[00:00:01] Speaker 01:
Case number 18-7168, on the Pizza LLC appellant versus at Pizza, Linden, and L. Mr. Barmer for the appellant, Mr. Dowd for the appellant.

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Thank you, Your Honor.

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May it please the Court, David Barmack for appellant, I'm a Pizza.

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Your Honor, as the District Court erred, by not accepting as true I'm a Pizza's well-pleaded allegations, resolving factual disputes,

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and granting At-Pizza's motion to dismiss, it then compounded that error by dismissing the complaint without need to amend and without explaining its reasons for doing so.

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The import of the district court's ruling is that an American company has no recourse to our courts to address violations of American copyright law, which occurred here, and of the Lanham Act,

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by foreign actors who came to America, numerous visits here in this country, to steal Aima Pizza's intellectual property for their use abroad.

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Where's the motion to amend that was denied?

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There was no motion to amend, Your Honor.

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There was simply a reference in the

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memorandum in opposition to the motion to dismiss.

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You know that under local rules, that doesn't suffice.

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That is correct, Your Honor.

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However, under Belazan, which if memory serves, Your Honor, wrote, even in that circumstance where the court, as here, elects to dismiss with prejudice, it has to explain its reasons.

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That's different than your claim that you were denied a motion to amend.

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Are you abandoning that?

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I think that's incorrect, yes, Your Honor.

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I think that the focus of that, and I would point out that even in our opening brief at page 16, we do refer to Firestone and to the principle that when denying with prejudice, the district court has to explicate its reasons for doing so, which it did not do here.

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Importantly, here, at Pizza and its principals came here repeatedly beginning in July of 2015, scouted IMA Pizza stores in our unique attributes, downloaded and photographed copyrighted images here.

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That's what's alleged.

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Would you be a little more precise?

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What was the copy?

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What was the image of this copy?

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I don't understand.

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Yes.

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Thank you, Your Honor.

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There were several things that were alleged in the complaint.

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One is photographs of the stores, which themselves have copyrighted elements.

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And in addition, we allege that they downloaded copyrighted photographs.

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These are public stores, right?

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They are public stores.

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So what's copyrighted there?

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We have copyrights as to architectural elements of those stores and those who are photographed.

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In addition, they photograph, they download it, I'm sorry, copyrighted photographs.

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But these are displayed to the public, right?

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Yes, they are.

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But reproducing, as they did copying, an architectural element which is itself copyrighted is an infringement.

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But where did that occur?

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Didn't that occur in Scotland?

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No, no, Your Honor.

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Both things occurred here.

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The downloads occurred here because they were downloading from US servers, as we've alleged.

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And then the Liberty Media case, for example, that we cite.

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Doesn't the copy?

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I'm just looking at the statute.

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It says a copy has to be fixed in a tangible median of expression

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when it's embodied in a copy is sufficiently permanent or stable.

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That doesn't sound like a download.

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Well, it's clear numerous cases have recognized that downloads of copyrighted elements are themselves infringement, Liberty Media being one.

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But we know the Copyright Act doesn't extend beyond the borders of the United States, so the question is where did that occur?

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Were they sitting in Scotland downloading from the

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website.

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We alleged that it occurred here.

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The district court said that it presumed that they were sitting in Scotland, but that's why we have trials, Your Honor.

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We allege in the complaint that their activities occurred here and that they copyrighted from download servers.

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They came here on numerous occasions.

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As we know, they came here at least twice.

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Mr. Lyle came here at least twice in July of 2015.

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By October 2015, as you can see from Joint Appendix, page 83, he incorporated his company using, at that time, our precise name, Anne, with an ampersand, and pizza.

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He later changed it to at pizza to try to differentiate it, presumably.

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But we know that he did that, and he did that after just within a few months of coming here.

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We know that while he was here, we alleged in the complaint that while they were here, they downloaded copyrighted images, that in addition, they took photographs of copyrighted elements while visiting our stores.

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And then, yes, they went to Scotland and then replicated our stores.

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But under the cases in terms of extraterritoriality,

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for the Copyright Act, all we need to allege and to show is a single act of infringement here.

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And we have alleged that.

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Mr. Barmich, did you say you alleged in the complaint that the download occurred in the US?

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We alleged, no, Your Honor, that the servers were in the United States.

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Well, but that's the question.

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I understand you.

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Obviously, their servers are in the United States.

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Where did the download occur?

