you more committed legal or by overlooking perfect tense claim for direct copyright infringement which was not even mentioned in its opinion it was not only the authorized sales agent for hundreds of infringing which contain hundreds of infringing celebrity images and at least one no infringing perfect chani image which c c bill and c w i copied and displayed without permission agree that it didn't comply with five twelve c three with respect to its own notices well you not agree with that and mr cooper will well walk through with these exhibits here  hypothesize for a moment that put put perfect ten aside there's an allegation that there were third party infringements not perfect ten who also notified c c bill and the others of infringement if you assume for a moment that they complied with five c three what evidence do you have that c c bill did not reasonably implement repeat infringer policy as to third parties if any of the well for one thing it stated right in the notices because there is no disaster notice coming from these third parties saying we told you about these websites they are the  worst infringers in the world and you still have not done anything at all ok i understand that with respect to the third party is there any evidence that the third parties themselves remember a b c notified c bills of an infringement yes that's what these are and these are just records and i consider these third party notices that all because they held that they were relevant that the only relevant notices are the ones to perform the transaction using vasher card take a certain percentage if you see bill takes either fourteen point five percent and all the way up to fifty percent of these transactions in light growing company that earns anywhere from fourteen point five percent fifty percent of the revenues from the sale of these infringing materials and also may on its own website isn't title to a safe harbor under five twelve  in order to qualify for fy twelve they say harbor a service provider must first meet the definition set forth here in five twelve k one day which is very restrictive right if basically it applies to the phone company cable companies routers the people who actually transmit the the information over the internet  credit card processing when visa or master card won't do it because of financial you know financial reasons that the website isn't solid solvent and they also have their high credit ok well they provide these functions where the website can't get processing services they provided for them and they know what is going on on the website they have agreements with these customers very detailed agreements which allows them to review the customer's website and to verify dictate the content that's they have they have websites that they have contracts with we know that if you want to go to that argument that's fine but talk about the ones that are not a feeling that do they do anything actually go on to these web sites you use you put into your browser they have you died you go on to the web site and on the web site there are some nail images  take on a much larger percentage of the revenues in the credit card companies ok our ninety seven commercial life fourteenth two thousand and three notice good and the purpose of the july fourteenth notice was to break down and spreadsheet format for defense documents that we've previously produced and then in october two thousand  affiliated websites for a whole year and there's evidence in the record of this so the best that we can do under the circumstances was to refer back to our spreadsheet and we think that you had this life we have this information because somebody could have taken that line you didn't do it why isn't the end of the case why is that what i'm sorry why isn't that the end of the case the reason it's not the end of the case is that the whole purpose of a d m c a notice is to provide the eyes p with adequate information to identify its copyrighted material i don't think and i speak from blocks a copyright holder for being able to identify its copyrighted material acting consistently with the spirit let's let's let's go beyond that the under five twelve c three  there are certain elements that have to be satisfied under a one little i a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is largely infringed if you do that we did that i think what the record shows what the record just showed that actually because the exact same july fourteenth spreadsheet that was sent was also sent in connection with interaction responses which were verified was that done after the case was commenced it was done in december two thousand and three which was after the case was commenced but in terms of complying with this what about the statement that the information notification is accurate and under penalty of perjury did you do that again in connection with the derogatory response this was no yes or no we did not do it at the time originally but  anybody can do five twelve c three requirements that you're talking about the the six things first of all they only have to be met substantially i mean so it's not that you're suggesting that we don't as a court that we have the ability to over like the fact there was an under penalty of basically pointing just to general and i was treated as of yes compliant and i was i was that was that was complaining here we actually think we did more because not only did we point them and immediately maybe not exactly scribed form not not only did we point them to the infringing  ended up there we actually gave them the infringing image itself in the fourth circuit case was the notice given before the complaint was final i believe it was much different is it not well  have a lot of that as we basically said on your cover letter without saying almost in el scan style we said basically these are infringing printouts of ours and of course the exact you were always located there and so they have the ability if they just look through these documents to know exactly what it money that's a business tool you know so the difference is that we're trying to make money off the content that we own they're taking fifteen percent of the content stone and that's the fundamental difference and as far as the substantial compliance with the elements i guess at the end of the  that sufficient but if it's not again we're not relying on the october two thousand and two documents alone it's in conjunction with the july fourteenth spreadsheet and that's what mr fisher said was that after the lawsuit was filed that was after the lawsuit was filed and i guess what i'm trying to say here overall is that the combination of these things apprised them of everything they needed to know to find the information material and that's the whole purpose of the d m c a notice so i mean but not of the way congress intended it it was not me general prescribed for me at the and we think that it's really elevated we can make up different rules than what the congress intended as far as not as you know i don't think we're trying to make up different rules but judge kozinski said before everything is kind of on a case by case basis and i think that here on some circumstances from which infringing activity should have