firing up the wrong mens rea a for each part of the statute for the sea enter requirement that was a playable to all the provisions of twelve or to the district court improperly found that the clause requiring reasonable grounds to know that the defendant's conduct will induce enable facilitate more conceal and infringement could be met merely by the fact that buzz feed trains its reporters on the use of photographs and that the reporter at issue was a better and more season reporter and the court assumed that this provision could apply to buzz feed's stipulated copyright infringement neither of these facts support a finding under twelve second for the additional c n to requirement contained in the distribution point i mean didn't you admit that in your answer no your honor we did not at most the answer stated that the photograph was used and the stipulation went slightly further to say that there was an agreement that  copyright infringement could be found as a matter of liability i don't have the page at hand but in her answer i think it's the same page forty one i think you said that you admitted that it had been used without license correct your honor and that w no other way of saying without permission a license is permission certainly yes your honor that could be go to the st see enter requirement namely that that that he that the photograph was used without permission without authority or or or by law but that doesn't do anything with respect to the nd see entrepreneurialism again just pause for a minute there what i thought i heard you saying is that the court made a mistake relying on the stipulation to prove that it was used without permission and my point is you have already admitted that so how does that make a difference as to that particular element put aside your later arguments about different elements of center right it only goes to whether the photograph was used without a license there could be some other  color of law for which the photograph could have been used and certainly the testimony at trial by the reporter was that he believed he had permission through a different vehicle not the copyright owner so the statute requires that there be permission either by the copyright owner or by virtue of other some other mechanisms and less you credit hayes's testimony was to judge didn't what other authority is there in the record that he had since you admitted there was no license the judge found that he was incredible so what other evidence was there that at least on that point in your argument that there was permission no your honor we were not arguing that there was permission to use a photograph ok there was no permission to use the photo from the copyright owner and if one discredits the the reporter as not having a colorable argument as to whether he had permission that only goes to the st into apartment what we can all agree on between the finding that the that the defendant had in fact done anything to stipulate that he had removed or altered the c m i that he knew of the removal of the of the alteration or that it distribute it knowing that the c m i had been removed altered it stipulated only to having used the photograph in order to analyze the c enter requirements we must look to the text of the statute itself and one thing all involved can agree again is that these are  requirement to all the sub sections of twelve to be is meant to limit liability to the instances where the removal would cause a harm beyond the mere act of the removal of the c m i the district court's reading with its heavy emphasis on acting without authority of this provision the nd sandra provision is forward looking and the party has to be aware or reasonable grounds to be aware of the probable future impact of its actions and requires affirmative evidence of mens rea beyond the mere the case in fact i can point soon several parts in the record and maggie can point to no evidence in the record that buzz feed intentionally tampered with photo credit let alone did so to conceal or encourage downstream infringement that down free downstream infringement is forward looking an argument at the forward looking nature of the statute in stevens versus core logic the th circuit said an affirmative showing of must be made in order to meet this high level of mens rea at the court there looked at a past pattern of conduct  modus operandi on the part of the defendant none of that can be found here or evidence that the defendant knew that the copyright owner policed their ip through the particular c m i also not present here i'd like to bring the court's attention to  of the southern district of texas found that the type of evidence at trial that demonstrated the nd mens rea of the nd c enter requirement was of the kind of an e mail where the defendant said how do we hide how do we treat you know hide the traces of this infringement that's the kind of direct evidence that is this issue and that the training and experience of an individual is simply irrelevant to the  it should not be used as a reasonable grounds to know it defies logic the generalized training could be used as evidence to support a finding of infringement here if anything we should be encouraging corporations to provide this type of training if this training setting aside i understand your argument that it would desensitize training and that we should be concerned for that reason but is just a matter of relevance when it you think training and experience would aid in reaching the conclusion that that individual would have known the likely effects of of his or her actions and i see that my time is up my answer your question sure your honor if anything in this case it would show that that the reporter had no record of having done anything like this before so whether he was trained and made a misstep and in trying to find the correct attribution here does not warrant liability or the mens rea it can't be shown that he intended for there to be an infringement in the future thank you  please the court and james freeman on behalf of the plaintiffs gregory mango he is in the courtroom today and he did come then proudly show me the new york post today's edition where his photograph is on the front cover with the gutter credit two it's also in the public interest because the public wants to know who is the creator of the photograph if we go to a steven spielberg film steven spielberg wants to be credit for directing the film in the public wants to know that spielberg is also the director if the operator of the movie theater removed spielberg's credit from that movie and replaced it with john smith while that in it it of self would be an injury and an interest that the d m c a is intended to protect and now i'd like to go on to the elements of the claim to be three opposing counsel stated that the district court misconstrued the application of the statute but if we look at page twenty five dollars of their brief which is back in fifty they recite the judgment rare rose elements verbatim so i don't think that they're taking any issue with the way that the elements have been framed rather they're challenging how the facts were applied to the law so let's go through these elements one by one and the st two are pretty quick element number one is the existence of c m i a carter credit qualifies the c m i that's not controversial because on yeah yeah yeah we could jump to that ok so number four so the way that we view this case in the way that we presented to the district court it's a lot like the shoplifting case involving what's called ta switching it's when like a perpetrator would go into a macy's would remove the macy's tag from the merchandise and will replace it with the neiman marcus tag and then they do so with the intent that when they that they leave the store and the security guard stops them they can say oh this is from them and marcus is not from macy's and they could leave the store and they could get waved through that's very much what happened here the hayes knew he didn't have authority from mango he knew would what he never contacted he said on the record at trial he never contact the name though and he knew or should have known that he did not have authority from leon