                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 12-2489


SILICON KNIGHTS, INC., an Ontario (Canada) Corporation,

                Plaintiff-Appellant,

           v.

EPIC GAMES, INC., a Maryland Corporation,

                Defendant-Appellee.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever, III,
Chief District Judge. (5:07−cv−00275−D)


Argued:   December 11, 2013                 Decided:   January 6, 2014


Before AGEE, KEENAN, and FLOYD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Christopher T. Holland, KRIEG KELLER SLOAN REILLEY &
ROMAN LLP, San Francisco, California, for Appellant.     Michael
Randolph Shebelskie, HUNTON & WILLIAMS, LLP, Richmond, Virginia,
for Appellee.   ON BRIEF: Kenneth E. Keller, KRIEG KELLER SLOAN
REILLEY & ROMAN LLP, San Francisco, California; Hayden J.
Silver, III, WOMBLE CARLYLE SANDRIDGE & RICE, PLLC, Raleigh,
North Carolina, for Appellant.     Douglas W. Kenyon, R. Dennis
Fairbanks, Raleigh, North Carolina, Cassandra C. Collins, HUNTON
& WILLIAMS LLP, Richmond, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Silicon Knights, Inc. (“Silicon Knights”) appeals from the

district court’s grant of judgment as a matter of law in favor

of   Epic     Games,       Inc.    (“Epic”)     on   Silicon     Knights’         fraud       and

fraud-related claims against Epic. Silicon Knights also appeals

from the district court’s denial of its request for judgment as

a    matter     of     law        on     Epic’s      copyright       infringement            and

misappropriation of trade secrets counterclaims against it, both

of   which    proceeded       to       trial   and   resulted       in    a    jury    verdict

against Silicon Knights. Silicon Knights additionally raises a

number of evidentiary issues and challenges the district court’s

grant of several remedies in favor of Epic. For the reasons set

forth below, we affirm the judgment of the district court.



                                               I

       The facts of this case are known by the parties. We repeat

them below only as necessary to reach our conclusion. We have

jurisdiction under 28 U.S.C. § 1291.

       We   review     a    district      court’s     decision       to       grant    or    deny

judgment as a matter of law de novo. Sales v. Grant, 158 F.3d

768,    775    (4th        Cir.    1998).      We    review     a    district          court’s

evidentiary rulings and its rulings on remedies for an abuse of

discretion.      Anderson         v.    Westinghouse     Savannah         River       Co.,    406

F.3d 248, 260 (4th Cir. 2005) (evidentiary rulings); Cline v.

                                               2
Wal-Mart Stores, Inc., 144 F.3d 294, 305 (4th Cir. 1999) (denial

of   motion      to   set   aside    damages       verdict);   Diamond     Star   Bldg.

Corp. v. Freed, 30 F.3d 503, 506 (4th Cir. 1994) (award of

attorneys’ fees).



                                          II

       Silicon Knights raises four main issues on appeal. 1 First,

Silicon Knights contends that the district court wrongly entered

judgment as a matter of law in favor of Epic on Silicon Knights’

fraud claim. Second, Silicon Knights argues that the district

court wrongly denied its request for judgment as a matter of law

on      Epic’s        copyright       infringement          and     trade       secrets

counterclaims. Third, Silicon Knights contends that the district

court       abused    its   discretion        in    excluding     certain      evidence

offered by Silicon Knights. And fourth, Silicon Knights asserts

that       the   district    court    abused        its   discretion     in   awarding

certain remedies to Epic.



                                          A

       With      respect      to     Silicon        Knights’      fraud,      negligent

misrepresentation,          and      unfair        competition     claims,     Silicon


       1
       Silicon Knights listed nine separate issues presented for
review, but these can all be consolidated in the four general
categories listed here.


                                          3
Knights provides argument on appeal regarding only its fraud

claim. 2 Its appeal of the district court’s entry of judgment on

its negligent misrepresentation and unfair competition claims is

therefore waived. See Snyder v. Phelps, 580 F.3d 206, 216 (4th

Cir. 2009); see also Fed. R. App. P. 28(a)(8)(A) (providing that

an appellant’s brief must contain “appellant’s contentions and

the reasons for them”). Thus, we address only Silicon Knights’

fraud argument.

     Silicon Knights argues that Epic made certain false oral

representations regarding the functionality of its video game

engine, Unreal Engine 3, which Silicon Knights had licensed from

Epic for use in the development of a single video game, Too

Human. The parties, though, had entered into a written license

agreement    that     expressly     disclaimed      any    warranty     “that    the

functions    performed       by   [the    video     game    engine]     will    meet

[Silicon     Knights’]    requirements,”        (J.A.      1759),     and   further

disclaimed     “any    and    all      other   warranties,       conditions,     or

representations       (express    or     implied,   oral    or   written),      with

respect to the [video game engine] or any part thereof,” (J.A.

