surviving under extraordinary circumstances after you tube the host of the film trailer that contained her performance she received the following threats in writing at record two eighteen you mad you dirty bitch i kill you stop the film otherwise i kill you record it to twelve hey you better why you make the movie in a sense of muslim delete this movie otherwise am the mafia don record it to twenty i kill whoever have a hand in insulting my prophet last one record it to seventeen not the last breath just the last one i'll read enemy of all or if you are insulting mohammad prophets life will suffer forever never let you live it freely or in painful wait for my reply counsel how do those threats go to injunction stander they go to the issue of a reparable harm your honor and the issue being that she needs to show one of the printer injunctions standard some harm other than simply a copyright harm and that comes from the slight change modification that we saw on the standard in light circuit after e bay and in her case the something more that she can show is that she is under threat of death if she is not successful in removing the movie we ask you of course we take those threats very seriously but is hers her sole remaining claim in this court is a copyright claim is that correct that is correct and if there a determination that she's unlikely to succeed in her copyright claim as the district court determined then have the threats w she would still have a if she doesn't have a copyright claim how the threats when they would weigh into a continued case against the filmmaker and others who made the film in that case is proceeding in the district court but we're still only here on the issue of preliminary injunction and not only as the threats but there are other issues that way into the balance of equities the public interest well it hasn't really answered my question if we were to determine that she is the district court was correct and did not abuse its discretion in determining that she is unlikely to succeed on her copyright claim then would you explain how in your view this balance of harm works in light of failure to succeed on the merits of the claim if this court determines she is not likely to succeed on the merits of the primary injunction would be denied we would have a direct copyright clase still against the defendants both the secondary and the primary and we would do our best to convince the trial court based on the facts then that she does in fact have a copyright claim could i then ask you about the copyright claim as i understand it your copyright claim the work you're claiming is her dramatic performance correct the dramatic performance which was fixed to film in the three and a half days that she filmed on the set of desert warrior as explained in her declaration with regard to the fixation this is  appreciate your explanation because generally fixation is attributed to the author but did she actually do anything in terms of fixation i view is that she did in fact authorize the fixation of her performance when she showed up in front of the camera voluntarily no matter who was holding the camera or if it was on a tripod or of here it's on a wall one authorizes the fixation of their performance on that film and that is what she did the performance issue and the copyright ability issue goes to the second prong under one zero two of the copyright act which is not just fixation but is it in a regional work of authorship what do we do then with when you talk about a work because actually work authorship and fixation are integrated in the determination of copyright code with the copyright office basically saying that the motion picture is a single integrated work and at least up to now i don't know of cases where someone can claim to slice out a piece merely by participating in a  great performance what is your best authority for us to take that position i would tell you one of the converse is true actually yes a motion picture can be a joint work it can be a collaborative work and let's start it but you've just claimed it as a joint authorship correct crap she's not claiming to be going out or ship is not here right what she's claiming is authorship in the performance that she delivered over three and a half days on the film doesn't warrior that was fixed to film at the time that she delivered it and of course all over have given us instructions on why her performance or something that seems minimal and creativity of course the court had doesn't have the benefit of seeing the three and a half waylay rest to that to some degree in the malcolm x case although related to joint authorship it was really looking at authorship and this segment haitian we basically said if you define author in that way you're basically you know anybody who shows up practically the bus boy who serves drinks the dramaturg everybody has a slice of the pot and that that's not what the copyright law and and well it's possible they have a slice of the pie but it becomes a distinction without a difference because you shop to be the busboy in the land in the scene when harry met sally and that person implied lee consented to give their perspire mints so we never get to this challenge or this issue there's normally in that kind of a case an consent for that performance so you're not going to see someone who's rowing a boat away from the titanic complaining they showed up on the set they performed in that film there also has to be an issue of creativity was a sufficiently creative but well you know if you take the battle scenes for example in the lord of the rings in your view does every single person who made a cameo in the battle scenes have a copyright interest in their performance as fixed in the film it may be i would say that yes to the extent yes or no would they have yes to the extent they meet the supreme court standard however it doesn't end up mattering that much in the film industry because either people sign agreements or decide with bad intent in their heart from the beginning to go out and be fraud people and to break the law which this filmmaker did and lied to her about what she was going to be and that's not like a fraud or right of publicity or some other hearing when he was released on bail when he was released after he served his time he was court or that he was not allowed to use the internet he was not allowed