morning my name is anders and i represent the plaintiffs b to b p media and national photo group may please the court there are a wealth of issues before the court through the parties respective briefs you best one i want to start with aereo because that seems to be the threshold issue if aereo has the effects that the plaintiffs believe it does and effectively overruled cartoon network then remained is necessary for us to go back and continue forward i think we could probably save perhaps a little time even if you're right has in our court said that if the supreme court says something that puts in doubt one of our decisions it's up to them to give it a decent burial instead of asking us to do it well requirement and in fact it was highlighted in the dissent by my school here and he made makes that point subsequent cases elsewhere have have kept the cablevision voluntar judge newman's the problem right you out of what we know that if the controlling precedent of cartoon network was unaffected in its entirety by aereo it still be in business you that the point you're making now can be pursued and must be pursued under our precedents by going to the supreme court now you can take the rest of the time and tell us we're wrong about that but you have a lot of other issues that there's a copyright violation here even under our existing law and so i hope before you're done you're going to get to those points that's correct my second point copy that is made by the defendant in this case not at the bequest of the user and as relates to that we're looking more at m p three tunes gardener press out of california at the one nine copies this is in one copies  do you want to tell us how that is done you know what amazes me about this case is that neither brief tells us exactly what's happening i appreciate everyone's caught up with the law and that's understandable but the facts mat and if the facts are undisputed it would be nice to have a precise layout of the facts so now you're talking about the nine copies just tell us how are the nine copies made you are the user selects with the square that which they want to clip where those are already on their website they would be viewing a picture on their own computer from some other want use a probably more clip or to clip the image right away do you see that picture on their website or do you find it out there in the internet somewhere else these would be images you found on the internet somewhere else or and what do you do if you want that picture you put a box around with their program on some on your computer when you say their program first you find it out there on the internet or on somebody else's website  can put a box around that can you you can you're on it on somebody else's website they provide the software tool that allows you to work those who want to also as well but if if i just go to the internet and see another picture i like and i'd like to copy it i can't put a box on it right you could but not they would upload to their system in the manner that they've created to use the public more clip yes to get into their website you have to use their tories so i first have to download or get access to their program just using their website gets you access to their program all right now i wish to get the photograph from somebody else's website i use part of their program and put a box around it correct all right and then and then where does the photograph go so now we have an a much more complicated process because it doesn't just take a picture of what you put a box around there system records the actual computer instructions the u r l for where that image was that you clipped and it copies from that location the actual image not what you selected but the results of what you s this is a little complicated understand not what you selected but the results of what you selected what what's the difference when you look at a web page on a computer your honor and you see a picture there is actually a unique the web page is composed by putting those pictures from a database into the page itself and then displayed to you the polyvore system looks up and finds the u r l of the picture that you just put a box around so what preserves that information it knows where you got the picture from it then copies the picture from that location because that's the best source of it copies it to where their system when you say their identical and they're different sizes different sizes and that's because they want their system to be used by users who have different devices presumably it's to accommodate multiple summer i whether they were aware or not they haven't asked for nine copies i don't believe that would be an accurate statement they have used a tool to copy a picture they want to make a co op that the defendant is going to copy that picture that they've uploaded to other places for other purposes that's not part of the user experience they have no awareness of the user at all i'm trying to get at the user did not ask polly door of or to make nine copies that's correct all right allegories program made the nine copies that is also because somebody at polyvore created a program with the capability to do that absolutely correct is there a is this the nine copies for each of our photographs we also provided where the original photograph had been located and the difference between what was on their system and what was recorded as being the source location for the photograph part from the nine copies if their program only put on their website the one copy would you have a direct infringement case if the website  only one copy and left it alone possibly not when you say left it alone are you now talking about stripping the metadata direct ok so are let's take it in stages if the user says i want i want to certain photo that i found on the internet and using the program of the defendant i get it uploaded