i think the most substantial issue you present here is the st one to two you raised in your brief i think there's a very good argument that the lattimer it's not clear to me that there was substantial enough evidence here from which a jury could have reasonably infer an implied license so that the district court have created that issue but as i understood it you have a challenge to any evidentiary ruling along those lines and so it seems to me in this determination we've got to look d at the evidence that is actually in the record to determine whether there is an implied license or not or archery could reasonably so i do believe that the record supports consistent with the other circuits and with the district courts that have looked at this particular issue as it relates to search engines your honor correctly notes that lattimer does not preclude the application of imply license outside of the context of work for hire situations and in that context the court looks at all three of those factors to determine whether or not there is sufficient intent in a manifestation of intent  also there were a number tell me what evidence in the record came in a trial that supports that idea yes so there was a significant amount of evidence as to exactly what  the tool was it was an electronic reference tool that the news techs subscribed to the r s s feeds for scholarly blogs on and by doing so they had a single button on the website the website was completely set up to send out the blog content to rd parties on the website the record supports that mid level you in this case set up that r s s feed to send out full text of every blog to any rd party that had a button the record supported there was there was no tracking they have absolutely no idea where that content was being sent to the mid level you  suggest that mid level you would imply a consent to a subscriber and publishing that full text for pay absolutely and in here just to correct what you just said in terms of our position that the content wasn't we published it was indexed for searching capabilities so the abstract itself wasn't republished it was just used for purposes of when the universities and the students were searching for the content they would insert key words and that's what the abstract for you for so it was not republished it was just added to the index and categorized in this case mim mid level you set up it r s s feed the edited code in the actual feed so that it would send out full text and this testimony from chris more about the actual true paul type of software that was use so st of all they didn't just send out snippets which is very common you send out a snippet so that the speed readers i don't know if her owners are familiar with a feed reader and that when you sign up for this content it comes to your feed reader and then you can sort it and share it and print it there there can be noticed you based on the record that's the content was authorised to be sent to these folks that received the content on the other side when they subscribed just like a web page on the internet  industry standard is that right that's absolutely correct the judge precluded that during the trial to show some of the things that i just said the set up of the r s s feed the purposes of the feed and that it was not modified after two thousand and fifteen i believe the whole purpose of setting up an that they did not add any additional limitations to the feed there was no restrictions included in that feed i don't think it can be disputed that nice texas receipt from mid level you of that content was authorized and that means were it were in the context of an implied life in and we have to be able to look at that defense and at trial newtek was precluded from doing that here based upon those facts which was absolutely  and i addressed the court also i know that the district court that had looked at specifically the implied license in the context of the internet and in particular search engines like the product that's at issue here looked at just these exact things and determining whether there was an objective intent for there to be a license i would say that in terms of looking at the blend between the consent issue and the implied license does it go as far and i think the evidence is identical to the evidence that was discussed in parker  cision by this court would result in not only a split of authority but the risk of liability for search engines it would also create in this case  claim about the failure to consult a register of copyrights my concert and i have to go a deep dive into the record but my concern from what i've read is that you did not do all of that the district court asked for in terms of requesting a consultation with the register of copyrights did put the process or the request for example in writing when the district court seemed to be confused or uncertain about the process could you tell me a little bit about that absolutely the requirement in section four hundred and eleven of the copyright act pacifically requires for the for the district judge to request that information from the registrar copyrights there is absolutely no requirement that we request that you know that the judge follow that particular mandate from  misconstrues the trial interaction with the judge from that day the judge had indicated at six o'clock that he just called the copyright office and of course we said we don't we don't think that it will be there in sixty six at  night and so it was discussed he said he was having his law clerk look into the issue and we discussed it the next day it was not raised the next day so it was our belief that that he had figured out what the proper procedure was  it's not only right he said exactly what you just stated but then he continued talking and he restated what he thought he had to do he said i think this is a requirement i have to do this i'm having my la park i think i find that there's an accurate information that's been been submitted to the copyright office and then if i do that then i have to send it this request to the registrar copyrights and direct the court to unique colors which is the case that we submitted a supplemental to our brief that specifically looked at this issue and there was no specific request by the defendant there either for this issue to be looked at on the other questions  address the issue it's a relatively small and given the cases a whole contention that we need to reverse the award of statutory damages asked to the two block post the evidence in the record did not support a jury finding as to those two articles and just or step back there were sixteen articles that new stack put on the verdict form as having been allegedly st published more than ninety days before the date of the registration so they can they greta that ordered form and they repeatedly made the argument to the jury that there were sixteen articles additionally mr moore or when he testified was explicitly asked how much in your research in your study of this issue how many articles do you believe were  published st published more then ninety days before the date the registration and he was spotted sixteen in repeatedly said sixteen so it went back to the jury with mr moore's testimony there were sixteen articles there were sixteen articles on the verdict form there were statutory damages on these articles and so that's exactly what the jury did and they say now well after the trial concluded well what we missed today well there was evidence in the record that there were sixteen i did it st publication was more than ninety days before the date on the registration but it's the i didn't argue that to the jury and as i said the evidence that when mr seems to me and clyde license are a license just if you look at black's law dictionary a license would be a grant permission to do something that would otherwise be unlawful so you can eat you have a license to practice law and