fisher who's an employment lawyer who represents the individual depicted in the image and that the nd the nd knowingly scienter requirement merges with the st or that it's they can overlap no this is the here's the way i think the best way of looking at it is that the rd element which is the st double enterprise on is you have to show that the alteration was done with actual knowledge that they didn't have permission of the copyright owner that's been established by the answer and it's also been established at trial by the testimony of gregory brown by the testimony of mr mangal and also by the testimony of himself said he never contact that mango never contact the new york post so we satisfied the st prong i think with flying colors the th prong or the nd that was sent there requirement is the one that seems to be in most contention is a constructive knowledge standard and courts routinely impose constructive knowledge on in the in the context of copyright law and litigants a good example would be judge  decision in versus buzz feed where that was a statute of limitations case where on a rule twelve motion to dismiss judge batts and paul as constructive knowledge on the plaintiffs saying you should have known that these judge batts also goes on to cite many cases stating that sophistication is often used as as a factual predicate for imposing willfulness in copyright cases so there's nothing new about using sophistication but it's not just the sophistication that was used by judgment rarely to impose this construct of knowledge it was also all the other facts that he knew he didn't have the permission from fischer and that when he pla that false attribution it was a false alibi and this whole idea of every serious argument as i understand it that what you have to show with regard to the nd element reasonable grounds that it would induce enable t or conceal an infringement means a future infringement and so your in your argument back is that well based on his experience and his training he clearly knew that by altering the c n c m i that would have the tendency to conceal his  conduct cites the stevens cases the authority for this proposition do you just can you help us understand stevens yes ok so at the stevens case st of all stevens case was not cited in the court below and we've made that point but putting that aside the stevens case involved invisible metadata right which is which then there's a presumption of the invisible metadata that it could be removed inadvertently also stephen's was a removal case it was an alteration case it was not a concealment case anytime you have an act of concealment it's implicit that there is going to be a future impact let's go back to the shoplifter when you when you switch the tags on a piece of merchandise you're doing so with the future and hand that you're going to conceal the theft when you leave the building that's the idea so we prove it because it's a concealment case stevens can't really be applicable also in stevens it was an automated software technology that removed the metadata it was not a human being who was thinking about deception and how he could be a cover up the fact that he was licensed the other thing is when they talk about concealment of an infringement in their brief they say well how do we conceal the fact that the article was published that's not what we're talking about infringement means copying without authorization the copying is not being concealed the fact that's being concealed is the lack of authorization that's what he was concealing so if you look at it that way then the district court finding that he can seal does not enable is not facilitate i could see why if you were to interpret the words enable facilitate that you would be thinking oh enabling it for a rd party but how do you can seal a rd party's infringer it you can only conceal one's own infringement and i think stevens went too far in grafting language onto the statu that doesn't exist if congress had wanted the infringement to only be applicable to rd parties it could just simply said infringement by a rd parties that's not what the statute says so one can conceal their own infringement and we don't think that the stevens now there is another argument they made in their brief i'm surprised they didn't bring it up here because they've they spent a lot of time on it was this idea that there was an embedded link to the new york post within the context of the article itself so point number one the new york post is not c m i the new york post doesn't own the photograph gregory p mango owns the photograph and if the intent was to credit gregory mango by linking back to the article why didn't he just put gregory mangos name in the buzz feed article so that doesn't make quite sense the other thing is that the link was it was a thirteen paragraph article the link was eight paragraphs and it was far removed from  we have cited cases in our brief would say that the c m i has to be connected to the work itself so a card or credit or a watermark a watermark means where the credit is included within the four corners of the photograph that's not you know typically used in photo journalism and for all journalism is typically gutter credit i just guess on the nd element i guess this is the st see enter element is it your view that the court made it clear factual finding to get to the bottom of that so his did testify initially that he didn't see it but he was also testified over and over and over again that he was familiar with carter credits he used them he was familiar with them and then ultimately what happened was the clerk of court punched up the article on line and slow existed and the judge asked well mr hayes do you see the other got a credit from almost like five feet away he said that he dead so i think ultimately and he says he finds it hard to credit yeah i mean i think ultimately it was a credibility assessment that it was just it's just it's just completely implausible that he didn't know plus he was quoting from the new york post article you linked back to it so he was intimately he knew and he downloaded the photograph so considering that he read the new york post article he cited to it he downloaded the photograph the idea that he wouldn't have seen that got her credit just was not plausible and judge maria discounted that testimony thank you thank you thank your honour's just very briefly i want to point back to the plain language of the statute the section regarding the nd cmdr requirement says knowing or having reasonable grounds to know that it will induce unable to conceal infringement of any right the word will is the only forward future tense use of that word in the entirety of the statute entirety of this chapter everything else is in the past tense or the present tense so one must give meaning to that that word will and in fact that's exactly what's what's the difference between shell and will it says no person shall remove knowing that it will conceal are you saying that shell is present tense and will is future tense fact and that's what state the stevens court found they found that that phrase is consistent with the legislative history of the statute which required there be something more to limit liability in that regard in stevens was there any present infringement yes there was i thought they were uploaded with permission of the copyright holders to the database by the real estate agents  they were uploaded correct there was no permission to then use the software on the photographs and by virtue of the software they had to duplicate the photographs within the software and then removed the c m i all right i thought that was the problem was the removal of the c m i not a copyright infringement i thought that they were reproduced with permission they reproduce a were uploaded with permission right or not and there was no copyright infringement there was no copyright infringement right so it wasn't really before the court and ste correct about whether or not there was any present infringement that was being concealed correct but there was a need to interpret the same very statutory language and in that case the court said that that is a forward looking provision it mattered not