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Do you allege that that was in the United States?

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No, we allege at paragraphs 39 through 41 just that they were downloaded from servers here.

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We do not specifically allege that they were sitting at laptops or at other computers.

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Isn't that kind of fatal to your argument?

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I don't think so, because under various cases, we cite them in the brief, Liberty Media is one, Elsevier is another one, the location of the servers is important to know where the copyright infringement occurs.

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Under Liberty Media,

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download occurred in the United States.

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And that was an infringement from servers in the United States.

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And that was therefore an infringement in the US laws.

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But you don't allege that.

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You don't allege that the download occurred in the United States.

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Liberty Media.

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Isn't that right?

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Correct.

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Yes, but we allege that the servers were in the US.

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And that's what Liberty Media focuses on.

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Similarly, the Elsevier case.

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specifically declined a motion to dismiss so that there could be discovery and proof as to where the downloads occurred, both in the sense of where the servers were and as to where the individual defendants were when they made the downloads.

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Mr. Barman, I've seen Liberty Media and some other cases as well that are decided by district courts and other circuits as though they were authority.

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It's like going to the Supreme Court and saying that they've got to do something because the circuit courts did it.

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I understand, Your Honor.

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It's distinctly unpersuasive.

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I mean, it's almost distracting.

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I understand, Your Honor.

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Unfortunately, we don't have a case we can cite from this court or from another circuit.

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Or any circuit, right.

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So there's no circuit authority that they doubt that a server being in the US satisfies

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your theory of infringement if the download occurs outside the US?

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Correct.

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I would note that this court's opinion in Spansky involved a server that was overseas, but the viewing of the video occurred here in the US.

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And under that section of the Copyright Act, which isn't really in play here, but under that section of the Copyright Act,

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The question is, where did the performance occur?

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You think Spansky helps you?

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I think Spansky helps us, yes, Your Honor.

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In the sense.

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I mean, in Spansky, the viewing occurred in the United States.

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Yes.

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But here, there's no allegation other than your allegation about the server that the download occurred in the United States.

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Correct, but there are different sections of the Copyright Act.

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Then why are you citing Spansky?

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Then why does it help you at all?

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Because Spansky is important for the proposition that all you need is a single act of infringement that occurs in the United States.

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Okay, but so where's that allegation?

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That's what Judge Ginsburg and I are both asking you, other than, I gather it's that the server was here, right?

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That the, I'm sorry, Your Honor?

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That the server was in the United States.

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Yes.

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With respect to the copyrighted photographs that were copied, that allegation is that the server is in the US.

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We also, however, have alleged that while visiting our stores, they took photographs of copyrighted elements of our stores, and that, too, is a violation of the Copyright Act.

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And that's at Paragraph 25, for example, took extensive pictures of copyrighted information while at the restaurant

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the District of Columbia at paragraph 25 of our complaint, which is a joint appendix, page 17.

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I want to ask you a Lanham Act question.

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The briefs debate what the proper standard is for impact on commerce in the United States.

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Suppose we take the least demanding standard, the one from the Ninth Circuit, which says some impact.

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That's it, OK?

[00:10:23] Speaker 02:
Yes.

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Can you explain to me how

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pizza restaurant in Scotland can have some impact on a pizza restaurant in Washington?

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I think it's not really hard to imagine, I would submit, Your Honor.

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In this way, it's a globalized world.

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We allege that there are numerous US visitors to Edinburgh, where they open their first restaurant.

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They've subsequently opened a second one.

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That those customers could be- Are you suggesting that those people

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left the United States to get ant pizza instead of ant pizza?

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No, no, no.

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No, of course not.

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I don't think their trip was for that purpose.

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I don't understand.

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I mean, I saw your allegations.

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You say that there are a lot of American tourists in Scotland, and they spend a lot of money on food.

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But that doesn't tell me why it has some impact on ant pizza in this country.

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Because if they visit their restaurant and are confused by their restaurant as being one of ours, that can impact

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both our ability to expand in Europe, which we allege we plan to do.

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So where's the allegation about confusion in your complaint?

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The allegation on confusion is in the Latam account, and we specifically allege, for example, that a business partner was confused.

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That was a business partner of ours.

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That was a potential business partner of AndPizza, not AndPizza.

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No, that was a business partner of AndPizza, is the allegation, who was confused and surprised to see AtPizza.

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My red light is on, Your Honor.

