for that and in that case in grove go the individuals who were there once they had family accepted members of that forum were all able indiscriminately to view the materials were available market that is where the distinction that we see here your honor is there with the giga tribe venue there has to be a further step taken in order for another individual to gain access to the pornographic files and that is that that individual has to request and become a friend of the defendant in order to gain access and that that is different from grow which is why we just the court does make the comment your honor just made reference refresh for the court's recollection requires an individual to become first a member of that venue you know you're explaining once again the distinction ice why why does this distinction make a difference because your honor as i misunderstood your honor because it affects whether or not it should be interpreted as advertising what i mean why why does the fact that you have to sign up is a sort of like becoming a lot of us are why does this extra step the signing up step may make it make of the films because of the language that's used in these for themselves and in a language that was used during the trial which is people are talking and even in the briefs the parties are talking about file sharing and what i think the confusion and the collision occurs is that we don't have any definition for advertising in this specific context certainly this jury didn't receive one and we are skating back and forth between this hyper technical if you may if i may definition of advertising contest it would be what is probably the late jurors interpretation of advertising with the difference in these electronic fora and what they consider to be file sharing and that file sharing which the party is using for your government and it's briefing is just simply and you know what this jury received neither one nor the other so it's a chicken between innocence if you will although both of the cases counsel both grow vo and this case involve file sharing systems that allowed individuals to communicate to subsets of the population as a whole and didn't both cases say that in those in that situation if you  advertise to a subset of the population that sufficient to be an advertisement your honor is correct then so low so go vote does govern the situation because it says that you can advertise to a subset of the general population doesn't that's where i would differ with your honor the distinction that we see there is that in grove zero there is no further action necessary by the defendant to enable this access in that case the system did involve separate levels of access there were like three or four different levels of access that members could have there or the messaging board there's a messaging board set up where anybody presumably the record such as it is at least in the circuit decision there suggests and when it gains access to that level then is able to just indiscriminately view whatever files those individuals are sharing whereas here the different departments actions  possible he made files available from his when peter but he didn't actively make them available to an individual until that individual gained his friend status so that's where we see the distinction you're on road decision is talking about an open venue for example and while i'm hesitant even to go back into the analogies i know the court has already been through presented with so many from both sides and i think all of the analogies slightly missed the mark because none of the analogies hits right on the head this terminology that's in use in these electronic venue's which is the sharing the file sharing we've been studying the statute and compassed are adopted a term advertising which is not a type or a technical term it's a lay person's term so i think what we've created here is a high propensity or high likelihood for confusion from year and none of the other cases that have been cited come straight to this particular point in both cases involved and in a situation where the advertisement was available to a subset of the population isn't that right both provo and this case and that's what this case you had to hesitate your honor because to me what the court's opinion says and grow which is that everybody now has access to it but it isn't in fact of the body and the defendant's instance it is all that's not what grover said it said that there you could be an advertisement if  even even if it was to a subset of the population which is the same situation that we have in this case but the reason that robel could say that your honor is because it had already set up the fact pattern it is already made and it's just and it's decision clear that it was a dressing this open environments where all people who were in that setting did in fact have access so that is why but your honor because that definition that clarification is already provided in the opinion it seems reasoned and appropriate for the court to then have gone on to made of findings in the going to try to in this case and they gave the tribe system there were certain things that members of the public could see correct they could see the avatar for example they could see the avatar that is correct and the a was a picture of a child in underwear correct that is correct and that avatar was part of what the government's it said was an advertisement correct that is the government's interpretation yes what about thumbnail files could those not also be seen by certain members who participated in get tried depends upon the steps that that other individual took and which folder one's talking about because they're different folders that the defendant was publishing and they had somewhere access restricted and others were law so as those that were not access restricted could be seen by a person that signed up for good tried yes correct are and those thumbnail images were also identified as advertisements by the government correct that's the government's interpretation we were jock that but that is the government's interpretation what position do you have about whether or not the government proved in this case whether or not they proved that these advertisements actually were seeking or offering to receive or distribute child pornography or display child pornography or produce child pornography what is your position on that point do you know they felt in their profile now we have no information as to the actual or density of the users who are receiving farms there is discussion elsewhere in the case law about how these other individuals are neither family members nor close friends and that's very likely the case here it's reasonable perhaps for one to assume that but this is a criminal matter and assumptions are not really warranted especially the top point and it's a failure of proof from the government to show who any of these are we don't even know who the original entity was that allowed the government not asking about that i'm asking you are you waiving the argument that the evidence was insufficient on this question of whether or not they had proven that these ads were seeking and offering in and of themselves these these things that they calling advertisements whether they were seeking an offering to receive distribute or display child pornography are you waiving that because we asked you to brief that and you did not raise that so what is your position on that i mean we're not waiving acquire that ok let me just try one more time i'm not asking about the level of access that