video use the song and wrestle mania twenty four which was a world wrestling entertainment production in two thousand and eight and he said his entrance music and then again in two thousand and nine and a promotional t v show one called world wrestling rock used the music  in the district court ruled in this matter that despite the fact defendant world wrestling entertainment sold d v d s with the infringing music on it made money off a pay per view broadcast with the infringing music on it tickets to the live event at which the infringing music was played and which mr mayweather was paid in a normal amount of song or his performance including this music we had not stablished the causal connection required under seventeen u s c five zero four b this was clear error it's contrary to the law of this circuit and every other circuit in the united states what would you say that calls the connection is the causal connection your honor is that directly infringing products were sold that no court anywhere in the united states is required more in a with with called a direct infringement case and that's a not a distinction that's been formally made in this circuit in the blue shot case the court does cite makea from the ninth circuit which specifies that indirect infringement analysis the difference being direct infringement means i sell a book with an infringing picture or i sell a d v d with infringing music where is in direct infringement means i'm using the infringing product to sell something else i'm playing with the infringing music in an ad trying to sell mercedes or in the maquis case which this court cited in who shot it was a symphony brochure that had an infringing picture but the point of it wasn't to sell the brochure is the point was to sell season's tickets to the symphony that's an indirect infringement case and a direct infringement case like this where the actual product sold by the defendants is infringing has the infringing conduct had content on it then all you need to show is income so like i said very briefly that mr may with his performance as part of this world wrestling in wrestle mania twenty four was about twenty four minutes he was actually out there doing his thing of that five minutes and twelve seconds o clients music was playing this was without any kind of compensation about any kind of permission what's the relevance of that only that this wasn't that great of you know probably nothing for this argument your honor when we certainly hope that your arms were versus decision moco back and that will be part of the argument of the trial because as your honour's are aware all we're talking about is a burden shifting analysis to get to the jury that the system then to show going to go back to the judge that is question what's the causal connection but calls all connection is they made money off selling a d v d that had infringing content on it just like the building and banner the one of the defendants in bomber was the builder he made he didn't even get money from the rent he got money for building the infringing building but the court said all you need to share with is the design of the building and banner is infringing money chaman as a result of that because of the infringing design but because the does not it does not exist all you have to show with money came in and the money came in on a product that was infringing that's what the bomber case says what's the significance of the fact that  copyrighted we have two separate things in other words we have a copyright it beat but there were lyrics at it and the significance of the fact that you have those two separate items only one of which is copyright not your own and in this case i mean that's i mean he did not have authorization to use the beat the music and the copyright law analysis there is no significance of that so there's no significance to that on the question you just address about where's the connection where's no there's no ok now that what did what it does come in is at at the jury trial profits we made or to the lyrics and not the music but as to whether it's infringing that the fact that he worked that our client wrote the music and not the lyrics does not matter in this analysis in that the fact it is a directly infringing says the proper instruction is the burden shifts and i doubt your your honor i can read it to you so you don't have to prove anything other than a frenching you if that's your position that's correct and it moneys were received as a part of the infringing but how do i when you say the burden shifts i'm not sure i know exactly what that means well under the statute your honor all we have to show is gross revenue we have to share those profits we show there's gro revenue and there is an infringing item at that point the defendants may then argue that the profits going in the end we only get profits we don't get gross revenues so they can for the first they can argue there were expenses that you know will to say you know there's one hundred dollars of gross revenue ninety nine dollars of it was expenses when there's only one dollars profit they can argue that or they can and they can and edition argue that their profit is attributable to other sources they are free to argue that to the jury but at this point judge enter some rule that we didn't even meet our brit our obligation to shift the burden and that's clearly incorrect in the law are you going to spend any time when your alternative argument i'm sorry would you mind which alternative argument  song had no value we had an expert opinion of the juries more than happy to say we don't believe that expert he's crazy you know this guy didn't know our certainly our client didn't have a long history of selling music to world wrestling but to say the song had new value whatsoever there's nothing in the record to support that further mr mayweather could have picked any piece of music he wanted and in fact the finitely world wrestling had selected a song about the rapper fifty cent they had ready to give and twenty four hours before the show mayweather said don't use a fifty cent song i like this better and he gave him the song with our guys music so mr mayweather clearly valued it more than fifty cents on but i think obviously your honor the crux of the case is the profit damages because whatever the actual damages value we do we do contend there's an actual damages amount it's going to be small we don't we don't argue that profit is five million dollars so you would say a proper jury instruction would be something along the lines of ladies and gentlemen the jury watched the d v d take as a given that the for arm you know they say that they sold ten million tickets but they want only one of only sold not a million without the the music that our client wrote that is not what we were required to show because that's that's the bottom case the embalmer the defendants argued they said that to the architect has to show the reason people really did