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Hold on a moment, please.

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OK.

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So the district court, at one point,

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raised the concern that if your allegations, the ones we've been discussing, are sufficient, this is on the copyright.

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Well, actually, I'm both anonymous.

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Then, if that states a claim under Lanham Act

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then the US law, that law, would be applicable, quote, anywhere in the world that American tourists visit in significant numbers.

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Correct?

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Close quote.

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Is that not correct in part of the district court?

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I believe that is what the district court said.

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No, no.

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Is it not correct?

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Is the judge not correct in saying that?

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I don't think so.

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I don't think the judge is correct because I think, in fact, we're required to prove

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that there is an effect on commerce.

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And if we were to go forward and have discovery, we either would prove that there's an effect on U.S.

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commerce or we wouldn't.

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There certainly are situations.

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But you could state a claim with respect to anywhere a party in a similar position could state a claim with respect to any location in which there are numerous American tourists.

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Yeah, but we have more than that, Your Honor, because we have the earlier acts of numerous visits to the United States.

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We have a situation where we know that after visiting, they started, they took our trademark, they used that as the name of their company there.

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So respectfully, our situation is not merely that we're alleging that, oh, they opened a restaurant there.

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and it can impact us.

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We do have numerous acts, specific acts that occurred here in the United States.

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But under the Lanham Act, why is that relevant?

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Confusion is the question, isn't it?

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The question under the Lanham Act is whether there's an effect on U.S.

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commerce.

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And confusion, I thought, was your theory of effect.

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Correct.

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And unfair competition.

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There were two Lanham Act counts.

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including unfair competition.

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Is there no point at which this becomes too speculative to support a claim?

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I think there is a point.

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I don't think our case reflects that point, and that's because we have the very specific situations, much more similar to the true engineering case in the Fourth Circuit, where they came here, they effectively

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as they did in true engineering, as the defendants did in true engineering, took our blueprint, if you will, by copying our stores, looking at our stores, scoping them out.

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In that case, they had both Lanham Act and Copyright Act claims.

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They went to the jury.

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The jury came back with a copyright finding for the plaintiffs in that case.

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and the Lanham Act was thrown out on appeal.

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That's where we are in this case.

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This case should go forward and give us the ability to prove, as we believe we can, and we certainly have the allegation supporting it, that there are copyright infringements here in the U.S., it's not wholly extraterritorial, and that there is an impact on U.S.

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commerce.

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May I?

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That there is some impact.

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You're not claiming it's a substantial impact.

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There is at least some impact, yes, Your Honor.

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And lastly, the passing off claim.

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Have you litigated that in the UK?

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No, we have not, Your Honor.

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And the passing off claim, I would say, lives or dies on whether this gets reversed.

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The court ruled below, and we have not challenged the ruling below, that there is not diversity.

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We did not establish diversity of citizenship.

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So the ability to pursue the passing off claim below depends upon supplemental jurisdiction if the other claims, the federal question claims, are up.

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I'm sorry, I missed something.

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Why can't it be pursued in the UK?

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I didn't say they couldn't be pursued in the UK, but I'm explaining why they could be pursued here if the case is reversed.

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I'd like to reserve the balance of my time.

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Thank you.

[00:16:33] Speaker 01:
Thank you.

[00:16:33] Speaker 01:
All right.

[00:16:42] Speaker 00:
Good afternoon, Your Honors.

[00:16:45] Speaker 00:
Matthew Dowd for the appellees.

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What I'd like to do with my time, I'd like to respond to the points that were raised in the opening argument.

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By the way, just a quick question.

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If you were in the United States, you'd lose this case, right?

[00:16:58] Speaker 00:
We would lose the case at the motion to dismiss stage with respect to the copyright claim.

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And the Lanham Act.

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And the Lanham Act.

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Correct, Your Honor.

[00:17:06] Speaker 04:
So this all turns on the question of the domestic,

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for the foreign impact of the two statutes, correct?

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For purposes of this appeal, correct, Judge.

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And that's been the thrust of our position the entire time.

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This dispute started in the UK when the U.K.

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Council sent a letter to our client's U.K.

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Council raising these issues.

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We've said all along that it belongs in the UK, and that's what we've disputed at the district court.

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But if I may turn to some specific points, Judge Ginsburg, you asked about the passing off claim.

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It can certainly be pursued in the U.K.

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But our position is that that claim itself is frivolous because under U.K.

