     Case: 15-40297   Document: 00513306956     Page: 1   Date Filed: 12/14/2015




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                 No. 15-40297                  United States Court of Appeals
                                                                        Fifth Circuit

                                                                      FILED
JOSE O. GUZMAN,                                                December 14, 2015
                                                                 Lyle W. Cayce
             Plaintiff - Appellant                                    Clerk

v.

HACIENDA RECORDS AND RECORDING STUDIO, INCORPORATED;
HACINDA RECORDS, L.P., also known as Hacienda Ranchito and/or Discos
Ranchito; LATIN AMERICAN ENTERTAINMENT, L.L.C.; RICHARD, also
known as Rick G. Garcia; ROLAND GARCIA, SR.,

             Defendants - Appellees




                Appeal from the United States District Court
                     for the Southern District of Texas


Before STEWART, Chief Judge, and CLEMENT and ELROD, Circuit Judges.
CARL E. STEWART, Chief Judge:
      Corpus Christi, Texas, is the hub of Tejano music, a genre that
particularly thrived from the 1970s through the 1990s. This case requires the
court to flash back to that era and scrutinize two Tejano songs that were in the
mix at the time: Triste Aventurera (“Triste”) and Cartas de Amor (“Cartas”).
After hearing Cartas on the radio, Plaintiff-Appellant Jose Guzman
(“Guzman”) filed suit against Defendant-Appellee Hacienda Records and
Recording Studio, Inc., alleging, inter alia, that Hacienda’s release of Cartas
infringed upon his Triste copyright. After a hotly contested bench trial, the
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district court ruled in favor of Hacienda as to each of Guzman’s claims.
Because we conclude that the district court’s findings were not clearly
erroneous, we AFFIRM.
                                             I.
       Guzman wrote Triste in the early 1970s, influenced by the heartbreak of
one of his companions. In the song, a woman sends a letter to her ex-lover in
which she pleads with the man to take her back; the man rejects her pleas and
tells her that she will be a sad adventurer for the rest of her life. Guzman filed
the music and lyrics to Triste with the United States Copyright Office in 1974.
The same year, Guzman’s band, Los Duendes, recorded Triste on several 45-
rpm records. At trial, Guzman proffered evidence tending to show that local
radio stations regularly played Los Duendes’ recording of Triste from 1974 to
approximately 1990 and that Los Duendes regularly performed Triste at
Corpus Christi’s music venues during the same time. Guzman proffered no
evidence that Los Duendes’ recording of Triste enjoyed any record sales,
received awards, charted on radio popularity charts, or generated royalty
revenue.
       Hacienda is a Tejano-based recording studio in Corpus Christi.
Defendant Richard Garcia (“Garcia”) handles Hacienda’s day-to-day activities,
including licensing and producing records and managing Hacienda’s “catalog
of some thousand or so albums.” Sometime around 1990, a band known as the
Hometown Boys 1 recorded a number of songs at Hacienda, including Cartas. 2



       1  At the time Cartas was recorded, the Hometown Boys were performing under the
name “El Grupo Internacional de Ricky y Jose Martinez.”
        2 Although the song was recorded by the Hometown Boys at Hacienda, the trial