people had not asking about the level of access i'm asking about the nature of the advertisement here the advertisements involved the  particular image that the fellow had for his avatar that was one of the thumbnail images that were available and then the labels or names for those that's what they said the advertisement was i'm asking you whether or not you can make a make a point that the evidence was insufficient in showing that those advertisements were seeking and offering to receive or distribute child pornography that's my question i was the evidence insufficient  trying to answer your honor and i'm sorry i apologize arms must be stumbling our position is that's not advertising we come back to i get hung up on the definition of advertising as it's used in your honour's question and as it's used in this fact pattern overall whether that constitute the government clearly contends that's advertising and if the jury had been given a specific instruction perhaps so defining i would probably have to be in a different position here but that isn't what happened so i am sorry your honor i sense the court's frustrated with my answer but i simply can't go further than to say i come back to this what i perceive a legal position before the court is the crucial difference in this particular forum from the rest of the decisions and distinguishable the answer is it's not that case just like this case involved a closed network that this court described as a closed network not an open network the way the defendant is now characterizing it that had forty to forty five members who were there only through invitation they had to be invited and then they joined that is exactly what happened here the defendant is stablished his own network and i think that that goes next to judge question which is why is any distinction relevant it's not the fact that the defendant built the network himself versus someone else building the network for him doesn't make a difference once the network is established it was a closed community to which all files were available the defendant characterizes his sharing as not as non indiscriminate that's not true for once that anyone was connected with the defendant on his  network and he had one hundred contacts any of those people at the same time could see any of the files that he was offering and judge burton got into the question of who what could they see they could see in his group one folder nails of child pornography and they could see in his groups one two three four five folders descriptions of child pornography in the filenames some of those folders were password protected but the defendant's password was in his user name so that anyone could see it readily and for those people who might have missed it in his user name or on his screen page they e mailed him as the record shows and their first controlling engro vole didn't the government have more proof regarding an expression of a communication by the defendants that one could call seeking or offering to distribute or receive or display child pornography than we have here here we have if you're talking about pictures and file names and an avatar that's what you're saying the advertisements are let's assume that grove on some other cases say that they meet the definition of what an advertisement is because even if it's to a close network that's your position on that correct let's assume that that's not wrong ovoid know that that's part of what's being debated here but how do those images file names and just the avatar communicate some kind of a seeking and desiring and offering to receive distribute display child pornography where is the communication there so the communication is inherent in the network and what the defendant is doing on that network to get tried as was explained at the trial in this case is a file sharing network that is its only purpose its only purpose is for people to seek offer and exchange files so when you post a file and dig a tribe it is if i was going to the farmers market the only purpose of the farmer's market is for me to buy goods and for someone to sell them they don't need to say to me specifically at their booth i'm selling you corn i'm selling you strawberries i'm selling you don't that's so are you saying for instance that if there were a criminal statute that made it a crime with an additional fifteen year sentence for advertising to made house and advertising by doing so by seeking and offering to receive or distribute tomatoes that just by putting a creative tomatoes out at the farmer's market you are guilty of advertising if there are that withstood challenge under the first amendment under any other constitutional right and in fact there have been cases challenging child pornography sharing under the first amendment and the supreme court has held that virtual child pornography does not qualify because it is protected i would imagine that speech about tomatoes would also be protected because it is not contraband that you don't talk about that's not what we're talking about you know that we're to let's assume tomatoes are contraband also in that hypothetical yes yes just by putting them out that constitutes an advertisement if that is inherent in the forum that you are placing your goods and if by contact some context somebody can determine that what you are doing is seeking or offering then yes that would qualify as an advertiser i would like to address your honor's point about weaver as well that was raised with defense counsel to the extent there is any argument as to seeking or offering that argument has been waived because the defendant cannot now come in at oral argument and a time to raise an argument that this court specifically asked the parties to address in their supplemental briefs and defendant chose not to do so to the extent the court still is considering it that also was resolved by grove provost said that posting a link wise is an advertisement seeking or offering child pornography on a message board grove o said that one defendant in that case was seeking child pornography when he posted a message on the board that said does anyone have child pornography from this studio and another defendant without actually saying anything about does anyone want there are no men and as this court has put out there's no magic words but without actually saying does anyone want child pornography he posted a link or information about a specific child pornography studio and this court held that but in so doing he was inherently seeking or offering in fact that was off don't you agree that in the grove oh case and you're talking about defendant peterson correct yes didn't he do more than we have here didn't wasn't that a thread of conversation thread where he was including words such as quote hot  ls at it's best ls being the studio that made the child pornography yes isn't that more than we have here i would say that the last thing we have here what the defendant did was post for example fourteen year old boy shawn jerks off hot that is a lot more than just the studio name in fact many of his videos had those sorts of descriptions that from their very nature anyone who saw the title alone that was child pornography moreover he didn't just post words he posted images someone else small photographs of the child pornography that he was seeking or offering that is more than what happened in grove in fact so what distribute child pornography through a peer to peer network if for example your neighbor was having a conversation with you and said do you have child pornography files and you said