this property was because of his architecture for that they rented five hundred more square feet due to his fancy building design and this court said that is not required all you have to show is the building and they made the exact same argument and that court actually said establishing the causal nexus does not require putting a buyer on the stand to testify they bought the product because of the infringing portion you just don't have to show that that that's an impossible standard to me don't rent the building and charge the tenant this many dollars for the architecture and this mean dollars for the spirit in that me dollars for the heating it's a single profit stream and in the same way in this case the profit stream for the d v d s for example is a single  profit stream that's not broken up by this much money for the costumes that much money for the scenery the same with the paper of you me or the ticket you bought the ticket for wrestle mania you don't the ticket that's a unitary profit stream it's not split up between this wrestler and that wrestler of the music in the light show it's a single prophets remember bomber it you don't you don't split up you can't split it up so what if the only way again defendants at trial can try this make that argument they can bring an expert in to say you know this music is not a big deal no one cares about the music that's that's their right at trial but they don't get to throw us out on summary judgment by saying we haven't established a causal connection when they sold the product with our music in it that they give us what getting you preserve time forth the affirmative obligation of a trial judge is to essentially prevent factually unsupported wont claims and defenses from proceeding to trial that's the obligation th submit judge andersen did exactly that in this case one of the principle purposes for summary judgment is to isolate and dispose of factual insupportable claims and that is what judge andersen did in this instance specifically with respect to floyd mayweather the facts are undisputed that a contract that he entered more than two months before the appearance clearly was directed at his status as a celebrity being able to go on to talk shows and promote the world wrestling event that wrestle mania twenty four specifically he was compensated exactly for that the undisputed testimony of two officials of w w e was he was paid only for his appearances on the various television programs that promoted world wrestling twenty four and for the event itself there was nothing in the contract that ever addressed the issue of any kind of music he was not compensated for music and the undisputed testimony is only that he was paid for everything other than music so there is no cause of connection that can be established by the plaintiff in this instance that would suggest somehow that the music that infringement was contributory to any of the income that mayweather received if it doesn't contribute to any of the income it can't contribute to any of the profits properly disposing therefore of this case i the case law five o four b requires that there must be an that attribution of some sort that causes a enhanced but if you look at what we said in but shot in this cannot be essentially attributed to the infringement why wasn't it an issue in bond how did what was different about our own was different about bond or was it a but for standard the what the reasoning of the court was simply like this lease income had to come from a building the building had to come from the architectural drawings therefore but for the leases and but for the building there would be no income therefore with that was the connection that is not the instance here because there was no obligation on mayweather spark to provide music there was no obligation on mayweather part become for with music and therefore the compensation that he received had nothing to do with the alleged infringement it is completely separate lacking any association with the income there can be no profitable connection to it let me address very briefly if you would the issue of actual damages because i think this is actually really important as well it's worth something really is it what was the evidence that was submitted money off of income there was no evidence that was set forth that he had ever least any of his beats or sold it was beach or made money from a news importantly the expert does not articulate that it had a value the are the expert says based upon what other artist got paid the maximal value that could potentially be proven is it but that's not coming forward without evidence that's not setting there is evidence that it was you there is evidence that is used and the  underlying question then becomes is that in fact sufficient to be able to say it's more than speculative does it have really the court doesn't want to speculate does it have to be sufficient all by itself that is the opinion of the expert or can to survive summary judgment  i can you look to the combination of the statement from the expert and the testimony the evidence about the other fees that were a three thousand  licensing fee that was paid can you combine that to get past the summary judgment standard when you're viewing the evidence the light most favorable to apply to that is i don't believe you can for this reason essentially what judge andersen did in his analysis was to simply say you're mixing apples and oranges the only evidence that the the expert looked at were for artists who had significant reputations red hot chili peppers dog races when you simply say we can get similar fees for this year sensually not presenting evidence that's credible to any jury no jury can accept this and therefore it's you can go beyond that issue and go to summary judgment and i think that's what he did i'm out of time so i think  seasoned a wise judge who handled this case a textbook fashion in full accordance with force circuit law at every step of the way the trial court's opinion did exactly what this circuit has said to do in a long line of cases where there are multiple revenue streams associated with an alleged infringement not a single revenue stream as was the case that they relied on what the judge did infringement contributes walker adopts the rule of direct causation the infringement must directly cause revenues to be made that would not otherwise be made that's the role of walker has been or create an exception didn't seem to have much to do at all with the infringement whereas in the bonnet case in fact that the distinction of the court made in a bonnet case was there you had a single revenue stream that was designed exclusively under  copyright all the monies came exclusively from it nobody can contend wrestle mania was designed about around the pony guns b which nobody ever frankly ever heard of before or sense i mean wrestle mania is or is the super bowl of what the continuing with what for circuit law requires and