerpted and used, is entitled to protection.

[00:31:56] Speaker 01:
That is standard standard.

[00:31:58] Speaker 01:
No, it's not a fair use question.

[00:31:59] Speaker 01:
It's a question of protection.

[00:32:01] Speaker 01:
And the reason is there's a big difference between how the copyright office works and how the patent offices work and how different and how copyright registrations are done and how patents are issued.

[00:32:11] Speaker 01:
When the Copyright Office looks at something, it looks at maybe not the entire work.

[00:32:16] Speaker 01:
It might get the last 50 pages and the first 50 pages of 10,000 pages of code.

[00:32:21] Speaker 01:
And it only decides, is there something in here worthy of copyright?

[00:32:26] Speaker 01:
It doesn't make any determinations that this piece is copyrightable, that piece is copyrightable.

[00:32:31] Speaker 01:
Just there's something in the whole work worthy of registration.

[00:32:34] Speaker 01:
That's a real difference between that and patents.

[00:32:38] Speaker 01:
Patents, you actually have claims that give you the meets and bounds of what is protected.

[00:32:42] Speaker 01:
The claims give you the scope to the right.

[00:32:44] Speaker 01:
So without claims, what happens for copyright, particularly when you're dealing with functional works like software, particularly when you're dealing with non-literal elements, things that aren't actually in the code, there are simply extrapolations from it like structure or plot or something like that.

[00:33:00] Speaker 01:
You have to have a court that says, OK, you haven't copied the whole thing, so we're not talking about the entire work.

[00:33:07] Speaker 01:
We're talking about things the Copyright Office has never looked at, things the Copyright Office has never seen.

[00:33:12] Speaker 01:
So I need to go up out and figure out whether these individual elements that are being asserted here are protected.

[00:33:19] Speaker 01:
And here, regardless of who has a burden here, the thing that SAS did not do, it did not identify for the comparison between protected elements and the accused work

[00:33:33] Speaker 01:
what the protected elements are.

[00:33:36] Speaker 01:
It simply reproduced output screens for its software and output screens for ours.

[00:33:42] Speaker 01:
And the district court properly understood that that would be very confusing for the jury and would not be in the slightest probative because

[00:33:49] Speaker 01:
Those screens, for example, include the user programming, the names of the variables, the types of functions that have been called up.

[00:33:56] Speaker 01:
They're based on SAS 76, which is in the public domain.

[00:34:00] Speaker 01:
There's simply no way the court could have shown that to the jury.

[00:34:03] Speaker 01:
And having presented nothing to the court that could be shown to the jury, having presented no rebuttal that said, OK, I've taken out what's been shown to be public domain, taken out what's scenes off there, what's standard mathematical operations, what's user work.

[00:34:17] Speaker 01:
Having done none of that, Sasse properly had judgment entered against it.

[00:34:21] Speaker 01:
Thank you, Your Honor.

[00:34:23] Speaker 02:
Okay.

[00:34:23] Speaker 02:
Any more questions for Mr. Lamkin?

[00:34:27] Speaker 04:
This is Judge Wallach.

[00:34:28] Speaker 04:
This is Judge Wallach.

[00:34:29] Speaker 04:
No, thank you.

[00:34:30] Speaker 02:
Okay.

[00:34:32] Speaker 02:
All right.

[00:34:33] Speaker 02:
You have your rebuttal time, Ms.

[00:34:34] Speaker 02:
Sendali.

[00:34:36] Speaker 05:
Six quick points.

[00:34:38] Speaker 05:
One, Dr. Storer testified but was limited in his testimony in the hearing of the court as we explained in our brief.

[00:34:45] Speaker 05:
would not let him explain.

[00:34:48] Speaker 05:
Second, counsel makes a fundamental error.

[00:34:51] Speaker 05:
There was no requirement to show that they copied the code.

[00:34:55] Speaker 05:
This is a non-literal case.

[00:34:57] Speaker 05:
The code is irrelevant.

[00:34:58] Speaker 05:
And every time they mention the code, that just is an obfuscation.

[00:35:02] Speaker 05:
Third, as Judge Newman properly said, in copyright, selection and arrangement, as the Supreme Court set in

[00:35:10] Speaker 05:
is a crucial concept.

[00:35:12] Speaker 03:
If you could have multiple... Is it the fact that this is a non-literal copying case that it hides your burden of persuasion to show what elements of the copyrighted matter are copyright protected?

[00:35:31] Speaker 05:
No, Your Honor.