onto their website if they just did that and made no nine copies and did no stripping about a day that would you have a direct infringement case we would have a direct infringement case for the storage but it would be shielded by the d m c a so they would have an affirmative defense to our direct infringement quietly under the act only under the act all right so it's it's the added features of of stripping that netted data and or making the nine copies that so it's it's less than a con no no your honor stripping out the meditated is akin to removing the watermark meaning if you were to take the watermark off a photo we would understand that to be a copyright violation this is the modern equivalent of the watermark nobody wants to see a watermark on a photo the modern method is in betting the information is to the owner of that photo inside of the image itself all the computers are accepting and recognizing it it's accessible to everyone by stripping that out you've in an essentially remove the watermark i think that's the print equivalent to what the conduct is and to your honest question the user uploads a photo we agree that that's at the bequest of the user the copying we say is not the stripping of the method that it is not those are separate and apart acts of direct infringement so they wouldn't be shielded by the d m c a they wouldn't be covered by the act because they're not at the request of a user so we'd be back to the image being stored on their system without authorization direct infringement we don't have  the defendant's conduct begins and that second moment in time is the direct infringement by itself it's an act of infringement they are making their own copies not of the bequest of the user anymore but for their own purposes and so that secondary copy that they make nine of them is an act of direct infringement the storage of those and once those nine copies are there who else has access to them the world the world website the safe harbor would end once they start making their own copies once they start eliminating the metadata which would violate their in title meant to claim under the act so that second set of copies is what we're focused on these independent copying that is not subject to the safe harbor correct because those are no longer being requested by or done by the user that's now their own conduct makes it hard to know where this photo came from well its release is out onto the internet nine copies that lack the copyright information embodied by the author but as to your honor's point they've given us the cross walk so if we stay on their system they told us where the image started so we were able to identify the characteristics of the image that was uploaded to their system showing that it did in fact have its intact met a data at that moment in time and then we're able to show the nine copies that they make without metadata has been removed and now those nine copies floating around the internet without any copyright information on it without any copyright information you see you can't go back and find it data right there their website is unique in this regard most other websites don't record the source of the upload so we can't cross walk out the infringements we're still finding on the internet now without me data to their website and blame them for them but that's a direct result of their conduct continue so if we look at that moment in time when these di copies are made and we focus on that we have a moment in time a direct infringement we have the metadata issue which would vitiate their entire entitlement to the d m c a protections under the act that's because you're claiming that invite industry and conduct this in some formal mechanism or that like many things that happen common characteristics and practice get developed by the industry itself and adopted by everyone in this case these pictures this information is mehta data referring to you can read it in access it on every single computer phone tablet it's it's in every camera so to suggest that it's not standardized because we didn't hold a conference or have the government involved in the creation of it would be a mistake it is in fact this de facto standard now i'm aware that the defendant has raised the issue in their briefs concerning you know that this is an act to protect the privacy of people who are unaware of that this metadata exists and when you take a picture with your camera or your smartphone it does record a lot of information that you're not aware of the latitude and longitude of where you were the who you are where you were the camera speeds and a number of other mark well you see from some social media sites that they will in fact strip out the method data but they're not stripping out the copyright meditator they're stripping out the other fields there are a host of other pieces of information that are considered mehta data othe even when they take a photo i'm not aware of another site that moves copyright data like i said it's not normally populated by a camera so it's usually embedded by the author on purpose to protect their copyright when you say as you have been saying that the copyright date has what do you mean by that when we refer to mehta data we're referring to a host of fields data within data mehta data so if we're talking about an e mail message it would be that's what the met it that you referred to the phrase the copyright date there are specific fields copyright management information that are part of this metadata one of which is the copyright owner so when i refer to the copyright information i'm referring to a kin to marking this i own this this is mine if you want to use this seems to me the name of the owner the name of the owner is there or is there a c a copyright symbol it's actually the field is copyright owner so you're populating the field it is intended to contain copyright owner information