Next case is Norman Cohen versus the United States 2012 51 35 Mr. Dub. I'm Roni Yarners. May I please the court? This is a operative deal from the court of federal claims. A little bit of a new case because it is purely top right case which we don't see these very often in the federal circuits. But here we have an author whose works were infringed by a federal agency. And there's no dispute that there's at least some infringement. The question before the court goes to the extent and damages and whether there was evidence of damages sufficient to preclude summary judgment. And with respect to actual damage, I'd like to focus on that first. All the actual damages issues that are on appeal were decided at summary judgment stage. I'm having difficulty here. As I understand the case law, once you choose and make an election for statutory damages, then you're right to seek actual damages. It disappears
. So why are we debating actual damages, how now? Judge, I'd now like to agree with you. That's a general proposition that's correct. In this case, we have several reasons. First, the government had an argument that we waved the right to seek actual damages. So the government hasn't raised that issue. Second, in this instance, these were interlocatory decisions which we couldn't appeal at the time. They were decided. So we've raised them now on appeal. And third, I think it just makes for judicial efficiency to raise them now. Particularly in light of the case law that was before the Court of Federal claims and the Westboro case, where in essence, the Court of Federal claims in that case had suggested very strongly that the scope of statutory damages was much larger than what Chief Judge you had had decided in this case. So given the posture of the case at the time, it made sense and given the adverse ruins that we experienced below with respect to actual damages, we're left in a position of litigating a case really with no reasonable evidence to present on actual damages and moving forward. Coming up here on appeal, appealing those issues separately, then if we're successful to go back and maybe bring up the actual damages
. I understand that it may have been somewhat of a hot source choice, but you're saying the Court forced you into selecting statutory damages. And so therefore we should reverse the summary judgment as it relates to actual damages and now it's recessed as a non-stetricatory damages case. I think that's actually correct Judge of Malin, because again, the actual damages issues were interlocatory orders. And in general, when you have a mandatory decision in order like that, you have to write to appeal those upon final judgment of the case. And that's what we're doing here. But again, more importantly, the government hasn't argued this. They've waived that waiver argument, as you will. So the government hasn't presented an argument that we've now lacked the ability to seek actual damages if we are successful on our argument for this Court. And as I understand that your alternative was, this evidence is still relevant, even if we're talking about statutory damages because there may be a range of approach to $750. Yes, Your Honor. As we lay out in our brief, and is consistent with the case law and all of these copyright cases in terms of the private context, the evidence that goes to actual damages is almost always just as relevant to the evidence of statutory damages. Now here, assuming that for the sake of our argument right now, that there is a range of statutory damages available against the federal government, then the Court certainly should have considered the evidence that we presented
. Court averaged in particular because what the Court did below is really apply the same heightened burden of showing proof that will support and enhance statutory damages award. Now, we have our primary argument that the standard of court applied was just wrong with respect to summary judgment because in the court's own language, the Court was looking for significant evidence, significant, purportive evidence of actual damages. I submit to this Court that that's not the proper standard at summary judgment stage. What do you have to look for is whether there's a genuine issue, material fact in this view. What do the standards guidelines for determining statutory damages, not less than 750 or more than 30,000 as the Court considers just? That's inherently discretionary. And what are the guidelines? Well, if you look at the guidelines, you look at the second circuit's Fitzgerald publishing case, and they set forth four or five factors that go to precisely the type of evidence that the Court would consider in the enhanced damages case. Now, I will submit to you, Judge Brewery, that if the Court does consider that evidence properly, it certainly within the Court's discretion, and it's a piece of discretion standard review. And this is consistent again with top right cases in the private context. But again, I submit that in this instance, the Court did not consider all the evidence properly. And as one significant example, what was undisputed in this case, both experts, my clients expert and the government's expert, both agreed that a reasonable fee for famous use of Dr. Cohen's materials as a licensing fee would have been $30,000. Nowhere in the trial court's decision does Chief Judge Eowick address that fact, in particular with respect to enhanced extra damages if they were available
. Now, turning it again into actual damages, you know, are my clients? I understand story, which you said, from a seventh, it's limited to 750. That was because there were only five days between the time he powered the government and the time they took it off together, right? Judge Mayor, that was part of the lower court's reasoning, but it wasn't the entire reasoning. And again, it doesn't address the fact that the trial court overlooked the fact that both experts agreed that given, seem as unauthorized use of Dr. Cohen's materials, then he would have been awarded about $30,000. Now remember this. Does those experts assessing a seven-day time frame or were they assessing that issue based on the totality of the use? I suspect it's a little unfair at this point because those decisions of those expert reports were provided prior to some of these later evidentiary rulings. But nonetheless, this goes back to a fundamental issue in this case with respect to internet-based infringement, right? Normally, in top-right cases, when there's a time period of infringement, it's presumed that the longer time period in the prison will lead to enhanced damages because they'll be more sales. But now that presumption or that assumption doesn't apply as well here because what do you put it on the internet for seven weeks or seven months? I mean, the magnitude of availability is exponentially greater than putting in infringement books in and for some order of store. I think that's part of the issue here. And with respect to the actual, turning back to the actual damages in this case, what Dr. Cohen was left in a position with Dr. Cohen, that trial court, asked for the records that FEMA had with respect to the use of the unauthorized materials on the website