[00:35:32] Speaker 05:
We identified, as I said earlier, that what the input formats and output designs were

[00:35:39] Speaker 05:
that they copied.

[00:35:40] Speaker 05:
And you have to do that in every copyright case.

[00:35:43] Speaker 05:
You have to say what you think the other person copied, which we did.

[00:35:47] Speaker 05:
There's no heightened burden in this kind of context.

[00:35:51] Speaker 05:
But as I was saying is that the district court misapprehended and kept criticizing Storer for saying, well, you need to look at the creative choices.

[00:36:01] Speaker 05:
The creative choices are fundamental to copyright.

[00:36:04] Speaker 05:
And the Fifth Circuit's decision in engineering dynamics, which I commend to the course,

[00:36:08] Speaker 05:
court specifically held as a matter of law that input formats and output designs could be protectable.

[00:36:15] Speaker 05:
And the court discussed that that's because unless there's merger, unless there's only one way to do it, and you often look at the market to see if others, as is the situation here, are doing it in a different way in this case, that indicates that there's protectable expression.

[00:36:32] Speaker 05:
And that's the situation here.

[00:36:34] Speaker 05:
Fourth, factual copying was found.

[00:36:40] Speaker 05:
It's not of the code.

[00:36:41] Speaker 05:
Again, it's not of the code case.

[00:36:43] Speaker 05:
Appendix 15, the court found factual copying.

[00:36:46] Speaker 05:
There's no doubt, as the documents I cited show, WPL copied extensively.

[00:36:51] Speaker 05:
And then finally, Judge Raina's questions.

[00:36:54] Speaker 05:
about is this factual or legal, this isn't like a Markman hearing where the only thing is interpretation of a legal doctrine.

[00:37:03] Speaker 05:
The limiting doctrines are infused with fact, which is why the Fifth Circuit says and asked them, they're for the jury, seems a fair.

[00:37:10] Speaker 05:
What was factually common in the industry or not?

[00:37:14] Speaker 05:
Constraint, merger, are there alternative ways to do things or not?

[00:37:18] Speaker 05:
What do other people do in the industry?

[00:37:20] Speaker 05:
Public domain, apply it.

[00:37:22] Speaker 05:
And the fundamental issues, as you see following up also on Judge Raina, is that my friend said you can't tell what the hearing was.

[00:37:31] Speaker 05:
That's a fundamental problem in civil procedure.

[00:37:34] Speaker 05:
When I was taught civil procedure in law school, you either had Rule 56 or you had a bench trial.

[00:37:39] Speaker 05:
You don't have a separate evidentiary hearing.

[00:37:44] Speaker 05:
I fear that my stuff has gone off.

[00:37:46] Speaker 02:
Well, you can have the last word.

[00:37:47] Speaker 02:
Anything else you want to tell us?

[00:37:50] Speaker 05:
And the only thing I wanted to say that they fundamentally did not do their job of meticulously going through everything that they copied and saying it was unprotectable.

[00:38:03] Speaker 05:
The court didn't even say that.

[00:38:04] Speaker 05:
At best, the court said, was something maybe unprotectable.

[00:38:09] Speaker 05:
Didn't define what it was, but something.

[00:38:12] Speaker 05:
Well, that leaves the rest, but everything was dismissed.

[00:38:15] Speaker 05:
And then last sentence,

[00:38:17] Speaker 05:
is that in Section 2C of our brief, we, in fact, detail and responded, as we did at the hearing, to everything as to why, in fact, their limiting doctrine arguments are not sufficient.

[00:38:32] Speaker 05:
We did, in fact, respond.

[00:38:33] Speaker 05:
And we believe this court has the ability to reverse and remand the case to jury trial, finding that the protectability is established and letting the jury decide the issues

[00:38:46] Speaker 05:
comparison.

[00:38:49] Speaker 03:
I'd like to ask the final question.

[00:38:51] Speaker 03:
Of course.

[00:38:53] Speaker 03:
Okay.

[00:38:54] Speaker 03:
And this goes back to my initial concern that I expressed early in the argument here, and that is the procedural posture of the case and what type of hearing was held.

[00:39:08] Speaker 03:
And I'd like to ask you, counselor, you're familiar with

[00:39:14] Speaker 03:
the Federal Assault Procedure 16C2L.

[00:39:18] Speaker 03:
Yes.

