genuine issues of material fact on the on their form of defense the first one is whether they adopted and reasonably impose implemented a policy for terminating repeat infringers there is an absolute issue of fact here such that the court cannot grant summary judgment put the issue of fact in your so there are about three issues of fact on both adoption and reasonable reasonably implemented on the adoption the issue of fact is whether they ever even adopted a policy at all expert lane's unrebutted expert testimony was that the reality of their various in canted policies that were shifting throughout the depositions were themselves a pretext they were a fiction and the reality in this is what he said it on paragraph one eighteen of his declaration on page one hundred ten of the excerpts is that the policy was really to protect high volume up letters that's an undisputed assertion from an expert when you get into the specifics of it you see that their first policy was that we terminate people if we get repeat notices when they were shown evidence of someone with repeat notices the explanation was all well the automated software must not have caught it but the facts showed that in general they were very successful something like an id nine percent rate removing people who previously violated copyright well your honor i don't think it showed that but it showed as to my client's content specifically is that the repeat infringers six of the eight who had previously infringed before they ever even travelled over my client's content were not terminated even a year into this litigation let me i guess it depends  you look at there were some repeat infringers most of whose uploaded content the overwhelming percentage of their uploaded content was not followed by any copyright claim from anyone so you could have someone who supplied ninety nine percent of the content to motherless and infringed more than anyone else because they were the biggest supplier content yet had very few notices of infringement so they might but even if they had a tiny percentage of notices of infringement it could be a high percentage of the total notices of infringement and if they were terminated after getting a substantial number of notices of infringement then that would be complian in terms of the arithmetic of it well your honor i don't think that's in place here no it's not and it's not a mathematical test such that you can say a company that has created an infringement machine with anonymity and encourages people to mass  upload to then turn around and say well they uploaded three hundred thousand pieces of content and here where the undisputed facts are they know ninety percent of it is infringing and that's our know how they know that and the percent is infringing or let the experts analysis your honor the expert was unrebutted a summary judgment who said on a statistically relevant sampling of the content on the web site sixty six percent of it had water marks or titles which is in disha of obvious copper i don't know it isn't a watermark or title if the watermark was a copyright notice then it would be but as i understand it the watermarks were by and large not copyright notices well you're correct your honor about them not being a seal with it with a date next to it but that doesn't mean that a watermark is not  ownership watermark shows the name of the owner of the title that the trademark holder and that that is professionally produced content and they have no license deals with anyone i can put watermarks on things i can put watermark some pictures that i can do put titles on pictures i don't understand why i chose that because it's for example if if there's a little playboy bunny that's a watermark or if there's a little ventura content limited pink visual those are watermarks that connote someone owns that content it wasn't just joking public uploading a random video of him or herself that's not what the content is and that's undisputed that sixty six percent of it was so marked how do i know it's not joke you public or joan or jane q public uploading content of theirs expert leans analysis says the same thing your honor and it was understated in that is that the people of america the reality of the adult content industry is that the people of america are not filming themselves at this level having sex and helpless and i guess that was really the nub of your argument and i just couldn't see it i mean the rest of the theater industry is just jam packed with people producing three photographs in the hopes that somebody will pick them up as a stock photo asian people produce and act in free plays off broadway theater industry in new york consists of a whole lot of people living poor and putting on plays for nothing and not getting paid in the hopes that somebody notice some and hire them as some people enjoy the notoriety of being seen you tube content depends a great deal on that some of us might regard what we see on you embarrassing and some people might see it as fame i don't understand why that follows that if people are putting themselves up somebody else must have produced it and that the marketing  profit it follows because there's no evidence in the record that the content on their website is sort of self filmed amateur content for which the owner is the person who uploaded it there's simply no evidence of it the evidence is to the contrary their site profess it professes to be a place with the housing of ripped porn they scour the internet themselves to find content to upload and as the expert said as well beyond the sixty six percent the other twenty percent that would have been known to mr lang in this is that paragraph one twenty