evidence reflected that Cartas was actually written by Reynaldo Peña Ortiz, a songwriter
who obtained a copyright registration for Cartas in 1990. Oddly enough, Guzman made no
effort at trial to show that Ortiz, the writer of the allegedly infringing work, had access to
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                                      No. 15-40297
Hacienda did not select Cartas for the Hometown Boys to record, nor did it tell
the band how to arrange or perform Cartas. Garcia completed the editing and
mastering of the Hometown Boys’ recording of Cartas but did not alter the
music, melody, or lyrics of the recording.
       Cartas and Triste share similar themes and lyrics. Each song is about a
man who spurns his ex-lover’s written effort to rejuvenate a romance. Perhaps
most notably, the opening lyrics of Cartas—“Yo tengo en mi poder unas cartas
de amor que tu me las mandastes pidiendo compasion” (I have in my possession
love letters that you have sent me asking me for compassion)—match the
opening lyrics of Triste—“Yo tengo en mi poder una carta de amor que tu me
la mandaste pidiendo compasion” (I have in my possession a love letter that
you have sent me asking for compassion)—with the exception of some plural
words.
       Cartas was never a hit for the Hometown Boys or Hacienda. Cartas was
not popular with the Hometown Boys’ fans; fans did not request it at
performances; and it did not drive CD sales, sell as sheet music, or generate
royalty revenue. At trial, Garcia went as far as to call the song “a complete
flop.” Eventually, the Hometown Boys stopped playing Cartas because it was
so unpopular.
       Sometime in the 1990s, Guzman heard Cartas on the radio and surmised
that it was his song Triste. Years later, he filed the instant lawsuit against
Hacienda, alleging that Hacienda’s release of Cartas violated his copyright to
Triste and that Hacienda’s false identification of Triste as Cartas on various
music products violated the Digital Millennium Copyright Act (“DMCA”). Over



Triste. Rather, as discussed herein, Guzman’s trial evidence focused exclusively on Garcia’s
alleged knowledge of Triste before Hacienda released Cartas.
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the course of an ensuing three-day bench trial, Guzman sought to establish
that Hacienda had access to Triste prior to releasing Cartas because Garcia
was active in the Corpus Christi music scene during the time when Corpus
Christi radio stations regularly played Triste and Los Duendes regularly
performed the song. Guzman also sought to establish that Triste and Cartas
were “strikingly similar” such that the only explanation for their
commonalities was copying and argued that an inference of copying was
appropriate under a novel sliding scale approach.
       In its post-trial findings, the district court ruled in favor of Hacienda as
to each of Guzman’s claims. Relying on credibility determinations, unclear
testimony, and a lack of corroborating evidence about the song’s popularity,
the court concluded that Guzman failed to carry his burden to show a necessary
element of his copyright infringement claim: that someone at Hacienda had a
reasonable possibility of access to Triste before releasing Cartas. See Guzman
v. Hacienda Records and Recording Studio, Inc., No. 6-12-CV-42, 2014 WL
6982331, at *5–8 (S.D. Tex. Dec. 9, 2014) (Costa, J., sitting by designation).
The court further concluded that musical differences between the songs, as
well as a lack of uniqueness or complexity, fatally undercut Guzman’s striking
similarity argument and also declined to apply the novel sliding scale approach
advanced by Guzman at trial. Finally, the court concluded that, in light of its
access holding, Guzman failed to show the requisite intent—“to induce, enable,
facilitate, or conceal infringement”—necessary to support his separate claim
under § 1202(a) of the DMCA. 3 See 17 U.S.C. § 1202(a).



