because certain users of the platform of list in their cars there indicated their willingness to deliver those cars to l a x and because hosts and ghassan and charles lingo have used the tools on the site to thirty case law out there to start with the home away decision the issue there was that the city of santa monica had a particular ordinance that said any home owners of wanted to engage in short term rentals needed to sign up on a registry with the city and then it also had a provision in the ordinance that directly relate regulated what the ordinance called booking photo or be in the home away and so the theory of liability that was at issue there was one that directly regulated those booking agents and prohibited them from processing transactions and therefore in that case home away and air b b didn't need to worry about the the less things themselves in fact the ordinance how does safe harbor that said if you comply with this regulation which is the prohibition on processing transactions you've got a safe harbor so there's no you don't need to worry about the fact that there is a content on on the site here in the claims that are an issue you are all have to do with the theory of liability stripping away any attempts to skirt immunity through artful pleading and there there was a specific ordinance that regulated ok if you went directly to that here there is no such things that happen on airport property or i think that language is within or are over the airport and so what you've got here are essentially trespass related claims and the essential published content to use the length of c d s you thirty are the hosts listings indicating l a x as the delivery location you central published content it is rd party content and the only way turbo under the government's theory can be liable here is as the publisher of that content and you know the barnes versus yahoo case and in this circuit said that any and i'd like to take just a minute if i could to try to defuse a few of those out of some of the factual details located in the district court opinion rather than the this court's opinion that you remember and dire off there is the website of the experience project  that allowed people to join groups and have conversations about things and the experience project essentially ran out rhythms that analyze peoples post and analyze other user characteristics and try to figure out what would interest them what their emotional state was in that case you had a recovering drug addict who was essentially steered into a group relating to heroin when i say steered what happened in the experience project literally put a recommendation text on the screen saying you think you'd be interested in heroin laver of you went went to that group you had a vial token from the website in order to post the question so they're trying to monetize the site in that way and he posted the question where can i score heroin in jacksonville florida suffer the website then last of that question out to everybody in the group and then when the drug dealer who was sort of monitoring the content on the group responded to that question the website then created an email that sent to a greeter the deceit and inside someone has responded to the question where can i score heroin in jacksonville florida and provided a link to that too that  unfortunately a drug deal did end up happening and greer died from a final rose but but the important thing is that the court said that even though there were these sort of suggestions created by the website even though there were these e mails even by the website that doesn't turn turn of the website into something other than a publisher doesn't mean that the website has created the content that matters in the case in fact with what that you can if you want to call it content what you should really view it as through the scene do you really learn the content at all or rather website features and tools that users can take advantage for rd party insurance coverage for offering payment processing having detailed policies about how the the trips are supposed to take all i know you talk about a lot of this in your briefing so i there's a couple things that because we have limited time but i want to talk about so i'm going to direct you to where i think  to me it and i'm not speaking for my colleagues here because we have we haven't talked about the case or anything so i have no idea but one area that i had interest in was on the irreparable harm and i evidence in the record is that just that there's thirty thousand dropbox but there's more than doubt but just at the just so certain amounts and you put in evidence that more people are responsible for one hundred and twenty seven and that it's to minimize somehow so if we were to you know that part of it if we agreed that i guess that would be for clear  that part of that because it was the finding of irreparable harm i guess and part of the overall abuse of discretion if we said that irreparable harm was not shown up and the injection correct irreparable harm i don't know where they're standard wise but they said one hundred and twenty seven dollars or whatever so that was one place that i think also i had a question about whether which you continue to contend the and thanking the still overbroad in that instance or how or where do you say a bribe and then i think you're also saying if it's mandatory as opposed to you which i don't think to be a mandatory injunction which we think it is a sort of but even on a regular reparable harm standard the evidence in the record simply does not support that there's any congestion impact whatsoever  analysis as laid out in his in the declaration and concluded that the impact of these you know one hundred and twenty dollars or so a trips for a day is immaterial and unnoticeable that that's the evidence on the record and it makes sense because additionally records are the facts that every single day at l a x there are literally ninety six thousand cars coming on the airport property thirty three thousand of which are churros excuse me members and impact they're fine with those cars coming on to the airport as long as they get their feet and that kind of leads and so and so that that's the only congestion evidence that's in the record on the other side of those ledger the city simply  yeah although all the allegations in the complaint are true and how do we know they're true well some of them are based on my own personal knowledge some of them are based on other employees that they hear or the identities of whom are unknown and some of the facts i have gotten from the lawyers for the city so on that record when you've got nearly the only credible congestion evidence from turbo and what's essentially non evidence by the city there's there's literally no support for there being a congestion and i would suggest that there's a reason why the city didn't bring a motion from a range auction for some three years after it became aware of this activity further well let me let me go back to the mandatory injunction we have we have never done that before and we literally had to go take affirmative action in order to comply we had to we had to reengineer the site in order to do that in so similarly and  the injunction