to use a false name and he was not a lot of to represent misrepresent himself so i fall off those things were not there then she wouldn't have a copyright but now you're saying if you add all those things then wait this is sort of we should protect that but then what courts are going at then people that you're saying like the people in the battle scene that wouldn't be down but what if they got wide and they thought they were going to be a lord of the rings but then it ends up somewhere else if they affirmatively got lied to i think that is an issue that goes to the validity in the scope of the implied license and what it is in this case it goes even further because this wasn't just a you have to we have to say that this was a work right from using the rail yeah ok so where but then we would have to but you're saying don't worry that it's not going to create a whole lot of works that aren't works now because this one sort of a one off or you're not going to see this again or something like that but i recognize it might seem troubling to call maybe the wars and then titanic having created a work but unfortunately or fortunately that's what congress said when it has the one nine hundred seventy six under the authority of the author sufficiently permanent or steve will to be perceived nowhere in the copyright act nowhere did congress say except for when it we're talking about motion pictures has to be the whole thing or have to be a certain l here's how it defines it one of the specific things that is protected under the copyright act a series of related images intrinsically intended to be shown by the use of machines no where does it say motion picture has to be a argument has been that the performance was the copyrightable thing when we looked at your complaint and then when we get to the briefing and i think especially held by the majority opinion now the writings that i authored it would have been an entirely different case but he wanted credit because he sat in spike lee's shoulder and told him how to do certain things and certain cultural issues he wanted to get equal credit joint credit in the entirety of the bit different then i guess that's why i ask you the question it seems to me that that case says where there is a work that incorporates many creative contributions but  hominid said i want a script creditor i want those pages that i wrote i want them to be knowledge that those are mine that's not what he was doing he was asking for ownership in the whole thing what i will tell you because ms garcia showed up for desert warrior she could have absolutely no complaint if her desert warrior performance was incorporated into a larger motion picture that would be the unitary work with  warrior film the district court assume that the innocence of muslims was the film it was not the film it was not what gave rise to her copyright interest with the rights to a copyright interest was her expression or her emotion everything she did during those days are cheap and it needs to be fixed i mean shit if she's just singing on the street she doesn't get a copyright for that tract she's dancing down the street and saying the same words she's no copyright every so might my question really though now going to your implied license and following up on judge smith where is it in the record we look to find that somehow she put some restrictions on the license because the district court found there was i'm no exclusive implied license right i would direct the court to ms garcia's declaration where she talks about the dealings that she had with mr the seal and what they were and what she said  would be a strange world indeed if there wasn't a there isn't a license that was broad enough to say you could use my performance or anything else if then they used that in something which had a working title desert warrior so i mean so the way you're saying is they change the title then they change the implied license well if we want to now we have to get down to some real practicality of how you make films often someone shows up and says this is a working title right and that he says that in his declaration this was the working title turned out not to be the title she says i edition for it was cast in the supporting role in desert warrior it was always called mr warrior there was no contemplation and google submitted no evidence writer maybe i miss read this but it says i responded to a casting notice for a film with a working title doesn't warrior know you are at i'm sorry to see about it record one ninety three she says i addition to says i responded five line nineteen she says working title i mean i didn't write a gap in a paragraph of words you're using and she's using i'm just looking at her declaration she does use so she made affirmative misrepresentations to her because that's not ultimately what the film ended up being what about the copyright office rejection of her request for copyright protection well of course the congress contemplated the copyright office could be wrong and that's why it said that if the register refuses registration and a court of competent law in the footage a section leader orders that there is a copyright interest the copyright registration should in fact register it the copyright registrations office is not the last word it's it's entitled to a certain  it was the segment of her performance that appears in the innocence of muslim films it was the only portion that was available to ms garcia and so she described it in the copyright  application as to however her performance in the film desert warrior and in the district court i will tell you we're doing our best to get the entirety of the performance but you can imagine discovery against mr nakoula is not as simple as one would think so if she didn't present ms garcia must make a quote clear showing that she is entitled to relief and we don't think that's been met and second misc r c f faces a triple ratcheting up of that already demanding standard the panel entered an injunction that gag speech which this court in overstreet says gets heightened scrutiny the panel had to conclude the district court abused its discretion something it couldn't do and the panel entered a mandatory injunction and third and finally the panel's decision here it we well i don't know that it was actually addressed by the panel decision we certainly think that the judge