next case is norman cullen versus the united states two thousand and twelve fifty one thirty five works were infringed by a federal agency and there's no dispute that there's at least some infringement the question before the court go to the extent of damage is and whether there was evidence of damages efficient to pursue summary judgment and with respect to actual damages i'd like to focus on that first of all the actual damages issues that are on appeal were decided at some rejection stage i'm i'm having difficulty here as i understand no reasonable evidence to present on actual damages and moving forward coming up here on appeal peeling those issues separately then if we're successful go back to niggly i bring up the actual dancers so i can understand that it may have been somewhat of hot choice but i think you're saying the court force you into not lacking that story damages and so therefore we should reverse the summary judgment as it relates to actual damages and right to appeal the time the final judgment of the case and that's what we're doing here but again more importantly the government had an argument a way that waiver argument if you will so that the government had to present an argument that we've now la statutory damages awarded you know we have our primary argument that the standard court applied was just wrong with respect to some rejection because in the court so much in which the court was looking for significant evidence significant cartoons well if you look at the guidelines you look at the second service fitzgerald published case and they sampled forty four five factors that go to precisely the type of evidence that the court would again with top rate pages in the private contracts but again admit that in this instance the court did not consider all the evidence properly and at one significant example what was understated in this case experts my client expert and the government's client and the government's expert both agreed that a reasonable fee for finance use dr thomas materials as a licensing fee would have been thirty thousand doesn't apply it's well here because you know when you put it on the internet for seven days or seven weeks or seven months i mean the magnitude of availability is exponentially greater than putting court has addressed the issue somewhat in the gilbert case but there are significant differences between what's available as reasonable entire compensation under fourteen ninety eight in the past on compensation and what steps pretentious do is that they basically lower the burden of proof for allowing damages actually that's not right because congress has already said that in printer or a type or a hundred can get not substantially damaged with seven hundred fifty dollars the question is whether that remedy and whether congress intended to do that remedy to ensure that a cooperative owner could get the entire scope for reasonable compensation just with a lower burden of proof and happened in the private see that proposition and damages cases and the second is once you should've known infringement and a decline in sales of the time to read work  material in french repeatedly by the government some for a long period of time and the government then gets rid of all the records and documents that shows exactly like the news in stride and you say he's out courts make clear that you need to have sown a connection with fair market value and the point we point to revisit the hypothetical items face that the expert was pointing to in this case was based on some internet article that was not and every year you look to see a blank injury dot com never received any at the money ever under that provision of the contract and the case love acquires more than just the citations of some incomparable internet articles you need prevent against unrealistic claims and in that case the victim was for two point five million dollars and they said only when there's actual evidence of their market value if there  dependent then protected from numbers will claim and they will be mandated in on david for consideration of one sale in the past for that was worth fifty dollars so instead of the two point five million dollars playing they remained in for consideration of evidence they claim that these lost profits were due to loss phillips and other governments to foreign purchasers and to other in the n t and they never present any evidence of that and that's why we feel that there's no evidence of lost deny that that scene the fully understood what was what the debate was even if it was reflected in brief letters i mean you argue that the letters in said moore but you don't deny that that everybody that was on those knew that he was seeking compensation for the infringement no i don't deny that what we are doing is based on the what you've acquired by replaying for compensation again i want to reiterate that this is a subsidiary issue in the case where a nonmoving had relied on expert testimony and it was no bar summary judgment those two cases are perfect when text first in for usa and the text search case in both cases the nonmoving it had expert testimony that was used include  is because there are clearly different licenses one license was about performance the performance rights another time for a law and the question at issue in that case was the right to reproduce and talked a great deal of those uses differently parties like this from them differently at different rates and i would submit in response to judge laurie's question i don't think the court below considered seven hundred fifty dollars as a just a form of compensation in this case i believe she said you have no other hand or time or given her interpretation a stampede and i don't think any reasonable fact finder