which says you may no longer process transactions relating to las why is that a mandatory injunction look at the language alone because you can often characterize an injunction in seemingly prohibitory terms but you've got to look at what it would really require and here it is and would require and did require in fact  showing i think of extreme down you can only slightly wrong but if there are elevated standards on both of those wrong but of course you know our argument is because of the c d a to thirty i think we understand that part of your argument so let me ask my colleagues have taken him over already but we have a question then and there's probably a complicated case if either of you have any additional questions on this part of if they  ok we went we went two and a half minutes over i'll give you two minutes for a bottle because i'm such a nice person but i think that would be so but we had to have those questions briefs and focusing before and what we consider to be the most egregious aspects of the court's injunction order which as you pointed out is the finding of an irreparable harm the district court here found that but if i were just the trier of fact i would say whoa that's a pretty slippery ok but i'm reviewing on a more deferential standard and so my concern always fair is if you're asking me to  and the district court sided different way then i you know i don't want to take you know i don't want to take my opponent have often be a just so that's my concern err on is there you know how exact language that she used she said because the host activities were quote impacting traffic flow at l a x at least to some degree that injury and the resulting transplants against the city's property rights does not come compensable of law and is the fission to establish reparable harm thus the court presume that any impact of a trespass no matter how negligible it is constitutes automatically constitutes a level so it's not a robbery harm and without this presumption as mr brown pointed out there is no evidence in the records to support a finding a harm the court's analysis here is contained of the property and i keep telling him don't do that but it's not causing me any economic harm it's just that i don't want my neighbor crossing on to my property i'm not entitled to get an injunction showing you must stop growing all my property the only way even in cases of trespassers to real and under your scenario and the way the court interpreted it if there is any any impact on the property any entry on land causes would cause irreparable harm that would do away with the requirement of actually having to make a showing the city did not make any showing whatsoever the city relied on its allegations some allegations in its counterclaims that were backed up by a to send declaration of an airport that be all of those who are losers handoffs at the airport all of them represented such a negligible amount of impact on the entire traffic were there that they were quote immaterial and  handoffs were as if they were statistically a material then surely these three individual oppose the impact that they were having could not could hardly be deemed to be a rapper all married i guess i guess that just so that i understand now and you claim irreparable harm you're lazy all the money and you can't do your business and you can't be all bad back in that part of the analogy when you balance the equity we would be all of the consider that if you're you're violating a law you need a permit that goes into the balance of the act when he does it not well the balance of harms your craft the balance of harms you are supposed to look at you know which is which which outweighs the other but in this case the district court utilized its erroneous findings on the st two prongs and basically said because they were doing something wrong the host inter doing something wrong they can't possibly have any say they can't possibly argue that their heart outweighs the cities so essentially we're left with a factual finding by the poor or finding the irreparable harm that is premised on it and erroneous legal standard and a clearly erroneous assessment of the vehicle handoffs the city has taken the position on appeal that if there was something more than that it now somehow prohibits us from even picking up gas there or the hose from picking up gas there but the injunction itself says nothing about court's entire analysis focuses on being able handouts if you look at the order well i actually was interpreted in a different light at this point because the reason why they're interpreting it differently is because there's no evidence they didn't present any evidence that the gaging and vehicle handles so now on appeal they were trying to take the position bat this really enjoying something more than just be able handle so that's the reason why all of the side and things don't you know american opinion are a little murky by all along throughout this litigation the only thing that we're focused on and the only thing the parties were litigating is be able handoffs ok thank you we're obviously going over but that's fine because we have questions so i'll give you one minute f provide some context your honour's the this court c d a cases are on a spectrum and if one end you have you know the classic bulletin board cases the social social media platforms like the experience project in the dire off case that a brother mr brown was describing or matchmaker dot com the cues are on updates you've also got you know back page dot com which is the st circuits with you if there's any basis for that style make sure i'm not misreading something the the important point here is that what what the court in joining is the host or from using a platform to facilitate the rd party transactions now one of the ways through could voluntarily comply with that obligation is to you know not half of those little things on it's life it could voluntarily for the on the other hand true could leave the rd party listings on the site that provided for you know pick up at l a x at truro could not process those transactions and what the home way decision says mark is that if true besides from a business birth but if that doesn't want to leave listings on his website that it can't process or can't booking at the size and take him down  in fact took place but because it would be evident in their own internal data where the transaction and been both now we fully acknowledge your honor i did that and through his made his point that guess if the if let's say only one there was only one car when it seems like almost that you're that what you presented was it's the parking place and one would be enough to be irreparable harm and that just i don't know that's just seems like it can't be right and one hundred and twenty seven dollars when you're looking at three hundred and three zero plus and that doesn't even count all the drops and all of that it terribly congested and of the problem was getting was getting worse for a variety of circumstance you're it's bad but do you have to tie it to these of appellants are can you just say it's the traffic's each of these businesses could probably argue that in isolation its impact is very small but if the court applied a dane