will proceed with arguments on both sides of this appeal revolve around a central conceit which is inconsistent with the facts of this case t would like to consider real estate photographs as if they were music files or m p three s which are inherently subject to third party claims of copyright  identifiable by artists and and albums and publishers in metadata that's and associated with them that's necessary for them to be found and used and distinguishable from one another with respect to  their face with respect to owns or creates them real say photos or nothing like that the lack of any similar claims to v h t's in this case is the dog that didn't bark zille beach he had an opportunity to get discovery from zillow to see if other photo studios were making similar claims regarding the same uses that zillow is making with millions and millions of photos that it received from realtors and multiple listing service as there was no evidence of any such thing i need a little help here at the beginning you're certainly not contending that photographs can't be subject to copyright absolutely not your honor and their photos are subject enemy knows ok ok and i want to make sure that you are not objective no no not at all your honor but v h t they're subject to copyright but they are unlike music files in cases like grokster and napster in that they are like a needle in a pile of needles the ones that are subject to a third party claim of copyright that is antagonistic to the rights that zillah that it providers grants to them was asserted to be antagonistic look just like all the rest there's been no claim there's been no evidence in this case that any other photo studio has asserted that its license to its customers is inconsistent with the rights that those customers purport to grant zillow when they load those photographs on the zealous system and what so what well so what it makes it makes an enormous amount of difference for the issues of direct infringement and for the issues of secondary liability as and judge robert who is here with us today i think grasped that distinction when he granted judgment as a matter of law for zillow on v images for which is zillow had received no notice in any form whatsoever prior to those images being loaded on its system and posted via by its users to different areas of its  because multiple categories like there are multiple categories are you talking now about the digs photos and the issues of direct and secondary or contributory liability so  source said basically this is a large group of photos that were available on it that yes those there's only break those up please so as to the summary judgment  doctrine as articulated in justice scalia's dissent in area which this court has favorably quoted in amazon good news as boiling down to whether an action was taken that was specific to a copyrighted work selection is that is the classic example but it really boils down to did did the actor do something with respect to this particular work and in both the cases of the of the listing images of the age of the home detail page images and the digs images there was never and there is no evidence in the record whatsoever that zillow ever took an act that was specific to any of those images that resulted in an infringement the ones for which judge robe are granted judgement of the right summary judgement judgement as a matter of law so in the case of the digs images website automatically received and processed in exactly the same way every image that every realtor multiple listing service sent to it those realtors multiplicity services they chose what photographers they were going to hire they chose what images to load into their listings and they also chose what rights to grants to zillow to those images  proportion that that image would already be there and after a while zillah realized that that that wasn't necessary that image that the assessing its computers was fast enough that it needed do that didn't need to do that anymore but to the extent that that generation some of these images and zillow personnel clicked on this image and says they were going to put this in a set that people can search that's a small portion of the images in this case and zillow does not appeal the finding of direct infringement for display of those images in this case but for all the images the creation of these again these copies there were also copies that were created corresponding to resolutions on digs at the time that users posted these images and and and those all of those images were created in response to user interactions and again zillah played no role in selecting which which images users chose to save in this way so so in both instances there's no act towards a specific photograph that zillow took that resulted in any of those copies being made and similarly to the extent that once those images were placed on individuals non searchable saving pages saved pages called thing so so so i you know and maybe that's how you want to think of it's either an up or down proposition but as i look if i look at these and i look i think robert wood was carefully trying to put things in different boxes for good reasons because they could be categorized in different ways so let me just ask you with respect to the digs photos  the those that were displayed and searchable my understanding was that said yes you know we had the pollution of conduct of tagging these so that they would reside in a search or cache but in a searchable form and then the question on those photos for example was but is that fair use is that a misunderstanding that's correct so still has not disputed that a prima fashioned case of directed friends which has been made for those photos