not would not be an application here because the decisions below predate the decision in carmen so that would distinguish it from davis and  what about whether it was that there was a jury finding that your client doesn't actually have a copyright interest in the photograph because it is not the author yes your honor so there's two it responses to although district or treasury carries precludes the effect going forward it cannot operate to bar direct review of an extent judgment well but doesn't really answer the practical problem which is that you're asking us to send it back to the district court and at that moment appears motions carmen and and the intention to file an appeal subsequently so the answer is already taking a wait and see approach in davis on appeal so if there's concerns that there might be kind of a few talent  allegedly owns the work paid for higher didn't believe it would have that it had a copyright interest so that maloney case addressed this issue is one of the really complicating wrinkles is that on this issue preclusion issue has been decided in conflicting ways  believe bettery trial that jury verdict is an error because what it ultimately comes down to saying is that a walk partner as part of his scope of employment was a photographer  case because  a matter of great public interest that the stimulus decision be reversed and i got to tell you as long as we're we're little bit on a tangent and i know you want to get the important issues and i'm sure you'll have time to do it look like this in march this picture is filled with creams with lots of leaves i can assure you that's not indianapolis in march so i began to scratch my head and wonder this was about no i didn't investigate and hadn't come to learn about the other lawsuit until just recently what i got a lot of questions about what's being submitted here and i'll pile on it seems to me that that you're getting the message that courts don't want to fight this case and that the reason they don't much like this case may not have to do with the ground cited by the just record here but i got to tell you i don't much like this case either  exercise an extortion i guess that's what you're facing and you're ultimately your client ought to realize that there are some times you cut your losses and this might be one of those times yes your honor so could i speak to each of those issues just  our client so that he may have misremembered that it may have been maybe that is how he described the discrepancy ultimately it was essentially something that happened ten years ago and he may have misremembered the date i think that's clearly not  actor's explanation but i do appreciate you bringing the concern about this type of case to the forefront i can assure you that as a public interest attorney who represents independent artists all around the country i would not have got involved in this appeal if this was some sort of strike suit or extortion i one of the things that is jarring undeniably is that there are two hundred or more than one hundred company claims here and very often there's a knee jerk instinct to think that that is somehow the fault of a point of and sometimes it is and sometimes it's not and actually the  difficult part is that courts can take a one size approach to this and it's really not a one size approach because there are for every person filing a small cover a claim that seems to frivolous for the court's time sure you there are ten independents were not the problem is in the digital ecosystem the internet is great for independent creators because it gives him the president access but it creates a very bizarre situation where there is aggregated harms so if this was a one claim with two hundred thousand dollars in damages no one would bat an eye at it essentially you have two hundred dollars claims alleging one thousand dollars it seems ot courts and i understand that federal courts do not want to be dealing with this but it's the only place that plaintiffs can go under the copyright act congress is currently trying to deal with that so five years ago they attempted to do something called the fairness for small artists or small creators act that didn't go anywhere currently there's the case act what they're trying to do is because independent voters have these desegregate claims they want to empower the copyright office to create something of an alternative small claims court but until congress does that this is the only avenue for people to go and i understand that some people need more look interest and others when the court says de minimis it effects genuinely it effects all types of any creators ones who have real problems with access to wall ones who cannot pay their bills because even if it's two hundred dollars disparate one thousand dollars claims it's death by a one thousand paper cuts i can tell you personally my clients in these cases very often cannot pay to forget my legal bills their own grocery bills and so they're kind of in an impossible situation because the only place they can turn is federal court and they have viable claims but of course federal courts react to that in completely understandable hostility to these claims because they seem like a federal lawsuit over the most insignificant thing but i promise you in the aggregate it is a serious concern so tons of independent operators and so i really hope personally that congress amends this but the reason that we got involved as a digital justice going in this appeal as opposed to letting the losses be cut is that even his decision will  reach having on these independent creators in this case especially much more than just mr bell so there are ways that courts can deal with this problem if they if they want to so actually the maloney case is an interesting one because there is if you fall judgment but the judge  innocent for an event where two hundred dollars and no attorney's fees if courts essentially saw this as a solution at the back end dealing with remedies as opposed to the front end with liability it would go a long way to signaling to attorneys there's no meat on the bones here don't come rushing into court for a big payday judiciary is not a lottery system but it would also allow independent creators to come forward and actually exercise their rights that they have under section one of six so i think the solution if courts are struggling with this is to encourage parties to agree that there is liability where there is not award as a matter of course of the prevailing party and this is precisely why because the coverage ecosystem effects starving artist a huge conglomerates and so the point is really because maybe one of those cases where the court will bring the curtain down at the end and i think it should in the meantime people who spent many hours and thousands of dollars of attorney and court time so so that the district court decided to get the message out sooner rather than later may not be a bad thing now you may not like the  use by the district court but the message should still be there to mr bell that there's not a pot of gold at the end of this rainbow i don't disagree with the very genuine concern that the court has but i do think that it's very tempting to have a knee jerk one size fits all response and it effects i'm i promise you are just all throughout the country that the judiciary is seeing one very focused phenomenon in this very complicated system and congress is attempting to deal with it and public interest groups are trying to  yes your honor and the argument that we would have is that because the carbon decision while valid and certainly having precludes the facts moving forward it can't operate retroactively on decision on appeal that was decided beforehand doing in those and in those other matters to be honest i just mean catch up on this i have not had time to going to do a deep dive into the