book they were used for commercial purposes in their third party advertisements this right of publicity that plaintiffs seek to protect is a state law created intellectual calls its statement of rights and responsibility or s are are to argue that plaintiffs consented to their use of their identity in this way but children lack the capacity to consent to consent except with with a few exceptions and then and then never what about your own i wouldn't disagree with that this is this standard rule the general rule is that minors must say i know you kind of lost just as a as an advocacy point by denying something that is clearly the case you've completely undermined your argument now why you did that i don't know anyway go ahead things there are three things they're real property personal property not in your immediate possession and then delegation of power right is this a real property transaction this is real property or honor and it is real proud i'm sorry i'm sorry i misspoke it is personal property is a name and likeness of a minor in the possession of a minor when he contracts when he contracts i don't believe it's in his immediate possession your honor his face is not in his immediate possession i think that's something different someone's face and name are different than their identity and identity that your right to identity is a intellectual property right essentially a copyright or patent on your own twenty four twenty five twenty six and twenty seven it lays out exactly what happens with respect to these advertisements but as i read the delegation provision of sixty seven zero one the california case law what is not allowed under that section a minor cannot give a delegation of power is that the minor can authorize someone to act on his or her behalf for example to enter into contracts in the name  it works this way facebook's terms provided you give us permission to use your name and profile picture that's a record thirty seven people versus howard which is a california court defines permission to do an act as authority so therefore permission is authority the permissions ok i'm after the word delegation you have a case that supports your reading or understanding of delegation under this subsection  we don't have a case that discusses delegate but we have of course the dictionary definition of delegation as it was defined when the passage of the statute in eight hundred sixty eight and the current definition both of which are the relationship it certainly does your honor i think if you look at a couple of different places in the terms of use the one that i mentioned to you give us your permission to use your name and profile picture subject to the limits that you put in place and compare that to the definition of that it is future oriented and it deals with dealings with a third party in other words it gives facebook the right to deal with a third party and to do so without further going back to the individual so the principal really being paid is a is rick i mean free agency a case that we cited below in our post hearing letter so i did a case where a principal dessicated somebody to be able to execute their checks for them to go to deal with the bank it was an elderly person who was having somebody help them with their finances and just a simple note to the bank said that said i trust this person to handle my banking for me please allow them to do so i did that was enough to establish an agency under california l agent that the agent is the one who goes out and find some work for that model and uses sells the name the likeness to two other advertisements is the only if that age were to keep all the money for himself whether or not it still be an agency i think there would be it's the representation not the fact that the money ever makes it sway back to the principle that i think possession which we believe is more canned because these ip rights are more akin to a future interests than to a baseball card but we also assert a claim under sixty seven ten which allows for disappointments two retroactive just affirms that is to say i am a minor i was i had entered into this contract certain things have been done pursuant to this contract i know just affirm the contract and are you saying ss filed to their first amended complaint which asked for which include all the plaintiffs here on april twentieth two thousand and twelve and facebook continue to use their name and likeness respect to a retrospective application of a decision your honor the answer to that question is found in one of this court's cases hurriedly versus south carolina to some company one eighty three f two d one twenty five  in that case there was a multi party transaction that involved involved a stock purchase ok so husband wife and i believe grandson were one of three parties to a stock transaction the there was an election that the stock payments all go to the wife as time many years passed before the miner ever found out that he was named case saying we had this election that as far as we knew it was good so we were paying the money to the mother the court held the ninth circuit held that the disapprobation of that contract was right to active to the very beginning and all the payments made under that election were not not good and that my daughter could not get all of the stock but one of the minor himself or herself had not it into the contract of that earlier period that the minor finds out about it and as soon as the minor finds out about it says hey wait a minute that was done on my behalf but i had no knowledge and i didn't consent to that earlier period of my misunderstanding it's it's not an issue of voi occupation either from the lawsuit or from their behavior after the lawsuit that they were looking at they were actual of just affirming the entire contract and opposed to trying to walk away from you know understandably from this particular provision so in other words i don't know that following this lawsuit was a just affirmation of the contract you could have a lawsuit can be a gesture of affirmation of a contract but i don't know the entire contract but in terms i mean this the statements of rights and responsibility of the entire thing we claim the whole thing is void of an issue and every single complaint including the right thing yes you never no facebook was free to revoke their access which they did but we've we've taken you over time we'll give you to minister about you about mumbling absolutely sixty seven zero one a prohibits a delegation in this isn't a delegation what makes it a delegation of power is that a giving us this report of the giving facebook the authority to do something that they would otherwise be do for themselves i e give people the permission to use their identity in pictures and  advertising and they were doing it for the future rather than on a one shot deal in the us on a continuing basis and the only respect in which they weren't showing it and they weren't giving facebook the right to republish this information is likes that the user him or herself goes out and makes up that when there's an additional factor that what they were giving it was their right to contract with a third party and that's what makes it look like an agency to so they were the issue is is there any kind of relationship as between the minor on the one hand and the advertiser the other hand the answer's no the miner has a relationship with facebook in consideration for using the site without having to pay money for it in consideration for that the user gives facebook the permission to republish the name in the profile picture facebook then goes out and it it contracts with advertisers to sell certain ad product would like that and that information by the way is going to be published the act of liking will be published to the user's friends were garbus of these ad products the advertiser can say i'd like that information read displayed to those same friends sometimes in connection with an advertisement