or what else is in that phrase the copyright would you call it data other than the owner of the copyright there's nothing else in that particular field that's the only information that would be there are so that's what went other than the the other mehta data the u r l and everything else it's the name of the copyright owner that is the key data point yes your honor it counsel you've spoken about direct infringement and you've we've given you much more time do you want to take one moment to discuss the secondary liability claims which were decided against you yes your honor there were two claims of three questions with two that we'd like to focus on beyond the direct infringement that being the bill the vicarious and contributory infringement as relates to vicarious the test is well established it's the right now ability to control and the profit from  the direct profit from was what it seemed that the district court in this case struggled because clearly has the right to control that conduct that occurs on its website so this is where you get into a discussion when you have an internet based advertising model and your revenue is directly related to your traffic the more traffic you have the more valuable your internet property the more you make an advertising that the use of celebrity photographs as a draw as a mechanism to achieve traffic is very commonplace we see it all the time that's why my clients have a business they sell celebrity photos because people are interested in looking at them in this case what polyvore has done is leveraged my client's work product to drive traffic to themselves but they didn't pay for it so they're profiting from my client's work effort seen creating these celebrity photographs and you still have to show certain elements to prove it carries liability tributary we have to show that there was a literally if you leave out the matter data and leave out the making the extra copies the whole point of the cablevision case is that they do not think that all the copying is done by the user the argument the other side is making is that it's all automatic that there is no control by public or no no individual it only war is stepping in at this point and stopping them from doing what they're doing or telling him what to do or not to do  it's all done by the user so that's the that's the control picture i used now let's apply the we go back to cartoon network the concept was human intervention right that's bushnell conduct the machine  doesn't do anything on its own and we know that ariel raised that same argument it's just a machine it's the user that does everything we know that ultimately we an injunction was granted so it's not as simple as it once was we can now make a computer do anything and you could program it to violate copyrights if that's his how you so desire to program it you could also program it to not violate copyright if you program  by the device at the user's instance and that's when the safe harbor comes in to determine and the various doctrines relating to contributory infringement i mean to see whether or not there should be liability and that's so that's a different a different story right so we argue that their creation of those nine copies was an intent to violate copyright and does violate copyright but since the images do contain metadata those that do it would not be a particular difficult program exercise to say is this image copyright it is their own or listed in the copyright owner associated with this image and if so then do you have the owner's permission to upload it to our system if you're going to write the program to do these complicated tasks it's not an overly burdensome request to do so without violating my client's rights so the writing ability to control is there the increase in traffic is there from the usage of celebrity photos the promotion of celebrity photos by the defendant to create contests be the first to make a collage out of this all designed to promote and drive traffic more traffic more sales more advertising or are you accepting the as a premise that if the machine knows the copying have you prevailed in every other case your honor but we think of all the cases that we've brought we've had a positive recovery for our client other than just a couple are you talking about settlements are you talking about trials judge below and the district court both noted repeatedly and took no depositions they didn't prosecute they filed a motion for summary judgment well that's not exactly an abandon did they did so after informing the court below that they did not have a prime official case in sr in that discovery be reopened they declared to the court pursuant to ruhleben that without those on appeal in that in errors or in their opposition in both in both and now they recess to take them all on appeal your honor the other question is let's get this waiver you're saying they affirmatively dropped seventy five percent of their claims they did not yes they did not argue in favor of those they only argued over when they make a summary judgment motion and they don't have to make a motion that they're entitled a summary judgment on every claim i'll wait for you to come back yes your honor i might my colleagues just give me the record if somebody has a a lawsuit and has three claims and they think they're entitle a summary judgment on one of them so they case and then that then they did not argue hocking that did they say that when we get that site that is at the docket is not but the letter citing it is i'll get you that in a moment there's a document that you say they gave up most of their case but it's not even in in our joint appendix it's in a letter your honor that cites the to the docket yes it's in a letter is the that in response to your your question the reason the or i didn't mean to get sidetracked the reason the record is not fully developed is simply