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law they require goodwill.

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And to have good will in the UK law, you have to have some commerce or business in the UK.

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And it's undisputed, based on the pleadings that there are now, that the appellant doesn't have any business in the UK.

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So why they haven't pursued that is speculation, but that's a substance of that claim.

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In terms of the tire engineering case, which my colleague mentioned, the critical point in that case with respect to the Lanham Act claim

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although it was cited primarily for the copyright claims in our briefs, is that the Fourth Circuit dismissed the Lanham Act claim for failure to state a claim for many reasons that are similar here.

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You have entirely foreign actors.

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The company that was located in Asia that stole the underlying trade secrets about the design tires had no business in the United States, and it had no effect on US commerce.

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And so if anything, that case supports our position.

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Another, I think, issue about the Lanham Act claim, Your Honors, is that, as I understand the complaint, part of their position, perhaps with the unfair competition claim, is that our clients conducted some sort of conspiracy or conducted some sort of predicate acts that led to conduct that may have affected U.S.

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commerce.

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And that last part, again, we believe is speculative.

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But that whole predicate theory that there was some conduct in the US has been rejected by courts time and again.

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And there's a Second Circuit case in, I believe, the 70s.

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It's the Robert Stigwood group.

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And it dealt with a Canadian performance of the Broadway smash hit, Jesus Christ Superstar.

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And in that case, the court entirely rejected the appellant's theory in that

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The fact that the performance group did certain preparations and did certain conduct in the United States and then went to Canada to perform the infringing act under trademark law, all of that conduct in the United States was non-infringing and therefore could not be a basis to extend the landmark act of conduct that was occurring entirely overseas.

[00:20:11] Speaker 00:
Judge Tatel?

[00:20:12] Speaker 03:
You said it was the trademark?

[00:20:14] Speaker 00:
Yes, that's a trademark case.

[00:20:19] Speaker 00:
Judge Tatel, one point in response to one of your questions.

[00:20:24] Speaker 00:
You asked about the alleged business partner who was allegedly confused.

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That was, in fact, a potential partner of At Pizza, at least alleged.

[00:20:35] Speaker 00:
We don't know who it is, but according to the complaint, and that's in paragraph 22 of the complaint.

[00:20:39] Speaker 00:
That's what I thought.

[00:20:42] Speaker 00:
Let me turn to

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a few of the copyright cases.

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And I think fundamentally, we make this point in our brief, but fundamentally what distinguishes this case from every case that the appellants cite in their brief is that in every case that they cite, it's all unauthorized downloads in the fact that it's basically unauthorized copies that were available on the internet.

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So for example, my colleague mentioned Liberty Media.

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The fundamental dispute there was that they were

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actually unauthorized copies of pornography films that were available on the internet.

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And so it didn't matter where they were uploaded or downloaded.

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Just the fact that they were reproduced without authorization of the copyright holder is by itself a copyright violation.

[00:21:29] Speaker 00:
Elsevier is actually an interesting case.

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It's out of the District of Massachusetts.

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And when you read that case carefully,

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We didn't cite it for this proposition because we distinguish it.

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But if you look at the reasoning from this district court to the extent that you find it persuasive, it actually cuts against the appellant's argument.

[00:21:48] Speaker 00:
Because in that case, what was at issue were two pharmaceutical texts that were copyrighted.

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They were uploaded on some service someplace in the world.

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The person who uploaded them was in India.

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And there's a question of whether someone in the United States, when they downloaded those unauthorized copies of the textbooks,

[00:22:07] Speaker 00:
would have been copyright infringement.

[00:22:09] Speaker 00:
And in that case, the copyright holder, they hired an investigator out of Massachusetts, downloaded these copies, went to the court and said, see, look, we have access to them, therefore there's an unauthorized download in the United States and therefore copyright infringement.

[00:22:23] Speaker 00:
For one reason or another, the district court rejected that argument.

[00:22:26] Speaker 00:
I don't think it's correct on the copyright law.

[00:22:28] Speaker 00:
and I don't think it's correct under this circus law, and the fact that if you have an unauthorized version on the internet and somebody within this district or within the United States downloads that version, that's an unauthorized reproduction.

[00:22:39] Speaker 00:
Because fundamentally, the version that's available online is in itself unauthorized.

[00:22:47] Speaker 00:
Judge Tatel, you authored the Spansky decision for the court.

