freight with truckers like truckers and shippers come to the site match up and do business with each other the primary issue that i'd like to address first is one of first impression in the ninth circuit and it deals with the calculation of damages under the computer fraud and abuse act section ten thirty u s c there are three elements with a criminal statute start out as a criminal statute eighty four and about ninety or eighty six and ninety four they he eight which is the definition of damage under the see if they say that applied at the time i don't think you're right eight doesn't have the five thousand dollars  over aggregation as the courts have found it relates to the ability to aggregate over multiple computers and aggregate damages over time and in fact the legislative intent was right on point when we went back and looked at in the courts and both a o l and i have the same problem that judge nelson did it look to me when i read the statute as though it spoke of aggregation and very clearly meant that you could add up and and  just use a single act and then i read the district court cases they rely on legislative history as is often the case the legislative history is more ambiguous than the statute that's exactly that's supposed to use the statute only computer statutes or you know other plethora of does that actually doesn't mean that all because you have a hacker who comes into the site we're going to you know find federal jurisdiction that's the whole point and when senator trebled was a sponsor of this legislation on only only on cases brought by the united states can you calculate losses resulting from a related course of conduct that they broaden the application of the act for purposes of calculating the five thousand dollars threshold and criminal and obviously some type of a significant civil case is with us as a party so what they've said there is there is a  that in some of these cases in which you have a program that goes out and affects you know five thousand people at the same time and each one has five dollars in damage you can aggregate those damages and that's fairly statutory language i've got this language that you enjoy nelson we're just discussing and i can't see anything in that to support a single act interpretation where else are you getting it from i'm sorry is if are you of the current thought a call you're telling is there's no specific legislative history that explains we're aware of these district court cases and therefore we're going to create an exception for the government exactly right that the entire advisory committee notes to the federal rules of civil procedure where they actually are trying to set out what they were doing but most of the time you read it out and it's more or less sales talk or it's focused on a different issue from with before the court or i think i agree your last issue it looked to me is though you weren't saying that the judge did not instruct the jury properly what you were saying was that the theory used by the plaintiff's expert was not valid and you assume that the jury bought that expert's theory it's great for me that that's not a valid way to argue issues you have to assume that the jury follows the instructions and one of the instructions is to evaluate expert testimony and make their own judgment on it well it's certainly a sufficiency of the evidence argument which is that the jury must have speculated in order to come to the conclusion that they did now the arguments made the jury instruction it's got to speculate why couldn't they just deconstruct the experts analysis in the jury room and put it back together in a way that suited them under the instructions because the only testimony on the ability to do that was from their expert he said you can't do that they don't have to follow the expert they can pick any all or none or some of what the expert says use it as  there has to be adequate evidence of court and we have they could have concluded so that you can't deconstruct it because it's overlapping presumably they can say because you can't be constructed and the defense has provided no basis on which to  expert witness tells the jury that the point of damages are thus and such for mental distress this man's had a million dollars worth of mental distress because of the nature of the particular to the judge tells the jury you cannot award any damages for mental distress the jury awards a million dollars in damages you're telling me to assume that the jury awarded mental distress damages but i have to assume the opposite that it didn't because we're supposed to assume the jury followed the instructions that's where i'm hanging up on your argument well the yeah and i understand i mean it's actually used the same analogy when i was trying to think t you the court my name is steve anderson and i am representing internet truckstop council member of the court in this appeal the appellate effectively concedes that for over two years it for a client so accepting that yes and focusing on the legal aspects that they're raising which the district court wasn't inclined for perhaps understandable reasons to due credit how do you how do you read one small one which has within it a parent dedicated says for purposes of investigation prosecution or other proceedings brought by the united states only last resulting from a related course of conduct that's the parents medical your honor is referring indicated does not at all prescribe a related course of conduct type of analysis only with respect to the government and in every other case it doesn't apply the only thing that here and that it refers to is prosecutions brought by the u s government and related course of conduct being really a concept that comes out of criminal sentencing guidelines the entire statute if you read together that is the post patriot act amendment to the october two thousand and one amendment when defining least five thousand dollars in value your honor i just do not believe there is any other reasonable plain meaning reading of the statute other than to say that any means any and any person means any person and if that can be aggregated speculate your honor i don't really know i'm not i'm not a criminal lawyer but what i understand it to mean because of this a c f eight is both a civil remedy and a criminal statute it relates to instances where the government prosecute someone take issue a little bit with the judge nelson with your statement there are no cases in my opinion that adopt a single act theory that all the only cases that talk about that are district court cases where they're in the context of a class action certification and the attempt is to aggregate the damages for purposes of meeting classification requirements there are absolutely no cases that say outright that any litigation between two private parties and this is a key point your honor there are no cases that say that where there are multiple hacks or multiple invasions against a single victim but that single victim may not aggregate over a one year period of time the loss of that result from those multiple hacks the the the case that comes closest to making that point very very you know well i think is the area well of five point one version case which talks about the absurdity which i believe was your honour's point earlier of saying that if one person hacks one time and creates five thousand dollars in damage that is a violation of c f a a however if if one person hacks hundreds of times or thousands of times and each one of those doesn't come up to five thousand dollars but in the aggregate ex thousand dollars somehow there is not a violation of the c f a a that is absurd and the district court in florida that addressed that type of question in five point one said that can't possibly be congressional intent because that would vitiate the statute it would mean that in the world of track trafficking in passwords and hacking into computer systems you can only find a civil remedy against that one person that has to only one time and in this case your honor we had two plus years of hacker impersonat trafficking in passwords and using illicit means to get into our client's computer nerd who have taken all manner of different types of trade secret protected information and functionality now under those circumstances where  understood in the record that our client adopted reasonable remedial measures which exceeded five thousand dollars to address hacks and losses which had