smith dissent which led with the mandatory injunction argument is correct that is this is a change in the status quo and under this court's decision and stanley in park village it should be entitled to that form of her view it's not just of course just how the mandatory standard piece of this good mandatory injunction at all of these things together i think most importantly to i think the debate about any of these four prongs i think we have what i think is a fairly clear case that that the district court decision should be affirmed it seems that the mandatory injunction was predicated on the district court's abuse of discretion hypothetically if we were to determine the district court did not abuse its discretion would the mandatory injunction just as a matter of course fall out then i don't think so i think that the decisions in part village and so on don't turn on abuse of discretion as much i think the idea behind the mandatory injunction kind of ratcheting up of the standard is to say when a federal court is changing the stratus quo in a dramatic way that's something that should only do when the facts and law are absolutely clear and sure we don't understand i guess my main in my mind wasn't really clear we first have to look at the district court's decision if if you determine that the district court didn't abuse its discretion and then the injunction should be denied my question is whether then perforce the mandatory injunction just falls by the way so i think at that point if you decided that the district court's decision was correct or not an abuse of discretion i don't know that you need to get into the mandatory injunction piece we do think judge mckeown for reasons that you were saying to my friend mr mentor we think that the merits of this are really damaging of the panel opinion and they should be that the vacation of that panel opinion should continue in the reason for that is exactly what you were saying there is no precedent zero for the idea that this that a five second performance is itself a separate copyrightable work you ask mr mentor to provide you a case there's no case that says that agree that a performer could have a copyrightable interest in a film it's normally as a joint author as the judgment of the copyright office said performer sometimes can have exercise enough control so that they are joint authors and the expert body here which is the copyright office as opposed to the p t o which is what you're reading from judge kozinski which i don't think has any special expertise in copyright the copyright you want to disagree with and that's fine if you want to say that wrong defer to every single day of the week with the decide well when that because the copyright on i am not if you want to get into that that's fine but right now i'm focusing on the language now if you want to say the language does say that and they're wrong  we can go into that discussion but i really do want you to speak to the language and you want to say i hear you screaming that this has something to do was joined on the ship by the entire work and i just don't see where in this language there's room for that interpretation here is my position i think you could read it the way i'm saying we certainly could read it the way you're saying we don't think it matters one way or another but explain to me how it could be read the way you are saying because i think that when they say authorship they mean joint authorship but they don't they say so in their in their says in their performances it would be quick i don't see how you can believe that they're saying in this entire work well because i think that's the way everyone has read motion pictures and actors to be controlled from the copyright office the ratified it's only been ratified by six countries not the united states syria being one of them it only goes into effect when thirty countries ratify it so i don't think that we should be worried about this particular language if we actually care about what the u s government agenc issue you have judgment is you were saying a letter from the copyright office from the highest authority of the copyright office on registration that says our longstanding position has been that an actor's performance could not be separately copyrightable works and the danger of the panel opinion if allowed to proceed is that you will fragment copyright law as judge me feeling you were saying and two thousand different possible claims every possible  and my friend mr minta admitted that she said any actor any extra in the lord on the reigns could bring now a lawsuit let me ask you th assuming someone is not a joint author what are the other ways that someone who participates through performance in a movie could obtain copyright so we think that sometimes an actor could be it could have the requisite amount of creative control to be a solo author so for example if pressing a sellout there but also you could be for example an independent contractor with the independent copyright interest and you license it to the film people and it gets integrated right absolutely and you would have you meaning the author would have a copyright interest that's correct and that goes to the definition of work so basically in that circumstance i guess you can imagine like a celine dion sings a song for titanic and she intends it to be both a separate standalone work as well as integrated into this overall movie and that circumstance she put retain copyright interest in there when i why is that because the definitions of collective work in joint work give us i think strong textual clues that when someone stands up and does a fragment of a motion picture that seventeen u s c want to one quote a joint work is it work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole now when ms garcia it took her five second performance she was intending precisely that her contributions be merged into inseparable or interdependent parts of a unitary whole i go back i just find out if there's any hall here if you're not a joint  there and you're not an independent creator that licenses your copyrighted work and you're not a collective work on you're not a sole author are you saying there is no other way a performer to have a copyright i think that to probably wouldn't have a copyright she would have course have claims about fraud i know it is nasty are you that your answer