Whether the nature and scope of the defense of implied license to copyright infringement requires proof of the grantor's intent by concepts familiar to contract law, or can be implied by a court based on a 'totality of the circumstances' irrespective of the grantor's intent

QUESTIONS PRESENTED 1. This Court has never addressed the nature or scope of the defense of implied license to copyright infringement, and the circuits are split. a. Is implied license a species of implied-in-fact contract requiring proof of the grantor’s intent by concepts familiar to contract law, such as a “meeting of the minds”? Or, as the Fifth Circuit held, can a license later be implied by a court based on a “totality of the circumstances,” irrespective of the grantor’s intent? b. Does the burden to establish that the scope of the implied license covers the infringing conduct remain with the defendant? Or, as the Fifth Circuit held, does a burden of proof shift to the copyright owner to show that it “objected” to a specific potential infringing use? 2. The basis for the implied license was the copyright owner’s deposit of seismic works with a Canadian energy regulator. Are copies made as a result of foreign government compulsion “lawfully made under this title” within the meaning of 17 U.S.C. § 109, as discussed in Kirtsaeng v. John Wiley & Sons, Inc., 568 U.S. 519 (2013)?