appeal concerns plaintiff's claims for removal of copyright management information c m i for short in violation of section twelve zero two b one regarding removal of  and twelve o two b three in b two regarding distribution there after on page seventeen of appellants opening brief we have some photos with a chart that shows before upload photos and after upload photos of plant these are the photos that were attached to the complain i'm going to use props to show up show help for logic remove the c in mind when the plaintiffs take a picture this glass will represent me really understand all of this and maybe it would be better again i understand that there is a meditative which is incorporated in the photos of various kinds some more some less that  ended up on car logics i know on the multi listings that a car launcher facilitated essentially meditated wasn't there except for the ones that were on the outs i'm repeating what i know so you don't platform would have removed c m i meditated if it existed at the time of up so this is going to be strong evidence so the removal elements on section twelve were to be no core logic so as not to keep  respect to burden additional burden and burden of persuasion so those cases generally stand for the fact that it's unfair to choir plaintiff to prove a negative position to determine whether or not a photo had meditate at the time of upload its core logic when it made its small resize copy so it's  a the inference or the presumption is it's actually several things it's referred to in the opening but you have photos that are ready to be uploaded or provided by plaintiff they don't have to be modified at all that's number one you've got number two you've got no room so you the agents have no reason to modify this at all number two even if they did want to modify it like reshaping or resizing plaintiffs have presented evidence hard evidence that if what's your evidence your own evidence is that the the the applications they would use for that purpose when stripped meditator that's correct this one went right so we showed a plaintiff showed affirmative evidence of that that problem is that this  huge i mean i didn't i thought completely discount what you're saying the problem is you you do have this third party and you know in the middle of all this and you just don't have anything from the third party or any of them that's the weird part you just didn't get any real estate agents here to say oh we didn't do that not one but plaintiff wouldn't need to resort to contacting agents if core logic had maintained a copy of the original upload with c m i n eight making a desperation argument on what well i think it's a it's two things one defendant's expert has said software what you need with the court used to understand is this is core logic they decide exactly what's in their software so they make reference to a third party library but core logic has a choice of which third party library to use they can choose a third party library that preserves met a data but they can choose a third party library that does not and they chose one that does not ok but it wasn't there th there's they created the application that used the third party applet third party library that stripped the metadata it was their choice correct ok is that accent is there evidence that in so needs the file and wants the file as small as possible so when it's creating its software and telling its software exactly not a third party dive right into that no it's just a tool of frame so to speak that's right it's a you have think of it as a subset so if this entire podium is the software and then you have one sub routine so to speak that deals with image processing poor logic had a choice to use this image processing that would preserve metadata ok or it could have used a different one  well with respect to be one plainest of the obligation to show intentionally remove that's with respect to removing metadata with respect to be two and be three that's distribution of copies after meditators been removed there is no statutory requirement that the removal of metadata be intentional so what we have is this is at the time of the lawsuit we certainly have the inference that core logic knew that metadata had been removed but the day after the lawsuit was filed we showed the core logic absolutely knew that its software was removing metadata so at that point core logic continues to distribute its photos without the  meditator so it is absolutely destroyed with full knowledge it is distributing those photos without meditator and even worse one of the places it is distributing them is through its partner in from that program which we allege is an infringing use that will absolutely establish the requirement of korra logic knowing or having reasonable grounds to know that it will induce or  mystery of what we don't have to show we don't have to show an infringement i know that ok so then what we need to show is using the ordinary dictionary definitions of induce enable facilitator conceal simply that somebody there might be somebody particularly they're not artistic they're not attractive they're just some pictures of the house so the question is what what do you have to show to show that some that it's going to meet the standard or not they have to show anything that the standard means nothing because it will always be met well the fact that there's case law that we cited that says when you take out the c m i that it does induce that's the program that is for non human less purposes for risk management purposes such as banks and insurance companies that's the one if you look in the briefs we talk about the again any provision in the separate authority and if it's all the medicaid it was there that would have done it of course they would have because they thought they were authorized i don't think i don't think that's accurate i think that because they thought that no one would care about this in the in the strip out the c m i mehta data they thought they wouldn't get caught in couldn't get caught why don't we caught that now it's thirteen million  what's a little bit confused what evidence do you have that coral objects development of software to create and resize that's correct or held you didn't have any evidence on that score and i'm curious what evidence you have on be one that would get you past summary judgment ok so that's set forth in our opening but that's going to include that the act of removal must be done knowing that it will induce enable facilitate or conceal an infringement both kelly versus aruba soft and gordon which is the six circuit case make clear that is an issue appropriate to be resolved on summary judgment when there is no evidence that there is a reason to think the removal of the copyright management information will result or increase the likelihood of copyright infringement and there was no such evidence in this case in fact both of the individual plaintiffs conceded that they didn't use copyright management information in the form of electronic metadata in order to police potential infringement they are well the representation was just made that this secondary just a few ssion system