what the judge did here is once you isolate the revenue streams you parse the revenue stream and you require a causal connection between the infringement and the particular revenue stream that you're focusing on whether be ticket sales paper abuse or whatever and you look to see if there is a causal connection between the infringement and that revenue stream every  circuit case walker bush shot bar phoenix reservation quantum systems every one every case ever announced in the circuit follows the rule the judge ever since adopted what judge anderson had before him on a summary judgment was reams of evidence that we submitted into that just as the stated in blue shot is the proper procedure to do negating any idea that that the playing of this yap late into the wrestle mania show long after tickets that already been bought long after paper views that already been bought could have had any impact on any of those revenue stream we put submitted a contract with many kinds of documents station the important point is this plaintiff did not prove put fact in the prove causation i mean nothing not on any of the revenue streams we're talking about they did not dispute any of the evidence that we put it under rule fifty six which under the changes the rule fifty six the failure to dispute those means judge anderson could take those as true some of those facts were the ticket revenue for example wrestle me it was sold out before we even signed floyd mayweather to a contract let alone yet played late in the show the same is true for the pay per view i mean by the paper of you to watch the whole show this alleged infringement of the playing of yap was late into the event if you look at the video you can see this ban is already full of people there is no way that cause any consumer to go buy a ticket or promotion with it it played when he entered during a couple hours in the show that's it that's the only time it play the event program which is another one of the revenue streams that we disclose there's no mention of yep it's not anywhere in there it's just talks about matches and everything but yet because it was pointed out it wasn't even the side of it he would use this song until the night before wrestle mania they yep song itself has never been h merchandise which was another line of revenue at wrestle mania p shirts and the like of the talent whatnot that you buy out in the lobby none of that was yapper music related with respect to the rock program that they had no theory that he could present on any kind of profit claim for raw and humid he didn't have any what they pursued there and here is truly unprecedented it is a theory that they are entitled to a portion of all the revenue streams from wrestle mania despite a stipulation that the infringement didn't produce any of that revenue that is never been a lot not here and in fact has been rejected by this court in a quantum systems case and was rejected in the maquis case in the one circuit which they talk about been rejected everywhere you have to show causation as part of your burden of proof it is just legally dead wrong to say  counsel did that all you have to show is infringement and revenue that has been rejected by this court that's been rejected by every court every court puts a causation burden on the plaintiff to get over the five before her  we had mr dashes admission and this again is before judge anderson that the playing of you have did not create any revenue stream we have there stipulation that is devastating to them i  frankly don't understand what more we could offer to negate causation than the stipulation where they stipulate they have no evidence that the playing of the up song quote increased any of the w w revenue streams set forth above in paragraph five and six which was all revenue streams beyond that which would have existed without the song another part of the stipulation says they have no evidence the doubly dubey received any additional revenue beyond that which would have existed without the song gap in any of the revenue streams for wrestle mania one of russia if if if statutory damages were in play here what would be the recovery statutory to i don't i think statutory damages has been calculated that way or he just would look at usually it's an election we can't prove actual damages or profit damage or he's if you take that in a judged sort of takes into account place throughout this entire case what their theory is wasn't even presented that a judge below they presented no causation theory on a d v d below it was the expert report was very simple there are seven revenue streams of wrestle mania and we want to part of all even though we have stipulated that none of this caused any of the revenue that any of those revenue streams made and that's the theory that the judge passed on and that's the theory that the judge rejected so if they shared burden to show causation and this circuit has clearly and every other circuit says you have a burden to show causation from the infringement to revenues in the words a statute attributable to the infringement if they have a burden to come forward with evidence to that effect they completely failed to do it they produced none and they took issue with our talk about the enhanced damages or enhanced revenues this is exactly what the court said about the very reason we are here once the defendants had carried dirt initial burden of demonstrating the absence of any genuine issue of material fact regarding the attribute ability of the contested revenues bowshot could survive the motion for summary judgment only by i do sing specific non speculative evidence supporting the existence of a link between the infringement and a defendant supposedly enhanced revenues because bouchard failed to make such a showing the court properly awarded summary judgment to the defendants that is precisely what happened here they offered no evidence i mean nothing to show causation with respect to any of the revenue streams including the d v d which they now focus on and if i could just spend a minute the d v d is packaged in a way that doesn't even advertise yet you don't see it on the cover you don't even know it's in there you only hear it if you buy the d v d and put it in it can't possibly be driving consumer behavior to bide which is the quid pro quo of what the court has said look for tenant influence they were behind you before your time expires so this actual interesting actual damages question whether or not what the expert with said it would have earned a maximal sum of three thousand dollars for use of his musical composition whether that taken in conjunction with the actual licensing fees that were paid was enough to get by have passed summary judgment and create a genuine issue of material fact viewing the evidence in the light most favorable to the way it's been is one one of the reason why it's not that the day actual damages focus on the plaintiff loss he has to establish his work has a fair