court's permission i would like to reserve about three minutes of time ok what you clock and interpretation five o four c one should do five things first and foremost it should be consistent with the plain language of the statute second it should be consistent with the legislative history as a whole third it should properly apply principles of joint and several liability and not conflate them with secondary liability fourth it should be workable lead to practical and commonsense results congress did not intend windfalls for copyright owners it did not intend limitless liability and it certainly didn't intend other standard civil litigation that in my opinion that the case there is case law out there that suggests that in a downstream distribution scenario that joint l several liability exists i will say that in when it comes to profits which is a different remedy of course a cop or a donor has the option of choosing actual damages profits or statutory damages in the context ninety s is discusses that counsel your view is that the columbia pictures case even though there's a footnote discussing join in several liability the trend several liability was not involved in that case at all right th the united circuit in that case just did not have the opportunity even addressed joint several liability in that case because there was no evidence in the record that mr feltner who was the owner of the television stations was jointly  also in the condo puts this case that it was not a downstream distribution case mr felt there was simply the owner of three separate television stations columbia had distributed the episodes itself yes and the case dealt with vicarious liability which was different in your view yes so the fifth point was was that the statute should be interpreted the same way every time no matter if there are contest within the the statutory limits that congress have sat so a jury can decide whether or not within the range of zero to one hundred fifty thousand dollars where it would joint and several liability within the copyright code and common law that's developed has to take account for that distinction yes it was and when you mentioned that right yes the if there is absolutely wolf unless and in a sense are certainly part of the equation ok so in your view how should the and you're claiming the district erred by awarding seven different groups of statutory damages i'm asking you what you think the district court should have done and what's the logical to well i so i think that is probably wrong because at least just for starters and you have to because the statute award with an innocent infringer because that would completely dilute moneths cup ability for its own action infringement well i mean it would take is we would say oh we're saying that if you're well full infringer you can you can be liable for one hundred fifty thousand but if some innocent person down the line started to sell your your intentionally infringing material you get the windfall of having then be jointly and severally liable with you so that  speaking that if a particular defendant or infringer cannot pay well then the plaintiff will still have the opportunity to collect that award from someone we ask you another question so nehmer says that each infringe the same act of infringement as mana so we need to look at the principles of joint several liability here joint several liability does not simply equal joint civil liability and secondary liability are different things and that is where the district court heard here joint several liability looks at when there are multiple infringers involved the case whether or not they are contributing to the same harm ok secondary liability looks at something else  several liability in the in the copyright law and as it has developed in the common law that was incorporated into the one nine hundred seventy six act has a different meaning then the broader meaning in my view participate in that that infringement because they knew they were making garments from material that infringe the copyright owners design they knew that and so they were willful infringers and they knew they were selling that and so workable is by reading the plain language as it states which is you get separate awards in a single case and two circumstances number one if there are separately individual liable individually number two if there is no joint we know joint and several liability between any group of infringers and let me give you an example to illustrate this if in this case plaintiff had added a company x to this lawsuit and company sold those though that fabric downstream to manufacturers and the manufacturers resold to retailers in that case you would have to separate streams of infringement to totally entire different streams and there would be no joint several liability between mana company action or any of their joint or any of their downstream infringers in that case those are separate unrelated independent infringements and then you would have separate awards but in this case what's different is that you just have mana who's the when initiated the infringement they sold fabric that exact same fabric was incorporated into garments and then that got those garments were sold to retailers and then the re action and then sue the innocent infringer separately and other actions so that they can elect statutory damages in each of those exit actions of the us some set forth in the statu skipping over it has to be the same act of infringement and you can infringe a copyright in many different ways you can infringe it by making copies which monic did and might also then distribute copies at the end the wish i had the opportunity at the time to go through the entire legislative history with you because it's absolutely clear on these points but