in this rash poll then the difference so if they had permits that but if irreparable harm is separate from about i mean it's got to be so if you have a permit then per se you get the finding that is here means they can't do any business at all until you prove that they have to have a permit and i write that kind of your honor we really need to show that we've got a likelihood of success on the traffic conditions according to the judge it would also directly in your wrapper believe harm the cities of the would be to anthracis effect of regulatory control of the airport if with respect to everybody who's violating g regulations the city had to endure for years before it could put a stop to it the harm to the cities interests here its ability to roll congestion and the airport is not something that in any support money damages that's the key here there's no way that through could compensate the city after the fact or the impact that it's having on traffic today nor any the fact that you didn't do anything for three years is that part of the evidence that can be considered for irreparable harm though it's not your honor and if it's a it's a point is worth worth lozenge on because what the city saw here was a business that it became that the city has the right to control jack right but if i agree with that does that automatically jockey irreparable harm are you saying the fact that you have the right to control not wrong saying that your argument that you've shown irreparable harm is based on the fact that you have an absolute right to control ingestion and anyone that causes any congestion facias irreparable also the court identified distinctly harm to the city's real property interests and that's an important point here too that you know when the residential calm checks the judge break off mentioned surely a property owner would have to wait for years while a piece of litigation went on to keep his neighbor from parking in his front yard you know interest of static their privacy their state even perhaps here the city even though a public entity as very much is compelling interest in controlling his real estate as owner of a house the city's interests are different but they are you need to can i ask you a question about the conditions of the license that the city would impose if one were granted because that that ultimately to me is what ifs going on here it's not that you're a can't operate this business you just don't want to do so without say there are subject to any conditions they can pick up drop off at the terminal in the parking garages wherever that we never know that's not a discussion that they can place i would agree with you to your honor that is really the operational restrictions that the airport those is on these ground transportation operators that are the critical fact there are you know fees are an issue too but it's the operational restrictions that would take place is there you know if sure of her willing  permit because that's completely hypothetical at this point but if they were willing to fly for a permit you know the airport could engage a member station with them about why operational requirements and restrictions  know would be appropriate you know whether i put it in these terms just did start to focus you if all if you were to tell me that the only thing that would be different if you won the case is that you would make what is it six thousand dollars a month or whatever the fee is and that's it and all of their operations would otherwise remain exactly the same then i don't think we'd be able to say anything about reducing congestion as part of your irreparable harm each show is that in addition to our being able to charge that licensing fee we wouldn't think we would be able to impose conditions that restricted their ability to come onto our property i guess to the extent of elimi question as for an analogy he wants to know what the permit would look like the permit would contain operational instructions and in fact your honor there are operational restrictions imposed on entities that are off air or ground of our providers provide for fasteners being required to take a city on shuttle to a remote lot and then the off airport run a car companies taking passengers up at that remote lot and driving them by bus to their facility so that is it is point the court to something on the record this is that there are excerpts a record for thirteen to four hundred and fifteen there of the city attorney will be a prohibited from doing the following things number one permitting motor vehicles to be listed  as website as available for pick up or drop off at l a x number two facilitating in any way transactions originating and or ending l a x this is the city's proposed preliminary injunction order and i want to emphasize that because however you might be able to recast your claims on appeal however you might be able to art for at least plead in your counterclaims when the rubber hits the road and you put a proposed order in front of the district judge asking for the relief you see you have to be specific about it and it's clear that the city's claims in this case go to the rd party user content on the side no doubt about it and so that's core agent thirty immunity right there and of course records order i reflected that i didn't use exactly the same language but it certainly did go to rd party content also in and not just the preliminary injunction portion of the of the order at the end but also on page thirteen of our excerpts the court there are sad as any obligation on trojan remove offending contents could also be satisfied without changes in both by the website users by for example eliminating an owner's ability to post a vehicle for rent an address a vase within l a x and so basically what the court assange is well you might not have to modify any existing listings all you have to do is exclude that content going forward and then you're fine well what what i would say is whenever you see a language like that it should raise a huge red flag and receive you to thirty because that goes right to the core of what be immunized against liability for making decisions about whether to exclude rd party content or not ok that in mice my colleagues have questioned you've been in your overtime overtime harm as you also pointed out they have to tie the traffic and congestion to our individual hosts they did not do that judge walker did you also pointed out the fact that in reality here money damages and satisfy the city's claims this case is not about congestion and traffic this is about the city wanting sure twenty five per permit and yet additional revenue permit you wouldn't hear them talking at all about traffic and congestion and as lastly as far as looking at the numbers here restrictions dr park pointed out that in comparisons of the one hundred and twenty  including all vehicles and so there were thirty three thousand that got time thirty three thousand with the last limos and taxis so the other presumably the other sixty something one thousand are just people that are coming there from the public with their own vehicles or something like that but certainly one hundred and twenty four true user vehicles is not causing any type of noticeable traffic or traffic or