legal ramifications or to consult the client on this i wanted to prepare myself of ancillary just consideration is the maloney decision already ruled on this before and to show if you do have issue preclusion it goes both ways there's conflicting rules here and i think anyone who is familiar with the work made for hire doctrine would find the already ruled that in the same southern district of indiana prior to the dispute that we have so there doesn't appear to be a genuine contention about ownership and even the walk from that is alleged to only under work for hire in other cases said that's not their understanding i do not believe so ike i would have to go to the search myself but my understanding is no that mr bell has the copyright ownership he took the photo  and the statute makes clear detaches upon fixation it would have to have been in the scope of employment which i don't think will argument in the registration as a person the registration has his name  this court has said this because this court is this does the demesne is proposition only in the substantial similarity context and is arguably at will but one others we just haven't talked about it in others so when you have cases they only that would be an understandable interpretation of the case law prior to design data but in design data this court really clarified what that only of language means because it cited no them them or this treatise so leading treatise and said that the overwhelming that are equitable in nature so we would argue that even if one was tempted to buy this argument that well maybe the diminished could be expanded to other rights one hundred on all it would be contrary to the statute so it would be reversing to support this court's own interpretation of it consistently with the clarification designed out of but also it would have a new problems let me go ahead and tell you i disagree with your understanding of design data the discussion in design data starts with saying the evidence raises a factual question of whether the download was more than insignificant it goes on to quote the language but the main thrust there is a discussion which would be unnecessary who lately if in fact your interpretation of the latter part of the paragraph was true so i remain on you'll see that it would be a clunky bit clunky reading of it to do that even if you don't agree that design data precluded that interpretation expanding diminish to the other one of six rights there wouldn't be much room in it looking at for problems here too and this may not be the greatest vehicle for in broad statement but i'm still not sure that there isn't some point beyond which the court may say look up those facts don't  i understand certainly the court can do whatever it wants i do think it would be a real problem risch for it would be a real problem for copyright law and i also just want to very quickly speak of the pollution of argument exploiting back there because the by ability must be premised on the kind of thing could reasonably be described as a direct cause of the infringement putting the locus of liability on the person who has the server makes sense from a legal perspective even if it seems to not have a certain intuitive sense of elation affirmative act requirement or an intent or knowledge requirement operate is a strict liability tort and the display right exists for reason and whether or not so many tended to cause harm isn't really that relevant because once it's up on the internet the farm is being cause the display is being broadcast worldwide which also speaks to the problems with importing knickerbocker which is a case about a copy collecting dust in a back room somewhere that actually probably didn't even say to case could be appealed there could be a new trial there could be a number of things that happen that could somehow undo that that case and it's going to take a long time and a lot of attorney's fees to figure out what it may not be easy access it may not be accessed that anybody's actually taken advantage of but do you dispute that the public does in fact have access i think i think it's probably since it wants to that and it's goes publication shouldn't be overlooked because the copyright act is a strict liability is that you the minute provides there's a specific section that says gee the infringer wasn't aware and has no reason to believe that doesn't change the fact that there's a violation does it they mean there's actually tory damages and so in this case i happen to think the absolute minimum statutory damages is the most that might be sensible but there are there's a provision for statutory damages so the fact that you didn't know i'm not sure that's a free pass in the in the factory well the person and knickerbocker an outsider knickerbocker couldn't get to without breaking into the factory and yes i'm already breaking in here it would require extraordinary knowledge where to find it but it's there in my knowledge of the internet is not enormous but i didn't hear you dispute the problem the proposition indeed you seem to affirmatively acknowledge the proposition if you have a specific l or had at least the same exact photograph it could be reached at at this motion for judicial notice and so where they don't want to get into now because it's it's too much of a mansard question for me to figure out what it means maybe the case does go back and may wind up being dealt with there but if it seems that some point if it's if it's available and we have to recognize that as a possibility that's not quite the same as knickerbocker not to see it so it would seem that one would have to have a combination like a combination to a safe or something like that to be able to find it because how how else would the public be able to access and find the image on all the other types of cases where we're infringement if it is found you have you know  not alleging that mr bell put the image or the x s and o's and so for the ones and zeros there somebody did now the somebody apparently proceeded well not but somebody put it there and whoever put it go back i'm not talking about a stranger in this case i'm saying how did you get there in the st place oh that's right we don't know exactly but it appears to be on what was on the server i mean we found it somebody put it there someone put it there that's right pretty well water had a scent that is correct you're on us and so we have at least one stranger to this transaction who would know how to get it and presumably that person might let somebody else know so i don't know that it's quite true that we could say that only bill could do it because only bill has the exact copy of the photograph webber put it there presumably to do it whoever that person told presumably could do it and for that matter anybody else with a copy of bell's photograph who presumably find it as well if they had reason to search and i don't know that they got agrees and why they would but they could they have the key if they there you know if somebody acquires another line of business they sometimes acquire the liabilities that come with it so is there a reason why wilmont should be exempted from that the reason it should be possible here so it would seem to take that out of the the normal situation and this is where de minimus seems to be a concept seems to come into it is it is so  remote that this is not something that the courts should concern itself with we're not saying we're not saying that every one of bell's cases it should be treated this way but in this particular situation in a little in one sense because we're talking about something very minimal very minor minor very trivial situation where as a practical matter you cannot gain access to the photograph you it's dealing with bi curious liability it's also dealing with a linking where there's there's an effort to try to provide infringing images