       3Section 1202(a) of the DMCA provides that “[n]o person shall knowingly and with
the intent to induce, enable, facilitate, or conceal infringement—(1) provide copyright
management information that is false, or (2) distribute or import for distribution copyright
management information that is false.” 17 U.S.C. § 1202(a).
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                                  No. 15-40297
      Guzman timely appealed to this court. On appeal, Guzman makes three
arguments: (1) that the district court erred in determining that evidence of
Triste’s radio play and live performances of the song was insufficient to
establish that Garcia had access to Triste before Hacienda released Cartas; (2)
that the district court erred in its striking similarity analysis by focusing on
the songs in their entirety rather than the “virtually identical” opening lyrics
of Triste and Cartas; and (3) that Triste and Cartas are sufficiently similar such
that the district court should have relaxed Guzman’s burden to show access
under a “sliding scale” analysis. We address each argument in turn. First,
however, we briefly pause to articulate the parameters of our standard of
review for a bench trial, which is largely dispositive of Guzman’s arguments.
                                       II.
      “The standard of review for a bench trial is well established: findings of
fact are reviewed for clear error and legal issues are reviewed de novo.” One
Beacon Ins. Co. v. Crowley Marine Servs., Inc., 648 F.3d 258, 262 (5th Cir. 2011)
(quotation marks and citation omitted); see also Fed. R. Civ. P. 52(a)(6) (stating
that, following a bench trial, “[f]indings of fact, whether based on oral or other
evidence, must not be set aside unless clearly erroneous”). In this circuit,
“copyright issues of access . . . are findings of fact and are consequently
reviewed under the clearly erroneous standard.”            Kepner-Tregoe, Inc. v.
Leadership Software, Inc., 12 F.3d 527, 532–33 (5th Cir. 1994) (emphasis
omitted).
      The Supreme Court and this circuit have stressed certain principles
governing the application of the clearly erroneous standard of review following
a bench trial. See, e.g., Anderson v. City of Bessemer City, 470 U.S. 564, 573–
75 (1985); In re Luhr Bros., Inc., 157 F.3d 333, 337–39 (5th Cir. 1998). A
finding of the trial judge “is clearly erroneous when although there is evidence
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                                   No. 15-40297
to support it, the reviewing court on the entire evidence is left with the definite
and firm conviction that a mistake has been committed.” Anderson, 470 U.S.
at 573 (internal quotation marks and citation omitted). This standard plainly
does not entitle this court to reverse the findings of the trial judge simply
because we are convinced that we would or could decide the case differently.
Luhr Bros., 157 F.3d at 337. Indeed, the great deference owed to the trial
judge’s findings compels the conclusion that “[w]here there are two permissible
views of the evidence, the factfinder’s choice between them cannot be clearly
erroneous.” Id. at 338 (alteration in original) (quoting Anderson, 470 U.S. at
574).
        Moreover, and of particular relevance here, the clearly erroneous
standard of review following a bench trial requires even “greater deference to
the trial court’s findings when they are based upon determinations of
credibility.” Id.; see also Fed. R. Civ. P. 52(a)(6) (stating that, following a bench
trial, “the reviewing court must give due regard to the trial court’s opportunity
to judge the witnesses’ credibility”). As the Supreme Court unequivocally
stated in Anderson, “when a trial judge’s finding is based on his decision to
credit the testimony of one of two or more witnesses, each of whom has told a
coherent and facially plausible story that is not contradicted by extrinsic
evidence, that finding, if not internally inconsistent, can virtually never be
clear error.” 470 U.S. at 575. The “trial judge’s credibility determinations are
due this extra deference because only [he] can be aware of the variations in
demeanor and tone of voice that bear so heavily on the listener’s understanding
of and belief in what is said.” Estate of Lisle v. Comm’r, 541 F.3d 595, 601 (5th
Cir. 2008) (quoting Anderson, 470 U.S. at 575).




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                                      III.
      With our standard of review in mind, we turn to Guzman’s arguments
on appeal.
                                       A.
      Guzman’s first two arguments on appeal each speak to the “access”
element of his copyright infringement claim. Guzman first argues that the
district court erred in determining that evidence of Triste’s radio play and live
performances in Corpus Christi, coupled with evidence of Garcia’s immersion
in the Corpus Christi music market, was insufficient to establish that Garcia
had access to Triste before Hacienda released Cartas. Alternatively, Guzman
argues that the court erred in determining that Triste and Cartas were not
strikingly similar, which would have obviated Guzman’s burden to show any
access. We disagree with each argument.
                                       1.
      To prevail on his copyright infringement claim, Guzman bore the burden
at trial to prove that: (1) he owns a valid copyright; and (2) Hacienda copied
constituent elements of Triste that are original. See, e.g., Positive Black Talk
Inc. v. Cash Money Records Inc., 394 F.3d 357, 367 (5th Cir. 2004), abrogated
on other grounds by Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154 (2010). To
establish the copying element, Guzman was required to show two things:
factual copying and substantial similarity.     See id.   As is pertinent here,
“factual copying may be inferred from (1) proof that the defendant had access
to the copyrighted work prior to creation of the infringing work and (2)
probative similarity.” Id. at 368 (quotation marks and citation omitted). To
establish “access,” Guzman was required to prove that Garcia, on behalf of
Hacienda, had “a reasonable opportunity to view” Triste before releasing


