commit error in creating its mass marketing exception to the statutory damages role so let me look at each one of these things if i may first issue is was there sufficient evidence to send to the jury the question of willful infringement two aspects of that you haven't as we presented exact copy leaves an inference a strong inference of copying from the jade testified that she knew the glen friedman and taken pictures of d m c knew that quinn friedman had to have his rights cleared but never bothered to ask she also testified that they knew that ice t another artist had a deal with clint friedman and that they had the clear right but she never bothered to ask run d they also had that procedure they sent in approval form that they relied on and that they never said in the provable form that run d m c was clearing the rights of glenn friedman but i think the most the most damning evidence of willful infringement is their approval procedure how can anybody believe that asking the third party for approval clears the rights of a copyright owner if i may since we're in short time if i make an example if i were to tell if the justice is of this court you know your honor i need a ride home i'm taking your car and by the way mr lynn said i could do it when anybody believe that that haven't given me permission to take the car of somebody else and if i could that didn't create intent i would that be evidence that the procedure was reasonable reasonableness of the approval proceeding under peerless had to be proven by the defendant at the trial court said that point if had to prove it was an reasonable t they never said where they got the images from right to have this huge hole in the record which would solve everything if anybody wanted to tell us right we asked the president of the live tried to depose him to ask a money man what he did hooty ask or anything like that i don't think that that was it was taken down i'm sorry that i don't believe that deposition was taken but your argument though is that despite perhaps not the strongest accept or reject this but i think the most important thing is this approval procedure defendants told us we got an approval procedure this procedure just on reasonable no one could believe that a third party would give approval for the copyright owners rights and to ask  copyright license in lieu of a copy in the ninth circuit in two thousand and five it's got a whole chapter on approval procedures and one of the things i said in two thousand and five is photographs photographs require clearance checking permission they would be queen required from the photographer the copyright owner in any recognizable person or object shown in the photograph somebody would have known that you can't just ask somebody who appears in the photograph and assume that's a clearance you have to ask the copyright on and nobody asked that so the question is whether that's sufficient to go to the jury to say that there was willfulness and this would be evidence of wealth and yes in this context includes reckless recklessness and kluge recklessness and includes knowing disregard or knowing ignorance and so that's what we would say is this we should be able to send this to the jury celtic and i fast forward to your third point yes on the issue of tests or damages but as i will say for me this is the hardest question in the case right i have a hypothetical  each downloading for photos that we did not have the proper license to take two things to be clear here remember the downstream person also has to be an infringer so i'm going to assume that when these fifty if i'm just a consumer and i buy infringing goods that's not infringing after they haven't done it so i'm going to assume that what happened is each of these four people each of the fifty million people are actually also infringers in other words they were told make a selfie you have a do it and then each one of these fifty million people could be sued for infringement ok so i'm going to assume that here what is the statute say statute says one statutory damages for one act of infringement here so if it was if these consumers were not infringers i get one statutory damages want to say as all infringements involving the right right but now we've assumed that each of these consumers is not merely a passive recipient they are also an active in changing in principle i could go into each consumer for taking the selfie and putting it on the air ok so since two consumers are not jointly and severally liable with each other so that leads to two possibilities a columbia pictures is wrong i asked in the statutory language european and the one thing that was true and plan b pictures of isn't true here is that there was a determination that the down the line  entities were also infringers like right here what we have we don't know what other people are not in this case right so what does it mean to say that somebody two or more infringers are liable jointly and severally when nobody has declare issue here we couldn't even get to the proof of that because the judge wouldn't even do that and i just knew mean that you're even though they're not in a lawsuit and you haven't sued them i mean libel usually means have been held to be responsible traditionally they haven't been held to be responsible you're not seeking to hold them responsible judicially i have a joint in several liability if there is joint civil liability i don't have to sue both parties one because one party is liable i have to prove the act so i would have to prove that the act but you don't have to prove that the other people are also well i think i have to have to show that the other people the other retailers sold infringing merchandise sure i don't have to prove also that they didn't have any licenses they could have  licenses but well sure we could prove they didn't but they certainly didn't have any licenses from friedman that's and that we know that this prima didn't give anybody a lot i don't know that i mean you have to prove all that right i got here that obviously i have to prove all this when i get to the trial is going to prove all this but right now what this court said is you don't even get the chance to try to prove it and all we're saying is i should get the chance to try to action here was that these other people at least were also in the case and and they were afraid jurors who were who were parties to the case several liability i don't need to sue the other parties i'm going to have to go to court the day that that's the one big distinction between this case in colombia other than the size and number of people here but i think that if i may say here that i think there's something to important remember here too the statutory damages awards are not automatically you get the maximum the jury can always adjust the statutory damages award between the minimum the maximum based upon whether they s violation of twelve all one is up to twenty five thousand dollars an infringement and the