trademarks the website sat on servers own and operated by the defense said steadfast steadfast had received one thousand five hundred and seventeen notices infringement on this website one hundred and eighty of which pertain specifically to my client's content it gave notice of infringement of some thirty seven thousand individual works but why isn't it enough under this court's perfect ten pm is on ruling that said fast forwarded this d m c a notices and the offending materials were taken down and that enough of that a simple measure under our president well there's two problems with that one is the district court judge in or ignore the deposition testimony which i submitted in opposition a summary judgment by mr resentment room who was steadfast thirty six representative who admitted to steadfast and absolutely nothing in response to the notices that when they had a prior problem they heard about takedowns he just assumed that that was what was going on but it but it back they'd all the pictures were indeed taken down you know the pictures were taken down but  when in terms of steadfast did steadfast contradicted itself in the declaration testimony fixed excuse me in the declaration testimony they contradicted the deposition testimony by then claiming the did they did something but here's anything but didn't do anything because they know the problem's going to be resolved well they didn't even bother to check the did they didn't ask in syria people doing something about this what's happening that was one thing that they a simple measure that they could have done it didn't do he seems to me you're trying to say they were obligated to take an act that was unnecessary because they knew it was going to be taken down anyway because it was taken down anyway so i'm not sure what the difference is if they had done what you're asking would anything different happened here's the here's what was different this should have happened but make me get an answer to that question st if they had done what you asked would there have been a different result yes if they had done what i asked they would have they would have said said they would have learned that they recommend is the actual more problem is is there is there support for the proposition that you can have infringement contributory infringement for  infringement that hasn't the courage yet there is support for the notion that you can have contributory infringement by failing to enforce your own policy to terminate repeat infringers that is the simple measure which judge will acknowledge there is ample authority for the general proposition that a service provider after specific notice of infringement can be held contributory liable for infringement by continuing to provide the site and facilities for infringement  that numerous times and what should have happened after a certain point in time it was up to the jury to decide what that point in time was steadfast should have said you know what this is too much of a problem you people don't seem to be respecting copyright and trademark and i'm sorry we can no longer provide your services you've got to move on and go on with other people give me a case you said we've cited it said several times give me your favorite case that supports the proposition that would apply in a factual situation like this and frankly i'm sympathetic to the concern you've raised and and what i need to do is figure out for an infringement that hasn't occurred yet because we're now talking about things happening in the future  the question you say they should have asked is how come this keeps happening implicitly it's going to keep happening so so what case helps us reach the conclusion that you can be held liable for contributory infringement if the infringement point if you're counsel for a phone a visa you make the argument that look even though they keep taken off the particular bootlegs when they received notice from the sheriff at some point you gotta keep these people out of your flea market but that was a physical swap meet versus robertson perfect ten versus amazon columbia pictures versus far it's if you look at the jury instruction for material contribution it's in the use footnote it's ubiquitous of parts of it but in getting the perfect ten the amazon case specifically says i want to be says we've refined the test further and the cyberspace context is again in a swap meet you don't have that mechanism of you know you tell somebody there's a french material you can take it down well judge who called my theory a novel i think this i think the shoe is on the other foot he did not cite a single case which says that no matter how many notifications you get of infringement by your customers thousands hundreds of dogs millions you never come under the burden to take the ultimate simple measure of terminating in the customer's account not one he cited lud bar it's about general knowledge but that was a case where the copyright owner failed to give specific notice that though in ludlow i say so here's a list of our copyrighted works go take them off your system here by contrast we give highly specific notice mr easton gave the hyperlink for each and every one of these thirty thousand dollars stolen works on that side and he cited the napster case which is a his only other authority which is an odd case to cite because there the judge granted a permanent injunction against napster because it continued to provide the site and facilities for infringement after highly specific notices from the record companies that the files were there so i think he was the one that had no no authority and here is my question the copyright law book before the d m c a and congress said in acting the d n c is supposed