and specifically because there was an action by a still a moderator that changed the availability of that photograph and george chose not to dispute whether any subsequent display was caused by that act but if the court accept this fundamental evolutional act requires an action directed towards a specific work then those are the only works in the case where arguably any act any infringement can be traced cosily back to an action by into my rebuttal time but i'm i'll keep going this is going to because they were the subject of a statutory damages awarded that was enhanced for willfulness ok so that's so now ok now we're breaking it apart and that's what i thought you were getting to and that is that on these overall digs photos judge robot art held willful liability for some twenty seven hundred willful conduct f infringement requires an intent to infringe and that intent to infringe can be shown by evidence of actual knowledge of the infringements or by recklessness or by willful blindness now  requires not only it's a subjective suspicion of a high degree of likelihood of wrongful conduct but affirmative actions that were taken to avoid learning about it let me and let me read to you from testimony from kristen hacker s e r eighty you may familiar with that the questioning is related to when the same photo comes in from two different sources one source it's subject to an agreement with the h t that makes the use limited i think deciduous is going to be the vocabulary the other source it's evergreen that is to say tenuous usage so that depending on which one of those you believe you can use it or not use it apparently the veil is ill is quote trumping rules say that the more expanded use is what they do and then question the zilla do anything to investigate where one source one feet gave you those rights with respect to those photos and the other did not not so far as i know diligent relies on the representation to remain the agreements that correct yes in other words that sounds as though you're on notice that there's a problem and you not the different rights that determine the trumping order are the ones that are specified in the agreements that zillah has with the provider there's no reference to d h here any third party and receives feeds from both listing services individual realtors and aggregators and so with respect to an individual photo the same photo may come to zillow from three different sources and so the difference relates to the rights that the individual the individual provider has sort of that photo so for example if the realtor is the one who took the photo they might own the copyright in that photo and be the higher trumping one  and so we generally and i think there's testimony elsewhere in the record on this that the trumping rules you know go by essentially who's closest to the listing and gives priority to the permissions that the person is closest to the listing to the actual taking of the photos so no it doesn't indicate there's nothing intrinsically about that decision that relates to copyright or knowledge that that trumping the you know when i get the photo from the realtor and the need to have an affirmative act to avoid learning and there's nothing in the record that indicates that the opposite is true and when he came with its claims zillow responded by asking for licenses asked to say i asked who are the another realtor it just gave an address is of properties that they had shot at some time in the past and so zillow looked at that and said you know at least thirty percent of these properties are you know either are still on the market or they're scheduled to take the photos down when it comes off the market which still doesn't show that the ones that were not on a thirty percent actually were b h t photo so this goes to but again because so few of the photos at issue where the subject of that notice the trial didn't really go into you know how sufficient that no this was it and you know in terms of providing knowledge to zillow but all the rest of the images in the suit were not subject to any notice that is actually in the record was in the record before the jury on this case and their record on appeal includes many complaints with listings of images that were generated after discovery happened in this case but in terms of actual notices to zillo during the time period question that's the only one it doesn't concern very many of the images it trial here and so a lot of these factual issues that mr crosby raises are actually issues that the jury heard about that the jury decided the jury was properly instructed on every issue that you just heard about no contest as to instructions about  all of its entirety that is not only as you well judge wrote part affirmed sensually adopted and her judgment on after the post trauma actions but also the portion of the jury for it that he set aside which we believe should be restored so in the time i have what i want to cover is this first i want to talk about the volitional conduct requirement because that's an issue that cuts across big swath of this case it's what was principally relied upon by judge rober in setting aside the verdict  to most of the images that were the subject of the jury's verdict and it was also the principle basis the sole basis really for summary judgment as to the listing site claims which i believe your honor was talking about with mr crosb home details page yes yes hales listing yes exactly so that those are the summary judgment rulings that judge roberts made that i want to turn to i guess i'll turn next to willfulness after that because that was the subject of some discussion with the court and then i want to talk briefly at the end about the each he's