sanctuary with whom it had a business relationship obtain that artwork and then sent overseas to be copied in the paper sanctuary of hers that it sent that overseas for sourcing but a comparison of the artwork shows that it's clear copying but we never even got to that issue at the district court because the district court allowed sanctuary to evade liability by exploiting a loophole that congress specifically amended the copyright act close as a matter of fact the legislative history of the pro ip act at four eleven which we brief extensively in the legislative history indicates that quote intellectual property thieves were quote exploiting a loophole by challenging copyright registration and the congress intended that not to happen and they revised the copyright act for that to be the case the plain language of the statute that's what sort of it is hard to say that they're exploiting a loophole that was closed rests on the challenging party and b requires two things a showing of c enter showing a fraud it doesn't require that in a statute i mean that the l a print t fundamental does the why does that why does that matter if you don't need the safe harbor for eleven that's what i don't understand and i don't i mean the plain language of the statute doesn't say anything about frog or require why aren't we bound by well then we're looking at what is a knowing misstatement and knowing the statement is not a mistake whereby you know the underlying fact but you apply it incorrectly that's one of the fundamental issues with the district court's ruling the under the reasoning that the district court uses any mistake on a copyright registration would be outside of the safe harbor because any mistake is going to involve the party knowing the underlying facts and simply applying the law  example in joules jordan the mistake issue was the copyright was in the wrong party's name clearly in that case the party with the copyright knew which parties name it should have been in they simply made a mistake in applying the law as to how ownership works o the district court said the supreme court cases except with a few very narrow exceptions like in the tax code i think gun cases with a few very narrow exceptions the supreme court has made clear and rants of  cited was not even didn't exist at the time this registration was submitted the second was it that law that that the court cites the supreme court law has never been applied in a copyright case why because the statute is a subjective test it's not based on what you knew or should have known what you knew at the time you were sending the application into the copyright office for example in early protects the plaintiff in that case certainly knew that it had sample designs or sold the designs prior to the same facts they ate there was a registration with multiple works some were published some weren't the plaintiff had that same knowledge in that case but the copyright office said it's not objective it's subjective did they know that sampling that artwork but you we do with the fact that you later obtained a separate copyright registration for the design as a published work that supports our position your honor and that going to materiality question i understand the the response of that and i'll get to it v the fact that the work was later registered shows that the statement in the application that challenge was not material and only print x the court found that the fact that the covered office allowed the registration to be amended was enough to show that that work would have been registered here the covered office approving that artwork at that later date establishes that the air in the publication section was not material that the copyright office pacifically says it is material and never a just your it of course would have worked with the applicant to to fix the mistake and if they didn't give us a chance we went on that but as it stands it was my turn how we would not have registered a copyright so how do we get around that well the company office didn't specifically say that your honor with the copyright office said is when faced with an error like many times is the registration the application will go in if there's an issue the covered office will respond to you and if you don't respond within forty five days that in the region that have that happened because they didn't know there was an error so the fact is as as  found on the facts as they insisted the copyright office would not have registered it had they had known the truth and that's exactly it your honor at the stat the standard is if they had known of that fact would they have registered and the answer is yes they didn't know in this case before had known that had been published they would have reached out to the applicant allowed them to fix it so long as they responded in forty five days and the court notes that in its order so long as they respond in forty five days they still have registered work and we have to parse the language a little bit because in number identifies this in his treatise at section seven twenty b one b questions whether the work would have been registered not whether that particular application would have been accepted and to your point  and going back to the case law since two thousand and ten we've had four opinions on copyright registration issues i've been fortunate enough to argue three of those and if we prevail know all of them i don't think because of my oratory skills would like to think that a series of different test in this or did a fraud task but those words are not in this edge i mean certainly we can say and if you show that there was an attempt to defraud the copyright office and even if you could you're now claiming it's an material so even if we assume that the mistake is material which it isn't for the reasons we've discussed we still need that see enter we still need information and evidence establishes