is you're absolutely sure there's no other category i did which you perform a quickly one on one doesn't come to me at this moment you know supper for the court but i don't and i don't think about or start position that one's not coming to me right now as one we know of our overall position on work is that is the immediate i think a wide ranging group of the media warning you that if you adopt this definition of work you do fragment copyright law into thousands of claims as i was saying ms are meant to admitted that every extra lord on the rings could sue and sure exception was while there be an implied license but just callin as you pointed out anyone can assert that they were the subject of fraud of mistake or so on and then force a federal lawsuit in the take down of speech and the grave harm is the meat you're pointing out from that circumstances that intermediaries whether they be big ones like you tube or smaller ones like the media media organizations are going to have have to take down that information because they're too afraid of the liability concerns that would otherwise and here whenever there's an accusation of fraud we certainly don't mean to minimize it anyway what that so what  what's the fear here the fear here is that anyone could if you adopt her theory anyone could allege a mistake or fraud that's right and then there is this  million five second snippets and if any of those people in any of those could allege that that that that they were the subject of fraud or something all of that speech is going to come down the news organizations are saying the new york times only times and stuff are saying we can't then host that information we can't link to it we'd be too worried that's a whole lot again that would they then have to be in the position of determining what a workplace that's exactly right do you know you put intermedia  in this very difficult position of trying to a judge copyright and who's right and who's wrong who's right on the fraud and not the simplest way to deal with this is to say look she needs to have a high standard under winter and even a higher one under the triple was crafted really with a i think a regular view of copyright law in mind as opposed to innovative one in which i mean it's ordinary works it's taken down the hunger games because warner brothers is making a request right that when you get the takedown notice you google or the massive sheer scale of that will be very different and the ultimate effect is going to be to really harm the marketplace of speech and this court's decision and overstreet says if there's any risk of that then you can't in  proceed does fraud have no impact at all than on an implied license or copyright well we think that you don't even have to get to that to the implied licensors anything like that we think this case this most simply decided on the idea that this is not a work that a five second performance is part of an overall work innocence of muslims but that she can't claim a copyright in the individual sliver and then the second thing which we haven't talked about yet but picking up on when she entered the performance was it intended to be part of a merged was it really intended to be merged or in independent separate work and so if w different function the garcia because because i take it celine dion was anticipating at the time that the song was going to be used in two things one is part of the movie titanic and two as part of an independent song that number one there actually was and that's part of one of arguments for why we thought that the panel's decision was wrong is that there is this assignment in this case and a question about whether or not that's valid and given that evidentiary dispute we thought the problem we think the proper course of action would have been to remain and to the district court instead of entering a preliminary injunction right now that gag speech and number two ms garcia has never alleged judge kozinski to my knowledge that she intended her performance to be a standalone separate work she could have put that in her complaint she could've put it in her briefs it's not anywhere in there and that is what it the precondition is for a work under section one o one so that's our problem with work a problem with authorship as judge smith was saying was that the almost on a case and not just on the homage but furrow giles the supreme court case says that you've got to be the creative mastermind behind that the kind of main driver and ms garcia even again taking all her allegations at is not an author even of the five second perform what about the three and a half days that she worked out there was some exactly she i heard my friend making that argument that doesn't matter she's not asserting a copyright interest in the three and a half days and she's only days of that stuff on you tube or something like that maybe that would be before this court but what's before this court is simply the thirteen minute fifty one second trailer not not not not so fast i mean what she's saying is look i'm claiming a copyright  even testified that he was a great contributor to the work even he wasn't enough to be a joint author but if he were a joint author even with all that he couldn't have had the rights that ms garcia's he's seeking here a joint author can not get an injunction adjoin only bound the five seconds as opposed to the entire movie but for the reasons that are in our contempt briefing before this court i have explained you can't excise just a five second going to if you are an independent contractor under is the civic license could you not if you have a specific kind tract sure if you are the individual person writing that material but a third party like you tube can't do that both technically and because it bumps up against other rights would you leora fight one thing that is not clear to me from the record i see some reference in the briefs to the fact that although there was a takedown notice and then ultimately a mandatory injunction that this movie still remained that's another reason the district court said they denied the injunction here because of the irreparable prong prop part which is we have met ms are meant to strongest argument with the district courts that is as judge pointed out the toothpaste is out of the tube at this point for two reasons number one the speech as you were saying just