1760). Moreover, Silicon Knights does not dispute that it knew


     2
       Although the district court did not explain its reasoning
for granting Epic’s motion for judgment as a matter of law, we
may affirm “on any basis fairly supported by the record.”
Eisenberg v. Wachovia Bank, N.A., 301 F.3d 220, 222 (4th Cir.
2002).


                                          4
Unreal    Engine   3   was     a    work   in    progress    when    Epic     made    its

alleged    false    representations.            Because   warranties        “cannot   be

asserted by parol” and promissory representations that look to

the future “do not generally constitute legal fraud,” American

Laundry   Machine      Co.   v.     Skinner,      34   S.E.2d   190,    192–94   (N.C.

1945), 3 Silicon Knights has presented no set of circumstances

under which it could have prevailed on its fraud claim against

Epic. The district court therefore properly granted judgment as

a matter of law in favor of Epic.



                                            B

      Silicon Knights argues that Epic failed to prove that it

held a valid copyright in Unreal Engine 3 because Epic failed to

introduce into evidence the portions of that work deposited with

The   United   States        Copyright          Office.   However,      a    copyright

registration is sufficient evidence of a valid copyright, and a

copyright    holder     need       not   place    into    evidence     “certified     or

deposit copies of . . . the compositions” at issue to prove that

it holds a valid copyright. Banco Popular De P.R. v. Asociación

      3
        The written license agreement provides that “[t]he
validity, construction and performance of this Agreement, and
the legal relations among the parties to this Agreement shall be
governed in all respects by the laws of the State of North
Carolina.” (J.A. 1766.) We therefore apply North Carolina law.
See Volvo Constr. Equip. N.A., Inc. v. CLM Equip. Co., 386 F.3d
581, 601 (4th Cir. 2004) (enforcing a choice-of-law provision in
a written contract).


                                            5
De Compositores Y Editores De Música Latinoamericana (ACEMLA),

678 F.3d 102, 111 (1st Cir. 2012). Silicon Knights’ argument is

without merit.

     Silicon Knights also argues that its copying was de minimis

as a matter of law. Yet Silicon Knights admits in its briefing

that over 20% of the code in its game engine was copied from

Unreal Engine 3, (see Reply Br. 11), and Silicon Knights does

not dispute that it copied Unreal Engine 3 in toto when it began

development on The Box, a use that was not authorized under the

parties’ written license agreement. Thus, it is clear that the

jury had “a legally sufficient evidentiary basis to find for”

Epic. Fed. R. Civ. P. 50(a)(1).



                                        C

     Silicon Knights separately contends that the district court

abused    its   discretion    by    excluding     expert     testimony    on   its

pending contract damages claim. Because Silicon Knights does not

appeal the jury’s verdict in favor of Epic on its breach of

contract   claim,   we   do   not    reach    a   decision    on   the   district

court’s    exclusion     of   Silicon       Knights’   expert      testimony    on

damages. See Deadwyler v. Volkswagen of Am., Inc., 884 F.2d 779,

784 (4th Cir. 1989) (“Evidentiary errors regarding damages are

harmless where special verdict questions regarding liability are

determined in a defendant’s favor.”).

                                        6
      Silicon    Knights     also   contends     that    the    district      court

abused its discretion by excluding evidence of certain third-

party complaints relating to the functionality of Unreal Engine

3. Yet the district court excluded this evidence as inadmissible

hearsay and as likely to cause confusion under Rule 403. Because

Silicon Knights provides argument regarding only relevance, it

leaves unchallenged the district court’s alternate decision to

exclude the evidence on the basis of hearsay and has “waive[d]

. . . any claim of error with respect to the court’s decision on

that issue.” Maher v. City of Chi., 547 F.3d 817, 821 (7th Cir.

2008) (holding that an assertion of error is waived when the

appellant fails to challenge one of two independent grounds).



                                       D

      Silicon    Knights     further   argues    that    the    district      court

abused   its    discretion    by    allowing    Epic    to    achieve   a    double

recovery of damages, but we find no double recovery on the facts

of   this   case.   Epic   pursued     compensatory      expectation        damages

under a contract theory (based on the license agreement) and

disgorgement damages under a copyright infringement theory. The

damages awarded to Epic on its breach of contract counterclaim

represented     only   Epic’s   actual     damages,     the    unpaid   licensing

fees due to Epic under the parties’ written license agreement.