because this plaintiff here as in many courts file the lawsuit did not take any depositions and did not a deuce a record that was the mind that was the simple point not made it so soon so as i understand it there was a motion for an extension of discovery by the plaintiffs and the plaintiff in the end the judge was reluctant to do that the judge says well if you don't do that i will not be able to establish a prime facie case they told the magistrate judge that if a judge yes they told the failure left them unable to establish their promise facing cancer america and they but that but that's different from therefore we give up those kind of course i was just do that i was explaining to your honor i'm sorry if you think if you can why the record is sparse that's all that was the only purpose i was just explaining misunderstood my first question i didn't say a word about the record beings bars i said the briefs were sparse the parties coming to this court on appeal neither side as far as i could say told us exactly what's going on and you both know it and the reason your honor is we believe that the the plaintive had a complete failure of proof and it's their burden on summary judgment you see a failure proof of course there has and we're not a rule fifth we've got a complaint they say their complaint makes certain allegations that show infringement now either they're right or they're wrong but the fact that there isn't a trial record doesn't tell us whether their allegations entitle them to really i meant a summary judgment record if i  the merits so there was a motion for summary judgment you raised and you're saying they didn't oppose it they couldn't oppose it on on on facts and there was no disputed facts because they never did discuss brecht and on the undisputed record we think this is a very clear case and a very easy case that gets to my question about the nine pictures yes let's the record on the nine pictures the record is counsel's affidavit saying th saying that it makes nine copies and we argued below that that was his say so his testimony they had to say no no no and there's no record nothing in the record on the basis of their discovery to indicate that correct and we think it makes multiple copies for sizing difference is automatically in order to accommodate different that's the purpose of art that's before you get to the purpose does it make nine copies there's nothing in the record to that effect my understanding is that it makes you know your client or you standing there telling us you don't know if it makes nine copies i know that it makes multiple copies around here and i will assert i will super pretty close to nine i will soon for the purpose of this argument that it's nine i'm not being coy i'm really not your honor but i don't think it matters whether it's nine four or fifteen because it is done it's multiple it's multiple copies made through an automatic out in the state it's not as if all of a sudden it made one x and it's not that no your honor made multiple copyright so when they use it is that not an infringement because it is no different than the making of one or four copies it is a automated response to a user's decision to infringe so what difference that it's automated what the case law is clear this court's decision in cartoon network the fifth circuit decision in the copies in different ways then it seems to me under a bit beyond what the user authorized and we haven't you might have a problem we don't believe that the number of copies made is the dispositive question we believe the dispositive question is did polyvore or the user upload the infringing item and all polyvore did is provide an automated service and it's set up the service it operate uploading a wedding dress photo or something in the public domain of i'm following the terms of service and not uploading copyrighted material i may want more than one copy to accommodate copyrighted material and the case law says that when you do nothing except in response to a user's command meaning to say there is no i mean something in there you're doing something beyond the user's uses the user wants a copy you're making other companies or nine other copies to suit the business model and purpose the business planning of your client because you want these copies to be available on various devices all to the benefit of the client now that's a little different we respect here at the quest of the user we respectfully disagree and we also believe that a ruling that makes a distinction between uploading one copy and multiple copies would be dangerous to the free expression on the internet the reason for the volitional conduct rule is clear it's to say that we need in terms of authorship of infringement who is the responsible party we don't encourage people to upload copyrighted materials we don't provide the user with access to that content the case law for direct infringement where defendants are held liable for direct infringement they are actively participating in the procurement the fetching or the theft of the material from some others for some other some other source what makes this case a dangerous case for application of direct infringement is we are truly a passive host we did not provide the user with the copyrighted images we didn't provide them with the means or access to get them to the contrary we instruct our users in their terms of service to not violate copyrights all we did is set up a service we operated a system that says if you put one of your photos let's say of your wedding dress up there we're going to accommodate you by giving you multiple copies so you can cut and paste them on different platforms in the multiple copies and for the user of course for itself for the user to be able to access the video images on different platforms and then the world has access to them but that's no different than the p case and to ask