provided by the advertiser but that's not creating there's no facebook isn't stepping in and acting as the agent or the representative of the minor on the one hand  the advertiser it's two it's two steps and that really that makes it all of the difference it's no different from saying a minor you know rents his bike to someone and that that friend goes out in len's the bike to another friend it's just it's a two step transaction which is different than saying having your friend go out and be your bike broker which is which is what an agency relationship would look like so there's a there's a distinction and it's interesting because there are there is no case and we've tried to look back through all the california cases there is no case that takes as broad a view of this as the plaintiffs in this case you go back to the haste case to the one nine hundred thirty in the california supreme court said it's obvious what this statute is what the intent of legislature is it's to prevent a minor from appointing an agent to make a contract on his behalf and you just don't have that where there is no contract on behalf of the user with the advertiser you just cannot get to the end of sixty seven no one let me briefly address the disappointments point that the disappointment there's two issues with this affirms number one whether they  disapproved affectively and number two whether it can be retroactive let me start with the second one it cannot be retroactive and we know that from the morgan case which mr ziegler referenced the mindset that this retroactive mean i mean morgan what you can't do is turn a rightful action into a wrongful one so what happened in morgan morgan sort of convoluted case but the minor is indorsing checks in this part of it is the minors given someone authority to endorse checks on his behalf in part of it is the minor indorsed a bunch of checks on his own behalf over to the bank and got paid he then disappear arms he says i'm disciplining those endorsements and he says well that makes the subsequent endorsement by no you can't do that because at the time that the bank made that endorsement it had it had the miners permission to do it because it had a valid the endorsed check you can't convert a ri action into a wrongful one in the store case from d c is the same makes the same point a different context and that's what's happening in this case when they say at the time that facebook sold a sponsored story or social had it had it had a consent in ten one of the s r so you you can you can just a firm minors can decipher a contract but what you can't do is say i used to sit for him today and yesterday that action you took which was rightful is wrongful so you can't go back in time that way so that's half of it and then this question of looking forward that's a question of it's undisputed that continued use facebook for a number of months after firing the complaint so let me say two things one it's not it is not unequivocal in the complaint here's everything the complaint says about disappearance as opposed to a voidness under sixty seven to one it says  seeks a declaration that the contract is absolutely void that's sixty seven oh well when the case is saying that a case can that a lawsuit can be a just affirmation what if they mean they mean that the la affirming and then it's ok to just take it as a just affirmation or are they saying that if it if it's asking for a lease that's an essence of effort mation therefore it's just affirmation or what they haven't imposed the magic words requirement but what they see what you see in the cases and frankly are they don't say a whole lot about what it means but what you see is  when the complaint is is totally inconsistent with the contras who take the celli case that we saw in the brief there's there's a release the minor gave a release in that case sign a release and then goes ahead and suits and they say well the filing of the lawsuit can operate as a disappointment because they're there absolutely contrary to one another but it's not it wasn't a  here is this and to use your analogy the release presumably was part of a larger settlement that's well let's assume it was and if that's the case and if they file a lawsuit to probably couldn't do it with regard to just these provisions but the problem is you can't do that you have to just for me and chiron agreement so the question is do we take there for what they did as being as right it has to be and we know what their actions first of all is for any case not that this there's not much but let me let me give you one case law that i think might be helpful it's the one that talks about the irksome parts the holland case it's a miner has a has a  agreement for owning a car insurance and there is a he has not elected or he's elected to have uninsured motorist coverage didn't want to pay for it's a check the box saying i don't want it so then he comes in after being in an accident and says why do i want to just firm that my election and i'd like that on motorist coverage now and they say well no because what you're trying to do is you're trying to have the benefit of your car insurance and you're trying  say in fact only reason that any of these ads are appearing or anything is happening and if they any of the conduct that they allege to be violent of a statute the only reason it is happening is because they continue to use facebook so they can't both be using at saying as we use it these things that we don't like are happening but by the way that one provision where we consent to those things that we don't like that's what's excised that and the choice of law provision we don't like that either so  out that's what they can't do because that drives you right back into the insurance i'm not too familiar with the couldn't the miners have this and then put on certain privacy time on who wouldn't be in these ponds who stories they can't they can certainly adjust their privacy settings they can't completely opt out of everything but the point is they're they're always able to do two things are always able to adjust their privacy settings and they're always able to quit facebook they can delete their account if they don't want to is my question they can't both keep facebook and stop the they can stop a lot of ads but they can't stop you your honor i'll try to be quick first let me start with the point that was just raised we talked about consideration what the consideration was we've heard for the miners that consideration was use of the side for facebook it was to use their name and likeness is an advertisement for third parties if you look at the flitter case which was thirty callout two zero nine a minor under the age of eighteen years may disappear in a contract without restoring or offering to restore the consideration so in other words in this particular instance we were able to decide from without without voluntarily disabling our use of facebook but what about the lawful act unlawful right the the morgan case that he talks about is in direct conflict with the ninth circuit case that i mentioned based on his characterization of that i think it has a different characterization of the morgan case in the morgan case that contract was court approved and the court found because of sixty seven fifty and then remember the lead in to sixty seven ten which says except as provided by other statute that the sixty seven fifty court approval governed all of that earlier there's a special issue that i want to clear up though what was just represented was that facebook wouldn't have been continuing to use the names and likenesses of the children if they had continued to use the site that's not the case if i don't want going to facebook but i'm still a member base was going to continue to use my name and likeness until i jump up and down and cancel my account so the kids didn't have to do anything positively for facebook to use their name and likeness and as was just stated there was nothing they could do