[00:22:51] Speaker 00:
We completely agree with you that that decision offers no support for the appellant's position here.

[00:22:56] Speaker 00:
And then I think ultimately,

[00:22:58] Speaker 00:
As you noted, Judge Tatel, the appellant's concession here today that what they're relying on is only the theory that if someone can access information anywhere in the world, and it happens to be on a U.S.

[00:23:17] Speaker 00:
server, then

[00:23:19] Speaker 00:
US copyright law extends to that conduct.

[00:23:22] Speaker 00:
And I know of no case that stands for that proposition.

[00:23:25] Speaker 00:
The appellants have cited no case that stands for the proposition.

[00:23:28] Speaker 00:
And in fact, I think it's contrary to most, if not all, of the case law of all the circuits.

[00:23:33] Speaker 00:
And let me get to one thing that I will say, I think, is really what Judge Kelly was getting at when you read the complaint.

[00:23:43] Speaker 00:
And my colleague acknowledged today that they're not

[00:23:47] Speaker 00:
alleging that the download actually occurred in the United States when my clients, my individual clients, were visiting the United States, as alleged.

[00:23:56] Speaker 00:
What they're alleging is only the fact that the download came from the server.

[00:24:02] Speaker 00:
Now, I want to add another gloss to that, and I think this is what Judge Kelly was getting at, and we support this interpretation of the complaint, because it's really the only feasible, reasonable interpretation of the complaint.

[00:24:14] Speaker 00:
When you look at the complaint's paragraphs that talk about the alleged conduct that happened in the United States, the appellant slash plaintiff is very specific.

[00:24:26] Speaker 00:
So for example, paragraph 17 of the complaint said JA-14.

[00:24:32] Speaker 00:
That talks about Mr. Lyle's first visit to the United States.

[00:24:36] Speaker 00:
Paragraph 24 and 25 read together, and they talked about the subsequent visit to the United States.

[00:24:44] Speaker 00:
And those are talking about the visits to the pizza stores themselves and the photography that took place.

[00:24:53] Speaker 00:
Nowhere in those paragraphs is there any mention

[00:24:55] Speaker 00:
of the individuals actually downloading.

[00:24:59] Speaker 00:
Now, it's not until you get to paragraphs 38 and 39 within the section of the complaint that talks about the actual copyright claim.

[00:25:07] Speaker 00:
And in 38 and 39 they're very specific to demarcate the difference between the photography that happened in the United States versus the downloading.

[00:25:17] Speaker 00:
And when you read that allegation in context, particularly when you know the defendants, all three defendants are domiciled in the United Kingdom, the only reasonable inference is that that downloading occurred in the United Kingdom.

[00:25:29] Speaker 00:
Now on top of that, I would also add that the fact that they have to specify or that they did specify in their complaint that the servers were in the United States underscores

[00:25:41] Speaker 00:
the fact that they know that the downloading didn't occur in the United States, because that was their hook to try to get U.S.

[00:25:50] Speaker 00:
jurisdiction under the copyright claim.

[00:25:52] Speaker 03:
So you're saying if the downloading occurred in the United States, it wouldn't matter where the server was?

[00:25:56] Speaker 03:
Correct.

[00:25:57] Speaker 03:
That stands for it.

[00:25:58] Speaker 00:
Correct.

[00:25:58] Speaker 00:
Yes.

[00:25:59] Speaker 00:
Yes.

[00:25:59] Speaker 00:
Because if the downloading occurred, and if it was unauthorized, then the fact that that downloading occurred in the United States would be, if it's unauthorized and unauthorized reproduction, and therefore a violation of the copyright owner's rights under 106.1.

[00:26:19] Speaker 03:
Isn't it clear that the photograph would be infringing?

[00:26:32] Speaker 03:
The photograph was infringing and so it completed the matter, the infringement had it been downloaded in the US.

[00:26:42] Speaker 00:
I think that's a question that's at best unsettled.

[00:26:46] Speaker 00:
And we would say that as a matter of law, it is either not infringing because it's authorized by the way the internet works, or at a minimum, it's either de minimis infringement or fair use.

[00:27:01] Speaker 03:
We're talking about the photograph of the store.

[00:27:03] Speaker 03:
Photograph of the store.

[00:27:04] Speaker 00:
Outside and inside.

[00:27:06] Speaker 00:
I'm sorry, Your Honor?

[00:27:07] Speaker 03:
I think outside and inside.