to strike a balance between copyright owners on the one side and the service providers on the other and the balance of it was struck is that that is that you've got to provide the service providers specific knowledge of where the infringement is before you can argue that they're liable hosts cut these content delivery networks like we had cloud flare in the case there are going to be a mune from any argument of liability even if they get millions of infringement notice by one of their costumers as long as that customer smart enough to have a takedown staff to take the that they got notice of that day even though it eventually becomes inevitable we all know that the next morning there's going to be another set of infringements and i could have a site called pirated content dot com come get your free content when we can sell it for free because we steal it and i can be hosted by steadfast and i can be on cloud floors content delivery network and they can be free of any pressure to fire me simply because i'm smart enough to have a takedown staff that's a huge imbalance toward the service providers and just clifton i think copper owners shouldn't be faced with this welcome all this endless whack a mole problem simply because somebody has gamed the system so that i even though we know as sure as we know the sun's going to rise there's going to be another infringing set of ail us works on image pam i just can't predict until i get up that morning and look what's the next step they stole these people don't respect copyright they've got to be sent packing and i think that's the minimum that courts ought to be asking service providers to do with this kind of a record the the b m g versus cox case i think is the way this case should have gone in b m g versus cox the  and then it went to the jury and the jury returned a verdict for contributory infringement precisely because cox wouldn't wouldn't cut off people's accounts i think that's the guiding authority here i also want to remind this panel that do is they have data rooms all over the globe and they provide they create multiple cached copies of work so that when you seek to put down you'll get your content faster from the nearest cache and take which was to terminate those accounts which are the subject of repetitive notices of huge amounts of infringement and he should have applied the same theory here instead fast i don't know whether he forgot what he did or  no had no supporting authority we we've all mostly brief the copyright issues but i don't want to lose sight of the trademark issues we submitted evidence that every one of these pictures just processing the payments that's way too distant from the websites they have control and monitoring we cited the louis vuitton case which is a case about hos and there they said because the host can pull the plug on the website that's enough direct control and monitoring for purposes contribute to a trademark infringement and for that reason when employee honors to reverse the summary judgment let a jury decide the trademark as well as as well as the copyright i see but steadfast knew or should have known that further infringements were going to occur if it simply continue doing what it was doing well your honor the law says that its actual knowledge and what that actual knowledge than the service provider take simple measures to get those images removed and we in fact did well but that's not really the question i posed why couldn't  jury conclude you knew damn well that these violations were going to continue i mean we're talking hundreds hundreds of notices i'm thousands of images doesn't take a rocket scientist to figure out that you know this problem might not actually have been solved by the simple measures that you alluded to we have to also remember your honor that steadfast wasn't in control of those ultimate infringers the united i don't i don't think that helps very much either because you can set up a structure with lots of middleman and say not me but if ultimately stedfast does really know what's going to keep happening why isn't steadfast liable why couldn't a jury reach that conclusion would mean that the only other simple measure which is an extreme measure would been to pull the plug yes well ok that's been offered up and if that's what it takes to stop the infringements from continuing to happen what's wrong with that well then if you look at cases like cox that plaintiff has brought up and said the very similar the wasn't so much the number of notices it was the fact that they thumbed their noses at the notices that they didn't take efforts with those notices that they basically  because ultimately the question of law would be even if they had found that that that was not sufficient why not because the law specifically says that simple measures are eno with the simple measure isn't enough if you know the infringements are going to keep happening but you don't know which infringements are going to keep happening this is what judge will found just this theory of that i'm not sure why that should make it different i really don't know the answer to this question i'm not trying to the king's field in the paper chase and so forth but and i'm not sure what it is that would prevent a jury concluding they must have known and the simple measure wasn't enough because they musta known it wasn't going to be  cited by the plaintiff off and what came out was the fact that the service provider which was only providing server space and that's one thing we have to keep in mind this defendant only provided the storage space here is your server do what you work you're that it's going to just destroy things well that's not the case the plaintiff had every opportunity to go after