three of lane's declaration is that it's obviously professionally produced i think as he would know obviously and when i hear the word obviously what it means to me is it's missing an argument i mean it isn't obviously there's such good cameras that people's videos of their grandchildren running around the little babies running around on the rug look professionally produced because the cameras are so good there's no evidence in the record for that conclusion your honor and the repeat evidence in the record is that obviously isn't argument it's a fact paragraph one twenty three lane said mr lang and motherless had to know that this was professionally produced content given their existence in this industry and the fact that he is in this industry based upon the number of actors the number of cameras the lighting and everything he knew and that's an unrequited fact it's just i mean it's sort of it is what it is in the summary judgment record they didn't challenge that and so whatever may happen on you know i don't see why professionally professional production is particularly substantial evidence of copyright let me let me give you a hypothetical what's on my mind so you can show me why it's not the right one to use bands so many people organize bands and so many people perform at high schools at bars charity events all kinds of things with their bands hoping to get picked up for some paying gigs meanwhile they perform for nothing sometimes they have a tip jar sometimes they have a friend who's good with a video camera and makes a video of them and puts it up on youtube it looks professionally produced because it is professionally produced  any aspiring actor or actress gets headshots that are professionally produced and they put them up anywhere that they can get them up in hopes of being seen and it doesn't follow that any of it's copyrighted they want the stuff distributed as much as possible well your honor the difference is it is all copyrighted and there's no evidence for the just put the little c in the circle copyright and the name of the owner that's the traditional way you protect stuff the law doesn't require that you even put the so it doesn't on virus but it if you want to know whether something's copyrighted you look for well your honor if and exactly and if they look at every piece of content sixty six percent have watermark and that they don't see that water name that's correct that back that wasn't on there but that doesn't defeat the level of their knowledge or the fact that one thing viewed with that knowledge that they didn't take down the content because that and their policy on a shift i mean part of the problem is knowledge or professional production or knowledge that it's copyrighted knowledge that it's copyrighted because professionally produced content has lain said obviously is owned by the copyright creator the people who created it and they don't have i think yes i understand your argument now and we just fall apart on the word obviously i ask you counsel as to the record of the evidence that the district court looked at i mean it's not just pointing to one issue dispute it fact one user who wasn't terminated properly it's basically coming forth with enough evidence to create a material issue of fact in the district court didn't find that it was there because there was a policy in place that users were notified that policy had resulted in the termination think fifteen sixteen hundred offending users and so you've got to then come forward with evidence of how many people during this time were offending user such that to go to trial essentially it's enough to put before the jury and as i read the record there weren't any more than a handful maybe two three isolated instances is that not correct and and if you could come up with more than just a handful of people if you could point to the portion of the record for demonstrates that six of the people who infringed just my client's content had received prior takedown notices compliant d m c a ones and non compliant but also c ant were not terminated even after my client filed suit now identifying them again as infringers of my client's content for one year into this case they still were not terminated those six are it volume ten of the excerpts subject to book of compliant takedown notices as well as takedown notices that were not compliant but also absolute compliant takedown notices and so what how soon with those removed  even a year into the litigation with how soon with pictures removed well they were by the defendants when they received notice they removed the pictures but they didn't terminate the user they removed the pictures immediately correct the users who had loaded a whole lot of stuff where there were no notices and a few things where there were notices the users some users stayed but the pictures were removed correct the users were not terminated that's correct ana and that's the problem you have to terminate router sorry the pictures weren't what you're what you're saying is that if user has uploaded several non compliant pictures the duty in order to get the safe harbor requires removal of the user not just the pictures absolutely that's that's required by by five twelve ironic you have to terminate the user and so that you know that that you have that and that's fantastic evidence we submit because what you're talking about is just the users on my client's content so the narrative one would have to adopt to say that evidence is not material is just that six a days or aberrational and that the rest there they're sort of doing an incredible job it just so happened on the eight users that infringe my client's content six of the eight