applies in the specific situation in which there were there were newspapers that wrote articles about wales for which the government had provided them with a photograph of dylan thomas and also that there were two exhibition documents in which the photos were were also included as we use as a tourist material seeking to enhance tourism to else that's certainly part of it your honor there was definitely a an emphasis on wales promoting tourism the welsh government was created in  in two thousand and six it's been specifically given the responsibility and duty to promote tourism prone economic development and promote the culture of wales so it's an important part of this given that we're talking about photos of dylan thomas the poet who's a unique figure in culture the district court in denying the motion to dismiss sell something directly let's say the welsh government is engaged in sales activity of some product in the united states and they put this photograph into one of the advertisements for that product you're saying that categor can't be subject to the commercial activity exemption and it would depend on the person and the particular situation but certainly it depends on the particular situation and the fact that it's a copyright infringement claim is not the end of the case it may not be the end of the case because the toward exception to foreign sovereign immunity that may apply but that's not the issue that we're talking about below the district court didn't can didn't consider that neither side discussed it in their briefs that it would not fall under the commercial activity exception even though the copyright is infringing in the course of what unless i understand i'm like what understand you say that the promotion of terrorism here is not a commercial activity i understand that argument but i did not understand the argument to be that we can just wrap up and go home because this is a copyright infringement claim and therefore simply does not fall under this exception and therefore the district court is incorrect and maybe there's some other exception and remained in the district court worry about that i did not take that to be your argument and i'm puzzled by it is that your argument  that is that is one that is one argument that was raised both in both our briefs in the reply brief we noted that that was an argument that started not respond to but we also put forth  the alternative argument that it relates to the clearly today to the facts here that the district court did not consider the relevant law and specifically did not a government entity that promoted the products of their citizen provided business advice per provide promoted participation in trade that that was part of the nature of the sovereigns acts and was not in the nature of commercial activities but that was a funny case because in that case the court as i read it conceived the alleged  which is a layer that's not quite in this case it really is not we do not have the employment case but we still have the situation where you look at what the look at what the welsh government did it it said we are going to promote tourism back in they were formed in two thousand and six they were going to started promoting tourism and culture in two thousand and eight they prepared materials at that time in twenty million eighty two thousand and ten which used this copyrighted photo call just married that which was years before public star ever allegedly had assigned to it they continued to use those pieces in subsequent and subsequent years but if you look at them they're exhibits one and two to the nd amended complaint they tell  they their face they are dated that they went to press in two thousand and eight or they were done in two thousand and ten the next real issue and why this case started was not about those two those two pieces of paper or a poster board that may or may not have been distributed to any place in the united states but the real focus was a claim for copyright infringement against the welsh government and against a number of different media companies related to an article that those media companies were running and the welsh government provided it did the papers with a photograph that we've talked about the articles had the advantage of promoting welsh culture promoting tourism to wales wales did not publish those those  photos it was preparing its brochures and it was distributing photos to members of the news media the tribune is the only media defend left in the case the others have either newspapers we don't believe raised the level of commercial activity because it's not engaging in commerce it's in gauging it is gay gene and any alleged commercial activity and the acts which formed the basis of the claims it was a sexual harassment claim a civil servant of the japanese government and basically what the point of the trying to do was bootstrap in the sexual harassment claim into the commercial activity exception by saying that her position with the government was related to trade promotion and she she would go to trade shows and the like and what this court found in that case was it's not enough to simply say my job with the government is related to commerce and therefore the nature of my employment is commercial than the nature of the claims where discrimination and harassment it was not buying and selling things right but what the court found significant was that the japanese government was engaged in preeminently governmental the court did not say was that the two are mutually exclusive the test under the fs fs i a is a means versus an ends test so they could very well be promoting tourism they could be selling tanks or are doing any kind of governmental peculiarly governmental activities but if the way they choose to do it includes activities which are the kind of activities that regular businesses can engage in such as licensing photos out distributing photos out to media outlets regardless of what the ultimate purpose was that's the relevant question it's what were the means that the government took to promote culture a re those means inevitably commercial i'm having a little trouble and maybe you can help me by focusing what your claims actually are but your adversary told us that what this this and they him this picture