market value that's done by showing his work as fair market value the only evidence he offered here of fair market value was that snoop dog and chili peppers and others have fair market value these commercially successful artists the judge properly excluded that relying on a frank case and other cases we cited to him where it's not the fair market value of other people that matters is the fair market value of your work that matter and he offered none suppose the expert had said somewhere between one dollar and three thousand dollars well he didn't prove it was worth one dollar he we put in evidence for example of mr dashwood been trying to sell these beads on the internet for like one thousand dollars can't sell any of them i mean as tax returns don't show any income ever for musical composition  time is almost up i would i would state this while i think much of my friend mr mackinnon's argument is a lot of hyperbole but no case there's no case that i can tell you why there is no case anywhere where a copyright plaintiff is walked into court stipulated they couldn't prove any economic impact whatsoever associated with the infringement and then get the cut of the revenues of all the revenue streams which he admits have nothing to do with the infringement that is the radical proposition  thank your honor first i do need to correct my colleague we never stipulated that our song did not contribute to the profit damage it's what we stipulated to he was very precise that we had new evidence that additional revenues came in because of the song that is a hugely different proposition than saying when you sell a d v d when five minutes of it is our music that doesn't have any contribution to the top to the product it has five minutes they played the music in this national paper  they sold tickets they made i mean they made an enormous amount of money off this and five minutes of it was our client's music it absolutely doled out for your clients music was even it was your honor so where is that connection a all well if i can flip that question around your honor their argument is because it was sold out before the music was selected they can steal left and right they can take the rolling stones they can take jimmy buffett they can play copyrighted movies during the intermission they can steal everything they wanted and overstate i don't think it's ever stating i don't know your honor i think this is this case involved satisfaction we have a different case i don't think it has in this instance they could steal whatever music whatever movies anything they wanted because the tickets were already sold basically their theory is unless a ticket purchase or a news in advance when they purchased the ticket what infringing  the music was selected after the tickets were sold we have no case that's that was his argument what evidence do you have of any genuine issue of fact that there's a causal connection i understand you you know you argue there doesn't need to be one but do you have any issue of fact i don't argue there's going to be one you're ok my artist show that there's a causal connection what what are your facts to show that there's a causal connection my argument is that if i have a cd of five of my songs and five songs from the rolling stones and i  sell that on enrichment at the front of the courthouse that is a sufficient causal connection for the rolling stones to sue me they don't have to have an expert come in and say well i bought the songs for the rolling stones and not mr mackinnon songs i'm selling a cd with infringing conduct raised again and boehner and the court said that's not required but the rest of your opponents argument is the revenue stream was designed around the copyrighted of the ark but how do you and that's different with one with all the respect to my opposing counsel that argument is absurd i mean that's that's like that saying clever contract drafting can avoid copyright law but it isn't that the only way that you make sense of walker and bon are at the scene so if  remember your honor at the barn or case it was not just against the landlord the bomber case the other defendant it was the builder and bomber and the builders defense was hey look i didn't get any of these rants i just got paid for hammering these nails and hiring these  workers had nothing to do with this and the court said that's too bad you built the building that was infringing that you are liable for damages for profit damage and the fact that the contract the builders contract had nothing to do with what design was selected the court said that's not a defense all you have i mean if i could just read very briefly from the banner case the court says the district court found there was no connection here because bond or had to produce new evidence but the revenues were causally connected to the plaintiff's architectural designs the court acknowledged the evidence was there was a profit stream derived from the building itself however the court district court found this evidence was not sufficient because the causal connection requirement require that it be clear the basis for the profits was the design of the building this was a misinterpretation of bhutia that is the bond record and that is the argument the defendants are making they're saying we have to prove that the tickets were bought to hear our guys music we don't have to prove that all we have to prove is that for example one of the revenue streams is the pay per view the paper view was sold during that paper view for five minutes and twelve seconds are music played that is the causal connection the product was sold it contains are infringing content that's the seventh circuit the eighth circuit the ninth circuit that is a standard everywhere but the fourth circuit and i believe the bomber court as it's a standard in the fourth circuit all you have to share with the product to sold the product infringes then again this is i mean we win this means they get to come back to the jury and then argue the profit is attributable some other factor they're perfectly able to make that argument they don't get to thrown summary judgment  basically they or i mean if their rule stands then wholesale copyright infringement is permitted in the circuit unless you can prove that the purchasers the viewers the ticket holders knew  what infringing product it what they were going to see well is that the case whether statutory damages is and if their argument prevails it's katie bar the door it is your honor not where stat statutory damages not be per d v d it would be the that's not the way the damages are counts but you know as a plaintiff we get to a letter remedies and we are pursuing profit damages such a tory damages are not available to us because of the date of the copyright registration in that regard and i don't know how the case going to come out but if we disagree with your strongly held view of the law are you prepared now to abandon your claim for actual damage