mccune is available on other platforms and number two misc are seeing is closely identified with the film now in the public eye there's been that millions of things and millions of downloads and so on and so for that reason the district court said i can't repair this harm the injunction can't repair the harm that the toothpaste is out of the tube and again we might think that that's a debatable proposition but this court's precedents say you can only review that on an injunction in the winter standards and so right but if money's good enough you don't issue an injunction the that's correct and you know that and i suppose that argument is available as well to say that maybe there are money can redress that met money can software solve this you know you're not making that argument and we're not making that argument they were making the same argument that the district court made and indeed i should say the same argument that this court in perfect ten accepted because in perfect ten this court said that it district court injunction was valid because of the irreparable harm prong can be met why because as this court said quote search engines other than google contribute to making these perfect ten naked images freely available that's exactly our point here it's exactly the district points point district courts point here which is you know you can enjoy new tube all you want but these images are out there and ms garcia's role in the film is out there as well and so for that reason you can't repair this harm and again that's only one of the four winter factors we think it's her strongest the public interest the balance of the equities for all the reasons about how speech is at stake here about how this court's decision this panel's decision will fragment copyright into a way that nobody has ever seen before is all i think weighing very heavily as well counselor dury really have to say that in line all of the copyright law in this particular case given that this is a mandatory  a junction and that it's an abuse of discretion standard if we were to say on the stand that doesn't seem likely this this person will be able to succeed on the merits and we right and that is to remove this panel decision which has i think a wrong view of work and a wrong view of authorship but you're right absolutely to say the standard or view alone is enough to decide this case for you tube but i guess i would caution the court that this language about working authorship being hanging out there as a mickey are pointing out is very very damaging there is no precedent as to return to a conversation i was having which because in ski earlier there is zero precedent for the idea that a work can be splintered and fragmented in these ways and it will do untold mischief if that is allowed to be the law off the land but if we were to to is try to set copyright law straight do you think academic brief i mean that's really an academic brief i mean as judge kozinski was saying she's not alleging joint authorship here so and even if she were it wouldn't matter because drunk authors can't get injunctions so i would definitely caution the court not to get into that whole question if there is a tension in our case law or sitting on paanch we've probably got to resolve it well i think maybe even i wouldn't i'd caution the court about resolving it in this particular case i'd point out for example the parties haven't even had an opportunity to brief this question only it was only comes up in a late breaking brief but if you did really want to get into it i think that you would have to confront the fact that thomson versus larson the second circuit the session is squarely on point with all my homage and if you did revisit it you would be prompting a circuit court split on that question and this case a preliminary injunction case seems to me the worst place to do that because the standard the question you're asking is is it clear in the law that she is right and i think by definition even if a homage should be overruled it's not clear in the law that's a really i think high standard to meet but overall our basic point to you is the standard her view here requires clearly a clear showing on the facts in the law we think neither met here and we think with all due respect to the panel i like to address first the issue of standards of the prohibitory versus man a tory i don't agree that this a mandatory injunction and here's why a mandatory injunction ask someone to affirmatively do something so for instance deception five o says that a court may grant injunctions on such terms as it may deem reasonable to prevent or restrain infringement of a copyright almost garcia other panel really decided it was to stop further infringement it didn't issue for instance a recall on the product so if we compare this case to marilyn interest you tickles in that case there was also a mixed injunction issue there was a stop selling the product further and there was a go recall the product the recall the product was mandatory and it was denied stop selling the product was prohibitory stop infringing copyright further and despite the fact that google's technology means that they're constantly infringing because the rats always on the wheel and they keep it all trying to find out this quote for us you know well that of course because injunction is equitable when is case law that says you have to look at each case and decide whether you think it feels more like mandatory or more like plimer and mary and that's prohibitory in towns but it to answer judge mckee is question isn't the case of us as we look to see whether the status quo is altered in order to determine whether or not it's mandatory yes there is but i don't think it's dispositive and it also says you look at the facts to determine that so you would say that this is really a kin to a traditional copyright case in which an injunction is seems like predatory it just happens that they've created a machine that keeps putting the movie n we're just saying stop running it that's it that to me looks prohibitory now what what if you say well st doing this but actually to do that you can keep running your film but you must take affirmative action to excise a portion does that change the calculus i mean it starts to look a little bit more like mantra i have to admit that you're asking someone to stop running their machine but we know