which you own the news outlet that doesn't seem to me that they may have done it for the purpose commercial governmental whatever of promoting tourism but the activity is responding to a news inquiry from the press that's not the same thing as the activity of creating a brochure that says buy this tour come to wales here are the things you can buy when you come to wales it's a that again if we're to focus in on the activity versus the purpose what is commercial about the activity  sending a picture of a celebrity to a news outlet or two things st is they're ignoring a lot of the other facts here which are they partnered with a local private tour company to create this walking tour of greenwich village using one of our clients photographs that is a private company they sent the photos to that company that company was selling tickets for this tour secondly it's commercial because what the welsh government did essentially is take the place of our clients in this transaction our clients purchase the copyrights specifically for this reason to be able to license these photographs out to private companies to media outlets to newspapers that's a fundamentally commercial act that the copyright act provides for and that the copyright owner can say you can use this photograph i don't care if it's for a tourism but if you want to use it you have to get a license from new quite the contrary your adversary's argument that copyright infringement cannot be commercial activity one of your argument seems to be that copyright infringement is almost inherently a commercial activity even though they're doing it gratis values are being the fact that you could sell that photo  you're saying that's commercial activity almost no matter who they give it to and for what purpose that's correct copyright is literally a monopoly of rights what the government did here was copy publish distribute the photographs those are taken together all essentially all of the right left is not a commercial activity is it no certainly not but it's not the theft it's the distributing of the photographs that itself is not illegal if they have the rights to do robin hood is engaged in commercial activity because if he steals something that's not commercial but when he gives away something that the owner of the property had a right to sell that's commercial i know so what the commercial activity here is is using photographs in advertisements in promotional materials it wasn't their photograph to use in order to do that they had to get a license from our clients ok so that again to me sometimes to distinguish a little bit the newspapers from the tourism brochures all of it i'm afraid just continues my everlasting puzzlement  activity is the same type of thing that another entity might do for profit correct the commercial activity exception says basically if if the government is acting as a private actor in the market as opposed to a regulator of a market it's not doing something that is peculiar to government in other words it's acting like any other business like our clients would have preferred to be in that position to license out the photos and so it can claim sovereign immunity by saying well we did that but we did it for altruistic reasons with the airlines gets the rights to fly direct from new york to court and  then we're going to advertise the routes of taxicabs saying come to wales see the birthplace of dylan thomas and slap that picture on it they would clearly be engaging in commercial activity even though they're not directly person's tourist site but it's not really out there in commerce and somebody in the government does that is doing the same thing that delta airlines might do is that the argument that's absolutely the argument and we see it all the time you see commercials that are promoting a particular country whether it's you know avocados from mexico or a government can take out an ad at the super bowl and promote its country taking out of the ad using copyrighted materials if they had used another company's trademark that would certainly be copyright commercial activity regardless of what they're saying because noting government that could do the producers co op which would be an entirely private enterprise could do the same thing and if they did it no one would doubt that that's commercial if the government does it you're saying it's the same thing at that's correct and so the argument that a copyright infringement is by definition not commercial is just wrong tortious conduct is what the commercial activity is therefore there's a separate except for non commercial torts that was put in place for when a diplomat you know run someone over while they're in the states but there is no doubt that a copyright is a commercial  it's the same thing here and in terms of cato we have the the opposite so in cato it was a noncommercial tort and tied to a somewhat commercial role here we have a very plainly commercial tort which is infringing a copyright that may have been tied to a motion of tourism and culture thank you thank  about it isn't that automatically a private activity there is really the same issue and in cato because hiring employees is also an activity that anybody can do  they're there public or private assume the employee was hired in tokyo and that the thing that happened in the united states was the sexual harassment which which might correct and it's also activity that that private parties don't typically engage in private parties don't typically promote and hire country or region  there was no there was no profit motive certainly here in the us government they didn't sell anything they didn't receive any royalties the only benefit that they got was to comply with their statutory tour company that's that's not correct and one of the in one of the brochures it's the government simply made reference to the fact that this company was providing tours for a fee that they charged the record is clear that the government was government got no money from that they were just wishing them well as part of this brochure which is that pay a one hundred and fifty four and fifty that even if there was commercial activity here there was in substantial contact with the end ited states on which the claim is based to hold government in the case and having