requested the court at least at the very least if it doesn't reverse on volitional conduct restore the jury's verdict as to the one thousand six hundred ninety four photos that first talk about it in the context of the award that was set aside the verdict that was set aside and then in the context of the summary judgment that was granted by judge report so obviously any discussion of volitional conduct in this circuit has to start with giga news  because it is the most recent case on the issue it also is the case that most explicitly adopts fully tional conduct post the supreme court's decision in aereo now good news involved usenet i'm not particularly familiar with the usenet but i went back and of the articles and because of the nature of the usenet where peers share what is on their various servers with uploaded by users gets shared that's the essence what this court decided in giga news was that all giga news had done it said basic parameters for users to upload it did not select and i quote any of the content available on its servers it did not tell anyone quote what to upload close quote and it quote quickly removed to close quote infringing material when receives specific notice so the court found ok giga news and no circumstances is nothing more than a passive host that's a quote merely a passive host it played no do not play any sort of an active role like in that quote no evidence that it quote exercised control close quote therefore this court concluded it didn't cause it was not the causative factor in the upload of those images because it was not active it was not directly li it's liability would have to be in the lies under the rubric of secondary liability so the question is what are the facts here and remember that when we think about the facts here we have to think about them in the context of trying to sustain the jury's verdict because when verdict you have to indulge every inference in favor of that verdict so here's what the jury could have found the jury could have found that zillow had this listing site with the home details pages and the likes and that when he decided to back actually when you look at the evidence the button just said save it didn't tell users exactly what was going to happen if they could save it said save and when you click save something popped up and said keep saving keep sav then when that button was pushed what did is it made sixteen copies it didn't just save the image for the user it made sixteen copies which then according to its protocols which you can find it easier to fifty it made a different size copies for different purposes the zillow had not purposes of the user it decided as mr crosby acknowledged whether to make those searchable images or not it decided you know how to crop the images it decided which ones were going to be available for public display which ones would be available for private display those were all decisions that it made and then and then images could be viewed it for them for the vast majority over nineteen thousand could be viewed on people's private boards or if they were searchable in in addition they could be viewed by members of the public just like they could be on people's boards they could be viewed through searches going through the website and now after which caught with these infringements because there's no question on the record that there was an infringement of each team's rights in these images after it's caught this relational conduct defense amounts to this zillow is saying that who really infringe the copyright the real primary infringer is the user who click save that's the essence of their argument because the nature of the volitional conduct requirement is just the scope explains aereo is a channeling function you channel somebody either towards the rubric of primary liability or secondary liability and if you're appealing towards secondary liability because you find that they were not the cause of the infringement what you are in essence saying is somebody else is the primary infringer i guess i don't read the argument that i go all the way through up to where you say well it's somebody else's range well there's an interest rate that's we know this infringement right because that's settled as a matter of fact well it depends these questions to was entitle to find that the entity that put that save button there the entity that decided to make sixteen copies of the entity that decided to crop them for its own use i mean this is not a situation where those sixteen that were not displayed yes and a small amount of those were searchable but they were not displayed what is your argument in terms of volition and terms  that were not displayed because the reality is we don't actually know there's a stipulation in the record and that's obviously a subject that we may have to get to that your owners may have to get to in court to decide to use the stipulation says that there  a particular spreadsheet that was exhibit five twelve and it said you have to take every fact on this spread sheet as true as to display the quote facts close quote was that in column a w it had the heading display and then it had to get one of two recorder to display yes or no what did zillah record the display of images on the image details page with that man he is not that the image had been displayed but that after it had been displayed somebody infer that every image was displayed right because the evidence was there were you could be displayed on a search page if you could be displayed on the landing page you could what good was the exhibit that the jury was told to accept is th disregarded that oh no absolutely not you're on they could not have survived that in the sense that they could not