weren't terminated there's no evidence to support the idea that six of eight is some aberration and in addition on the adoption which is a separate issue what was the evidence regarding the option the evidence is they never adopted a policy they had shifting stories of what their policy was the experts included their policy ultimately is intentionally vague to encourage mass uploads so they have shifting policies the first policy was if the user repeats repeat if a user infringes repeatedly we terminate when shown evidence that that wasn't true they say ok it is a software glitch when the deposition of the software person was taken he said we don't have software to do this the owner of the company then dissembled again and said ok well i don't know why i said that the policy is actually i figure it out of my heart and mind as to whether the users intending to infringe the court can conclude that a company can have a reason d m c a policy based around whether the person running the company figures out in his her mind what's in the heart and mind of the actual user that's not a policy for terminating a repeat infringer that's a policy to encourage the mass upload hours and that's really critical to the business model because you can get ten twenty thirty forty fifty takedown notices you can take down the content but if people are able to upload hundreds of thousands of pieces of content a year you build the site with stolen content you generate ad revenue and this is all in the lane declaration it's it's it's uncontroverted your honour's the the other issue i'd like to get to is that i what particular words in the statute or are you relying on for the proposition that if a user has repeatedly uploaded copyrighted material which itself was taken down immediately nevertheless the user must this that's about user termination your honor it's a file on the five told by prong of this alison also says if you allow notices of frenchmen to fall into a vacuum then the terminations policy is not properly implemented here judge is another example of where there's an issue of fact they claim that look part of our policy is when we when we are told by a company with a watermark when the company comes forward and says hey that watermark our stop doing it we always stop on that company but the expert found that's not true they claim that the company can for with a cam for watermark had given him notices and so therefore under their policy they would no longer put up cam for content but the expert found this is paragraph one eighteen one thirteen sorry but they still had that content of years later video made clear that if you have an automated if you have an automated post unpublished system where just the software of the company takes it posted on the internet no manual review process then page one one one three says that the failure to respond once went with knowledge is an unreasonable policy of taking down the user as opposed to taking down the infringing content i think that's the point that you are making that if the users aren't terminated it robs the infringer of safe harbor protection so do you have something that th supports your premise that the user has to be terminated well i think it's it's five twelve i that requires the language of the statute that says ellison it would seem to invoke says the sort of judgment based on a holistic analysis that you fault the operator of this website for appropriate read this and it looks to me like what it's for is for sites that are basically piracy sites for movies and musical performances and other entertainment if it's a piracy site then it doesn't get the safe harbor but if it's a site that does not is not just in business for piracy but is in business as oh  i forget the word the internet people use but to gather together a bunch of squibs as we call them law books and every now and then something's copyrighted so they take it out then it's it's protected that's how this statutory language looks and that's fine your honor but that's not their business the evidence in this record is that their business is an infringement machine they're not a neutral passive conduit like you tube that is just automatically posting whatever comes up and is doing it best to weed out the content they're encouraging infringing content to be uploaded and then monetizing it by ad revenue their business is the quintessential example of why the d m c a was never intended to allow for example grokster grokster napster one of these piracy sites if they show the whole song or the whole movie or whatever they had i think what you're saying is that this  like those hypothetical sites absolutely it is because as the expert said the content is overwhelmingly infringing but they show the whole movie sometimes they have a whole movie sometimes it's clips of movies and what they do is they cure rate the content on the video on a digital camera my grandchildren playing in the yard and they put it up on youtube not very likely but a lot of people do that sort of thing and i put it up on youtube because i think it's so cute i have a copy within the group of people who don't get safe harbors under your analysis is that right no that's not correct your honor i think if you formed a website that said hey send up you know cute pictures of your grandkids to people uploading and own the copyright you if you were out there were warning people with financial in virtual rewards to upload content which you know anybody who loads more than a hundred cute calf if yours gets a free cat and anyone who loads more than a thousand cute cat pictures gets ten free cats then i have a problem because i think that point your honor with all due respect