and corporate mr sanders it please the court this is a case of first impression in this circuit runners but it may or may not be a case of first impression for the nation one of the primary questions that we're going to be called upon to answer here is what did the supreme court's majority hold in the area of decision that said i'd like to discuss this on to power of tracks one that the area of decisions specifically address illusional conduct and thereby overruled the second third and fourth circuits which had required conduct as an element of copyright claim and the second being that majority was silent on the issue requires ownership of a right and invasion of one of the one of six rights in bedded in a copyright there was no requirement in feist for discussion about a third element which is creep into the no conduct or causation element so if the supreme court in the majority in aereo did not address the issue and then we're left with the only supreme court decision discussing the elements of copyright case which  feist it would be a lot easier i guess for all of us if the majority in rendering its decision instead of just pointing out their differences with the dissent specifically spoke to the issue of a conduct but they didn't but what we can learn is from the case history what they did do they reversed and held area liable in the remain instructions to the lower court for direct copyright infringement now the facts in the case were agreed to in both the district the circuit and the supreme court area provided the service whereby retransmitted over the air television signals to users the system itself was inert it didn't do anything until a user triggered it and turned the knob equipment while it's providing a website where users can store content that they could use that content to create website traffic in their bodies sell advertising space to make a profit if the majority had agreed with justice scalia in the dissent the outcome would have been different so what we can learn from the majority is silence is still that they didn't feel that the  element of a direct copyright infringement case however as i indicated earlier in the event that area didn't render that decision then we're back to where we started which is did the briefly the house rep of report which was the preamble to the passage of the bill says title two of this bill codifies the core of current case law that column dealing with the liability of online service providers while narrowing and clarifying the law in other respects and what we see here is that congress was engaging in a balancing act between rights holders and i as p s we wanted to provide a mechanism for the free distribution of content but the by the same token we didn't want to undermine the rights afforded under the us constitution for copyright so they set forth a legislated schema that required in order for you to claim the net foolish will conduct offense that you register with the u s copyright office a designated agent for takedown notices it's clear that that did not occur in the defendant here and did not register but they would like to claim the benefits of the safe harbor without being beholden to the requirements of the safe harbor and the safe harbor requirements are that they have a repeat infringer policy that they enforce and post publish that they register with the u s copyright office designated agent to be served with copyright takedown notices so here we have a situation where defendant is claiming the benefit basically they're not infringing so it seems to me that pushes back to where we would be or actually where your friend on the other side would be if without to safeguard it all we still have to figure out whether net com and  case law like that ought to be applicable to real it seems we doesn't really answer that question either it avoids not the dissent but it doesn't move on majority does which is me we have sort of a big picture question here even though this is foreign language to copy that mode is something we pick out the words that does something like moralization volition and called nation actually properly apply is that technology is changing some of the understanding's are changing maybe a new statute would be helpful but we are where we are sort of deal with that whole concept of dilution why isn't that the right way to look at even if we use a different word honest when we talk about evolution when we talk about copyright we're not just talking about the conduct of i a species there are plenty of other mediums where that conversation may or may not be more relevant but when we're talking about i a speedy and internet service provider the balance in the discussion reached the floor of congress they recognize the issues that were being discussed in that column and decided to establish t last week discusses area and discusses the bushnell conduct and at least in the ninth circuit establishes firmly that they believe that foolish will conduct is an element of a direct copyright claim but the dance that they do to get there is quite miraculous because they read the majority decision they look at the holding which reversed areas victories in both the district  upset by the aerial decision i think that it has to be looked at as anomalous to what the supreme court's intentions were in the area and inconsistent with that decision and where this court to rule an opposite most likely result in the supreme court being asked to weigh in what did they actually decide in their six three decision in area but i don't think it is relevant to what this court should be looking at i think that if as i said earlier if aereo didn't address the issue and we're back to the discussion of whether or not the d m c a did and i don't see how you could read i element which was created in its inception by netcom it's project which was discussed entirely by the and then in the house