[00:27:09] Speaker 00:
Are you talking about the photographs that our individuals took or the ones that they downloaded from the internet?

[00:27:15] Speaker 00:
Because the complaint's not really clear about that.

[00:27:17] Speaker 00:
They're different?

[00:27:19] Speaker 00:
That's the way I understand it.

[00:27:21] Speaker 00:
And I think this is part of it.

[00:27:22] Speaker 01:
Their implication is they're talking about the photograph of the architectural distinctions and that type of thing.

[00:27:29] Speaker 01:
I mean, that's not talking about a tourist standing in front of the store.

[00:27:32] Speaker 01:
They're talking about a photograph that has something unique

[00:27:37] Speaker 00:
Judge Rogers, I think you're right, but the way I read both their brief and their complaint is that there are two supposed acts that are unauthorized.

[00:27:47] Speaker 00:
One was the actual taking of photography that then led to

[00:27:52] Speaker 00:
the construction of an infringing restaurant in the UK based on the architectural design.

[00:27:59] Speaker 00:
And that has zero case law support.

[00:28:02] Speaker 00:
And in fact, the only case they cite, Builders Mutual, they quote a sentence that stands for the exact opposite of the holding of the case.

[00:28:11] Speaker 00:
So I don't put any credence in that.

[00:28:13] Speaker 00:
But what I was really focused on is the photographs that they alleged to be available on the publicly available website, so just the internet.

[00:28:23] Speaker 00:
So everyone's browsing, click on a site, the information gets downloaded to your computer, oftentimes it's saved into cash.

[00:28:30] Speaker 00:
What I was going to say is that I think if we step back a little bit in time, like pre-internet days,

[00:28:36] Speaker 00:
This is basically, whether it's a magazine or whether the appellates themselves are putting this freely available on the internet, it's no different than someone handing out free literature.

[00:28:46] Speaker 00:
And it has a photograph.

[00:28:49] Speaker 00:
And that photograph has a copyright protection on it.

[00:28:53] Speaker 00:
Now, if the appellate were to give that to me, that handout, that hard copy, I own that hard copy.

[00:28:59] Speaker 00:
I have the right to destroy it.

[00:29:00] Speaker 00:
I have the right to keep it.

[00:29:01] Speaker 00:
And in fact, as a child, I would have had the right to clip out the photograph and use it as, I don't know, like a scrapbook.

[00:29:10] Speaker 00:
As long as I didn't violate the other rights associated with the copyright, such as the right of reproduction and the right of just public display and so forth.

[00:29:18] Speaker 00:
And what the panelists, as I understand they're trying to do, is they're trying to take, this was earlier before they conceded that the download didn't occur in the United States,

[00:29:29] Speaker 00:
Going back to what I thought was the earlier argument that if the download did occur in the United States, then their theory is just that browsing of the internet and saving a publicly available webpage

[00:29:43] Speaker 00:
is that that by itself is an infringement.

[00:29:46] Speaker 00:
And that is an infringement sufficient enough to extend US copyright law to the subsequent activity that occurred in the UK.

[00:29:54] Speaker 00:
Again, we're not aware of any case law that holds that.

[00:29:57] Speaker 00:
We're, in fact, aware of there's a Second Circuit case from 1982 called Knickerbocker Toys.

[00:30:03] Speaker 00:
And it's almost directly on point.

[00:30:05] Speaker 00:
Again, it's a pre-internet case.

[00:30:08] Speaker 00:
But in that case, there was an instance, Nicaragua toys created these, I remember them as a kid, called wrist racers.

[00:30:16] Speaker 00:
Little toys that went on your hand, you shot off a car, and one was a Chevrolet Corvette.

[00:30:23] Speaker 00:
And a competing company came along.

[00:30:26] Speaker 00:
created a very similar product.

[00:30:29] Speaker 00:
Ultimately, the court said there was no Lanham Act violation.

[00:30:31] Speaker 00:
But in that dispute, there was an instance where the defendant just happened to use a photograph of one of the plaintiff's copyright owner's cars in a mock-up internally.

[00:30:45] Speaker 00:
There was no further reproduction.

[00:30:46] Speaker 00:
There was no further display.

[00:30:49] Speaker 00:
No one else saw it, and completely internal.

[00:30:52] Speaker 00:
And the Second Circuit, in that case,

[00:30:54] Speaker 00:
held that that was clearly de minimis infringement and therefore no copyright liability.

