to reverse the the finding of the zero profits and to direct a verdict being entered below on the finding of the amount of revenue that proved was flowing from the infringing streams the burden under section five four of the title seventeen of the copyright act places the burden on the plaintiff appellant this case to prove how much revenue flowed from infringing streams the burden then shifts in the profit almost every time we had a break throughout the record from day one throughout a two and a half week trial there are dozens of citations to the record which i just prior kept asking me where the profits where the profits where the products i'm not going to let you put on and any other witnesses most to prove where the profits are and that was college that ninety seven i stand corrected was the only thing they did put on with respect to the internet revenue in terms of so called specific expenses but even there your honor they did not   ate my homework i mean it's your responsibility to know what the evidence is that's going on when you're sitting in the courtroom and if you didn't make you contemporaneously job jackson and unless it's playing air you waived it well the judge this record judges do have an respected evidence that i had admitted counsel move to to strike after the fact and it got straight stricken by that you actually didn't have any problem striking evidence that was before the jury both written evidence and testimonial evidence after the jury heard it he didn't have a problem with with the one that i moved to strike i do believe under but under federal of evidence one zero zero six justice tom and i do believe that the judge does have an obligation notwithstanding the lack of an objection to make sure summary exhibit with or without objection without having any underlying material produced after in the case so even if even if the ninety seven was admissible in your honour's the there's absolutely nothing even remotely similar kinds of losses overall in the business you can have small segments within the company that are profitable in this case the print infringement revenue was profitable at least we prove revenue their job was to come back and prove expenses that are specifically related the trial i kept i even told the judge at one point just kept asking where the profits and i said i don't want to i don't want to explain it right now because they'll change their evidence they hadn't that they hadn't finished putting on their evidence and and he said so what but maybe they will with respect to the license fees there's a number of different areas and a number of different areas alleged and with respect to the license fees the jury awarded zero for hundreds of infringements over a four year period of time and the thirty two thousand seven hundred dollars only went to the last two books out of dozens of books that in each a girl wrote over four year period for wilson geiger over that period of time they paid him several hundred thousand dollars for his writing for his brand creation frustration in the brand they also had a written contract that they would not use the materials that he wrote with respect to the descriptions in these books until you know without any other context other than the wilson guy good books without further negotiations and for the compensation as they signed that contract they were doing just exactly that they were putting it on the internet and they were putting it in the broadside and they were putting it in the stouffer's they were infringing in at least three different contexts and the in the exact same time i think signed the contract which memorialized what it was that they had done in the past what they what it is what it was that they would do in the future there's a number just before we went to jury and what i what i really want to urge upon your honour's is that if in fact the measure of damages under the copyright act does not allow for at least as much as the contract would have allowed then i would request we really should be able to try that the contract case but i would argue that the contract issues in this case because copyright act covers infringements it covers alterations of copyrighted material it covers compensation sort of the willing buyer willing sell er hypothetical retroactive negotiation and in this case the evidence is such that the big challenge here are on a number of different challenges including instructional but i want to focus right registered at least thirty two thousand seven hundred gives almost sixty thousand apiece what's wrong with th the president wilson geiger said we didn't ask how much he wanted because he would have asked for too much when they when the evidence the the evidence that the court excluded was that was also an unsigned error is that the industry practice is such that when you have an exclusive right to use copyrighted material in one context and you pay for it and then you take it and use that material and it's separate context that that there's a multiplier that's applied not only to only get one hundred percent of what you got the first time but you get a multiple of that and the multiple ranges from one to ten and the judge absolutely refused to let me let me get into the jury's hearing any evidence other th and says how many different things he would have testified to and the judge from day one absolutely refused to let me get richardson either as a main witness based on his own personal experience in the industry or as a  four hundred items times the amount that he had been paid in the past for each item one hundred per item times a multiplier three that's how he came up with the figure a million eight that same formula was used by the defen expert he just plugged in different figures and his figures are not supported by the record they need to make us figures in that formula are supported by the record and that formula is well accepted in the industry practice who was your  presenting him as an expert in the i was presenting him as a precipitous witness based on his observations in the industry and he was identified in deposition early on in the case judge pryor allowed the c f o of land's end hughes to testify based state that in his opinion that was an industry standard applicable to this transaction though the foundational testimony by the ethics so called expert witness of what he has  observed he's irrelevant to this controversy unless it's company by valid expert testimony that such was the custom and practice of the industry is not some