of found that fewer images than what was shown on that spread sheet were displayed because everybody conceded that yellow had kept a record showing that those had been display but the testimony that that was incomplete came in without objection nobody objection a jet did when the question was asked about the other ways in which images could be display and particularly your honor it seems clear that one that a jury could properly conclude that those images that is zillow tagged as searchable because they thought they were really good were likely to show up in search results and so i think that at least as to the one thousand six hundred and ninety two or ninety four searchable images as to which judgment was granted against my client and those should be restored because those i think the evidence is pretty clear that the jury could have concluded they had been displayed in i'll be honest with your honor i know you asked a lot of things in that question i think i mean your part of it and i can't remember the rest of your honor's question but answer ok are i appreciate that typical metaphor that's used in the case law by the supreme court by courts of appeals because that talks about somebody who walks into a copy shop with infringing content puts it on the planet and makes a copy only if this is a case where somebody walked into a coffee shop and this below had given them a menu of the things that they could click save on and then when somebody click save on it zillow posted a copy like people wanted on their board inside the digs website but then they took fifteen extra copies for themselves which they trimmed and shaped and and used for their own purposes so this isn't the copy shop it doesn't fit this is more like the area ok sue or the m p three tunes case or the perfect versus amazon which talks about google all of which found that even though conduct by a website or a provider even though it was quote automatic even though it was automatic that the site itself was the animating cause it was engaged in violation of the hunted is your argument that you think it's the site itself but then there's that other category of photos we've been talking now about your one thousand six v but then there's the other images which are displayed but they're not searchable so you can't put a little button on those putting it so what went well actually there was a button they got there by hand by the use r clicking that button and even though zillow chose not to make them searchable it's still engaged in the same process of making sixteen copies and trimming those because  those sixteen copies are not sixteen identical copies if you look at e r two fifty they are each sized differently in their directions as to how you crop each of those sixteen copies because what they did is they did they made those sixteen copies and trimmed them for every board and that board and let's say your real estate professional only the person clips know there they're publicly available but but they're not going to show up in search results so somebody will see them if they decide oh i want to see what judge fletcher likes and they go to your page they'll all be there and less they're marked private and a very small number of these images were marked private and the jury saw a summary of that so that's a distinction and  the listing has expired and so the v license no longer authorizes the use of it because they're only authorized the use of the image while the listing is up and live and so the question is when the issue when the image stays on the site after the listing di is after the property is sold does zillow engage in volitional conduct that causes it to stay on and the answer to that is that when the property is sold zillow decides meant to display because if the rights on the listing site as shown are deciduous what zilla does is it takes them down and then it looks for evergreen rights for the same property that's what the testimony shows and then you would make the choice to restore those evergreen rights those images that may have been from a prior or even a simultaneous listing to that to the site it was on notice beginning in two thousand and fourteen that it's continued license its foreign license and says see how it expires and contrary to zillah says the jury was entitled to find that after that basically did nothing it audit showed until it continued to leave up evergreen apartment deciduous images as if they were ever been traced no because of course this was resolved on summary judgment and so those didn't get to trial right and so there wasn't testimony as to how many if any exactly the point is that a jury could have found could have found that zillah made the choice as to what was going to continue on the listing site and so they are responsible in the sense of being direct infringers not so something that we particularly defer to the jury on now let's let's go down the evidence the jury knew that zillow had gotten repeated notices from v h t regarding infringement the first one which is what mr crosbie talked about with in july of two with each photographer and brokerage and the implication that zillow tries to draw on their brief is that we asked for executed license of everyone here's the next sentence in that email we do not need these today mr bald of my client says yes absolutely there was never follow up after that asking for executed licenses we began providing lists of infringing images by u r l specifically identified by  november of two thousand and fifteen the jury had the spreadsheet that showed the u r l number that showed when they got notice of each one by january of two thousand and sixteen they had notice of over fifteen thousand infringing images specifically