[00:30:59] Speaker 00:
Now of course we're not even that far because today the Appellance Council concedes that there is no downloading that occurred in the United States and as I explained earlier I think the only reasonable way to

[00:31:12] Speaker 00:
read the allegations in the complaint is that that activity, when it's not specified in the United States, actually occurred in the United Kingdom.

[00:31:23] Speaker 00:
Now, that brings us, if I may, I know I'm past my time, Your Honors, but Judge Ginsburg, I'd like to bring us back to one of your first questions to my opposing counsel, is this whole issue about the dismissal with prejudice versus the dismissal versus leave to amend.

[00:31:40] Speaker 00:
Now, when we received the opening brief in their two-page section, the first section of their argument, the only issue that they raised was leave to amend.

[00:31:48] Speaker 00:
And when you read this court's case law, when you look at Belazan, when you look at Rollins, and all three judges on the panel today have been on these cases and authored some of them, it's clear that those two issues are distinct, whether it's leave to amend versus whether it's dismissal of prejudice.

[00:32:08] Speaker 00:
So when we responded to the opening brief, and we'd like to take a moment to explain why we filed a motion sanction,

[00:32:17] Speaker 00:
It was clear from this circuit's case law that they had no basis to challenge the so-called lack of leave to amend because they never asked the district court for leave to amend.

[00:32:29] Speaker 00:
In Rollins and in Belize, they clearly addressed the issue separately.

[00:32:33] Speaker 00:
Those are distinct issues.

[00:32:36] Speaker 00:
We never saw their opening brief as a challenge to the dismissal of prejudice.

[00:32:42] Speaker 00:
When we filed the sanctions motion, they responded, and they said, no, no.

[00:32:47] Speaker 00:
Our position now is that we're not dismissing leave to amend.

[00:32:50] Speaker 00:
We're not dismissing the other issue.

[00:32:53] Speaker 00:
We're challenging the issue of dismissal of prejudice.

[00:32:57] Speaker 00:
Now, in our motion,

[00:33:00] Speaker 00:
We actually cited cases, like City of Harper Woods, for example.

[00:33:03] Speaker 00:
We cited the Martin Baker Aircraft case, which you authored for the court, Judge Tatel, where they expressly say that if you don't raise the request for leave to amend under either Rule 15 or Rule 59, you forfeit the right to appeal it.

[00:33:21] Speaker 00:
And then that was in our opening motion.

[00:33:25] Speaker 00:
And again, the appellants never respond to that case law.

[00:33:28] Speaker 00:
In fact, we cited the pin sites that directed them.

[00:33:30] Speaker 03:
So you're saying that the issue of leave to a man was forfeited in the proceedings below, and the issue of prejudice was forfeited because it wasn't raised in the blue group.

[00:33:43] Speaker 00:
The dismissal with prejudice is forfeited for two reasons, Your Honor.

[00:33:47] Speaker 00:
Was that one of them?

[00:33:50] Speaker 00:
Yes.

[00:33:51] Speaker 00:
No.

[00:33:51] Speaker 00:
One is that it wasn't raised in the blue brief.

[00:33:54] Speaker 00:
That's our reading of it.

[00:33:55] Speaker 00:
But even if you're generous in terms of how you read their two-page section in their opening brief,

[00:34:01] Speaker 00:
is that this court's case law under City of Harper Woods, Drake versus FAA, there's a long list of them.

[00:34:09] Speaker 00:
It's clear that if you don't request leave, either under Rule 15 or you file a Rule 59E motion after the judgment, and then part of that you're requesting leave to amend,

[00:34:22] Speaker 00:
then you forfeit the right to challenge the dismissal with prejudice.

[00:34:26] Speaker 00:
And that's what happened here.

[00:34:28] Speaker 00:
And the case law is clear on that.

[00:34:30] Speaker 00:
And I will add one last point, is that when we've dealt with this case, we've explained to them all along, hey, this is a case that should be in the United Kingdom.

[00:34:42] Speaker 00:
We don't dispute that.

[00:34:44] Speaker 00:
Ultimately, this could be a dispute about trademark rights and those trademark rights in the United Kingdom.

[00:34:54] Speaker 00:
But what happened here is that we explained to the district court that this case belongs in the UK.

[00:35:02] Speaker 00:
Judge Kelly dismissed the main four claims, the copyright claim, the two Lanham Act claims, and the trust test claim, which we haven't talked about, which we think, again, has no support in the case law.