industry witnesses can get on the stand and testify about what happens in the industry without being designated as expert witnesses for instance  fact that the jury returned with a zero verdict even though they found that there had been infringement at least in two instances the only evidence that the jury had for it regarding the elements of profit really was the uncontested testimony of mr hughes who was the chief financial officer of land's end at the time and exhibit ninety seven exhibit ninety seven was probably some perf a list in light of the testimony of mr  summary judgment filed by mr chico prior to the trial so the summary if you will of the cost and expenses associated with the liquidation of certain of the wilson geiger products was well known to all parties long before the jury was convened on august seventh mr wells counsel complains that under rule one zero zero six the documents that supported exhibit ninety seven were not produced or made available during discovery did she y equipped to create its financial records but as mr used testified they are done according to gap it was a public company it was audited every year by outside auditors and the  the integrity of the data is really not subject to question but specifically no i am unaware of any request during discovery either formal or informal to produce the underlying data even assuming it would have been more than just computer pronounce as i understand the role of overhead in this in this case the role of overhead may or may not be appropriately deductible as an expense depending on the wolf and that's the infringement here lands in was found not to have infringed willfully so that if the overhead figures are in fact added on it simply makes the last greater it does not change the number from red to black and i think mr hughes testified that it's it's almost a point of obviousness that if you're in a liquidations to chew ation dealing with retail products what you're trying to do is minimize your loss not make a profit and land's end is no different than any other entity in that regard except perhaps it's a little more successful in reducing its losses but there certainly was no demonstration that it was profitable in response to mr hughes this testimony against him of ninety seven and in fact logic we we submit would support the proposition that you do not lexar further questions on the profits issue me i'd like to address the license fee or the actual damages the jury returned verdict of zero for actual damages even though they found some infringement but this is not that surprising because the jury was aware of the time it retired that the burden of proof to establish the actual damages rested upon the plaintiff the evidence that they had before them in the form of testimony from mr chico was that his opinion of the last was almost one point nine million dollars but even on direct examination that is confirmed in cross this was simply a number that he had to be charitable manufactured such that had a hypothetical negotiation occurred this is what he would have demanded his testimony was unequivocal that he did not want to license the copy to wilson geiger land's end to be used on the internet and therefore he would pick this number knowing that it that it would not be acceptable well that really isn't evidence of value that isn't evidence as to whether or not the fair market value of the copyrighted material has been reduced because of the infringement nor is that evidence of what mr chico could have expected to overseed for the copyrighted material on the open market or through an arm's length transaction the fact of the matter was and as he admitted this copy had value only when it was in it was associated with a particular clothing product that was being marketed by lannes then it could be the finest piece of literature in the world describing a bomber jacket but it's still describing a bomber jacket and that's not going to go anywhere unless you're selling the bomber jacket itself so that was the only evidence that was before the jury  as to value and i believe your honor as you recognized the jury was free to ignore that evidence as being evidence of that that was certainly within their problems dr lined which a witness presented by lands in testified that in his estimation and these are rough approximates that had a hypothetical negotiation occurred that mr chico may have expected to receive somewhere between three thousand dollars and thirty two thousand seven hundred dollars for the later use of the product now the jury did not accept this as evidence of the actual damage suffered by mr cheikh go because they awarded zero in that category but again the burden of proof on this issue was with mr chico not with lance then lands and offered this testimony as an alternative to what mr chico was saying but because it was lands in the expert the jury was under no the time frame to provide for statutory damages and i would submit that this is actually a triumph of the jury system and you had the jury attempting to be fair to mr chico recognizing that his burden of proof had not been fulfilled but at the same time awarding him a statutory damages the only competent figure that had been provided in the record of actual loss so how do you handle the objection raised in this appeal the judge briar ha submitted to him a motion to keep mr professor lind off the stand as being unqualified to formulate an opinion which most who was never ruled secondly when the pla  that it was harmless because dr line was clearly competent to testify he's got a doctorate in economics from the university of california at the time he was the pricewaterhouse coopers partner in charge of their intellectual property valuation practice in the western united states has been qualified to testify in numerous courts both state and federal on these subjects so to the extent that there had been any properly made motion under dauber measuring his qualifications and his testimony against that test eve passed with flying colors what did the council file one in the form of a motion in limine he filed on august the seventeenth which i believe was a friday and i guess the question i'm having to follow up on judge vance question problem i'm having is i looked at the record and the only thing i can find in the record is the court basically says i'll take the motions under advisement and then on monday morning when you call dr lindy lined dr lined counsel for mr chico the state's on the record where are the courts that