you got your brief oh yes yes a well the night obviously didn't think it was as clary she suggests what the legislative history is absolutely on point on every subject and in fact it starts the legislative history says it provides that a court cannot make an award outside the statutory damage range if the copyright owner has chosen every chosen not true with respect to multiple copyrights multiple owners multiples of rights or multiple infringements what that means is that when you're talking about separate and separate infringements we're not talking about different rights different exclusive lights like for example one party infringe the right to public display and one the right to reproduce all that is taken into account in the legislative history the legislative history is only about two pages if you read it the statute or so not only mean cannot or can i appreciate that you're going to remember that you were actually i think a while ago so that you wanted to talk about the specific language of the stature in fact a lot of the precedent that you rely upon which is consistent with your position goes through the language the specific language in particular the use of any to indicate an intention that only one remedy should be available so can you just tell me briefly judges have decided which is that essentially says there's an equation you can come up with the plain language if there is any joint several liability want to more if there is no joint several liability between a group of infringers then you have separate awards that goes directly back to my example as if if there had been a separate infringing in this case like a company x who had independently and separately infringed upon the design but that arises out of what language in particular i guess have a liability that it does not require joint action it does not require joint tort fears can act independently of one another it's broader than the concept a secondary liability and really where the district court went wrong here is the district court went wrong when she said that the infringement is the harm sorry excuse me the harm is the infringement that's such a critical issue here the harm is not the infringement the harm is the harm the infringement is like a kick in the shin and the harm is the bruise and buy it by so within the reason that's important is because joint several liability looks  important i think to understand something about him or it's numers not interpret in five zero four c one and saying in a hypothetical form this is how it works nemmers a commentary on the law and so he is provided trying to provide some context of the footnote that's included pictures but the number hypothetical you're talking about makes clear that it's assuming that individual liability is involved in between a b and c the movie theaters in the middle of that same hypothetical there is actually a footnote that says assuming that there is a joint several liability then it's a whole then it's a different scenario and it actually cites to have a ton case which is in one circuit case where which is very consistent with the the interpretation that i'm  and so you'll see in there are some references but it nimer it is in that he'd recognise that he's trying to say what the hypothetical is but the next twenty pages are all about the district courts in the various decisions that have disagreed and rejected his his hypothetical he discusses all those cases he doesn't reject those cases he is simply providing a commentary on the law he's not saying five of course the one should be interpreted like this and there is nothing in his clients want this panel to effectively know if i had the jury's verdict of multiple wards and overturn the district court's allowance for the jury to make that determination i was a bit surprised you reading the reply brief the council stating well we didn't need to put forward a full record on summary judgment because we weren't seeking a finding that the summary judgment really was wrong counsel move on summary judgment for a says that there has to be a complete joint and several liability and if there is not complete joint and several liability then there can be multiple awards i put it talks about an award of statutory damages or for which any two or more infringers are liable where does it require complete joint several liability to limit the award to one well so your question disciplinary point before i can answer your question and that is that it really goes back to judge sessions question the very first question in this case of whether joint several a building applied copyright is the same or different from joint several ability applied in other cases because as to when joint and several i believe is appropriate and my colleagues are compelling as correct the joint and several liability can be appropriate in three circumstances and really only three circumstances where there's true joint action toward the same act where there's a vicarious or contributory lay building and under certain circumstances where there are separate independent acts but if you look at those cases where separate independent acts can lead to joint and several a building those are all in a context where the harm is indivisible what i mean by that is you see that in cases involving say wrongful death or cases involving each person is liable for the whole loss even if they did not act in concert so the only times that you're going to find joint and several liability among parties for not true joint actors for the same harm is where this injury is indivisible where does it say that in the statute the statute talks about where for which any two or more and for injures are liable jointly and severally i just don't see where your argument flows from what appears to me to be very plain