[00:35:13] Speaker 00:
And then that was on September 24th.

[00:35:18] Speaker 00:
The appellants had four weeks from that decision until Judge Kelly's dismissal of the case order on October 23rd.

[00:35:29] Speaker 00:
Any time between then, they could have raised the issue of, hey, maybe we could supplement this complaint.

[00:35:36] Speaker 00:
And in fact, I think this is all underscored by the fact that now the appellant is here

[00:35:43] Speaker 00:
complaining that, well, Judge Kelly made all these so-called suggestions in the opinion on how the appellant could cure its complaint, its deficient complaint, putting aside the speculative nature of most of the allegations.

[00:35:58] Speaker 00:
But all of this is all the more reason why the case law of this circuit in the city of Harper Woods and Drake versus FAA

[00:36:08] Speaker 00:
where it's incumbent upon a party, if they want to seek leave to amend, they have to either do it through Rule 15 or Rule 59.

[00:36:17] Speaker 00:
They can't ask this court for the first time on appeal to reconsider so-called specific allegations.

[00:36:24] Speaker 00:
And Your Honor, I know I'm way past my time, unless there are any further questions.

[00:36:30] Speaker 00:
Thank you, Your Honor.

[00:36:30] Speaker 00:
I ask the court to affirm.

[00:36:32] Speaker 01:
Thank you.

[00:36:33] Speaker 01:
Council for Appellate.

[00:36:36] Speaker 01:
Let's give you a minute or two.

[00:36:43] Speaker 02:
Thank you.

[00:36:45] Speaker 02:
This feels a bit like alternate reality.

[00:36:48] Speaker 02:
This is not a case where these folks sat in Scotland on their computer, looked at a few things and went and built their business.

[00:36:57] Speaker 02:
This is a case where they regularly on numerous occasions

[00:37:02] Speaker 02:
came to the United States for the purpose of stealing our businesses' look and feel and unique attributes.

[00:37:11] Speaker 03:
So much so that the... What cause of action does that inform?

[00:37:15] Speaker 03:
Which of your complaints does that inform?

[00:37:18] Speaker 02:
It informs the concerns around extraterritoriality for the Copyright Act, because acts of infringement, as I said, occurred here, and the Lanham Act,

[00:37:29] Speaker 02:
And so their activities here were so much that the court found that there was personal jurisdiction over them, because they came here to transact business.

[00:37:40] Speaker 02:
It was the business of stealing our business.

[00:37:44] Speaker 02:
And that makes it very much like the Fourth Circuit decision, entire engineering.

[00:37:53] Speaker 02:
ask the court to look at the cases in this area, the tire engineering case and the second, ninth, sixth, and federal circuit decisions in this area, and they don't require very much for the Copyright Act to apply.

[00:38:08] Speaker 02:
An entire engineering, foreign actors came here, met with somebody, got the blue, converted, the Fourth Circuit said converted a copy of the tire blueprints,

[00:38:21] Speaker 02:
and took that back overseas to manufacture their infringing tires.

[00:38:26] Speaker 02:
And that's all that was required.

[00:38:28] Speaker 03:
Did the court ever make a final conclusion on personal jurisdiction?

[00:38:33] Speaker 02:
In this case?

[00:38:34] Speaker 02:
Yeah.

[00:38:34] Speaker 02:
Yes.

[00:38:35] Speaker 02:
Said that there was personal jurisdiction, Your Honor.

[00:38:39] Speaker 02:
And this case is very similar in the sense that these individuals came here

[00:38:48] Speaker 02:
scoped out our business, copied, took photographs of our business, took that information home to Scotland to create a very similar nearly identical business over there.

[00:39:04] Speaker 02:
Respectfully suggest that that is enough under the precedence and all the other circuits to extend copyright act liability, certainly to get past the pleading stage and allow discovery and allow the case to go forward.

[00:39:17] Speaker 02:
importantly in the Fourth Circuit case, ultimately the jury was given an instruction about extraterritoriality and whether there were sufficient acts here in the United States to justify application of the Copyright Act, and they said there was, and that was sustained by the Fourth Circuit.

[00:39:37] Speaker 01:
That's what should happen here.

[00:39:38] Speaker 01:
All right, I think we have your argument.

[00:39:40] Speaker 01:
Thank you.

[00:39:40] Speaker 01:
We will take the case under advisement.