resolving factual disputes and granting at pizza's motion to dismiss it then compound it that error by dismissing the complaint without lead to an end and without explaining its reasons for doing so importantly here at pizza and it to principles came here repeatedly beginning in july of two thousand and fifteen scout aired i'm a peeps in stores in our unique attributes downloaded and photographed copyrighted images here the yes thank you i didn't think there were several things that are alleged in the complaint one is photograph photographs of the stores which themselves have copyrighted elegance of those stores and those were photographed in addition a photograph they downloaded i'm sorry these are these are just playing to the public right yes they are but reproducing as they did occur with a sitting in scotland downloading from the website we alleged that it occurred here the district court said that it presumed that they were sitting in scotland but that's why we have trials your honor we allege in the complaint that their activities occurred here and that they copyrighted from download servers say they came here are numerous occasions as we know they came here at least twice m and pizza he later changed it to at pizza to try to differentiate it presumably but we know that he did that and he did that after come just within a few months of coming here we know that while he was here we a complaint that while he they were here they downloaded copy copyrighted images that in addition they took photographs of copyrighted elements while visiting our stores and they then yes they went to scotland and then replicated our stores but under the under the cases in terms of extraterritoriality for the copyright act all we need to allege and to show is a single act of infringement here and we have alleged that downloaded from servers here we do not specifically allege that they were sitting at laptops or at other communities in her fatal to your argument i don't think so you were not because under various cases we cite them in that brief liberty media is another one the location of the servers is important to know where the copyright infringement occurs under liberty of liberty media download occurred in the united states and that was an that this court's opinion inspanned skee involved a server that was overseas but the viewing of the video occurred here in the us and under that section of the copyright act which is really in play here but under that section of the copyright act the question is where did that performance occur using experience can help you i think spanky helps us yes your honor in the south and i mean i occurred in the united states yes but here here there's no allegation other than your allegation that the server that the download occurred in humans correct but there are different sections of the  other than i gather it's that the that the server was here right that the i'm sorry you're right that the server was in the united states yes with respect to the copyrighted photographs that were copied that allegation that the server is in the us we also have never have alleged that while visiting our stores they took photographs of copyrighted elements of our stores and that too is a violation of the copyright act and that's that paragraph twenty five for example took extensive pictures of copyrighted information on the ground in the district of columbia paragraph twenty five of our complaint which is a joint appendix pa seventeen i want to ask you a little mac question of the put the briefs debate what the proper standard is for impact on commerce in the united states suppose we take the least demanding standard the one from the th circuit says some impact that's ok yes can you explain to me how a pizza restaurant in scotland can have some impact on a pizza in your complaint the allegation on confusion there is in the latin back hal and we specifically allege for example that a business partner was confused that was a business partner  i don't think so i don't think the judge is correct because i think in fact we're required to prove that there is an effect on commerce and if we were to go forward and have discovery we find there would prove that there is such an yet we have more than that your honor because we have the earlier annex of numerous visits to the united states we have a situation where we know that after visiting they started they took our trademark that used that as the name of their company there so respectfully our situation is not merely that we are alleging that oh they opened a restaurant there and it can impact us we do one of the confusion i thought was your theory of correct and unfair competition there were to land that count including unfair competition and is there no point at which this becomes too speculative to support a claim i think there is a point i don't think our case reflects that point and that's because we have the very specific situations much much more similar to the true engineering case of the th circuit where they lanham act and copyright act claims that went to the jury the jury came back with a copyright finding for the plaintiffs in that case and the lanham act was thrown out on on appeal that's not where we are in this case this case should go forward and give us the ability to prove as we believe we can and we certainly have the obligation supporting it so that there were copyright infringements here in the u s it's not wholly extraterritorial the ruling below that there is not diversity we did not establish diversity of citizenship so the ability to pursue the passing or claim below depends upon supplemental jurisdiction if the other cla like to reserve the balance of my time client's u k counsel raising these issues we've said all along that it belongs in the u k and that's what we disputed the district court but if i may turn to some specific points judge ginsburg you asked about the passing of cla the th circuit dismissed the land that plane for fair use didn't claim for