there is no way to conclude that the uploading person is just taking pictures of their own cats you would have to at that point conclude case but the problem is you're talking and that makes it difficult for us to accept your argument because nothing virtually nothing is absolute there or not your honor i can qualify what i've said by taking away that word on this record that is the inference there's nothing in this record to support the idea that large volumes of people are uploading personal videos of themselves that they own the copyright to their own acts sexual acts to the internet well that's what i was trying to focus you on reasonable implementation of the policy right has to be it's a it's really a reasonable mess and you've got it you agree with you that when you run a site of this nature there there is a substantial risk that there will be a lot of infringing materials upload it now the question is what's motherless done about it and us district court the facts of this record relied on ninety nine point nine nine percent of the time the fed and then expeditiously removed the materials in the notices so your counter to that is that ok well but they don't they don't terminate users who have prior compliant takedown notices and so in terms of identifying how many of those individuals are i heard six out of eight that that's compared to fifteen hundred plus users that have been terminated during the time that motherless is an operation so you know i think district court job is the kind of way that and figure out whether that's sufficient to create a genuine trial issue material facts so if you have something more that you'd like me to look at in terms of their failure to terminate good morning your owners have please the court david richmond four defendants motherless bank and joshua lange the district court granted the motion for partial summary judgment because generally speaking it found that the plaintiffs factual assertions were not accurate that its arguments were contrary to l district court we have to do it ourselves tell me what is the current state of the law let me address we're here the question please tell me what is the current state of the law where the site promptly removes material when it has a proper notice that the material violates copyright but does not remove users who have on several occasions  submitted such material what is the law on it my understanding of the law is twofold first that the website is the service provider is required to expeditiously delete infringing material and second that the website or service provider should terminate repeat infringers now what law should i look plaintiff's counsel five twelve i and with respect to case law it would be in un g recordings versus shelter capital in you tube and the video line of cases that is not into that is not a in in my mind that is not an unclear legal proposition i don't you agree that it's the obligation of the operator of the website to have a procedure to terminate infringing subscribers repeat infringers yes and how do you are you defining read there is no definition of that term and the statute congress has left it to the courts and operators to make that determination will have to have the courts defined repeat the courts for example in the youtube case found that a account holder or subscriber who received three d m c a compliant takedown notices was arguably a repeat of what about or two there is a court that looked at two so what do you do with the language imperfect and it says a service provider implements a policy if it has a working notification system a procedure for dealing with procedure in order to reasonably implement it and what was the procedure that your client had it had multiple there were multiple aspects of that procedure it would receive a d m the procedures are set forth and of silence brief second brief on crosses on the appeal and that is but there must be a reference to the record if you there is and that's what i'm looking for i just didn't have it right this second ok the the points in terms of the procedure are set forth on pages thirty one  through thirty five of the second brief and there are record sites there which are from volume twelve and are many many pages ok so i'm sure you know this record better than we do so give me the best record site that you have that would tell us what the procedure there is no one records cite there is a there are multiple aspects of this procedure which have different record sites but i can't go through each one of these aspects and give you a cite to that particular asset generally when a business has a procedure is written down somewhere so are you telling me that there is no one place that the procedure is written down to satisfy the faith harbor of the d m c a the procedure and that's a yes or no question there is it is written down ok so tell me the first place is written down in the record there is a d m c a policy that appears on the website as a web site not the procedure for dealing with d m c a compliant notifications is where it appears on a page on the website are you talking about the terms of use that that if you do the content will be deleted and if you are a repeat infringer you will be terminated and seems like exactly the policy that subsection i want and the case was made clear that the policy but just articulating the policy doesn't mean you have a procedure for doing that the case law and the statute do not require that the procedure for example be in writing it doesn't require that it be set forth in a way i think i think with what the law would require there's a to be real there are all sorts of procedures that people claim to have that