answer your question in terms of area mr sanders made the same arguments to the fifth circuit that he made here each one of the arguments the fifth circuit squarely rejected those arguments and that is now on appeal  in the supreme court from the fifth circuit affirms of the dismissal and that case be w p it's exactly like this case except the multiple copies of the user uploaded photos onto the defendant's website it was a public forum called the defendant host a forum on which infringing conduct content was posted but its connection to the infringement ended there same as here in the courts the same except for the big difference with with respect your honor there i do not believe that's a big difference because the sizing differences are automatically made in response to the authorship of infringement in other words you are i think the feel with a lot of that it it's your position that if a machine does the  copying then there's no liability on the person who invented the machine unless the machine owner whether it's the copy maker whether it is the  hair talk or whether it's the perfect ten case where the ninth circuit rejected the same argument made here how that a user driven platform when a user uploads content on the defendant's server and that it shared on bulletin boards on the internet the technology involved the machine is not the infringer it's a piece of software it's a passive host that is responding to command which case you referred to there that's the perfect ten case from the ninth circuit and as judge scalia noted in his dissent every single circuit to address this question has looked your honor at who is responsible for obtaining different material and then providing it to the when the machine does nothing then give lifeless software that response to a command of a user and that is the start and end the copy the copying of the uploaded material there is no direct  liability and there's a sound policy reason i'm not notes at all of the courts to the fifth circuit in the b w p case that mr sanders argued noted it and the supreme court last term said the most important place for the exchange of views is the vast democratic forums of the internet in general and social media in particular and the danger here are that's people who who decide to put their images on the internet but the danger here they don't for that the danger here you're right when they're talking about whether the great wonderful thing the internet is they're talking about people go around with their smartphones they take pictures they upload them to the cloud they do that right but you run into danger here judge walker your honor in the cablevision case you wrote issuing a command to a system which automatically abase commands and engages involution a conduct cannot be a basis for direct liability of the pass a post of the question a device there at that e o recording device right but it was sort of one step beyond sony betamax in the window device right but the beat up every sort of remote recording device but every think that means that any piece of equipment running any piece of software gets no i don't i don't your honor i think that the relevant inquiry under every circuit decision to address this not a single circuit court has adopted this argument every circuit to address this including two circuits after area has squarely held the inquiry is who posted obtained procured the infringing content and when it is a user who makes that infringing decision that authorship the question i think grokster asks is who authored the infringement the authorship of the infringement here is the user we discourage infringement in fact infringement is a violation of our terms of service we do nothing except in response to the users command and then we make copies but that is exactly what all of the defendants do in all of the cases where they prevail in response to this argument so i wouldn't make the argument as sweeping the record has to be searched for evidence of volitional conduct and judge scalia notes in in his decision every circuit court that has ever found direct infringement finds in the record affirmative acts beyond responding to user choice to find liability by personnel of the  provider correct so for example in a case where in the m p three case this court found that the direct act and of infringement was m p three went on when a user uploaded a song searching the internet for copyrighted cover art of records and then marrying that cover art with the music and of course that's a new gram there was to infringe that's a theft they had a program designed to steal cover art there's nothing in our program inherent to it systemic to it in his design and it's implementation certainly in its intent that encourages infringement and the inquiry under the illusion of conduct tests is causation and it is a proximate cause analysis that's what all the cases say when you have software code or other functionality that simply response to a user's command affects command a thieves command a thief says i want to put it material on your website and all we are doing is through an automated system responding to that command and the case law is clear that that posted that user posted infringement cannot impose liability on the machine maker and that's where the danger does come and what kind of a machine i wondered i all you with with a video recorder i thought all of you as our court did with a remote video recorder does that mean that no matter what the machine is no matter how sophisticated the program is so long as nobody talks to a person and says does it it's just the machine i don't think the test is it's just a machine i think the test is what i thought that's what you're saying no your honor i'm saying you look at the record evidence and is there any evidence that the machine maker took any affirmative steps to procure or to procure select upload the