many reasons that are similar here you have entirely foreign actors the company that was located in asia that stole the underlying trade secrets about the design tires had no business in the united states and had no effect on u s commerce and so if anything that case of course our position in another i think issue about the land of that plane you know ours is that as i understand the complaint part of their position perhaps would be unfair competition claim is that our clients conducted some sort of conspiracy or conducted some sort of  to conduct that may have affected u s commerce and that last part again it need believe is speculative but that whole predicate theory that there was some conduct in the u s has been rejected by courts time and again and there's a nd circuit case and i believe the s is the robert stigwood and it dealt with a canadian performance of the broadway smash jesus christ superstar and in that case the court entirely rejected the  theory and that the the fact that the performance group did certain preparations and did certain conduct in the united states and then went to canada reported the infringing act under trademark  yes that's a trademark case judge pedro one point in response to one of your questions you asked about the alleged business partner who was allegedly  cases and i think fundamentally we made this point in our brief but fundamentally what distinguishes this case from every case that the cohen site in their brief is that in every case that they signed it's all on authorized downloads in the fact that it's basically an authorized copies that were available on the internet so for example my colleague mentioned limits liberty media and the fundamental dispute there was that they were actually  of pornography films that were available on the internet and so it didn't matter where they were up late or down or just the fact that they were reproduced without authorization of the copyright holder is by itself a copyright violation  elsevier is actually an interesting case it's out of the district of massachusetts and when you read that case carefully it we didn't we didn't cite for this problem because we distinguish it but if you look at the reasoning from this just the court t extent that you find it persuasive it actually cuts against the appellant's argument because in that case what was at issue work to pharmaceutical tax that work copyrighted there uploaded some service someplace in the world the person who uploaded them was in india and there was a question of whether someone in the united states when they downloaded this on authorized copies of the textbooks would have been copyright infringement and in that case did the copyright holder they hired an investigator  copy went to the court and said say look it we'd have access to them before there's an unauthorized download in the united states and therefore copyright infringement for one reason or another the district court rejected that argument i don't think it's correct in the copyright law and i don't think it's correct in the circus lot in fact that if you have an unauthorized version on the internet and somebody within this district or within the united states downloads that version that's an on off rights reproduction because fundamentally the version that's available on that as you noted judge table the appellant's concession here today that what they're relying on is only the theory that if someone can access information anywhere in the world and and it happens to be on a u s server then u s copyright law extends that conduct and i know of no case that stands for that proposition the parents have cited no case that stands for the and in fact i think it's contrary to the most if not all of the cases of all the circuits and then you get to the one thing that i will say i think is really what judge kelly was getting at when you read the complaint and my colleague acknowledged today that they're not alleging that the download actually occurred in the united states when my client's my individual clients were visiting the united states as alleged and what they're alleging is only the fact that the download came from the server now i want to add another glossed to that and i think this is what judge kelly was getting at and we support this interpretation of the complaint because it's really only feasible reasonable interpretation of the complaint when you look at the complaint paragraphs that talk about the alleged crime that happened in the united states the appellant last painted is very specific so for example paragraph subsequent visit to united states and there was talk about the visits to the pizza stores themselves and the photography that took place nowhere in those paragraphs is there any mention of the individuals actually downloading now it's not until you get to paragraph thirty eight dollars thirty nine cents within the section of the complaint that talks about the actual copyright claim and then thirty eight dollars thirty nine cents they're very specific to demarcate the difference between the photography that happened in the united states versus the downloading and when you read in that that allegation in context particularly when you know the defendants all three defendants are in the south in the united kingdom the only reasonable inference is that that downloading occurred in the united kingdom now on top of that i would also add that the fact that they have to specify or that they did specify in their complaint that this service we were in the united states underscores yes yes because it if the downloading occurred and it was an authorized right then the fact that that downloading occurred in the united states would be if it's an authorize best unsettled and we would say that it's as a matter of want it is either not infringing because it's it's often rise by the way the internet works or at a minimum i the judge rogers i think you're right but the way i read there that both their brief and the complaint is that there