that knowing the statement and here we don't have that the integrity of the evidence relied on by the district court is one line from a deposition where the owner of fiesta fabrics is not a lawyer says yes we had some samples of this design i now know that the loop was never was never closed there's never any evidence that he said i think this is publication or i think you know we're trying to do this the legal age of the legal standard that that the person who registered it would have to know what the legal standard was an order to have knowledge of an accuracy right is that how you would interpret it yes because the text does say in an accurate statement included with knowledge that was inaccurate to have knowledge of it's inaccurate you have to know the legal standard otherwise you have no basis on which to know that this is not the i don't like my specific liability subject morning your honour's may it please the court justice or rather for police at issue here is plaintiff's lack of a right to institute a civil action where the only registration at issue should never issued for a work that is not entitle to registration pursuant to four eleven and it has asked the opposing counsel says a highly technical violation right in fact that the copyright office as we would have worked with them to correct whatever minor accuracy there was in right well if i mean plaintiff disputes that we agree that it was effectively deleted from the five zero nine registration when plaintiff sought the second one plaintiff the second application and informed the copyright office of the true facts that said that second registration was never at issue in this case and so it cannot be relied upon plaintiff i say the only way to correct the first hour was to delete it from the five and i'm registration and file completely new registration as opposed to what happened and only print tax which was that the  applicant was able to file a supplementary registration and delete the works that were improperly registered thereby leaving the remaining works statute does not require proof of knowledge that the copyright office would have refused registration it only requires knowledge that the incorrect information was included in the application here  the test of the eleventh circuit has set out has never been the tast in any district court in the ninth circuit and in fact there were several district court cases before the one that issue where the court clearly said that this type of inaccuracy of error is a fatal defect and renders the entire registration  there are several district court cases that are exactly on all fours and say just that so it's never been the law in the district courts of the ninth circuit that this type of that there is any intent to defraud requirement  court found that first that the error would not have resulted in a refusal of registration by the copyright office and the court also found that they hadn't satisfied the first prong which is that what there was a knowing in accuracy i think even before the act the courts have consistently ninth circuit has consistently held that thought is only required to be shown where there is a an immaterial error but where there's a material error where that goes to the basic register ability of the work then there's no fraud requirement and in this case even if the court were to require fraud it could not be a subjective fraud standard it must be a good faith standard just as the court stated in colors there has to be a to to know what all those legal requirements are well first of all this is not your average plaintiffs who writes perhaps one memoir and calls it a day this plaintiff is a design company that's what they do they create designs according to point and it was there i believe it was the vice president of the company who certified this application when he certified it he certified this to admitted in the record that none of the works in the collection were published so besides which the law here is crystal clear the regulation is clear that only unpublished works can be included an unpublished collection only print text make it so that they are they argue still that it wasn't published they say maybe it fits into this limited sale  exception and they point to the warning label that was put on it so so there's a lot of different arguments that they raise had it was in publishing them they said even if it was published that's a very technical determination of law so of copyright for failure to include a notice of publication on first publication so the whole limited publication standard is really in a play couple here secondly these were not just plain distributions these were sales this goes to the plaque letter a definition of publication under seventeen u s c you want to know one which is that publication is distribution by sale  according to the invoices the plaintive transferred ownership of fabric bearing the design in exchange for money this could not possibly qualify for a limited publication and as for this so called warning the warning appears not only on what plaintiff is calling sample sales but also a pill appears on invoices for what they call production or bulk sales so they make no distinction and clearly production or both sales in the thousands of yards of fabric are meant to be and they're sold to garment manufacturers meant to be made into garments and then resold so clearly there is no limitation on the distribution or resale of that fabric so in even if you read the clear language of the warning it does never says that you can't distribute the work it's merely a copyright notice whatever is there in the record that the plaintiff admitted that he knew at the time that he filed the application that the design it issue the one four six one design had been sold to customers plaintiffs certified to the copyright office that none of the designs in the collection were published their position is