confirmation of these in the future all they had to do was ask all they had to guess it's a question of you don't interpret that as asking knowing when mr bot of responded yes absolutely all she had to see say was well then can we see him but then that e mails never sent and i think you're on again we're getting into the province of the jury they could make the argument to the jury their own no that's not willful blindness because look we were responsive but they heard a wealth of evidence which i can't cover in these minutes because it was eight days of testimony and were entitled to look those people in the eye listen to what they say and look at the documents and make a conclusion as to whether they were willful when they didn't take down again remember the jury never heard anything as to whether they ever took an image d ok ok that's those are the images that was shown to the others at the display it because this is the six seventy three the significance of that number is that of the sixteen hundred ninety two or ninety four i never get that number right those were the ones that were eligible for statutory damages and six seventy but five minutes on the clock will start and their time to his remaining so in twenty minutes twenty two minutes we have not heard an identification of a single took that was specific to any v h t photo that is at issue so when i want to go talk specifically about these listing trades because there there was i think some confusion about what might be relevant here not so there was the rules by which zillow kept listings up or not depended on what the providers had specified for those images but they were applied uniformly to all of the images that any provider provided and to the extent that it's even arguable and it's not that the processing had some sort of nefarious purpose that's not at issue because there was no secondary liability claim brought with respect to the home images to the listing images the only question is the volitional conduct question and as this court has said doesn't depend on intent has nothing to do than ted it's just causation who is the person who took an act that specific to this work that caused it to be infringed and and any further liability beyond that person must be established through secondary liability that's the sorting mechanism for which illusional conduct exists  similarly with respect to the digs the allegedly volitional conduct was putting a button on every image those were the words like i wrote them down as they came out the again this is the central c probably different ways you can read the chronology but your colleague reads as you sort of ask but then you said never mind and then the suit gets filed so  it was then perceiving with the concrete evidence of the license arrangements so so two things first of all the words again i wrote them down out of my mouth was over basically did nothing under a lot of arts basically doing nothing it quote unquote indifference to a claim a kind of is not sufficient there willful blindness requires an affirmative act to avoid learning something second well from that act is somewhat  you asked for something and then according to his version of the evidence you said no actually i don't need that evidence that you decided you didn't need actually would have told you something that would have been adverse to your client and that is not what the evidence shows  will need to see confirmation of these in the future and then brian bald of the c e o of the age he responds hi michelle yes absolutely thanks brian that's the final communication we asked for them we said don't need him tomorrow but we need him in the future to resolve this and he responds and this is the last word in that chain yes absolutely i will be i will give these to you and he never did we never heard from still and that is how long after that was the last this was january two thousand fifteen and i don't have the exact filing date but it was i think it was a year maybe it was a year before they filed suit was january two thousand and sixteen and they filed suit and when they did file suit needs to process the images and take them down those only came after discovery and a very complicated process which resulted in the final thing if your honour's the stipulation that stipulation that was a deal displayed was a very complicated process and proving up you know why the fact that these images were displayed in it would have been a difficult thing for v h d to do so they made a deal we stipulated to those images having been displayed and in exchange got a stipulation that other images had not been displayed the column said y n y n and in fact an earlier version of that spreadsheet came back from v h t zillow insisted on y in and before agreeing to that stipulation but the stipulation is interpreted in this court like a contract that's it is in so the stipulation when it is clear on its face  it is not to be contradicted with subsequent testimony by witnesses who are not parties to bargaining to agreeing to that stipulation actually important the fact that the testimony and without objection were afraid they're going to go somewhere this is at s e r one sixty seven through one sixty nine so says we're free they're going to invite the jury to speculate that these images that were stipulated as not being displayed were displayed energex and says that's not what we're i want to introduce this forces you i just want to respond briefly so the hundreds understands the context this goes to are making available argument they're not disclaimed that they are going to try and use this to contradict the stipulation at the time that they'll object to them doing just that going in a closing argument