implied license that is if you had some kind of implied permission to engage in what would otherwise be an infringing use you could do so without violating the act  so my concern is it seems to me that lattimer test use for a work for hire situation does not cover the gamut circumstances where an empire license could arise and the district court seems to have been under the misapprehension that lattimer's the only test it seems to me that he could have an implied license in other circumstances i had him or certainly doesn't say you can't but but you may nevertheless win because i'm not i'm not sure that there was enough evidence at trial from which a jury couldn't reasonably infer that there was that kind of permission to engage an  all the time when i understand when a court makes clear that they're based on some kind of misapprehension or they need clarification moloko your honor is that i think the district court based on the law the circuit when faced with this question putting it through a software licensing system that it because it was fed through and then appeared on the news tech website in a unprofessional form that was an  in an effective and efficient way so there was no evidence in the record to suggest that mid level you ever intended or ever gave any sort of commission implied or otherwise for a new stack or any company to take its content put it behind a paywall make it appear on professional and then sell it to its subscribers and in fact from mid level you repeatedly testified that would be the exact opposite of what mid level you were trying to do because it would take readers who would come to midnight with you and they would go to news type instead and those readers on the news checked website would see my lovelies content presented an unprofessional way which would also would make readers not trust the contents so for all of those reasons and all that testimony was it refuted it was your fair ball trial there was no testimony that point any other direction there was no witness who stood up there and said oh trial so yeah i mean right and the constant was was republished in any common sense meaning of the term i mean it was on a new stat website it appeared on the web site scott was logged in and this this this this notion that that the f b i is golly bobby next and like google are in any way similar actually the search engines was not supported by the evidence the evidence showed at trial that unlike a customer search engine that most people are familiar with you might on the f b i you might type in the search are they you want to search and then the article popped up but you stayed within the f b i ecosystem so you didn't leave it like you would on google and go out to go out to the other internet universe you stayed within the ask ya so it wasn't a typical search engine which makes cases like parker and and field in opposite so  in in the in the trial court below that is this issue about contact and copyright office was never raised more on time in a pretrial conference in a brief it any at any time soon response say the judge doing a conscientious job recognize that this section four hundred and eleven dollars deal might be an issue and so during the trial at the at the conclusion one of the day's testimony when there's still plenty of time to go to trial he asked the stack repeatedly what do you want me to do he made it clear that he did not fully understand how to apply this statute and he said what do you want me to do and you know it may have been six o'clock with the only guidance new sec ever gave to the judge was don't call the copyright office you won't be able to get on the phone then then he did it explicitly tasked them with going in finding and guiding him as to what they want to do is they are counter registration should be thrown out that is if you have a finding a fraud an intentional misstatement in a copyright registration that registration can still be valid in unless the judge whatever the guide to the co supposed to work it's a great question just sort of so what we see from the other cases that have dealt with this issue it is is it it is best dealt with when the when one quality raises the issue and then the parties can confer i specific questions they want to address to the copyright office yes and one of the and so it is usually done through writing it and the questions are set now usually is when there's been a predicate finding of actual fraud and here it's important to remember that the fraud in the copyright office the claimant went back to the juror so the jury was tasked with it was given the question do you find as if every single article was there from the copyright office and the juror and the jury said no so there was nothing to contact the copyright office about and the numerous cases in that seven circuit case that you know are brief say that's the proper procedure to follow and that's actually the procedure the copyright office is recommending give us a predicate finding a fraud and then we can evaluate whether that fraud was mature and here there was no predicate finding a fraud so there was nothing to contact the copyright office not and more say ou that by saying that we absolutely our position is that no statutory damages awards were permissible in this case the plaintiff testified that you were biased her blogs all the time did not maintain revision histories she has absolutely no idea what she recorded with the copyright office and the applications and she cannot print the publication dates which cause significant issue they have to prove that it was within three months three months that it was registered of the publication date without a revision history and the case law states that they cannot group am i mistaken understanding what you say yes the attorney argument did indicate that there were only sixteen in fact there were eighteen but the evidence has to support the actual during verdict  this case it does not do so the jury has an obligation to not only juxtaposed the certified deposit copies were which were also not provided during trial and with the actual alleged infringements the jury has that duty to prepare not only the different  certain particular way a lot of what he said was subjective and not objective and we have to actually look on what the objective evidence here which is what lattimer does require i'm in terms of an implied license and i would refer the court to and the appendix some pages i ask one more question judge what about the contention or argument that whatever the implied license was it was not for use text to be able to garner payment from its own subscribers for the use of the contents belonging to mid level i mean it's one thing to argue that if they gave you the content because you were a subscriber and you put it up in a different format maybe but you're using it for your own financial benefit and normally in that scenario a licensee would ask for some royalties or access to the content without going to mid level used all virtue of the payment that they make to news that isn't not accurate the link that's provided there's a  significant amount of support in the record for this was an i frame and again there is protocol you can put on your web page to permit and i frame are not permitted i frame so when you click on the link it pops up and it shows a window but you're looking through it and it's actually what you see if you hit the link to the website and but you can't you don't have to you don't have to it would throw up the frame and allow you to look into their website ok i think i understand you have another question should go she answered my question a work that's in an implied license be delivered with the work i'm in this case didn't say personal use only it didn't have any restrictions on the copyright notice was in the top of the feed and then that the entire feed was was just provided through the r s s feed without any restrictions