prior to the passage of the d m c a and ignore that it was clearly designed to express only codified what netcom had created viz of the common law that's the title that's what its intention was but it came with a balance it didn't come with a just i didn't do it defense you needed to take affirmative action you needed to register you needed to provide the rights holder with a mechanism to complain and even if you were just passively providing the content to your users that there would be a mechanism to force its takedown and that there would be penalties for failing to take it down and if we don't look at it from that point of view then it serves no purpose you'd be better served not registering in the the common law was providing the same or similar safe harbor with no requirements and i don't see how we could be looked at any other way than that now the m c a is only there to address these wasn't designed to discuss or look at other forms of copyright in other media and it wasn't designed to be the only defense to a copyright claim so fair use still around authorized use licensure d m t is exclusion in it's text that it doesn't intend to overrule other copyright offenses those would be the examples of what other defenses it wasn't intended overall but what it was intended to do was to explain how net com would be handled consistently across the entire nation at the time that com was a northern district of california you hadn't yet reached the circuit courts this was a result of a push by the industry for uniformity instead of waiting for the hodgepodge of results that would have come from different district courts and then cases moving up to the circuits and maybe the supreme court congress stepped in and addressed the issue and set up a uniform scheme for ever and maintaining their consistent case law up until that point that there were only two elements necessary to prove a direct infringement came ownership of the right and a violation of the one of those the one of the six rights exclusive to the rights hold cleveland thank you i'm a please the court joe cleveland representing t n as software this case requires this court answer to simple but very important questions who made the copies and who displayed the copies of those images in both cases that is speeded evidence to establish is that the end user made the copies and displayed these images on my client's website tina simply provided the system to access those copies by third evidence also established its that t n s only passively stores material at the direction of users in order to make the material available to other third parties mr sater says that you're asking for the benefit of the safe harbor provision without registering but your response to that and undisputed evidence is that t n s did not register an agent with the copyright office  context in the copyright act context but also strict liability context i'd like to point out the concurring opinion by justice o'connor in a different context but involving a strict liability statute much like the copyright act it's called babbitt vs sweet home it's at five one five us it's seven twelve and she said i see no indication that congress and acting this section intended to dispense with the ordinary principles of proximate cause strict liability means law billeted with without regard to fault it does not normally mean liability for every consequence however remote of one's conduct and she concluded by saying i would up lightly assume that congress and  acting as strict liability statute that is silent on causation question has dispensed with this well in trance principle and likewise in sony versus universal studios the one nine hundred eighty four united states  e court case the court said that quote the copyright act does not expressly render anyone liable for infringement committed by another and strongly signaled its in its intent to use the doctrine of contributory infringement to identify circumstances where it is just to hold someone accountable for actions of another in fact the sony court went on to say quote third party conduct would be wholly irrelevant in an action for direct infringement and that's the case it for sixty four us at four for six and in this case t d s is again simply a passive provider of a system used to be used by third parties t n s did not  exercise any control over the copyrighted content it did not select any material cup or writing material for upload download transmission or storage and it did not instigate any copying or storage or distribution same basic premise there that they have these lucania and to use and it's up to the people who are purchasing through aereo system to decide which ones to choose but it's all sitting there the library isn't maintained barrier the more than the library of photos was of which can be put on your side was maintained by your company so are you sort of saying the area was not particularly helpful enough deciding how causation works as that's correct your honor i don't think it's particularly helpful because it skirts the issue it did not address the issue it decided the issue it decided that case an alternative grounds and that was th requirement there was no mention of it of the literal conduct requirement for or against in the majority opinion is if you're already in a should know of this refer to causation and say we're not briefing mentions it we don't find it necessary to discuss it now there's no discussion of causation in that opinion because like i said they decided on the alternative no i know what i was saying is who they identify it is a point of potential interest but we don't have to reach the only thing that we can leaves is this quote out of the case and in in the court's opinion the court said quote in other cases involving other technologies a user's involvement in the operation of the provider's equipment and selection of the content