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Cartas. 4 Armour v. Knowles, 512 F.3d 147, 152–53 (5th Cir. 2007) (quoting
Peel & Co., Inc. v. Rug Market, 238 F.3d 391, 394 (5th Cir. 2001)). A bare
possibility of access is insufficient, just as Guzman’s access showing cannot be
“based on speculation or conjecture.” Id. at 153 (quoting Peel, 238 F.3d at 394–
95).
        Guzman contends that the district court erred in finding no reasonable
possibility of access because Garcia had “thousands” of opportunities to hear
Triste on Corpus Christi’s radio stations and at Los Duendes’ live performances
of the song at Corpus Christi’s music venues. 5 In support, Guzman merely
recites evidence fully presented at trial and thoroughly analyzed by the district
court through the lens of inconsistent and unclear trial testimony and several
resulting credibility determinations.           Under these circumstances, we have



        4 In his brief, Guzman argues that the applicable access standard is a “mere
possibility,” and thus the district court erred by applying a “reasonable possibility” standard.
This argument lacks merit, as this court’s precedent clearly establishes that the applicable
standard is a reasonable possibility of access and that “[a] bare possibility will not suffice.”
Armour v. Knowles, 512 F.3d 147, 152–53 (5th Cir. 2007) (alteration in original) (quoting Peel
& Co., Inc. v. Rug Market, 238 F.3d 391, 394–95 (5th Cir. 2001)). Guzman also contends that
the district court incorrectly required him to show that Garcia, or a Hacienda representative,
actually heard Triste on the radio or at a live performance. This argument merely attacks
the district court’s off-hand phrasing of the access standard in non-dispositive portions of its
ruling. The district court quite clearly articulated the critical issue as “whether the totality
of the evidence presents a ‘reasonable possibility’ that Hacienda could have heard Triste
before recording Cartas,” Guzman, 2014 WL 6982331, at *6 (emphasis added), which is in
accord with our precedent.
       5 Guzman casts many of his arguments on appeal under an “access” framework that

has been embraced by other courts. See, e.g., Art Attacks Ink, LLC v. MGA Entm’t Inc., 581
F.3d 1138, 1143–44 (9th Cir. 2009) (“[C]ircumstantial evidence can be used to prove access
either by (1) establishing a chain of events linking the plaintiff’s work and the defendant’s
access, or (2) showing that the plaintiff’s work has been widely disseminated.”). This circuit
discussed both theories in Peel, but declined to adopt either because the reasonable possibility
of access standard was sufficient to resolve the case at summary judgment. See 238 F.3d at
394–97. We similarly decline to adopt either theory here, as we are satisfied that this appeal,
involving a fully tried case that was largely adjudicated based on credibility, can be resolved
under the classic “reasonable possibility of access” standard discussed herein.
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little difficulty affirming the district court under the clearly erroneous
standard of review.
       As to radio play, Guzman contends that the district court erred in finding
that Garcia had no reasonable possibility of access to Triste in light of his trial
evidence that Triste was played “thousands” of times on Corpus Christi radio
stations from 1974 through 1990. At trial, no witness gave clear testimony as
to the frequency or time period during which Triste was played on the radio—
Guzman himself testified inconsistently in his deposition and at trial, and no
other witness recalled with any certainty when or how frequently Triste was
played. Moreover, Guzman introduced no independent evidence, e.g., evidence
of record sales, awards, billboard charts, or royalty revenues, to corroborate his
testimony that Triste was popular enough to receive airplay beyond the first
few years after it was released or that calls into question the district court’s
determination       that   Triste    was     infrequently     played. 6       Under     these
circumstances, we have no reason to conclude that the district court’s finding
that the chances were purely speculative that Garcia heard Triste before
Hacienda released Cartas was clearly erroneous.
       Similarly, Guzman contends that the district court erred in finding that
his evidence of Los Duendes’ live performances of Triste from 1974 through
1990 in Corpus Christi, coupled with Garcia’s admission at trial that he
attended Corpus Christi’s music venues on a monthly basis during the same