wording and in the statute because there are no there are no instances of common law where two actors can be jointly and severally liable for acts and harms that are di counsel indicated that like the act is the kick in the shin the harm is the bruise if one person picks me in the shin and there's a bruise and i walk down the street and someone else grabs me and breaks my arm they don't both become jointly and severally liable for breaking my arm even though they both violated in separate acts violated my bodily integrity so in this case if everybody had participated in one vast  conspiracy with exactly the same distributions and the same harm you would agree there could only be want to ward so i think i'm not sure i fully understand you have that if all of the defendants had conspir infringe your client's copyright in the exact way they did here there could only be want to ward know the conspiracy is relevant to the willfulness of each party and may be relevant to  finding of contributory or vicarious infringement in the name of hypothetical for example you've got the distributor the film distributor distributing to multiple other than it was really the columbia pictures hypothetical which the only one show you tell you may have a distributor jointly and severally liable with them through contributory of it here yes because they're contractually obligated they've got control over it they still have possession title to the film but that's as i mentioned is three instances where joint several a guild is appropriate one is true joint action another is and this is the case those clearance the other is where you've got like areas contributory liability and the third which is only copyright we have bought for analysis connecting them to the upstream without that upstream infringement they would not be able to infringe downstream and that's true that's true but i don't think that affects the analysis look like a cup very plaintive has the option assuming time the registration of electing actual damages or statutory and just under an actual damage analysis each defendant is liable separately for their own profits the purpose of the statutory damages option is twofold first because it's congress people much smarter than me have determined that it's very important to promote the useful arts and to do that to have coverage holders prosecuting printers basically not allow infringements to go on prospect they limited the remedy i mean they said if you don't want to go for actual damages you are limited to an award of statutory damages for all infringements involved in the action with respect to any one work and it goes on and your colleague on the other side is saying well if there isn't it doesn't matter if there's complete trying several liability that congress limited it to want to ward because you're always have the right to go after your actual profits well what congress said is  the statutory damages and we've cited the you know the legislative history there were congress has said is that the purpose of statutory damages is to ensure there's an adequate deterrent to punish and deter and ensure the parties are complying with co law that purpose would be frustrated by my colleagues interpretation so let me give you a different interpretation that i think you'll find perfectly consistent with the language and makes a lot more sense and that is that so let's start with the language and  that means is that you look at all the infringements in the action and then you can create these conceptual buckets ok here's a violation of the right to distribute here's a violation of the right to copy here's a violation of the right to create a derivative work those are all infringements that let's say these two defendants are jointly and severally liable for here's some additional infringement that these defendants are individually liable for and once you've taken all the infringements and you've put them into these buckets based on whether the individual acts or join several liability or join several acts then you've got buckets and each of those buckets reflects all infringements for which either party is individual  and that actually says look you can't seek a double recovery for the same infringing acts you can clearly you can see if you double recovery for the same infringing act but different infringing ass infringement is divisible you can say where you stepped on the copyright holders rights it's like a trespass case in a trespass case the violation of the property owner's rights is the harm another might be a damage you put on that it could be and a nominal damage of a dollar whatever it is but the violation is the harm so do you think that the district court got it right by avoiding separate statutory amounts to  fashion absolutely the jury had to determine based on each party's relative conduct what is the appropriate amount that is going to punish and deter and compensate and make sure that there's no one to gain by each party and that has to be fashioned on a party by party basis and your your theory you would not say that man and a b m were jointly and severally liable because manufacture which is another act of infringement so the evidence of trial was that both a b n and top fashion the other two appellants had independently sample had sampled the design from runway financial control and no the hallmarks of actual joint and several liability weren't there so the question becomes should there have been contributory or vicarious but the liability is ultimately again against n so put differently no where in the verdict form and no where in our argument did the plaintiff seat multiple statutory damages words against me it simply begs the question as with actual damages whether once we see in limiting damages and also limiting causes of action