they don't implement and the courts see through those in all sorts of contexts so the policy looks fine the question here is does the evidence establish a genuine issue of fact as to whether the i keep reading the names of the parties whether whether the website not only then motherless whether the website motherless really does remove repeat offenders and to a reasonable degree i agree and i'm not clear on what your answer is to the contention that there have been several repeat offenders who spotted they have repeatedly uploaded copyrighted material and they were the material was taken down and the people that sent the offending material in were notified but they weren't excluded my response to that particular question your honor is that the website but to back up a minute first of all the written policy as required by the case life is set forth in more than one location by the defendants for example terms of use i think we've got another written policy second of all the defendant testified as to what the procedure was and there was no testimony to the contrary it was a little bit across well there is testimony to the contrary what you've got is the owner of motherless testified and it was a little vague and somewhat conflicting from his testimony just what the procedure was and then an expert witness testified for the other side saying can't be so well then the third point is that look at the actual implementation of the policy the notices over the over the years of its existence as a result of those notices thirty three thousand account holders were terminated not all for copyright infringement but for various violations of the terms of use the percentage of the terminations of accounts was asked to made a debt somewhere around fifteen hundred i don't care we care about the for purposes of this case all of the takedown notices were provided to plaintiff in discovery my client kept copies of all of the takedown notices well done let's focus here on the draw and since question this is basically a dirty movies website so i would imagine that the vast majority of takedown notices were for things that were too dirty or illegal some sort of porn the mother was thought would scare away customers whether it was legal or not and some porn that was illegal so the fact that there are a whole lot of takedown notices doesn't really tell you anything about the copyright infringement takedown notices all of the notices that dealt with copyright infringement were produced to plaintiff is part of that larger group every notice was not withstanding that by the time of the summer the motion for summary judgment the discussion had been we're now down to only nine members out of seven hundred fifty thousand plus members historically out of over twelve million files stored on the servers this case came down to nine a nine repeat infringers now judge wilson found that we know of those nine members three of them had no takedown notices and they only came up as part of the group of nine because those eight of those nine were the eight members who had uploaded the plaintiffs films so of those eight members on three had no notices another three had one notice one of them had to notices and one of them had four notices they only they focused on those eight because that's who uploaded their films after reviewing all of after having all of the takedown notices they only added one other member to this discussion and that member had three takedown notices there is an issue of fact regarding one member why isn't that enough to preclude summary judgment because you're looking at one member out of seven hundred fifty thousand plus members and the case law  might conclude that that there was reasonable implementation despite the fact that to slip through right so i think counsel said that six out of the eight infringers in this case were the subject of prior compliant notices but they were terminated so why isn't that sufficient to allow the case to go to the jury because the statute requires reasonable implementation that doesn't require perfection or isn't there a question of fact what's reasonable under the circumstances that's kind of a quick ask that question the fact when you have questions i'm sorry when you have cases which say that less than four there's they're not even a repeat infringer so they shouldn't even be part of the discussion you have one member who had four and was terminated what their complaint about that member is not that he wasn't terminated it's that that motherless took too long to terminate  isn't that a question the reason i don't believe that it is when you look at when you put it in the context of everything else that the defendant did was really directly the statute perfection is required then there can never be summary judgment in these cases what's your response to the expert testimony that was offered by the other side the expert testimony was free to be disregarded that pardon why is that first when you look at the size of his sample he looked at less than one thousand files out of twelve million a district court did not disregard his testimony the district court addressed it and said that it would not follow it that it totally disagreed with the district court say that it didn't meet the overt standards i'm sorry what did the district court say that the expert testimony did not meet dogbert standards now i'm still trying to put together numbers here  you've got seven hundred fifty thousand members and twelve million files so that gives me denominators now right now i'm not asking you about people that get blasted out of motherless because they're putting up  stuff that's too dirty or stuff that's illegal like child