       6 We do not hold that such independent evidence of popularity is the sine qua non of a
copyright-plaintiff’s access showing. Rather, we hold only that, in the absence of such
evidence and under the facts and circumstances of this case, we have no reason under the
clearly erroneous standard of review to second-guess a district court’s finding that a song was
played infrequently on the radio.
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                                        No. 15-40297
time period, was insufficient to show a reasonable possibility of access. 7 In
finding this evidence insufficient to show access, the district court specifically
acknowledged the trial evidence that Guzman highlights on appeal: testimony
by Guzman and Abel Sanchez, a Los Duendes band member, that Triste was
popular and performed throughout the 1970s, 80s, and 90s. However, Guzman
fails to account for the district court’s rejection of that testimony based on
credibility—at trial, Guzman hesitated and provided conflicting answers when
questioned as to the time when Los Duendes regularly performed Triste, 8 and
Sanchez could not testify with certainty as to the dates Triste was popular and
performed. The district court instead credited the testimony of Timoteo “Timo”
Martinez, another Los Duendes band member, who testified that Triste hit
peak performance popularity in the mid-1970s, and ultimately concluded “that
even though Hacienda and Guzman were both active in Corpus Christi in the
same time frame, the evidence is insufficient to show that Hacienda had a
‘reasonable possibility of access’ to Triste before 1990, the year it recorded
Cartas.” 9 Guzman, 2014 WL 6982331, at *7.


       7  In support of his live-performance arguments, Guzman cites a number of cases in
which a court either denied summary judgment on the issue of access or similarly found that
the trial evidence was sufficient to support a jury verdict in favor of the plaintiff. See, e.g.,
Three Boys Music Corp. v. Bolton, 212 F.3d 477, 482–85 (9th Cir. 2000); Sylvestre v. Oswald,
No. 91CIV.5060(JSM), 1993 WL 179101, at *3–5 (S.D.N.Y. May 18, 1993). These cases are
procedurally inapposite. The issue in this case is not whether Guzman put forth sufficient
evidence of access to create a genuine issue of material fact or to support a jury verdict in his
favor; rather, Guzman had his day in court, the trial judge ruled against him following a
bench trial, and the inquiry now is whether that ruling was clearly erroneous.
        8 At trial, Guzman initially testified that Los Duendes was performing frequently

“[f]rom ’74 till about ’78 or nine,” before clarifying that he was “mistaken” and that the band
performed frequently “[f]rom ’74 up to about ’90 . . . ’90-something.”
        9 In so concluding, the district court also credited “Garcia’s testimony that before this