infringing material and went that when the machine maker does that the you have to look at what the machine maker in this case polyvore did and all we did is have software code and other functionality that allows our users to upload lawful images the fact that some choose to break the law upload copyrighted images is not our responsibility causally under the law and that's where the case law says if you impose liability on the googles and the facebook's and the other companies that take uploaded images you will up and the internet system which on which gives i a species immunity under the law unless they are a direct of secondary liability either not even close call because when there's substantial non infringing uses and it's undisputed in conceded that polyvore has has manifold non infringing uses you have to prove that the defendant through its affirmative acts or through its statements encourages induce induces well the control goes to buy carries liability but on that on the contributory or secondary liability there is no record evidence zero and judge abrams below found correctly no evidence that polyvore in any way encourages induces copyright infringement to the contrary on the only record evidence is that i don't know the only we make available clipper tool for people to engage unlawful conduct just the way facebook or google or any other company in permits upload in a photographs and the terms of service say you cannot break the law you cannot upload infringing material that's all what we do not unlike the cases like rock star and the others where the entire business model of the company was too and the principle object was infringement here there in fact the only record evidence about poly wars attitude toward encouragement of infringement is to the contrary the only record evidence which is two and you say you're you're no different than that that's your theory i could say copy machine to the if i have a copy machine and you can make one copy and it can be so it can be your homework or you can make one copy of a copyrighted book i'd probably pay for each one right it's not what happens with you but the machine maker is not libel in any event that's the point the point is the point the machine made the copyright your store analogy is a user going in and saying the user wants nine copies it it wouldn't matter if yes what happens in a copy store yes ok but in any of your store or with your piece of equipment he tells us the user doesn't even know nine copies are being made it's not right there's no record evidence of what a user knows or doesn't know and again i'm not being coy but it's the point is burden here and they did not develop any record of any of these facts in a legit no they didn't even a legit in their complaint mr mr sanders put in an affidavit saying that he did his research and discerned that nine copies were made but let me make this in the plainest response to undisputed facts i don't believe so what jack you want to let me just say this the nine copies are copies of the self same photo it's not as if we are this would be infringement a user uploads a photo we then make one copy of it and then we search the internet for eight similar photos and put those on line that's an infringement but making nine copies of the same photo to accommodate a user's ability to deploy that photo in the in the say if i go in in a library and i take out my smartphone and i and i take a photo of a copyrighted magazine article that's there and i then go and i make nine copies i haven't infringed no what i'm saying your honor is that you can friend because you've taken the photo but the machine maker doesn't take the photo the machine maker is responding to the comment the inquiry under the case law your honor if i agree if i go in and do it with my own smartphone i then fridge if you upload nine images or take nine just cop just taking the picture nine times i'm making a nine copies the user who uploads nine copyrighted photos without authorization is is in is libel now did he say he said that your customers and one photo only you select one photo and your machine makes nine copies it's the same photo there's no direct liability or honor but the copyright law pretty protects against copying yes your honor and that and that's what i think being nine no with all due respect what your honor is missing is the case law every circuit looks at the automated process and says who is the author of the infringement in the first instance and it's a causal it's a causal connection no i think there's a lot of language well no your honor i think you're i think with all respect you're allied in over the key doc trying to reason the policy reason for this important rule that judge walker when i ask you does it matter what kind of machine and you said oh yes it we're not saying all machines now you said is it every machine is innocent and i said no it depends what the machine does and if the machine searches out copyrighted material and procures it and puts it on the internet then the machine makers libel that's grokster that's the easy case this is an easy case this case is no different your honor none than any other case including the ninth circuit's perfect and if it's circuits yes software which post date aereo where an automated process simply responds to a user command the case law says it doesn't matter how many copies are made of the same image it's the decision of the user to a what type of equipment was that set about ten the ninth circuit said it's technology it's just a reader a piece of software a passive host if the user is the one who uploads i thought of equipment with a talking and zach with the same as us a user driven platform users upload content on the defendant server then that goes on to on line they're talking multiple copies no it's not exactly like yours i would say your honor the question is not how many copies are