for infringement by use of the word any it seems to suggest that there should be a limited remedy in copyright situations and you know we've been approached with this argument that if you accept your approach here you're opening up the floodgates for massive recoveries so for instance if man i had downstream one hundred forty or two hundred or how many other theoretic infringe also the courts to open up this area for statutory damages in large amounts to a large numbers of people and all of a sudden these copyright cases that were worth one hundred fifty thousand dollars at least according to these other jurisdictions are now worth millions and is that what congress intended by this particular st so i think there's a false premise that there is a real risk of there being some extraordinarily unreasonable verdicts out there or cases this all falls under the copyright act of one nine hundred seventy six and in the forty odd years notably my colleagues have not pointed to a single grossly excessive verdict that resulted from this the culprit oh he probably wasn't born at the no that's not the reason why the reason why is that there isn't a simple remedy that courts can avail themselves of if there is in fact ever an excessive verdict and that is courts can always rent a room in it or or motion for a new trial and in fact i personally have seen that multiple times in co infringement cases there was a case in new york where the district court judge said look if this ends up in some excessive verdict you know there will be remitted there there's a case against h and m that went to trial last december that following a verdict of over eight hundred thousand dollars the court said if the court can conditionally granted a new trial unless the plaintiff accepted her emitter of down to two hundred thousand and change which the plaintiff accepted in this case in this very case after findings against appellants and willful infringement on three claims which is a strong factor favoring a lot of attorneys fees the district court declined to grant attorney's fees finding that the four hundred eighty thousand dollars jury verdict was enough to compensate the plaintiffs  there are a lot of vehicles available that the courts can address any grossly excessive verdicts on the other hand on the other hand if this court puts into play an interpretation of five and four see that says that even if you are a if you have an inadequate verdict to effect the purpose of the coverage act of compensation in deterrence there's nothing a court can do about it after the verdict if you have a jury verdict that is excessive and unreasonable there is lot of the court can do about it after the verdict my colleagues are talking about all of these cases that go contrary to the rationale that you put forth that however the two cases are controlling from the ninth circuit which are friedman versus live nation and columbia pictures about consistent both with the name or so would we have to see this vontae and to have to reach question of what constitutes joint and several liability in the context of copyright was not addressed in those cases but again to start with that premise that there has to be joint several i build it and what does that mean when you go back and you look at all the cases joint several liability only applies to separate and distinct acts they cause separate and distinct violations of a person's rights where the ultimate injury is indivisible and that is simply not the case in the coverage context and therefore in the contrary context joined several able to can only be a result and this should this court to find not only that the court did not abuse its discretion in reaching the conclusion it reached and it is an abuse of discretion stand but should issue a ruling that in the context of copyright because infringement is divisible you can separate it into the separate violations and distinct encroachments on the cover holder's rights that infringed joined several ability can only be achieved through joint action toward the same act or joint actions in concert with the same infringement infringing acts or if the court agrees with that then the matter should be remanded so that the ultimate judgment reflects that because it is not as currently how would that how would that be if i mean what would the judgement look like if it reflected that it looks like the proposed judgment that we submitted which is that man is also only by virtue of its can contribute to or liability liable for the judgment against it and the downstream so each downstream is only liable for the judgment against them and everyone upstream would be liable for the downstream as well that's that's what judge order initially was before trial and then for whatever reason that didn't get incorporated into the final judgment all right thank you i'll give you a couple minutes to respond just address him really quickly the district court's analysis of the district court's analysis is a novel one that no court is every indication of whether the knight circuit or any other district court the idea that you have to separately analyze each infringing statute itself is gives you copyright owners and election and i think the statute is it is very clear that the district court has discretion within the statutory limits it does not have discretion outside of  providing upwards of one hundred fifty thousand dollars or scenarios in which one infringer is loud well for a thousand or ten thousand which are very real concerns here because copyright infringement often does result  in you know many downstream infringers and there's a lot of examples of that in our brief this really is it and round around congress this is an attempt to get around the statutory limitations of congress are you counsel ok thank you you