from google that for them it's a very simple thing to do the core has for the declaration of the harem of the general counsel of google and they say that within twenty four hours they can take down infringing content eighty five percent cases they also employ a worldwide team around the globe that in twenty four hours command they take down the other fifty percent so when i ask in the to do something that is so extraordinary and such a burden that they don't already do every single day every single second it's not like we're asking them to formulate some strange product recall of which they have no experience it's really not much of a burden i like to ask talk about the fragmentation issue that came up in the example of dion so councils argument is that if the indian was making a track and she sent it over to the movie then she would own the copyright in that but what if celine dion happened to be on the set of titanic all i don't know you know triple x video folks they use it as as tracks for progress feed or for religious things that are offensive to her would we agree that she participated in  unitary whole so too bad a derivative work in that case i'm sorry is that a derivative work under the copyright law what you're just describing i think you would look at the intentions of the parties first of all is it a derivative work is it her when you say it's not innocence of muslims what was put up in effect ultimately by the movie maker filmmaker it's desert warrior and is that based on the fact that she signed up to do something a working title called desert warrior or some other basis that and based on the circumstances and what she was told about what she was doing so as an example your honor may be familiar with a case that involved a piece of a quilt that was used as a prop in a movie and the court held that that was entitle to protection there was a quilt it was taken it was put in a movie and there was a copyright interest in the quill happens all the time in hollywood or t v shows were clearly lights we look at you know there's a painting on that wall the way you look at trademark copyright everything that's put into the movie sure does there is a clearance on that painting it's within a different than on form and says well with the performance when we look at the preventive work used again and again maybe it's stock footage your argument be they could if it's used for an improper purpose or want to which the actor in the stock footage did not agree then that's that's protectable and you can seek an injunction if  saying i'm suing the absence of any license except for implied if there's no license then you have to look at the circumstances what did i show up for oh do i show up every week for this producer who's making lots of different movies do y you  third party host basically are at risk for thousands millions of individual claims based on circumstances as you put it that are considered after the fact is that right so each one of them would have a copyright claim and would be subject to being able to have a takedown they're at risk only insofar as they ask the uploader as to warrant that the property belongs to them it doesn't belong to them and someone complains they have a very simple process which they work very hard to get through congress which is all called the free pass card the d m c a all they have to do is follow the procedures of the d m c a they can put it in the hands of the and the copyright claimant and when they follow these procedures there have solved of liability they don't need to have this fight it's very strange and unusual that we're here because normally you get a d m c a notice it gets taken down or it doesn't you get a counter notification no issue here but for some reason eric schmidt this chairman of google got up on the news and saw and said we are not taking it down issuing some kind of a content based decision which is kind of hard to understand in light of the vast communities c yet given given the given the status of this case this particular one time i believe i ask you this the last time that the argument it seems to me that for me to on do what the district court did which is no injunction and and the fact that i have to give that district court decision deference and find an abuse of discretion i've got to buy your argument haven't i i can't just think oh it's a good argument because if i if i find myself finding that your argument might not be correct and you don't have a high probability of success and so therefore at that point i've got to give discretion or deference if you will to the district court you have to determine to know where the trial court identified the correct legal rule if the he have to deal with any other issue he decides there's not a likelihood of a ripple injury assuming that is logical given the evidence before the court ordinarily logical he made the observation that it's been out there forever he made the observation that it was there since july but the evidence showed that the death threats only came after the benghazi incident occurred the death threats only came after the views became thirty million number anybody in the world who doesn't know that your client is associated with this video maybe going to cave someplace knows maybe we worry about but the district court seemed to me to say no irreparable injury and no likelihood of success on that maybe  says that what else does he have to say i would disagree with the conclusion you disagree with the conclusion but if he says that isn't that the end of it no because this court's duty is to decide if the court decides that he applied the critical standard  you have to decide whether you were record supports the in the district court's conclusion that there was no irreparable harm is logical and plausible and we learned that from park village there is still a standard the dischord just can't say that it has to be supported by the evidence at least to some extent and you michael mohammad just correctly decided i'm not sure that i agree with the master mind language i think it's been used a bit expansively at least the west see it  in the briefs that were far before this court i don't think it was incorrectly decided but i think there is language in there that's been subject to some manipulation that i think could be harmful in the future to ormus rights and for the questions thank you