in great detail and i want to make this a simple as possible because you know it as the court can see you know you know i'm at home i've been homes there's filing there's briefing there's everything i don't do appeals lightly and i would direct their attention to a case that the other side has sent had cited to which is lopez v nissan and that's a classic example of where the u c l safe harbor is appropriate ok it was about  and we don't have any thing like that ok there is nothing in that that allows or makes it legal how am i now am i still breaking up yes but a little better memory ok bought the device does it says gigabyte they went out and bought a sixty four they cherry pick things within nets that allows them to get there and they point to a next technical guide handbook as eight hundred and eleven and the lower court  opposing counsel appointed to a provision that says you can use these as i metrics ok with the non metric bit b i so technically all that says by natural definition bell is the loudness of a unit so it's one billion and then it's the law of this of a decimal of a unit that's all we have in nets if you're supposed to follow the appendix reach you i was trying to get us just called me back since i called him earlier and he is trying to connect via telephone at the moment ok graeme thank you it goes on to say if you have a by a b y p e you're supposed to use not the s i prefects but g i which is the binary one and that's if you read our brief i lay out that argument and then there's another provision that says that was an issue and lopez being nice on that says you're supposed to use the customary term and i made this point earlier and i think it got garbled and this  is it says it in the same publication it says descriptive information expressed in customary terms that are widely used and recognized  ok that is one of the other thing the net's writer is told in this appendix and i already told you are three names plaintiffs are looking at their computer and it says give a bike give g b meaning the binary definition they go out and buy a communication and good communication you need to use it in the customary terms well the thing is we get the in princes on a motion to dismiss it a motion to dismiss we say as a factual matter the computers  use the binary definition there were sixty four devices and two hundred and sixty four devices again divided by two they went out and bought an accessory to the computer that were also sold to corsica a not divisible by ten but divisible by respect and opposing counsel are cherry picking this one provision of net again in the technical guide there are two other provision that says if you want to use d by b y p e you have to use vi which stated that you and the other thing is if you're going to use descriptive information and the amount of they get more tempting here we're not measuring we're counting descriptive information it needs to be the customary terms that people understand and this is all laid out great detail  these plans is they try to play video games they plug in the accessory they don't have enough memory and they're like what's going on here and so to me i think lopez being nice is the gold standard it's a  position and it's also at odds with what it's a part of or supposed to be which is you know the law required me to do it you should sue me for just looking at the s b a eleven i look at two of the provisions where it what is it it's in my brain you have to use customary terms that are widely used recognized everyone here who has a computer that is microsoft ok which is most systems most gaming devices  microsoft what it says g b it's binary so again i don't know why the sensory to a commonly used device is using a different definition and it's if we go by their technical guide they have two choices they have to call g i b y t which they don't but also they should follow the other provision of that which is the commonly used term for gigabyte to be the binary definition you should explain clearly understand lopez where you can point to can book forty four standards or of dominance you're allowed to have a four percent error therefore you can't super two percent share ok here even when i look at their own publication  this court should likewise affirm dismissal of what the district court for three independent grounds and i list those grounds and i also want to address some of the points that were raised by opposing counsel a minute ago the st grounds obviously is the same  definition that is both valid and and preferred by the government and lastly the rd grounds for dismissal is the fact that everyone in the industry has been using this vest small definition for more than twenty years  b and saying oh that's bytes right that's it it's gigabytes there's no dispute some complaints everybody admits that we're talking about the definition of a byte that genie is from the metric system and there's really no dispute about that that the g comes from the metric system controlling president and both this court and the california court of appeals says that's it conduct is clearly permitted by the law it is not ac case is the perfect example of a case that is covered by the state and this is why in fact this is the this is the case that congress and visions more than one hundred and fifty years ago and eight hundred and sixty six when  it st declared that it shall be lawful throughout the united states to employ the weights and measures of the metric system they wanted to create a safe harbor so that people could use the metric definitions for these terms and metric system those units including the give a list of something samples one of those examples is a bit the computer data unit for best and then they reference standards that are published the international the international electric technical commission as well as the international organization for standardization and then they refer the reader to the bibliography to reference five for th specific list of those standards that have been published by those organizations so they're in section five one point three and i used to has stated that just like bell is appropriate for of the record in this case and that you contains a note from the department of commerce a note that we quoted very heavily from in our briefing and the note that again explains that one is equal to one thousand pounds and not the binary definition one thousand and twenty four dollars bits and then it goes on to explain that the i e c which is the international electric technical commission has published a standard for binary so if you want to base around us the number a binary number the prefix you should use is this and not the g b right so they set out those prefixes and they give an example using bytes and they know that the capital letter piece right that's not really in dispute everybody knows common history everybody understands that the capital letter p and the circumstance means bytes and then it's appropriate to use it with the metric somehow just a technical guide and is not an official declaration of how to use the international system of units yes my system of the metric system united states we need only look at what was published by the department of states this is the interpretation this is the legal interpretation of how to use these metric prefixes how you use the letter g and the situation and then obviously going to hold a special publication in one you'll see the language that i just went to the court to where it could not have been more express that in this industry right when you're dealing with this technology information technology you are not to use these measured prefix definition it could not be more clear most recently and special publication three hundred and thirty dollars which again is is with publication eleven dollars the legal interpretation of the united states special publication and then it and then actually in the nearest one it lays forth the alternative prefixes the binary prefixes that should be used when one wants to express a binary number so it could not be more clear that the policy of the united states the legal definition of the symbol g m p is the decimal definition that is used by standers and every other maker that standard was published more than twenty years ago it's been used for the past twenty years the northern district of california made that publications and i asked you to govern all transactions and california purchase it from send us now certainly there are situations where you can have a breach or orangey claim where there is you know an apply warrant you passes from the manufacturer down through the consumer but not a breach of contract right these these and certainly even if that were not the case which it is the contract includes all of the language on that product if there were a contract missed by the district court noted in her original and i'm just missing the original motion to dismiss that the the terms of the contract standard we've got about a little over a minute so i know that you are and this isn't this is an easy one the test obviously and that applies to the consumer section claims in this case is the reasonable consumer exams and as this has explained what that means is the complaint has to show a probability that the targeted consumers and not just some targeted consumers but a significant portion which are it consumers d when they're acting reasonably under the circumstances are going to be misled and the circumstances are could be misled in these circumstances and the this court has used what it calls its judicial experience and common sense to apply that standard and that's the case we have here is so much easier than the cases where this court has as a client that standard on a motion to dismiss notably in the diet soda cases that are cited are papers that's the bizarro versus dr pepper seven up and  cases where they were looking at the definition of the term diet that term was not even a standard published by the federal government here it is it's much more clear in this case that reasonable consumers should not be confused my time has expired yours if you have any more questions or happy to answer flynn appears to have dropped off ok well i think at this point given the technical issues that we probably should submit this case and proceed to the next