[00:39:19] Speaker 03:
And that state L states there that the court can have a hearing

[00:39:29] Speaker 03:
and can adopt special procedures for managing potentially difficult to protective actions that may involve complex issues, multiple parties, difficult legal questions, or unusual proof calls.

[00:39:41] Speaker 00:
I apologize to interrupt.

[00:39:42] Speaker 00:
Judge Raina, this is Elise, the courtroom deputy.

[00:39:44] Speaker 00:
It appears Ms.

[00:39:45] Speaker 00:
Sendali is off the line.

[00:39:46] Speaker 00:
I can dial her back in.

[00:39:49] Speaker 00:
Yes, please do.

[00:39:50] Speaker 00:
Okay, thank you.

[00:39:54] Speaker 02:
about where we left off or, Jodrina, if you wouldn't mind, you were asking an important question, and I'd be interested in the answer.

[00:40:04] Speaker 03:
Right.

[00:40:04] Speaker 03:
The question that I had goes back to that question I raised earlier in the argument.

[00:40:10] Speaker 03:
And that's the procedural posture of the case, the point where the district court made a decision, and it did it apparently under this evidentiary hearing.

[00:40:24] Speaker 03:
I'm wondering what happens in those type of hearings, and I wanted to point out that the Federal Rules of Procedure 16C to L provides that a court can decide issues, can adopt special procedures for managing potentially difficult or protected actions that may involve complex issues, multiple parties, different legal questions, and unusual proof problems.

[00:40:50] Speaker 03:
Now, the district court did specify under what rule it was holding this hearing, but it seems to me that this particular rule fits that well.

[00:41:01] Speaker 03:
What would you say to that?

[00:41:04] Speaker 05:
Thank you, Your Honor.

[00:41:05] Speaker 05:
Yes, that is part of the civil procedure, but you can't use that to trump all the rest of it.

[00:41:13] Speaker 05:
As I read 16L, it says the court can adopt different procedures, but it doesn't mean

[00:41:20] Speaker 05:
it can create, given due process and appellate review issues, something that is inconsistent with summary judgment or Rule 52 jury trial.

[00:41:34] Speaker 05:
In other words, you can have a hearing, you can have extensive discussions on what the jury instructions might be.

[00:41:42] Speaker 05:
You can have a summary judgment hearing that has different

[00:41:47] Speaker 03:
tranches to them.

[00:41:50] Speaker 03:
Why then couldn't the district court, after hearing argument and the various presentations during the hearings, determine the unusual proof problems offered in this case and say that SAS failed to meet its burden?

[00:42:07] Speaker 05:
Well, because the fundamental issue is the court can't grant judgment, because that is

[00:42:13] Speaker 05:
For the jury, as the Fifth Circuit said in Aspen, the court, by the evidentiary hearing, was putting itself up as the trier of fact, and that's not proper.

[00:42:25] Speaker 03:
This goes to my question of copyrightability, whether it's a pure question of law or one that has factual underpinnings.

[00:42:35] Speaker 05:
Correct, and as I said, Your Honor, Engineering Dynamics adopted Gates, which says it's a mixed question of law and fact.

[00:42:42] Speaker 05:
My friends do not oppose that or challenge that in the brief.

[00:42:48] Speaker 03:
Would it be fair to say that the answer to this question is unsettled at this point?

[00:42:56] Speaker 05:
No, actually, I don't think so, Your Honor.

[00:43:01] Speaker 05:
Especially in light of

[00:43:03] Speaker 05:
Certainly not in the Fifth Circuit, whereas I said, Aspen specifically said that protectability is a question for the jury.

[00:43:14] Speaker 05:
It couldn't be clearer than that.

[00:43:15] Speaker 05:
And then Engineering Dynamics, you know, Daphne Gates said it was a mixed question of law and fact, and again, my friends don't challenge that.

[00:43:22] Speaker 05:
The issue is, I've been doing copyright law for a long time, not so much patent law, but I know that I've never heard of a hearing like this.

[00:43:30] Speaker 05:
And I've never heard of a court decide your whole case would divorce from findings or conclusions.

[00:43:37] Speaker 05:
I mean, it must be hard for you folks to understand.

[00:43:40] Speaker 05:
What exactly did the court hold?

[00:43:41] Speaker 05:
What did it find on any of these limiting doctrines meant that what we had was unpredictable?

[00:43:48] Speaker 05:
You can't tell.

[00:43:49] Speaker 05:
And that's because the procedure was wrong.

[00:43:52] Speaker 05:
The court didn't want to do the work,

[00:43:55] Speaker 05:
of going through, as courts are supposed to do on summary judgment, all of the, you know, are there disputed issues of fact?