to your neighbor go on my page that is not through a forum known to be used for child pornography and i'm not page you'll see files number one two three and four and you can download them there at that point you haven't expressed to the world what you are offering by labeling the files with specific names that shows anyone what they are and you haven't actually gone out and market it because someone else has come and solicit it from you it would also be possible if then your neighbor went to his friends and said you know i know somebody who happens to have pornography on their page and you can get it there it's files one two three four that's not advertising by the person who posted those files because you haven't communicated to an audience what you are actually offering or seeking you haven't described your product so i do believe it would be possible i don't believe it would be easy and i think that that's the point congress wanted this to be difficult because child pornography should not be advertised or distributed as this court explained in its minors decision the prohibition on advertising child pornography is extremely important in fact the words that this court used was that the distribute the distribution of child pornography  industry that causes physiological emotional and mental trauma to the child victims and the advertising of child pornography threatens to cause grave harm to society and encourages production and distribution of material that is created by to advertise in prohibition to cover computer distribution even though computers were in their infancy when the statute was enacted and i would also say that the minors case that i was just quoting from was a case decided under the eighth amendment to determine whether that fifteen year mandatory minimum constituted cruel and unusual punishment and this court said that it did not so although it is a severe penalty there is no question and although it is difficult to distribute without advertising i don't think this court should be particularly concerned about a penalty that is not unconstitutional under the amendment that is used to penalize a form of conduct that is illegal both when you just review and when you advertise is not something that is is first amendment protected speech it is not something that the court should worry about is this pro have been shouldn't going to criminalize something that's otherwise the goal because the distribution itself is should there be distinguishing acts distinguishing conduct yes makes advertising separate offense deserving of a fifteen year mandatory minimum and i mean there are there is must have been that must  consecutive wars that just fifteen year mandatory minimum it's just a minute message i mean i'm here he was in the so and it was but aren't you simply saying that if you post images in a file sharing network that others can see that that without other any other act whatsoever in terms of trying to get customers or describing it in a way that makes people want to go to it apart from its filename itself you're saying that that in and of itself should allow the just sort of an inference of guilt as to advertising in the sense of seeking and offering to receive and distribute aren't you just saying someone can get convicted on an on an inference that you think is a fair inference i think that this case raises a lot of facts that support that inference and therefore goes beyond what was necessary in general as a proposition what i would i agree with i would agree with that but i think that he or the kid the facts before the court  the defendant did a lot of things to indicate to other users that he was seeking or offer about those things or not the advertisement those things are statements that he made you have to have an advertisement itself that seeks or offers to receive or distribute the fact that he may have told people he was seeking an offering that's not the advertisement correct so i think that's part of the marketing if you're talking about the one on one communications that defend donuts and saying do you want to donate now what it was and i can stop you for a moment that's there's no place in this record that we have a statement like that do you want some child pornography by this defendant to try and do we if we do i'd like to know where that is we did we have one on one shot no one i said to the two to the peep to it has to be an advertisement so in other words to the subset group as a whole not a one on one to indicate his sexual desires and that was there was extra testimony at trial that that is what the avatar is used for in addition to that avatar he had the filenames and he had preview thumbnail images of child porn gr to indicate what he was offering he in addition to that had the shots not more one on one not collective with his entire friend that work but there were also two reasonable inferences the jury could have drawn and that must be drawn in in the appellate posture which are that the size of the collection that half a million child pornography files likely indicates that somebody has been seeking or offering an advertising child pornography because you don't have half a million files unless you're engaged in the exchange through seeking and offering that fact that he also paid forty dollars a year so that he could increase the size of his network of got contacts  get a tribe also tends to show and i don't think this alone would be enough but it's a reasonable inference that somebody doesn't do that unless they are trying to engage in the exchange so i think collectively all of those   but they were imposed with concurrently are considered so the advertising conviction is the fifteen year mandatory minimum there is also a mandatory minimum for the distribution offense those are imposed concurrently they are not consecutive are and the only i call it as your understand only other point i did want to make was that there was a specific jury instruction on advertising which i believe defense counsel represented there was not but there was and in this case the court did instruct the jury  if the court understood me to say that there was no instruction given that i apologize to the court i have my recollection was the defense that what i explained was the defense asked her particular and far more defined instruction and that is what the district court declined to give and as i listen to governor counsel doing his argument here i see again we're going through analogies are talking about marketing we're talking about tomatoes in a farmer's market all these various and sundry situations and i think what's causing all of this confusion is my original point that we're using a very specific term advertising and a very punitive criminal context without giving the jury true guidance and i agree with your honor judge  congress has a very clear intent here nobody's disputing the child pornography is a reprehensible crime that many people are victimized by it but if congress is intent is to focus on this higher level of culpability i suggest most respectfully this court were failing in terms of providing the guidance to the jurors who need to have that in order to make the finding to sustain a verdict like this it's this claim does not go to the distribution counts a lot of sustain those counts and this sort of that only reasonable jury could make this finding and i suggest that that's natural sounds to me like you said well you've just gotten by the guidelines they could have no i'm suggesting that our problem than heroin problem here is that presented by the language