that's enough and there's no other contravening evidence if there were to be contravening evidence of some good faith belief or reasonable belief then that would have to come from plaintiffs and plaintiff didn't carry that burden what they said in the affidavit was that they knew that the collection could not be registered as a published collection under prong and a of thirty seven c a far two of two point three b two d for one so they knew that it did not fit within  a and therefore did not register it as a published collection but they never said that they didn't that that there was no they didn't know that it couldn't be published under pronk b and besides which honors it would be absurd and would render section a sue perf lewis if the court were to hold that under section b collection of both published and unpublished works could be registered as an unpublished collection merely based on the fact that they were never published as a collection it would basically visser eight the copyright regime th of porting that argument is not whatsoever in fact elli print tax holds that a group of unpublished works may be registered as a single work it doesn't say a group of publish an unpublished works maybe register so that i think that argument is really an anon starter and and again as to what other courts have held to the extent that courts in the second circuit really so far only courts of the district level and the southern district of new york have imposed some kind of fraud requirements that is not the  it's not in keeping with any of the holdings in me ninth circuit and that should not be the law in the ninth circuit we also think the roberts case in the eleventh circuit is also not on point because it doesn't deal with a collective registration and as such it doesn't go to the register ability of the collection of the work it just deals with whether or not a correct date was included in a single work registration so that case also is clearly distinguishable we think that an error such as the one here which is fatal to the registration not just any error but one that's fatal to the register ability of a work is not a technical error congress didn't intend for ownership of a valid registration to be considered a mere technicality in fact courts have repeatedly held the ninth circuit move even the supreme court that ownership of valid registration is in fact a prerequisite or essential element to plaintiff's claim plaintiff didn't sustain its burden  also to the extent that the the compendium three you know the different versions of the compendium the copyright office made clear that the law hadn't changed between compendium two and compendium three and so it did not matter that compendium three had not been published at the time that this application was filed because the law was the same under compendium two and finally again there were no other registrations at issue here so the only registration that was ever put it issue was the five zero nine registration and given that that registration is invalid plaintiff cannot support an infringement claim and the court or the district court properly dismissed the claim i would like to start by responding to judge us and lynn's question in regard to where the entry record there's evidence at evidence your record six twenty three and six twenty four there is testimony under oath from the principal fiesta that he did not consider two to three lines in the deposition and first summary but maybe just enough well maybe but this court found in free movie live nation that looking at things like subjective state of mind at the summary judgment stage is highly disfavored and it has to be that's correct he testifies that he at the time they didn't think that giving out samples were publication that's not how they did these registrations at their office and there's no evidence that that was fraudulent if they would have done it the way that sanctuary urges they would have saved seventy dollars there's really no basis and no sounds like a cereal well if it covers the goods the cost of the good it's more like they're asking for a copy of it and then what they're willing to pay for ever costs to print that up and there's just two issues that are responded to in the papers or in oral argument the first is which is materiality we argue that the the air has to go to something that's material that the client prime akasha case they did not respond to that they said there's no ninth circuit authority but in united fabrics f because it's either not original or you didn't author it we're talking about the work at issue we're not talking about a particular application says that it's treatise the case law says that through the production c and j where jules jordan if there's an issue as to the authorship originality and that's a challenge of the registration that is sufficient things like publication derivative works even the name of the author the courts have found is insufficient and it makes sense when you look at the next step as laid out in the united fabrics case which is should they be able to carry both burdens show and knowing misrepresentation and show materiality that it would've been something on which the corporate office would have rejected the work all that happens at that point is the burden shifts back to the plaintiff it negates that presumption the plaintiff gets from the registration and at that point the plaintiff is still allowed to put in an author on the stand and say i created this but not on the stand say the company owns it and when you look at that in connection with the first element there's no there be nothing to do after that burden shifted back to the plaintiffs if the issue is publication because when you go to trial there's no there's no burden of proof for publication a trial it's simply not part of the case so if you look at the two step purge shifting in the united fabrics they have to prove that