the infringers who were their own members because the only members that could upload the photographs had to have access to the alice website which were their members number two they could have sued an image band directly or their owner flick so they chose not to so they do have alternatives your honor i'm not sure how that makes your client less potentially liable but i think your  created cached copies of the infringing images themselves i mean the soil the cache copies and solves could represent direct infringement in fact cloud flare did not take simple measures to eradicate the infringements so the simple measure here was just the notification that there were these violations and that it was sufficient that's correct so is there anything in the record that gives you some sense as to what effect that notification had was that something that continued on and on that was standing the notifications is there anything in this record but do forms of says through what the fallout was in terms of these notifications was or with those affected it was affected because those images the specific images that were in those notices one hundred percent of the time were removed but how often did this occur how many times would notifications given with regards to the plaintiff one hundred eighty five dollars notices your honor during the time period over a period of four years yeah well does that suggest that it might be something for the juries judge clifton to suggest that if these are not effective that maybe this did not constitute a simple measurement of the facts of this particular case i don't think so your honor i think again we have to look at the the letter of the law and the fact that steadfast acted within the confines of those of that law at the time which is simple measures the notices came in they were the residue line should be drawn here how many notifications have to be given over a period of time but i think that would honor they could have sued him in japan dot com and chose not to operator had a lot more control over the affectional infringements and in fact i think one of the key points there again was the fact that they hid and refused to vault the identity or other classic media which is a lead in that case so we do definitely have a situation where the wrong standard was applied in fact so a little confused about this because you have lanham act rial ations and you have copyright act violations here i suspect right there is a claim for contributory copyright infringement and one for so how do we dichotomized to a piece and what the exceptional circumstance the end it should be for situation in fact in his own order he has stated that plaintiff's theory was novel and that there was no basis in the law for plaintiff's consistent argument in this situation especially not the exceptional case to enter but a lesser degree which is so the problem is that he used the phrase exceptional circumstances in the context of the copyright act that's correct your hand is required reversal because of yeah but even on the remaining ones he we've heard back to his opinions in the other decisions as a basis for denying attorneys fees here and like to remind the court that there were three counts in the beginning of the case contributory copyright infringement by carious copyright infringement contributory trademark infringement it took the plaintiff until the th hour to finally dismiss the vicarious copyright infringement when they should have done that once not if not years before and so if anything i believe that that portion of the ruling should be revisited by the district court can you address the issue of whack a mole the problem which is a serious problem i mean what is the response i may be you know under your president you know it's too bad but on the other hand th circuit hasn't really explained too much what simple measures mean and you know you give example of you tube and you sure you tube there's a lot of you know  non copyrighted material and a lot of dumb copyright material as well but you know there are probably some websites that are exclusively almost all copyrighted material that's their whole you know reason for existing in those instances i  plaintiff can take one they could have gone after the individual users they could also go after the website image bam or in fact they could use digital technology that will disallow people from copy gave the server space that was that they had no management control over in japan no no management over the contents really they were so far removed there's no other questions your honour's thank you thank you failed to take the simple measure of looking at the image beyond the selves and asking the same question are you really trying to do a good job of having a license stuff and weed out the of the few outliers are you a pirate site and the jury could have considered mr penn's evidence and drawn the conclusion he needed which is these people are pirates i also hope that you're being asked you're being told there are simple measures your client could could take or should use the same phrase so there are things you to motion lemony on that the jury's got to consider steadfast liability i also hope you're ours will read about faced and contradict themselves which should have been a material fact warranting denial a summary judgment they didn't take the simple measure of taken further look at image began to see why you're having such a problem with  over their relationship maybe in a way that would have been a little a little smoother for a customer relations but do something they did nothing and i hope you'll consider that evidence and thinking about whether the jury should have decided this and not the judge thank you