been apparent even if you deem these defective and in these are you know hold red flag web sites the judge described in his opinion in her opinion rather what red flag websites look like and she said they typically use quote words such as pirate or bootleg or slang terms and they're your l and header information to make their illegal purpose obvious and just a few of the examples you know the judge didn't find any red flags but here are some of the highlights of the time that i have remaining if i do i also point out in the record that the only there is there is one singular supposedly interest i what they posted up here that says something to the contrary are you suggesting that there is looks like there's some kind of a conflict of fact as to who owns that business you know so there was no statement in the poster about who own the business there was some form of sales talk that the c c bill people bring you this but there was no statement as to the ownership of the website is perfect  of jennifer lopez with the body of a perfect ten model and it's like here it is it's it's me you are sixteen fifty five and the u r l indicates that that picture was on a website called web dot  hearings regarding the plea of service providers to have some certainty in the rules by which they must play a service provider such as my client's health content owners such as perfect on the one side and they have their their clients on the other you know the point of the service advisors please provide some objectivity and some certainty so we know we have to do or not have to let let's go if we if we may then to some of these threshold requirements because i know you're anxious to get to those implemented a policy that provides for the terminations appropriate circumstances of repeat infringers under our circuit law and ellison and aimster we've adopted a requirement that there be visceral ration on the other hand there's the concept of whether this should be a good faith implementation what is your perspective on that what she what your client's perspective a material issue of fact as to whether you have reasonably applied it in good faith then there would be a trival issue of fact you know you are i'm saying this this case is a great example of the f the facts in this case were many but they were not disputed tracking all the contacts contacts that he received from various parties and the response of c c belongs to the of the are you there too and he declared in his declarations that that to the extent of their ability in the information given if they received a good notification they responded and there was a satisfactory outcome there was no material evidence to contradict this perfect generalize upon hyperbole and misrepresentations of the record anecdotes and that part services were terminated and that it really is in a position to do that and has shown in the past that it can do that well what do you know that they were talking about the five twelve eight and i am see deal with there's a question of reasonable compliance that the court will look at that i think in the ellis can case on one of the elements which is which infringements are you talking about the point was that the entirety of the images on monitoring of the website do i agree that there's a question of fact you're out of that if you unrelated to perfect ten through the present day the implementation of policies concerning charge backs fraud the implementation of normal standard operating procedures that would happen if you were charging or i were charging or anybody else for charging as relates to high incidence defined statutorily in the d m c a and i quote as used in this subsection the term standard technical measure means technical measures are used by copyright owners to identify or protect copyrighted works and have been deployed persona to a broad consensus of copyright owners and service providers in an open fair voluntary multi industry standard standards process are available to any person on reasonable nondiscriminatory terms and do not impose substantial cost and service providers were substantial burdens on their systems or not or ho to see whether any of our property is the stone was there it is absolutely a standard procedure that we're dealing with here is a standard procedure concerning the commercial exchange of money in the end the purchase of materials whatever those materials of an exchange which happens over the internet it is not in any way fitting within the d m c a is definitional framework as provided by congress concerning mechanisms that are used to to  and i hope i'm not misspeaking i apologize if i am my recollection is that the issue was that there was no genuine issue of fact as related to what happened concerning our client's deployment it's standard or do you agree that the that the standard by which we review this is abuse of discretion yes or do you agree that the district court reviewed every one of the leaves factors and team out with reasons for denying the fee i is a focus understandably on the parameters of the safe harbor definitions and how to think within that in an unproven area of law and a complete and total ignoring of the overwhelming weight of evidence which every one of the judges i think is asked about today as it relates to the notices our clients spent hundreds of thousands of dollars and untold man hours with wrought pornographic document dumps of pages of data without falling with the simplest black letter fourth grade able to read notice provisions set forth in the statute and it was gamesmanship and it was inappropriate and it should not be allowed and be counted count you're basically saying that the reason why there should be attorney fees awarded here is because it was gamesmanship not because the court failed to follow the lead factors actually i do have a few more points and you believe that the if you if you look at the most overarching important factor which is the purpose of the copyright act and you try to apply that in an even handed approach is required box documentation but you're on it then when you go back and look at the records i'm sure you already have please please take note of the notices please take note of the of the timing which judge smith did point out th notice is simply said here appeared a bunch of boxes or some copy written materials in there then you have the post litigation gamesmanship with the spreadsheets and i'm a fairly bright guy although just because he might disagree with my inability to follow his question but i couldn't follow many of them and they didn't say what they said and you had that type of gamesmanship working its way from pre lit a geisha through the litigation while we dealt with the safe harbor contours and what should appropriately find the names yet and the  shrift to the factors really conflating the issues for volatility and then reasonless and ignoring the purpose of the copyright act and ignoring all was there anything being considered in the motion for reconsideration other than the attorney fees at that point clearly does not meet this conduit requirement or also the requirement that the material that passes through the conduit must be the unlikely infringing material it's not for passwords or use