made well i know  but there's no but if you look at the doctrine and the reason for the rule it makes no sense to have it turn on whether one or four nine copies are meant to be right back protects against copying so a it proscribes direct infringement and and secondary contributory infringement try and download a copy of something on my i phone and instead of providing the mean i haven't considered that whether whether they'd have a fair use defenses transformative i don't know that i don't know but that's not the case here is if we were doing anything to participate in the decision to take the copyrighted material and put it on our website we would have a problem what we do is passive and it is exactly the same you complement you want it but you're taking the one thing the first step you do for which there's no question you're not liable and you keep reminding us of the stuff for which you're not liable but we're i've been trying to ask you about the subsequent steps for which you might be live and i'll address that on the subsequent steps it's no different than the so called first step and i would submit it's the same step meaning whether we make one or nine we are not the author of the original choice to infringe and the case law looks at our conduct and did us did we the machine maker do anything provide the user with access to this is what the case  at did we do anything to either procure ourselves infringing conduct content no did we give them the means to the access to find and select the infringing material and put it on our server the answer to that is no that the inquiry and it doesn't matter right and the and the reason the reason the reason a hold in that made a distinction between one or nine would be and i'm not being hyperbo or dangerous is because the order that exists today on the internet the balance between the free expression on the one hand and protecting the rights of the other commands the machine makers to do nothing other than host and the case law says when you do nothing other in response to a command to make a copy which we make multiple copies of the same image it's not as if we didn't get that image and violating copyright whether we do one or nine if the one isn't a car an infringement which it's not because there's no causal link between the theft and anything we've done we're just passively receiving the stolen goods then it makes no sense common sense a cli or in terms of the policy that we're trying to promote by limiting direct liability only to pollution all actors to say that if we duplicate that image which we're not libel so that a user can have different functionality in cutting and pasting the wedding dress on different devices it it would defeat the whole purpose of the infringer and under the case law the judge below was clearly kalat correct in finding that we were neither as to secondary liability with a substantial man infringing uses the fact our tar website is devo is designed to e commerce there's just one little clip that's judge made law because there came a question when when these devices were being used is who was actually doing the copy right and so here it's your your point is that the u anything and in fact it what it yes and what it doesn't change fundamentally is the user posted the infringing material on our site a site that is not designed for infringement that's not in business to infringe and in response we made copies of that that's what we do if you took a picture of your wedding dress and upload it onto our corporate we would give you an up images to do what you want to do with them that's not an infringement infringement isn't in the copy the infringement is in the upload and the second act is simply responding to a user's command in a way that is user friendly and it would defeat the very purpose if the second circuit announced a rule contrary to the fifth circuit and the ninth circuit and i think contrary to the supreme court authority as well that if you make one copy of a pirated photo as a machine maker you're in the clear but if you make five or nine so that of the same image in response to his upload but he didn't ask for the nothing but but it's not an infringement as a matter of law under the volitional conduct test note right to make copies but talk job of describing the test and he cites cases going back to the mid sixty's that applied this test and not a name the name was adopted in cases common and this was the first circuit i think to second and just the school it is a nice job of harmonizing all those decisions including the wimpy footnote where he goes back to the mid sixty's and every case that is found including supreme court cases direct liability looks to the act or whether it's a machine maker or an ordinary run of the mill defendant and says did they through their affirmative conduct procured the stolen goods did they seize the chattel that is subject to copyright and we did not we were the passive recipient of it and if you say that one copy is ok but two or nine is not it's not consonant with the animating policy reason for the rules which is to allow internet providers to operate freely and assume that their users are going to be law abiding citizens and follow the terms of service but if you as a machine maker cross any line and start fetching or procuring stolen goods and put it on your platform that you cross the line the undisputed record is that we have not which is why the fifth circuit rejected the argument here and i understand they didn't reject multiple copy argument but to hold multiple copies is principal principally different than one copy is inconsistent with the volitional conduct rule and it's animating principles and i think that concede that the standard for judging the course appeal is abuse of discretion in terms of the attorney's fees yes yes for sure that's all i have and this is a good moment to know my name here