courts have said this is what congress said there's an eighty seven million dollar judgment issued for some violations here in this room i've totally agree with  was looking at this case notes that if your client had received the proceeds from all of these sales that you know they didn't even have to pay for the manufacture of the t shirt and callous he got everything he wouldn't  windfall if i may this statute says i get that the copyright owner is entitled to statutory damages for each parties that are jointly and severally liable if i just want to say that i have the right to go to the court and show that i get for each of the retailers i need to show that they are gauged in infringing act and i don't know why i need to join them in a lawsuit to do that going to be able to say well somebody sold it there we're going to have to show that they were infringing there was infringing tonight on the to the give some instructions to the difficult i like instructions to give this of some instruction to the different court as to the scope of what the damages can be i think that the well remember the district court here has discretion here to review this there is one case i think it's felt in there that says if these damages are too high the district court does have some some n it's for all infringements involved an action with respect to anyone work so it's clear that we're aggregating all infringers and the question is are we aggregating all infringers for which any one infringer is liable individual and that doesn't say that if one infringers live under visually and each person is liable individually has a separate statutory damages it could be read to say and this is what i understand your opponents to be saying is that as any two or more infringers are drawn in libel there's still only one statutory damages to problems with that if that's what it said then the statute would simply say with respect to any one work period you can have it doesn't matter how many then you would need this sense and you can end this if i may suggest that's writing that language out statute ok so that's the first problem with that the second problem is you've got to look at the incentives here the incentive is to stop this think your honor is example again about the super bowl yes it sounds very serious that somebody is potentially on those assumptions getting all that money but the other side look at what the copyright owner lost the copyright lawyer lost the potential good morning matthew gershman for the appellee is may have please the court initially i just like to give the court some context for what happened here and in this case there were no actual damages to speak of none claimed and when it came time for the plaintiff to point to infringer profits you can only point to ballpark fifty five hundred dollars and so the plaintiff is seeking different ways to try to multiply this case into what would be a windfall with that context in mind i want to take a shot at the them if they issue i'd like to make a run at that because there's one issue that plaintiff's counsel does not address and it would resolve this completely as it is an independent basis for firm and that is that the discovery it was excuse me it was conclusively established in the discovery based on the failure to timely to respond to requests for admissions that the plaintiff had no evidence to support his claims including that he had no evidence that we ever you're saying yeah yes your honor even though and he asked for he actually didn't ask for relief from the emissions but in the ninth circuit and this is stated in the common case you do have to follow in motion the plaintiff relies for  that he can just put in his opposition is based on two tenth circuit cases that predate common in common as ninth circuit and says you have to bring a motion but in practice the plaintiff didn't have evidence anyway which brings me that it's real a difficult to ascertain willfulness or intent without some type of factual record and we you know follow judge berg if we don't look at the requests for emissions willfulness partial summary judgment in two very conventional ways the first being the discovery but set that aside the second is we submitted our own evidence showing that we had procedures in place which we followed and those procedures were designed to avoid infringement well they were very strange procedures if that's what they were trying to avoid because i never asked the party whether there was whether they had the copyrighted at all and whether somebody else did explains in her declaration and again we're talking about our state of mind here so speaking of state of mind what about sega enterprise of the new record of they both say that that  elementary spam but so i think what would be helpful don't understand how that happened here in this instance is the plaintiff's response to the separate statement which is where the rubber meets the road in the plaintiff has to say here here's the evidence that creates a dispute that page seven thirty one of the excerpts of record and in that you'll see time after time after time it's under spirited under spirited understood and under spirited only a few instances towards the end where the plaintiff claims a dispute but then when you look behind that expensive to get clearance for that that created you an issue of material fact it's what they thought because then appeals to tell me that they knew that there was something wrong with using necessarily so you know that he took some arm see photos what you have what it has yes what happened was three days earlier we were trying to put out merchandise with a picture of a different artist named ice t and then we were told during the using the clearance procedures that we had in place we were told that's a friedman photo so at that point we did not go forward until we had the understanding that ice t is management had reached an agreement to separately compensate mr friedman and so three days later when pictures came in from this other person junkfood the junk food retailer saying we'd like to make some merchandise these pictures didn't have any identification of who it was she actually she  says she blocked this from being done because she said we're not we're not going to go through this with mr friedman that shows an intent to not infringe that was her state of mind not tell him that she doesn't also show an understanding that he took some arms see photos  yes but there is no the question of whether we could have done something more is is something that the plaintiff asserts but it is not part of what we brought the motion towards the motion was only directed towards what pla that first i have to i have to tell the court upfront the court doesn't need to reach plaintiff's argument about one hundred four supposed other infringers out there and there's a couple reasons why first the this idea that we would be liable jointly for the actions of one hundred four other people was not a