may have been facilitated by the absence midget i don't mean for that being in the complaint as such but there is no evidence of that there is evidence that core logic entered into agreements emma lass's and paid them in order to be able to use their data for this service and others said it was authorized and received absolutely authorization from the m l s to do that there's no nothing in the record that would connect the functioning of the third party software that core logic incorporated into its software that happened to remove mehta data as part of the resizing operation to its agreements with the m l s is for the the operation of this third party software would result in that meditative being removed because the purpose of the resizing operation is to make the file smaller well such a does seem pretty likely that wasn't the real estate people who are resigning i mean or do we have any reason to think they were so two things your honor first the real estate agents are the ones who make the decision to upload a photograph to the system they're the ones who secure the necessary permissions to do that they're the ones who pick the photograph they may also choose to upload the photograph to instagram and there's testimony in the record that if you did that it would remove any made meditator that was present they are the ones who have commissioned the photos and are selecting and manipulating the photos in order best to sell them and if this all these to an argument that the that they are not the person who didn't a thing you're not that's an argument i can understand but that's a different argument from saying that even if that that there isn't a pretty fair inference that it was the just how the resizing took place was there mehta data in the form of copyright management information on there in the first place testimony in the record is the plaintiffs do not always include electronic digital copyright management information some of their photos had it some of them didn't and in fact one of the plaintiffs himself had a web site that used the same software library that stripped the metal data from the photos that were available from his own website so w data addle did that netted data include copyright management information if there was mehta data and it included copyright management information did the agent then manipulate the photo or upload it to a social media would need to go take testimony from a real estate agent who actually perform the act of upload and get a copy of the photograph his or her photograph as it existed at that point in time the plaintiffs made a tactical decision not to see that testimony from the agents because the agents were the ones to whom they had given these permissions and the agents were the ones who commissioned these photographs for the express purpose of using them to sell houses which would include uploading them to an m l s and in fact the plaintiffs conceded that they understood that the agents were going to be uploading these photos to and lss and they also testified that they understood the agents had the right to make modifications to their photographs and had the right to print those photographs and hard copy form for example on a flyer in a way that would also not preserve electronic metadata information the plaintiffs also conceded that they had the ability to and sometimes did use visible watermarks on their photographs which would be a way that they could include copyright management information that would not get stripped off but in the case of mr vandel he testified sometimes he didn't do that because he didn't want his name associated with the photograph because it was a photograph of for example a not very attractive property and it was less important to him to be able to track whether there was copyright infringement of that work understood at the time but the premise of clint plaintiffs councils argument is this metadata can the scene accessed and used to track instances of infringement but mr vandel said not only did he not use copyright not a date in that fashion because he didn't even realize that was an option available to him he was affirmatively trying to disassociate his name from these photographs because he didn't care about infringement but he did care about the reputational harm from having his photographs associated with him what do you understand the claim to be claim is that my client provided software the operation of which could have removed copyright management information in the form of metadata if that information existed the core problem with that claim and there are many is that providing software that removes metadata is not inherently a violation of twelve o two there are perfectly appropriate uses for such software it is only a violation of twelve o two to use that software in order intentionally to remove copyright management information in order to facilitate infringement and what evidence was there about the can't of korra logic to remove software end one there was no evidence that core logic intended to remove copyright management information they use this third party resizing library that's commonly used and incorporated that in their software to in addition to the t the statute the legislative history makes clear that twelve o two is not intended to apply to entities that provide software or services because it has all of these specific intent requirements c asted with twelve o one which does have a specific provision that applies to entities that provide instrumentalities that can be used twelve o two doesn't apply to core logic at all because we are providing software at most and a service we are not making decisions about uploading particular photographs or logic is not in a position to determine whether the appropriate permissions were obtained by the real estate agent only the real estate agent can do that and poor logic is not in a position to make an individual ais judgment about whether there is some risk of an increased likelihood of copyright infringement as a function of the automatic operation of the software your understanding and this is really a demonstrate that i think your honor it has to be that there were move all of copyright management information or distributing photos from which that information had been removed that the absence of copyright management information will induce enable facilitate or conceal infringement well but the problem is that the theory of the statute just said it always well i mean that's why they have the requirement but and yet if you say that you're reading our language out so what but if you can give us some  in this case copyright man a digital copyright management information in the form of metadata is not relevant to infringement based on the evidence of record because there was no testimony that any real estate photographer uses digital neta data in order to police infringement and why does that matter because if they don't and if the question is whether the creator of the work is using it the question is whether it will  the phrase in juice enable facilitate or conceal infringement there's no evidence in the record that anyone looks to digital and that a data