says ryan carry on on behalf of the poems michael productions incorporated i'd like to reserve approximately three minutes for rebuttal i'd like to focus my remarks today primarily on the statute of limitations issue mere five months ago in oracle american pursue a packet enterprises this court not only reaffirm the delayed discovery rule for applying the statute of limitations of copyright cases but also specifically help of the correct standard for determining when a copyright holder should have known of an infringement is when the copyright holder had constructive knowledge of the facts giving rise to the claim that destructive notice standard requires knowledge of facts of the type to prompt investigation of the specific defendant and which reasonably would lead to discovery of the infringement general awareness that infringement occurs is simply not enough now motion to dismiss based on the ruling three years prior to the discovery of the hallway photo i think the relation back doctrine certainly applies because it relates to b g media's image policy where they get these images from how they use them certainly relates to media as policy or using intellectual property of others on their holidays are that issue unless there infringing your copyright and i understood your claim to be that they were infringing the last late photo copyright so i don't know how that is related to the statute from having ron is to sort of get rid of it that even if you're aware of it and it stays up there every day your view is that as long as it's up there in the statute never runs blood believe that's the  of case law on it but certainly i think this court has to address the fact that these images both were available and posted on the bus a website less than three  argument that you've made to us this record no your honor at the district court we focused primarily on the reasonable diligence argument that was the vote is primarily of our brief on the appeal and so we're simply articulating you know a different argument supporting our argument that the statute of limitations has run this is not a completely you know a new claim it's not like we're claiming relation back the statute of opposition brief to address it it's been fully briefed it's been fully considered this there's no factual issues because it's well the six motion so it's simply a pure pushing of law that this or is well positioned to the server all the way up until the time he filed each of the two waves do i don't think you made any allegations that it was in fact being accessed by you know outside users is that something that  those complaints but i think it is fairly bird i mean we were able to access it to clear it as an exhibit right and so i think that you know whether in terms of copyright infringement the amount of people who are accessing or reviewing it or whatever the violation is is really an issue of damages more than it is of in french i mean certainly there is probably a lot of very unsuccessful infringers out there have removed the article or that it was only on their server we don't know maybe there they were planning on using it in a future article the fact remains that they simply it not remove the infringement from their reasonable given the the exhibit and the specific facts that we allege is that it was really uploaded at that time and so therefore it's a it's a new infringement it's a new violation right because if there's a and then of course we have our arguments about why there's repeated distributions and displays based on the technological asked accessing a web page but that's different than saying you know this is a new act in the region and whether a real look at the same photo w test and it's clear that greco didn't plead any facts he just said the internet is doing which is inconsistent with other wall so greg was charged with constructive knowledge here and he had instructed knowledge not general knowledge that know how mr carry on will be able to amend his complaint and not have it overridden by the other allegations that were already in the can which were very clear that these were the two acts that you articles they appeared in two thousand and fifteen that they were know i think we all saw that ok great so here's the difference is that we had a very robust record of course we knew we had we wanted to make it very clear that that that mr greco was on use so we put in a request for judicial notice so instead of having two complaints we actually had two complaints plus requests for judicial notice that showed a few things st that the x files reboot was going to be was hugely publicized nd that greco zone allegations throughout his pleadings said that he searches for his photos he's actually sued over x files photos or the use that he he's you know teaches people to to search he has a i enable technology that he you know he could access this stuff publicly so there was a lot more in the you know record than there was there and i think we're in agreement with the other side that this is all cases yet counsel even if we gave you that if we were to follow the other unpublished decision it says here it is not clear from the face of the st amended complaint that the copyright infringement claims were untimely and to be with regard to the flashlight photo it is not clear from the face of the complaint at the claims for untimely yes your honor so the claims for you know is clear from the face of the record so there isn't this request for judicial notice showed that the claims were and justice ginsburg said a claim accrues as of the date of infringement and so the discovery rule applies then that would be told but there is a burden on so said not only how when he found the photo but that it was possible to find this using a search because he did find in fact he found the hallway photo within nine months of the original article being posted so this didn't take a lot of time it was clear that he that on this record he was charged with constructive knowledge and he did not say you didn't explain himself we don't know why he didn't search before we don't have any other idea but the fact is is that often the allegations that were made there was constructive notice and on the face of all the documentation we put in seventy three lawsuits everything else that it was sort question doesn't i've mean obviously there's time and expense but doesn't that protect you here if we were to order the same thing with regard to the flashlight photo point here is that there there have to be some facts we go from as a matter of process there have to be some plausible facts needed to suggest that constructive knowledge can be charged against the plane and so what we don't know is what is he going to plea that explains it away there are cases that say that just because something's on television or because it's on the radio or because it was on the internet that's not an excuse to keep the clock from running and we actually said in judge borat's expressly said to a balance you need to give me some facts that i can look at to suggest that there is a basis for this case to go forward it's not no set of facts it's got to be a plausible claim and on this record based on the way the law applies the they're just contested having been met we have actual knowledge and we have these hypotheticals me never says i could not have found this sooner and in fact when he amended with always photo he said i could find to you to go back to your answer that you gave me earlier about i think you are saying that the original complaint but basically the amended kind of person the image from the original the amended complaint talk about the articles being used those being used in the articles and ties them to the articles extensively and then it says the article the articles came down and the photos that were in there came but then there was a really upload well that's an advantage but i thought you were saying that your original complaint didn't allow an interpretation that maybe i misunderstood your earlier answer but i there was an allegation that they were used in these two articles and then there was an allegation that they came down but that one of the photos resides on the server at this point i don't even know what protocol is the idea that the flashlight photo wasn't originally posted with these articles in two thousand and sixteen i know the articles were published in two thousand and fifteen but how do we know that it wasn't with the differ otoh it for the st year it's just this is it seems implausible and it's inconsistent i mean right in the same way that we said in person of ten that when you host a copy of a copyrighted work on your server and you make it available for other people to access via the internet when those people  then you know access whatever that copy is on your server and it's displayed on their computer screen that's a violation of the and it occurs seems to me it's a separate violation every single time that occurs so they have alleged at least potentially that people were doing that all the way up through the filing of the complaint so i would have assumed under control of that they could then use the three year look back area to capture whatever damages  act and all the courts have looked at that have said this is not an act of infringement this is just leaving you know so i would submit that coming out this way we're being consistent with fox versus the copy of a copyrighted work on your server and you allow other people to access it and they do so that you have committed to wreck infringement of the plaintiff's display right if you host th say whether a new claim a cruise for purposes of each each transmission if something is left on a website it is not being continuously a infringed like on the motion picture you send to the studio or you stream it or you do something with it but but that's the point here and that's why i wasn't are you below because there hasn't been there really hasn't been any support for that hearing and there is no support in this circuit that would go directly to the issue of how leaving hired an expert to opine about the limitations of rehearsing richard but in reality the construct of knowledge standard requires knowledge that would put the copyright holder on notice that that specific infringer may be infringing so general knowledge that copyright infringement happens on the internet we all know it does right is not the same thing that as saying that about whether mr greco has met the reasonable diligence standard well he doesn't have any reason to be diligent and to search be to media as opposed anywhere else or to search for the x files photos of all those do any of his other tens of thousands of