claim asserted in the operative complaint the third of many complaint is that page one hundred one thousand seven hundred the excerpts of record there was no assertion that we would be liable for the acts of others none at all the effort context this was only injected into the case after plaintiff had lost the partial summary judgment ruling blows an effort to multiply the case into some sort of windfall but then here's another reason why even then when plaintiffs injected the issue into the case he made no offer of proof that these hundred and four other people out there actually were infringers and i heard counsel concede that yes these other people out there  in your super bowl example these other people there would have to be infringers there was no offer of proof of that the only offer of proof here was that we sold two hundred and four people that just aren't frenchmen and he was  allow them to supplement the record so that's kind of i understand your first point but as to the second point it seems to me it's somewhat premature he you're correct the judge the district judge did make the ruling on that let's talk about a statute and how it applies and i guess what i do i guess i have two main questions about your statutory interpretation one is how do we have could we reach it after columbia and two is if we with respect to any one work period i'll take the columbia pictures question first if i may so this court does not need to take on climate pictures as a need to reject it it just doesn't apply in these facts because  columbia pictures unlike here all the infringers whether they were upstream or downstream were joined in the case determined to be jointly jointly liable in certain instances so that's a terminations it was before the court and could have could do it i'm sorry but if you had the fifty million defendants you could actually apply the statute well my personal opinion is in that circumstance had that existed then they would try to apply call me pictures and i would say when the pictures wrong i personally think it's wrong but what i'm saying suggesting to the court is that's not this case so this court doesn't have to take on columbia pictures there is but if we rule and i understand what you're saying if we ruled through your suggestion we would still if you go that route then you have to take the same position with regard to anyone in french or is individually and i will because it's the any that you're that you're looking at so you'd have to take the position that and and i don't  damage that right or am i wrong about that incorrect because i because what the statute is saying is you only collapse the separate infringement awards into one if there's multiple infringers who are jointly and severally why if there's anyone else or is exactly the same for which  yes because if there is no joint and several liability in other words there's a difference between separate television stations like in colombia operating completely independently airing who's the boss episodes without permission each of them just happen to be joined for convenience in the case would be a separate award that's the first part of the statute but then the statutory scheme says if you owe it what it's saying is if the plaintiff aleck's to go the route of  damages rather than trying to prove actual if you go the easier shortcut route the statutory damages there are drawbacks and the drawback is you can't multiply if there's any joint several liability in this in the sphere of what happened here right have dealt with my prob we asked mr krasner are you aware were the images that appear on the calendar were obtained from i don't know so i'm told that we took his deposition and asked where did you get the images and he said i don't know so yes we did take the deposition we could try to find out they said i don't know so where do we go and that's why we have the political situation somewhat ok so i apologize for misspeaking to the court sometimes you screw up the next thing that i did want to talk about this i think this is very important this is very important on the multiple damages award honor i understand very much you're concerned your super bowl concern can i give you another example just to think about and this is a real life example you ever see the movie expendables three i missed that and i know i'm aware of the movie ok expendables three somebody took a copy of the print made multiple copies and put it on the internet multiple people made other copies and it basically destroyed the opening one hundred million dollars lost there on the picture so obviously if you're the plaintiffs and you're  allow you to pursue actual damages but in these particular situation why should they get seven million dollars because the because yeah because the reason for the statutory damages is when it's difficult for the pla prove actual damages they get this award it's there is a disincentive so congress did and the reason is to discern courageous these claims and to make it easier for the plaintiff i don't mean to say this but congress discusses these things when they make these statutes and sometimes there may be hard examples one of the that's an interesting point can you cite to congress see it in an act in this statute that would justify a three million dollar award in this case billion he doesn't confront that problem but the thing is here if you the issue is if there were seventeen billion and all seventeen billion were in court i don't think is any doubt that you would say that you could get seventeen billion stepford statutory damages if we were to sue every single one of these retailers and bring every single retailer into court ok and then i think at each retailer engaged active infringement by reselling the infringement goods one work for which anyone infringers liable let's assume the following she's liable but it doesn't say that you didn't get a separate word for that for the each french or for which for against for one infringers law let me just ask this question let's assume i have a movie if i sued them in separate actions i get individual award against each one why don't i get individual award against each one when i sue him both in the same action of course i do because there are separate asks for what you just separately liable to do you have to statute means i think it says here for which anyone infringer is liable it says with respect to one work for which anyone infringers liable if i have one work and i have one party that makes it infringement that s but i've been if i have four million willful infringers who willfully infringe the copyright and i brought each one of them into court i couldn't get an award against each one ok well i think if i may i think the number treatise if i can refer to my other colleagues probably no can i just say one more thing if i may just very very very quickly i'm sorry you didn't ask me about the see my provision i was extensively involved enough and i could have waxed eloquent