associated with real estate photos on m l s is for any purpose so there's no evidence that it's going to make any difference as to whether an infringement happens and in fact the evidence in the record from plaintiffs was that in that rare instances where they had been concerned about an act of infringement they learned about it by seeing their photograph being used to promote the sale of another house they called the agent and they asked their agent to tell the other agent to stop doing it no copyright management information and no metadata played any role in any part of that process so there's simply no evidence that on the facts of this case that whether or not that digital metadata is there is going to make any difference to whether copyright infringement happens or doesn't happen what is your understanding of the significance of your opponent's argument that the day requirement is that it must take place without the authority of the copyright owner we receive representations from the agents that they have obtained that authority again there's nothing inherently wrong with removing metadata it's only a problem to the extent that we are presented with a photograph that has met a data has copyright management information specifically where the agent did not manipulate the photograph to remove it and failed to secure the permissions that they represent a third is not in line in showing two and three  so some of those requirements the intentionally removed is only in one but two and three require that we know that copyright management information was removed without the authority of the copyright owner and there's still must be this requirement that this case never came forward and provided a specific photograph and said here's what it was at the time of upload here's the data that would allow you to take it out of your system take it out when we have received the m c a notices requesting takedown of particular photographs an evidence of record is that has happened only a very small number of times we've complied and there's no argument that we haven't you want to briefly talk about why the who without authority doesn't have the burn on you with regard to the answer to that is that the plaintiffs made the affirmative argument in their motion and the plaintiffs made the affirmative argument in their motion to strike our affirmative defense of express and implied license and in that was at the instigation i understand that but leaving aside issues as you just shovel it is a lot about it's a statutory interpretation as a statutory interpretation matter because that language without authority of the copyright owner appears as an express requirement need to get to the patent statute because in the copyright statutes we have examples of statutes where that language does not appear as in twelve zero one and it is an affirmative defense and where it does appear as in twelve o two and therefore is part of plaintiff's affirmative  doesn't appear as a twelve o three distribution well with respect to distribution yes because the preamble is that no person shall without authority of the copyright owner or the law one intentionally remove to distribute knowing the copyright management information has been removed without authority three similar provisions of two so the fact that the removal must have taken place without the authority of the copyright owner is present in each of the statutory sections the additional requirement that core logic know that that removal took place without the authority of the copyright owner is additionally present in two and three one has the requirement that core logic actually have performed the act of removal itself and did so intentionally and then of course we have the additional knowledge based arguments at the end and i would simply note that these state of mind requirements with respect to knowing that the c m i has been removed without the authority of the copyright holder and knowing that it will induce an able facilitator conceal an act of infringement is precisely why this statute does not apply to core logic as a provider of software that can be used for photographs that may or may not have met a dado where those permissions may or may not have been obtained but applies if anyone to the real estate agents who are making those choices with respect to particular photographs and getting permissions from the photographers who are giving specific permissions for these photographs to be uploaded to m l s is using your logic software it seems more obvious with regard to one and two and distributing i think it is a question with respect to two and three because they're the agent is the one making the decision to upload the particular photograph logic doesn't have control over that it's just licensing this data set from the s and then turning around and using that entire set of data but even if the court concludes that the analysis is different for two and three there is this additional requirement the core logic no the copyright management information was removed without the authority of the copyright holder and i would suggest there's simply no evidence in the record that core logic had a basis to disbelieve the representations that were being given to it that in fact those permissions had been secured and i would say no basis to believe that those representations were false at least under a theory of implied license given the purpose for which the photographs have a thank you very much  first i want to say that there are no written agreements or even oral agreements that even refer to copyright management informations in the no statements even referring to it so core logic can't rely on any type of express agreement that it can remove c m i and if it's never even referred to how can it imply one particularly when it's never even spoken to players i think the last thing i want to say in the last thirty seconds is this is so much of the statute has to do with the mental state facilitator concealing infringement maybe not so much that it actually did those things but that core logic in its mind thought that it would or that it could and that's a jury question evidence do you have that they knew it that's the issue well that's the case that we cite the pro pet case in the opening where that exact issue came up at trial and the court went through a number of factors after the jury found that th we give you the page of the open probably that's the open unit pages forty six in forty seven in so they go through a number of factors that the jury considered or the court said the jury based on these facts could find that that's on page forty seven of the opening we have the exact same facts facts as pro pet so like pro pet core logic has awareness of issues of copyright that's number one like pro pet  stronger than pro pet because also core logic has in house counsel who manages core logic's copyright portfolio and all ip litigation in ip to diligence so we have extremely sophisticated you think it sufficient to get a jury issue to show that there's a big knowledgeable rich defendant and that's what you get that's what those factors amounted well he'll defend and that puts you to the jury