pornography i assume that some percentage and i don't know what percentage of the seven hundred fifty thousand members  how many are of the uploaded years are up bloaters of copyrighted material from ventura how many of the of bloaters or upload are of copyrighted material from other copyright owners after all the fact that motherless has been pretty successful in getting rid of copyright violators who steal ventura's stuff doesn't mean that they have an effective policy if in fact everybody who steals other people's copyrighted stuff is allowed to put it up on motherless so what i want to get us some useful numerators here how many mother less copyright violaters among the users and how many other or total copyright violators among the uploads it can't give you the total number that number has never been calculated with respect to the members who uploaded ventura caught ventura content it was eighty eight people yes eight people thirty three clips so there was duplications in other words different parts of one film were up locate were uploaded spec there were thirty three total clips on the website ok and of those eight people who  stealing venters stuff and how many got terminated one because the others were not deemed to be repeat infringers and of the seven who were not terminated how many infringed more than once i believe that that number was three or four uploaded more than one clip and what was the excuse or reason for not terminating those three or four who uploaded more than one clip because they were deemed not to be repeat infringers thre e three people had never received a a d m c takedown notice by those had never received a notice from them the first notice it received a notice that was not the m c a compliant some did but the case was clear you don't have to pay attention to non compliant notices but cases that you don't have to pay attention to non compliant notice the  i think they don't trigger the d m c a requirements but i don't think the case is that you can ignore them the fact case is  you m g recordings six fifty six sixty five sub second at eleven eighteen you empty i just realized incidentally a lot of these people that got terminated could have been terminated because their stuff wasn't dirty enough they might be uploading cute cat pictures could have been multiple reasons so if so really all that matters is uploading copyrighted pictures where some copyright owner says hey that's my picture and write ten and fifteen hundred people plus were terminated for that reason so you're relying on a district court case for the probable dition there that you don't know that you can ignore non well if it's if i disagree with that proposition then that would give you really notice even though it's not give you a client really notice even though it's not compliant with the d m c a is still sufficient to put your client o notice that there's a potential for infringing material correct now why not what because i think the cases say that noncompliance notices can be ignored regardless of what you just tell me over district court cases those aren't binding on those that we disagree with that premise the and that may be enough to give you if you disagree with that premise then yes but the cases i mean the courts that have considered it helps have said we will ignore them for all purposes whether it's implement reasonable terminations of repeat things like that you're stealing my movie some particular thing but you didn't swear to it so nor the notice yes the statute sets forth what a compliant noticed five twelve c m s remind me how long motherless has been in business two thousand and eight has anyone tried to flood motherless with non dirty pictures in order to take away its appeal to those who are looking for dirty pictures that explain a whole lot of the  takedowns i'm sorry could you repeat that but one way to put motherless out of business would be to flood it with cute cat pictures so that anybody was looking for porn would not go to motherless are a lot of their takedowns non dirty pictures so that the numbers are inflated by numbers that are irrelevant to the kind of issue here there was no analysis done on that point and it was not addressed in any of the papers because a notice would apply to content whether it's dirty or not the issue would be is it french and whether it's an infringing kept photo or infringing piece of pornography that that the substance i believe that it is i don't have the case in front of me but well i'm looking for the precise language right that you're relying on because she cited this case to us so i'm looking for the language here i have a case in front of the and i'm just curious as to what language on that page you're in line upon is i've read that point too many times well seems to me if that's a very important point you would have been able to pinpoint where it came from but you did feel that your time you didn't want to address the cro very very briefly and in response at a big picture fung and un g each happened and the ostrich admonition is part of the case law for red flag knowledge you simply can't bury your head in the sand and isn't it says you're stealing my stuff as i understand it just from the papers and occasional stuff in the score but mostly newspapers people claim all the time that movies incorporated ideas are bad and they they think the movies violated copyright at so i don't understand how anyone has notice of anything unless you tell them with compliant is the user forgets to sign a penalty of perjury when they identified the link in the location of and the escalation of the work they didn't put on it be forgetting that could be a purpose it could be