something to the effect of you know i'm i've already handled that or something she says i understood but the motion pending has already been ruled on was there something that happened in between friday and monday that the court reporter didn't pick up with regard to this motion  there i'm not aware of anything specific that may have missed i guess when we called dr lying on the following day that i'm sorry was on the monday when we certainly were under the impression that the the motion in limine e had then and had been denied and i cannot tell you whether or not that was because judge pryor specifically stated from from the bench that that was the case  why did the court reporter didn't pick it up his it's not in the transcript although there does appear to be in this sort of a little statement by ms brown an acknowledgement that that the motion had been ruled on  i mean you were at trial to do this i was assuming you were paying attention perhaps more so than opposing counsel at times but what happened i'm at a loss here as the appellate judge trying to figure out where it i'm afraid that we can't be of any assistance to you to locate something specifically in the record where the words i consider the motion and its denied appear did you file a response to i don't believe we did i think it was filed on the friday and then we we sh that it should have in the night under all circumstances whether we file its response or not even if i were to agree with you how can you help me get over our decision and cal state hayward where we said that in the performance of the district courts gatekeeping function and the trial judge has to make a specific reliability determination where there is a challenge made to the competency of a witness to offer an expert opinion well i believe that if you would review the transcript of the proceedings that occurred while dr line was on the stand but the meeting before during and then immediately after that effectively the judge made comments to the fact that he believed that dr line was competent to testify in this area documented it did occur and whether or not it should have been documented with to me again be harmless error because obviously nothing dr lyons sad when to the detriment in everybody's eye but what what was lynn's scope of expert testimony what was that testimony which was so far away from the can of the more and patent cases than a dozen copyright cases but the principles still apply and i believe ms brown in her brief drew comparisons between the pan do it case which was that and in this current situation d lyon was charged with the assignment of determining object only what the range value would be for the copyrighted material and that is what he did and that is what he testified to which is range of value for the copyrighted material which he testified i have a high and low range depending on a judgment as to the comparable worth of placing the as on the internet as opposed to pu on a very high volume print print catalogs which are lands and main means of reaching their clientele yet so the low end is simply a fifty percent equivalent ra paying twelve hundred dollars for a piece of copy it went to the internet if you get sixty six hundred it went to the print if you get twelve hundred right and where does he this industry that fifty percent was a supportable percentage of the print the originally contracted for print price if it goes on and if it goes on there and if it goes in a publication it could be  hundred percent it could be i think there could be hundreds and therefore why isn't that good testimony for the plan disposition of maybe if you get nine hundred thousand dollars of all went on the internet and a is its advertising media and the advertising media is for particular specialty products i don't know whether you have any familiarity with with us and geiger which doesn't exist anymore but it was it was like j peterman on a much lesser scale and had some very snappy copy describing bomber jackets and that's and you know even at the trial we had specific items of clothing that the jury could looking and touch and feel but the copy has no value whatsoever without the bomber jacket or without the other item of well it's got a club or well it's got a product so it's again as a matter of logic not surprising that the jury would conclude this really wasn't worth anything i mean it was so specialized and so focused that it wasn't worth anything on the open market but again reflecting i think the wisdom of the jury they did their best to give him an amount that they believed was credible which was doctor line testimony that may have represented him they were unwilling obviously to give him what he was demanding the one point nine million which in the context of the relationship was a very difficult thing to sustain because lands in h if it goes imprint i'm having difficulty with that i'm having difficulty with the idea that we have with their images expert of what relevance will be the slip and fall case on like a broken ankle that's correct yes thank you i think your time is up thank you very much has not yet been ruled on that the transcript is different from what i said so that's what if you read the context in which that comes up it doesn't make any sense for me to say what can i do with that i mean now you're telling me that i can't rely on the transfer of you don't file a motion to correct the record on appeal i mean i don't know what to do with a statement like that and the answer is there's no there you will not find anywhere in the record a ruling on that motion because there was not ok thank you and with respect to the  when when when judge pryor finally let me he was even not even going to deny their own opinion as the value which is always a minute in an intellectual property case when it did finally get admitted he instructions to the jury to ignore the police testimony as to damages in so far as mr chico was explaining from his state of mind the people that he talked to did it and understanding as to industry s chico's discussions with people in the industry including grant richards and how mr chico came up with the formula that he presented in his bill to lance and went round and asked for the bill for the infringements so judge point of mr jacobs testimony he said now you cannot give this testimony any weight at all he didn't he didn't give a limiting instruction he gave another fine instruction so the jury was not just free to ignore it they were recess before hearing the final matter on