occurred over a five one year period of time and spent that i'm sorry over reads the preliminary injunction paragraphs that deal with that section it is if it's specific with respect only outlined an authorized access now i will tell the court that there is some problem with permitting this particular defendant and the right to even access to a home page because of their ability to do certain things once they get on the site once without going into all the evidence that the court heard about how it is that you can get onto the home sky's your access by going beyond that looking into cold and going into functionality by soon and then simply saying all i did was access the home page what the judge did was he said look for purposes of removing any pain between these two companies who are direct competitors my injunction states you will not access this page you are saying that it's with them and as far as this even if everybody else in the world can go to the public own page because for this defendant you need a broad prophylactic have absolutely no way in a criminal case absolutely condition or probation restricts what is everybody else's rights sometimes that that is absolutely true you're on like my point with judge nelson was that  believe the intent of judge windmills injunction was to prevent the type upon advice access that has been the function the focus of the litigation however the way in which that occurs occurs with clever computer hackers and a multitude of ways and judge will had all that address what's the time limit on this injunction is there no terminal point there's no terminal point in the injunction what's the authority for open ended injunction like well your honor it really wasn't an issue that was raised in the future and the reason is because as the the wrongdoer in this case becomes more and more sophisticated in the way in which they try to access my and this is all this all just an information business i mean you can have if you can have a site and also do not copy source code and do not take trade secrets which would have been prohibited by law anyway but in terms of its ability to have any terminal point what the judge the civically said in his decision on the j m a well motion was that he wanted this injunction in place permanently because he anticipated it in his decision if you'll reject windmills decision he anticipated the possibility of future litigation against these parties and he wanted something so that our client could continually monitor and resew in the event that there were further access and that was his clear intention and that i believe is the reason why the injunction is open and you're on you ruined your art first of all i would i would rely primarily upon instruction number thirty one this was an instruction to which there is no objection at trial and mr goes or concedes that in his argument here today but i want to take it a step further if i might and also point out to the court that the subject of whether or not you could get royalties and implied royalty was never raised at all below either at trial jury conference j m a well directed verdict none of them it was didn't look at it for a while the complete theory but the concept is that there were embedded in his numbers bases for damages some of which may have been improper and you're saying well ok if that's the case of the jury doesn't find the factual proto good for this component of damages then it shouldn't a word them damages there's no liability no damage they're arguing well embedded in it's academic only it had no basis at all in terms of the case and the reason i say that is because there is no statement either in the briefing at trial or before this court that there was any duplication of damages and if there was no duplicates of damages your honor how could the way in which it was apportioned between very sub sections of the computer fraud and abuse act make any difference whatsoever the four hundred some four hundred fifty almost thousand dollars of royalty damages which were awarded were it is true awarded under three different sections to four of six of the computer fraud and abuse act that is true and the jury came up with a number why i will say rejecting part of my damage expert testimony and really i think the course to recap deconstructing it or recalculate it based upon a number of different factors which they had in front of them here were some of the factors one the judge specifically told them if you don't like some testified to you may reduce the royalty number one he also said number two you could reduce the period of time during which the royalty would have run number two number three he said if you don't accept his version that all of this copyrighted material was taken you can reduce the royalty based upon that as well there are other evidence that the jury had in front and such as the cost of creating a duplicate whether site they also had in front of them the revenue growth of the  hacker of the competitor who got this information and got into the business the easy way and so there's all of these factors that were in front of the jury all of which the jury could take in deconstruct and arrive at a damage figure which they thought was fair given of the evidence under sufficiency of the evidence stand your i submit or just no other there's no other way to approach a jury which does exactly what it's told to do which is follow an objective obstruction instruction and arrive at a damage figure which is that which is a compromise figure less than what i asked for but certainly more than what the defendant wanted to pay in sum your honor we believe that there is absolutely no basis on this particular appeal to do anything other than affirm what the jury trial what the jury did this was a lengthy trial with all  lied about perjury about there were suborned perjury there were there were all sorts of things that went on during this trial so that's when mel found that it was just bad faith litigation from from start to finish and made a certain sanction finding s in support of that in his in his rulings under the circumstances around him with the objections with the instructions all being unobjective to the jury being there for properly instructed and all of the evidence being admitted essentially or conceded please the court with respect to the injunction i would just like to just very briefly let's we won the copyright case and today we're enjoying from committing copyright infringement i think i mean at the duration it's not a problem it's but i mean you for copyright infringement when we won the case and the other important points about the injunction itself is that the scope of the injunction we offered the opportunity to really have a meaningful injunction that you know course was an adoption of the t r o that are major problems and not being able to market to somebody you know to their customers we don't have the customers are the basis and foundation for this whole we logged into their website and there was one session of hacking in the code that we didn't use in june and july of ninety nine two years before all of these expenditures occurred so it's not thirty eight hundred  hundred fifty logons to a website but you know it's a one every four days so you know to end up with an injunction that's so broad is not in relation i think to the facts and circumstances the case and we wanted the opportunity to present evidence on it and we never got to have to do that now i'd also point out that in one final point as it relates to the damages i think it's critically important to point out how the judge handled the damages issue in the trial we followed a full fifty a rule fifty motion after their experts testimony of course objected during the experts doesn't have an objection to evidence case and we'll let the ninth circuit deal with the issues that we have to we file these issues in our judgment and it would be they object to saying it was late in the judge remember what he told us and he reached the merits so the judge himself was saying i'm not going to buy this not objecting i'll tell them throughout the trial you can you can raise these issues posed verdict i know what the issues are i'm familiar with the dispute here we'll try to work it out on a jury instructions but ultimately what will pass th post verdict and all and that we will have a record a complete record for the ninth circuit and that's the circumstances that will all that occur thank you