are two suppose it acts that are on the rise one was the actual taking of photography that then led to the construction of an infringing restaurant in the u k based on an architectural design and that has zero case law support and in fact the only case they cite build is neutral they quote  sentence that stands for the exact opposite of the holding of the case so i don't put any credence in that but what i was really focused on is the photographs that war that they allege to be available on the publicly available websites is just internet so i want browsing click on the site the information is download g computer oftentimes to see the cache what i was going to say is that i think if we step back a little bit in time a pretty internet days you know this is basically where there's a magazine where the pellets themselves are putting this really available on the internet it's no different then someone handing out free literature and it has a photograph and that photograph as a copyright protection now if the pelt were to give that to me to hand out that hard copy i don't know that her copy i have the right to the story it i had the right to keep it and in fact as a child i would have had the right to put out the photograph and you know do is they're trying to take it you know this is earlier before they can see the damage in the caribbean state but you know going back to what i thought was the earlier argument that the down if the download did occur in the united states right then their theory is just that browsing of the internet and saving a publicly available web page is that that by itself is an infringement and that is an infringement sufficient enough to extend  copyright us copyright law to the subsequent activity that occurred in the u k again we're not aware of any case law that holds that money back to where there's a nd circuit case from one thousand nine hundred and eighty two called knickerbocker toys and it's almost directly instance where the defendant just happened to use a photograph of one of the plaintiffs coppertone the cars in a mock up internally there was no further reproduction there was no further display no one and completely internal and the nd circuit in that case held that that was clearly de minimus infringement and therefore no copyright liability now of course we're not even that far because today it tells council concedes that there is no downloading that occurred in the united states and as i explained earlier i think the only reasonable way to read that the allegations in the complaint is that that activity when it's not specified in the united states actually occurred in the united kingdom now that brings us if i may i know i'm past my time energy but i just got back to bring us back to the one of your st questions to my person counsel is this whole issue about when you read this court's case law when you look at dallas on when you look at rollins and all three judges on the panel thing have been on these cases and authored some of them it's clear that there's two issues are distinct whether it's lead circuit's case law that they had no basis to challenge the so called lack of lead to a man because they never asked the district court for the ferment and rollins and bell isn't big clearly address the issue secondly there's a distinct you for the right to appeal it and then that was in our opening motion and again the appellant never responds to that case though in fact we cited the pin sites that direct no one is that it wasn't raised in the loop and that's our reading of it but even if you're generous in terms of how you read there are two page section and their opening brief is that this court case law undercity for woods of that you request and the two men then you forfeit the right to challenge the dismissal with prejudice and that's what happened here in the case was clear on that and i will add one last point is that you know when we dealt with this case and we explained to them all along this is a case that should be united kingdom we don't we don't dispute that ultimately this could be a dispute about trademark rights and those trademark rights in the united kingdom but what happened here is that we explained to the district court that this case belongs in the u k judge kelly dismissed the main had four weeks from that decision until judge kelly's dismissal of the case or on october rd any time between then they could raise the issue of hey would maybe we could supplement this complaint and in fact i think you know this is all underscored by the fact that now the palin is here complaining that while judge kelly made all these so called suggestions in the opinion on how this feels a bit like alternate reality this is not a case where these folks sat in scotland on their computer looked at a few things and went and built their business this is a case where so their activities here were so much that the court found that there was personal jurisdiction over them because they came here to transact business it was the business of stealing our business and th federal circuit decisions in this area and they don't require very much for a copy for the copyright act to apply an entire engineering foreign actors came here met with somebody s sense that they these individuals came here and scoped out our business copy and took photographs of our business took that information home to scotland to  very similar nearly identical business over there respectfully suggest that that is enough under the precedence of all the other circuits to extend copyright act liability certainly to get past a pleading stage and allow discovery and allow the case to go forward importantly in the th circuit case ultimately jury was given an instruction about extraterritoriality and whether there were sufficient acts here in the united states to justify application of the copyright act and they said there was and that was sustained by the th circuit i think what you what you have your argument thank you will take the case