lawsuit Hacienda never saw Guzman perform or otherwise heard Triste,” noting that
Guzman proffered “no evidence at trial, direct or otherwise, that casts doubt on the veracity
of [Garcia’s] testimony.” Guzman, 2014 WL 6982331, at *7. This is yet another credibility
determination that greatly undercuts Guzman’s access arguments on appeal. See, e.g.,
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       The district court’s rejection of Guzman’s live-performance evidence was
infused with credibility determinations that are entitled to great deference on
appeal, as only the trial judge was positioned to observe the demeanor of
Guzman and Sanchez and to adjudge the veracity of their testimony. See
Anderson, 570 U.S. at 575–76; Estate of Lisle, 541 F.3d at 601. Because of this
deference, and because Guzman has pointed to no evidence that calls the
district court’s credibility determinations into question, we cannot overturn the
court’s live-performance-access finding as clearly erroneous.
                                               2.
       Having failed to show that the district court’s access finding was clearly
erroneous, Guzman alternatively argues that the district court erred in finding
that Triste and Cartas were not strikingly similar such that no access showing
was required. This circuit has held that “a plaintiff may establish factual
copying without any proof of access when the similarity between plaintiff’s and
defendant’s works is sufficiently striking such that the trier of fact may be
permitted to infer copying on that basis alone.” Positive Black Talk, 394 F.3d
at 371 n.10 (internal quotation marks and citation omitted). In order to show
that two songs are strikingly similar, a plaintiff must demonstrate that the
alleged “similarities are of a kind that can only be explained by copying, rather
than by coincidence, independent creation, or prior common source.” Selle v.
Gibb, 741 F.2d 896, 904 (7th Cir. 1984) (quotation marks and citation omitted),




Anderson, 470 U.S. at 575–76; cf. McGaughey v. Twentieth Century Fox Film Corp., 12 F.3d
62, 65 (5th Cir. 1994) (“[I]n order to determine that the appellees had access to the appellant’s
work, we would have to assume that the persons who created [the allegedly infringing work]
lied about their lack of knowledge of the appellant and his [work].”); Gal v. Viacom Int’l, Inc.,
518 F. Supp. 2d 526, 539 (S.D.N.Y. 2007) (“Courts have rejected efforts by plaintiffs to
establish access in the face of . . . sworn testimony [that an alleged infringer has never heard
of a work] unless there is probative evidence to the contrary.”).
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cited favorably in Armour, 512 F.3d at 152 n.3.           This requires that the
“similarities . . . appear in a sufficiently unique or complex context,” see id.,
which is of particular importance “with respect to popular music, ‘in which all
songs are relatively short and tend to build on or repeat a basic theme.’”
Benson v. Coca-Cola Co., 795 F.2d 973, 975 n.2 (11th Cir. 1986) (per curiam)
(quoting Selle, 741 F.2d at 905).
      Guzman’s sole striking similarity argument on appeal is that the district
court erred by focusing on Triste and Cartas in their entirety rather than on
their “virtually identical” opening lyrics.    This argument fails for several
reasons. Contrary to Guzman’s assertions, the mere fact that the opening
lyrics of Triste and Cartas (sixteen words in total) are nearly identical does not
per se establish striking similarity.     Cf. Selle, 741 F.2d at 903 (“‘Striking
similarity’ is not merely a function of the number of identical notes that appear
in [two] compositions.”). Rather, for these lyrics, alone, to meet the striking
similarity test, Guzman must have proffered evidence that they were
sufficiently unique or complex so as to preclude all explanations other than
copying. See Armour, 512 F.3d at 152 n.3 (citing Selle, 741 F.2d at 904).
Guzman’s trial evidence fails to satisfy this hallmark of the striking similarity
analysis.
      At trial, both parties’ experts agreed that the opening lyrics of Triste and
Cartas, though nearly identical, are set to different music in each song, and
Hacienda’s expert testified that many other songs expressed the same phrases,
attitudes, and expressions encompassed in the opening lyrics, i.e., “yo tengo mi
poder” (I have in my possession); “love letter compassion;” “love letter
forgiveness;” and “[y]ou’re coming back begging, and you had your chance.
How does it feel to be on the other side?” Moreover, in a broader sense, each
expert agreed that the alleged compositional similarities running between the
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                                       No. 15-40297
songs in their entirety, i.e., their melodies, rhythmic patterns, lyrical themes,
and instrumental accompaniment, were either common to the Tejano genre or
common in other songs. Cf. Watt v. Butler, 744 F. Supp. 2d 1315, 1324 (N.D.
Ga. 2010) (noting that the fact that two songs were from the same genre could
“require[] that the Plaintiff offer more evidence of striking similarity”).
Finally, each expert identified a number of differences in the music—e.g.,
melodic contour, filler music, key, tempo, length, and chord structures—and
lyrics of the two songs. Absent evidence of uniqueness or complexity, and in
light of the expert testimony at trial describing differences in the lyrics and
music of the songs, the district court’s finding that Cartas and Triste are not
strikingly similar was not clearly erroneous.
                                              B.
       In his third argument, Guzman contends that the district court erred in
declining to apply a novel “sliding scale” analysis that would have lowered his
access burden. 10 This circuit has never expressly adopted the sliding scale
analysis that Guzman advances on appeal, though we have previously noted
that such an analysis finds support in other circuits. See Positive Black Talk,
394 F.3d at 371–72 (citing Jorgensen v. Epic/Sony Records, 351 F.3d 46, 56 (2d
Cir. 2003), for the proposition that “[t]here is an inverse relationship between