may well bear on whether a provider performs within the meaning of the act and so they left open this idea it's just as  this well entrenched principle approximate causation to apply and strict liability statutes like the cop i also want to address the d m c a argument that counsel opposite suggested that we focus on here today and that even though the d m c a was designed to provide  species with the safe harbor if they register there's nothing in the language of section five one two of the copyright act that indicates a limitation of liability described in section five a one two five one two is and as is judge southwick you pointed out there is a particular provision in the section five one two that allows for other defenses to be asserted in addition to the the immunity defense under section five one two also there is no it explicit congressional intent to supplant existing common law there's nothing in the act to suggest that they intended to take over the field of existing allowed under the current existing copyright law copyright law so that that's the current scheme that they were that were operating under at this time adjust the copyright law in the in response to this new reality if you want to use causation or relational conduct been a pretty good time for congress to put something in the copyright law that would help us go  what is in the amendment oh this save harder that would would reflect that there were responding to netcom well i think that the law is that if the congress intends to up root some in the common law that there has to be some explicit indication by congress in the legislation that they intended to do that and that's was pointed out but costar in the fourth circuit they said there is no it's express intent by congress to supplant existing come a law on copyright infringement requiring that there be some causation between the the infringer and some link to the infringing conduct that's understood and it may be a complete answer but it is concerns me that if congress was aware of that case law which is become very popular case to be discussion that there wasn't anything in the amendments that really dealt with that and what you just tell me they dealt with it by not changing the common law without because they don't have explicit language and that may be a sufficient answer but it does seem to be a fairly weak response by congress but i think they addressed it by the  by adding that caviar and she called it and section in section five one two l which talks about that this does not supplant the requirement that a plaintiff in a copyright case prove elements of a copyright infringement or any other defenses so i think that that evidence is legislative intent that the causation that was developed in the in the lower courts the requirement of causation was not int supplanted and i think if you if you say well the d m c a intended to supplant causation in wipe it out entirely i mean what what's going to connect the conduct to the to the in french but there has to be that jury has to know what's in a jury instruction you know there has to be something that connects the conduct kept the conduct can't just be isolated on its own and not be connected to the infringement and so i think the jury's got to know what the causation element is and what causation just have a couple of additional points i'm going to make in responding to your own this question i turn to the house port which accompanied the d m c passage and i'll read as to direct infringement why ability is ruled out for passive automatic axing gauged in through a technological process initiated by another thus the bill essentially codified is the result in the leading and most thoughtful judicial decision to date religious technology center vs net cop that combine with the rest of the bills discussion about bringing copyright into the digital age and recognizing that a user might up content to a passive via speed was the genesis of the d m c a it was the reason it was passed it was passed to address this exact issue that's before this court and because of its passage in order to bring forth the safe harbor you need to comply with its requirements otherwise there would have been no need to have passed it they could have just let net com grow you could have been differences in how it evolves into different circuits in different courts but in the other side of that is if they're trying to codify and again legislative history is very suspect who wrote that and what we're trying to achieve it to the extent is a fair reflection of what the amendments are supposed to do if they are caught a fine would not come did then we should look upon that is incorporating the concepts and safe harbor is one thing but it leaves and plays whether it's called causation whe relation is a better way to look at it or something out of it leave those in place as well to be dealt with and it's capital letters carry out that we've been calling it the cabbie ought to be dealt with under that part of the statute but if you don't name hundred was it one two we have the d m c a passage i'm sorry now comes ninety five we had the d m z passage in ninety eight this is at the very beginning of the internet this is at the beginning of a new medium for the display copy and communication of copyrighted materials there was a period that preceded this were it was much simpler we didn't have a user interaction as part of the process and we had a strict liability statute or application of the law by the supreme court as i said on their face with only two requisite elements so what we have is an evolution and we have a timeline and it's somewhat difficult because of where we stand today and how integrated the internet is into our daily lives to look back and understand what was happening but by its title the bill was intended to bring the copyright act to the next millennium this is the next m