(See J.A. 1217–18.) In contrast, the damages awarded to Epic on

                                       7
its   copyright    infringement    counterclaim     represented   only   the

“profit [Silicon Knights] generated as a result of the use of

the infringed [code].” Walker v. Forbes, Inc., 28 F.3d 409, 412

(4th Cir. 1994); (see J.A. 1226–27). Under the Copyright Act,

Epic was entitled “to recover [both] the actual damages suffered

by [it] as a result of the infringement, and any profits of the

infringer that are attributable to the infringement and are not

taken into account in computing the actual damages.” 17 U.S.C.

§ 504(b); Walker, 28 F.3d at 412. That Epic chose to pursue its

actual damages under a contract theory and disgorgement damages

under a copyright infringement theory makes no difference. As

aptly put by the district court, “[t]he recovery on the breach

of contract counterclaim served a different interest and was not

based on the same conduct or proof as the conduct and proof

giving    rise    to   the   recovery   on   the   copyright   infringement

[counterclaim].” 4 (J.A. 1731.)


      4
       To the extent that Silicon Knights attempts to argue that
Epic’s    trade  secrets   damages   duplicate   its   copyright
infringement damages, that argument fails. The district court
clearly instructed the jury that “the damages for copyright
infringement and trade secret misappropriation are coextensive”
and that, if the jury found in favor of Epic on these
counterclaims, Epic would be “entitled to recover damages for
either   Silicon  Knights’  infringement  of   that  copyrighted
material or Silicon Knights’ misappropriation of that trade
secret, but not for both.” (J.A. 1227.) And the jury’s verdict
form awarded Epic a single measure of damages based upon Silicon
Knights’ copyright infringement and misappropriation of Epic’s
trade secrets. (J.A. 1231.) There is therefore no evidence that
(Continued)
                                        8
      Silicon Knights next argues that the district court abused

its discretion by awarding Epic attorneys’ fees on its copyright

infringement and trade secrets counterclaims. Silicon Knights’

argument rests mainly on the fact that the jury did not make a

finding of bad faith upon which to base the district court’s

award of attorneys’ fees. Yet the district court reviewed the

record and made an independent finding that “Silicon Knights’s

infringement of Epic Games’s copyrights was willful and in bad

faith.”      (J.A.   1712.)   Silicon    Knights     provides    no    authority

suggesting that a finding of bad faith supporting an award of

attorneys’ fees must be made by a jury, and we conclude that the

district court’s finding is adequately supported by the record.

      Last, Silicon Knights argues that the district court abused

its discretion by granting a permanent injunction in favor of

Epic. Silicon Knights fails to sufficiently address this issue

for appellate review by raising it only in a short footnote on

the final page of its Opening Brief. See Wahi v. Charleston Area

Med. Ctr., Inc., 562 F.3d 599, 607 (4th Cir. 2009) (holding that

an   issue    raised   only   in   a   footnote    and   addressed    with   only

declarative      sentences    is   waived).       Although   Silicon     Knights

develops its argument in its Reply Brief, it raises entirely new




Epic   was  awarded   duplicative   damages   on                its    copyright
infringement and trade secrets counterclaims.


                                        9
arguments    in    support     of   its   position,           depriving      Epic    of    an

opportunity to respond to those arguments. See Hunt v. Nuth, 57

F.3d 1327, 1338 (4th Cir. 1995) (holding that “appellate courts

generally will not address new arguments raised in a reply brief

because it would be unfair to the appellee and would risk an

improvident or ill-advised opinion on the legal issues raised”).

The    challenge    to   the   district         court’s       grant    of    a    permanent

injunction in favor of Epic is therefore waived.



                                            E

       Silicon Knights raises a number of other issues on appeal

that lack merit and do not warrant a full discussion. Among

other    things,    Silicon     Knights         raises    a    number       of    arguments

relating to Epic’s trade secrets counterclaim under N.C. Gen.

Stat.     § 66-153.      Because    copyright        infringement           damages       and

damages    under   N.C.    Gen.     Stat.       § 66-153      are     coextensive,        see

Celeritas Techs., Ltd. v. Rockwell Int’l Corp., 150 F.3d 1354,

1362    (Fed.   Cir.     1998),     and   because        we    affirm       the    district

court’s judgment with respect to Epic’s copyright infringement

counterclaim, we need not address those arguments. See In re

Rare Earth Minerals, 445 F.3d 359, 363 (4th Cir. 2006) (holding

that a claim should be dismissed as moot when “the court has no

remedy that it can fashion even if it would have determined the

issues differently”).

                                          10
                             III

    For all the foregoing reasons, the judgment of the district

court is

                                                      AFFIRMED.




                              11