       10 Many of Guzman’s appellate arguments attack the district court’s reasons for
declining to apply a sliding scale analysis, namely the district court’s “creator/recorder”
distinction. See Guzman, 2014 WL 6982331, at *5 & n.8 (“Th[e] sliding scale makes sense
when the accused infringer created the work, the idea being that it is too coincidental that
two creators would have had the same spark of ingenuity. But it does not make sense to
relax the access requirement based on a strong similarity in a case like this one, in which the
defendants are the record company and its managers who recorded the song and not anyone
who wrote it.”). It is axiomatic that an appeal is from the judgment not the reasons, see, e.g.,
Ward v. Santa Fe Indep. Sch. Dist., 393 F.3d 599, 603–04 (5th Cir. 2004), and, here, we affirm
the judgment of the district court without pausing to consider the creator/recorder distinction
drawn below.
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                                  No. 15-40297
access and . . . similarity such that the stronger the proof of similarity, the less
the proof of access is required”). Similar to the situation in Positive Black Talk,
we are not convinced that the circumstances of this case provide an appropriate
occasion to adopt the sliding scale analysis as the law of this circuit.
      As discussed herein, credibility determinations and a lack of clear trial
testimony were major portions of the district court’s assessment of this trial.
There is no indication that the court failed to consider any relevant testimony
or evidence in concluding that the chances were “purely speculative” that
Garcia or anyone at Hacienda heard Triste on the radio, and the court’s
credibility determinations made en route to rejecting Guzman’s live-
performance evidence are virtually unassailable on appeal. Indeed, Guzman’s
challenges to the district court’s factual findings (and the credibility
determinations subsumed therein) each fall short, and there is no indication
that the district court would have weighed the evidence or adjudged the
credibility of witnesses differently under a new, albeit more lenient, legal test.
Under these circumstances, we have no occasion to adopt and fine-tune the
sliding scale analysis as the law of this circuit, and we reject Guzman’s
unconvincing invitation to do so.
                                        C.
      On appeal, Guzman advances no legal argument in support of his
separate DMCA claim, instead challenging only the district court’s access
finding and requesting a remand. Guzman’s failure to brief and argue his
DMCA claim before this court constitutes waiver of that claim on appeal. See,
e.g., Raj v. La. State Univ., 714 F.3d 322, 327 (5th Cir. 2013). In any event,
because we affirm the district court’s access finding, and absent any legal
argument from Guzman on the issue, we affirm the district court’s judgment
in favor of Hacienda as to Guzman’s claim under § 1202(a) of the DMCA.
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   Case: 15-40297    Document: 00513306956      Page: 15   Date Filed: 12/14/2015



                                 No. 15-40297
                                      IV.
      Guzman had a full opportunity to present his case to the district court,
including evidence of Triste’s popularity and circulation in Corpus Christi. The
district court rejected that evidence based, in large part, on credibility
determinations and a lack of clear trial testimony. We decline to second-guess
the district court under the clearly erroneous standard of review, and we
decline to establish a new sliding scale standard for showing access in
copyright cases. Accordingly, we AFFIRM.




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