it could not be but the question is present tax protestors do funny things with their signatures all the time it could be your honor but we don't know one way or another what we know is it's a fact and circumstance that gives one awareness and red flag knowledge that infringement is occurring and here this is really important six of the eight users we focused on the eight because of the eight hundred french my clients works and it was stunning to find that seventy five percent of them had received compliant d m c a takedown notices they didn't come forward in the record and say we have who were the recipients of compliant d m c a notices and we terminated y percentage of them they didn't offer that in the record the only analysis we have is of our actual users and so the question is summary judgment is whether we should conclude that a failure to terminate seventy five percent of the repeat infringers just on my client's work compliant noticed infringers whether that's somehow the random aberration and really for the rest of them when they get compliant notices repeatedly they're terminated and there's no somebody up seventy five thousand and thirty pictures from two motherless and it's compliant notices that three of the seventy five thousand clips were violations of ventura's copyrights and that user was not terminated because  motherless thought almost all this guy's stuff for this woman stuff seems to be filing we don't get any complaints about it we get complaints about a tiny percentage of this user stuff no reason to terminate this user the users not  porn content or movies it's not possible no one actually owns that as an individual user to upload in a single year and zero so if they want but they don't license from ventura they don't have license deals with any legitimate companies of zero license deals unlike v unlike youtube they don't license so it's entirely user submitted fully anonymous you don't need to register and give an email address and so when that happens it may be the case it may always be the case that a small number of the three hundred twenty two thousand uploads that christie seven one eight seven did a small number trigger d m c takedowns but you can't conclude as a matter of law of summary judgment that the inference from that is that it's no big deal you don't need to terminate christi because the vast majority don't trigger complaints from the actual owners always held in t that the burden of policing this whole system congresses on the copyright owners it's a will that's not entirely accurate the burden is twofold copyright owners it's a privilege to have the safe harbor copyright owners can give notice that they have to comply with the storage the red flag knowledge no financial benefit an ability to control in order to get that privilege you can't be an ostrich and stick your head in the sand and turn a blind eye to what's going on the website and then say well they were only had a few takedown notices i mean in un g this court bless you m g s repeat terminator policy for terming repeat violators when the second rip report came in of infringement for that user they were terminated here you have the eight who had a compliant e m c takedown notices you weren't terminated and coincidentally kristie seven thousand and seven as was the number one uploaded one year that's why expert lane's testimony is so important because what it shows is really it's easy to say repeat upload or to see the site with the content it needs have had a point zero zero one percent of the content complained about and you get away with it kristie looks like some woman who's figured out a way to work from home by just working really hard enough loading a lot of stuff and a tiny in the records it's half the hof power deposition and excerpts of record volume nine he mass uploaded content all of which was owned by other people and he did it with the mass upload technology that they offer users and an anonymity he thought if you read a deposition thousand it's pretty remarkable he just thought well you're allowed to upload whatever you want they said it's i'm uploading everything he never even professed to own any of the conned it was entirely infringing content could you respond to opposing counsel description of the procedure that complain about something you can email here and this is when we will take it down that is not a policy for terminating repeat infringers the most they have is some villa statement attracts a lot but is implemented as we showed it summary judgment they don't follow any sort of a policy it's a sort haphazard we say what we want when we think we want to say what we want and that's when we outlined we even quoted some of the deposition testimony of walk in the opening brief and it's outlined at length i mean the expert even said after reviewing their policy in this is an expert who's worked for the department of justice in different states dealing with pornography on line issues said their policy isn't even a policy that they've implemented there is no procedure the procedure and this is what mr lang ultimately testified to well my procedure as i implemented is i figure out whether i think the user is acting maliciously that's not a that is not a procedure that the ninth circuit we submit should bless is a legitimate procedure for content companies running you know online service providers if you want to get the benefit of the currency of all this content coming on to your site then at a minimum you should act like you tube or veil and not be involved in the content decisions of what's going on not previewing and selecting certain things and not running a business with a policy that sort of turns a