[00:44:03] Speaker 05:
Are they not?

[00:44:04] Speaker 05:
If they're not disputed issues, the fact that the court can decide things and narrow the case.

[00:44:09] Speaker 05:
But otherwise, things go to the... Counsel, this is Judge Wallach.

[00:44:14] Speaker 04:
Did you inquire of the court whether it wanted to do that work?

[00:44:18] Speaker 04:
I'm tired of the pejoratives.

[00:44:20] Speaker 05:
I'm not trying to make a pejorative, Your Honor.

[00:44:23] Speaker 05:
The court said that it did not

[00:44:25] Speaker 05:
wish to decide this and have to grapple with Appendix 1, the decide whether there were material issues of disputed issue of fact or not.

[00:44:38] Speaker 05:
And the court chose, expressly said it wasn't doing this on summary judgment.

[00:44:42] Speaker 05:
And it couldn't have been a bench trial either, because the parties didn't agree to a bench trial, there was a jury trial, and yet there was an evidentiary hearing.

[00:44:51] Speaker 03:
And that's neither...

[00:44:55] Speaker 03:
you have a problem.

[00:44:57] Speaker 03:
And that is that I think it is a mixed question.

[00:45:01] Speaker 03:
But I think in the Fifth Circuit, it's probably more well settled than elsewhere.

[00:45:06] Speaker 03:
And the problem here is that if it's a mixed question of law and fact, if it's a question of law, factual underpinnings, when I look at the record, I don't see that you identify issues of fact that needed to be decided.

[00:45:23] Speaker 03:
There was no counterattack by SAS.

[00:45:28] Speaker 05:
Well, two points, Your Honor.

[00:45:30] Speaker 05:
One, there was a counterattack.

[00:45:33] Speaker 05:
We explained that in Section 2C of our report.

[00:45:36] Speaker 05:
Our full counterattack was limited in that they limited SOAR and they limited Colin's testimony.

[00:45:42] Speaker 05:
And three, they didn't get to the point of us having a counterattack because they didn't meet their burden by merely

[00:45:51] Speaker 05:
citing limiting doctrines, some of which didn't even relate to the stuff they copied.

[00:45:55] Speaker 05:
You can't just say something's in the public domain from 1976.

[00:45:59] Speaker 05:
You have to say, well, what about what you copied fits that bucket?

[00:46:06] Speaker 05:
In 76, there were 33 prox.

[00:46:08] Speaker 05:
Today, there are over 500 prox, and their own expert admitted the prox changed.

[00:46:13] Speaker 05:
So what is it that they contend is actually in the public domain?

[00:46:18] Speaker 05:
And they didn't do that work, and they're still,

[00:46:21] Speaker 05:
arguing that it was our job to do that work.

[00:46:24] Speaker 05:
And that's not right.

[00:46:25] Speaker 05:
And then finally, my second point is that this court's decision in Oracle v. Google One, which was cited favorably by the Supreme Court in Google v. Oracle, is somewhat helpful on this because it says when there's a mixed question of law and fact, as Judge Newman was talking about, like in a fair use case, although right now we're not talking about fair use, the issue is

[00:46:47] Speaker 05:
Let the jury decide the historical facts.

[00:46:52] Speaker 05:
And then there's always rule 50 and the substantial evidence test for the court to weigh in to make sure that the jury got it right.

[00:47:00] Speaker 05:
And that could have also been done here if the court did not wish to decide this or didn't think summary judgment was a good vehicle.

[00:47:09] Speaker 05:
He could have said, let's go to trial.

[00:47:10] Speaker 05:
Let's have, you know, figure out what the jury instructions should be.

[00:47:14] Speaker 05:
And then Rule 50 would protect things under the Supreme Court saying that the jury, in a case of mixed question of law and fact, is to decide those fact issues.

[00:47:27] Speaker 02:
Okay.

[00:47:27] Speaker 02:
Any more questions from Mr. Endali?

[00:47:30] Speaker 04:
Not from Judge Wallach.

[00:47:31] Speaker 03:
Thank you.

[00:47:32] Speaker 03:
No, thank you, Judge Neuwen, for letting me ask, have counsel go over time.

[00:47:37] Speaker 02:
No, this is interesting and complicated.

[00:47:40] Speaker 02:
So thanks to both counsel, the case is taken under submission.

[00:47:44] Speaker 05:
Thank you, Your Honor.