. FEMA said that either they didn't exist or they weren't available and so no records were produced. Our client was left in a position of trying to estimate as best he could the actual usage of the infringing website. Our expert did that. He looked at Google ranking web pages, he looked at average usage, he made some assumptions and all of these factual assumptions based on this expert's experience in the field, which the government doesn't dispute that our experts followed by Joe Pine on. And he made projections. And the projections are the same types of projections that second-circuit, for example, in the Stephen Flynn case, as accepted or said would be acceptable if they are documented. And in this case, our projections are based on documented sales. Now, we would be left in a position of not being able to lose any evidence about infringing. The infringer simply deleted the records about the usage of the website. We've given our best effort, importantly, the government's expert didn't dispute or challenge our model of those that usage. And so even if the government's expert had disputed it, we would agree to disagree at this point, so to trial and see whose experts were credible. But without that dispute from the government's expert, I just don't see how some adjustments would be issued on that matter
. I would like to turn to the statutory damages issue, because I think that's an important issue here just from a statutory construction standpoint. And I understand the government raises the issue and the court has addressed the issue somewhat in the gay law case. But there are significant differences between what's available as reasonable and tire compensation under 1498A in the patent context versus 1498B in the copyright context. And I will agree that reasonable and tire compensation in the patent context had the general settled meaning. This court has an address what that means in the copyright context. And if you look at the history of copyright law, and if you look at the damages associated with copyright law, statutory damages have always been an integral part of providing compensation. And what statutory damages do is that they basically lower the burden of proof for allowing damages. Court of Court awarded statutory damages. But only a minimum. Yes, yes, I agree. And the question is whether you're allowed more than that minimum. Now in gay law, gay law is said in 1498B, you're not allowed non-compassory damages
. But I assume that that's not right because Congress has already said that an infringer or a copyright owner can get non-compassory damages with $750. The question is whether that remedy and whether Congress intended with that remedy to ensure that a copyright owner could get the entire scope of reasonable compensation just with a lower burden of proof and happens in the private infringing context. Well, if you're right about that, is there any way we can decide otherwise in the gay law case? Well, first of all, gay law didn't address statutory damages. Gay law addressed, and I don't know if you're on both panels of gay law, but gay law did not address statutory damages. The issue in gay law, the second gay law case, was whether a copyright owner can get actual damages from the government based on a reasonable royalty. And that was decided by the second certificate in the online on Davis versus Gatface. So I think there's certainly room to distinguish the paragraph or two that discussed 1498B with respect to compensatory versus non-compassory damages. It wasn't an issue in gay law, and I think when you take a closer look at the way reasonable and entire compensation was intended to be established by Congress in 1960 when they amended the law, the goal was always to provide a copyright owner with an adequate remedy against government infringement. Again, going back to the difference between damages in the patent context and damages in the copyright context, and we decided a number of these cases in our briefs, strewn through the cases in copyright law is the understanding that of two things. One, speculation is almost always necessary in assessing copyright damages. You never see that proposition in the patent damages cases. And the second is once you've shown infringement and a decline in sales of the copyrighted work, there's a presumption that there's a causation
. Mr. Dowd, you're a well into your rebuttal time, do you wish to save the remainder? I will. Thank you for just working. May I please court? This panel is for the firm judgment of the trial court awarding minimum statutory damages, because Dr. Cohen presented no legitimate evidence of actual damages suffered as a result of what we say in seven days of recovery, whereas plaintiffs are due three months for the accused posting at dema.gov, and in such cases the proper interpretation or application of 1498 B results requires an award of minimum statutory damages. To get to Judge O'Malley's question about the election requirement, there is no election requirement per se incorporated into 1498 B, and that's plain language of the statute said, maybe brought for recovery of his reasonable tire compensation as damages for such infringement, including the minimum statutory damages as set forth in Section 504C of Title 17. The interpretation there is, it is just including the minimum statutory damages, not required an election. So, just by comparison or analogy to a fit and a misdeed, there must be proof for reasonable and tire compensation, if there is no proof of actual damages, then the trial court is allowed to present a nominal award of statutory minimum damages of 750. How does the court determine between 750 and 30,000? If there is no proof of actual damage, then you revert to statutory amount, but you will respect her. The argument is for plain meaning of the statute said, including the minimum statutory damages as set forth in Title 17. There is no less than, but could be up to 30,000
. Well, that is the reading of the White Court case, and that was agreed to by the judge. Judge O'Malley said, well, since there were no actual damages, we will go to the minimum. She said in the alternative, yes. But she did say the minimum was all that authorized under the statute, didn't she? She said, even if there was, she did say, the minimum, her interpretation was minimum. The argument being, Dr. Cohen's interpretation is the same whether it says, including minimum statutory damages or just including statutory damages. If the entire range was available, the statute would have just read, including statutory damages. But instead, minimum statutory damages references the portion of Title 17 that changes over time, but used to not be 750, or previously was 250. So when it does say the minimum statutory damages referencing by the corporation that number, whatever that number is, currently 750. But aside from that, even if there was available range, if you don't read that interpretation, then the court has already said, even if the talent is available only 750 for minimum. And again, this is in accordance with other case, while it says, statutory damages should bear some relation to actual damages suffered. And there are some cases that say, statutory damages can serve to compensate, as well as to punish for deterrence
. But again, in view of the lease owner case and the individual or we feel that that settled law that considerations of the enter and intent and willfulness are not asked considerations here for punishment of deterrence. So again, the all the more reason that statutory damages, even if there is a range, should bear some relation to the actual damages suffered. But what incentive would the government have ever not to commit copyright infringement if all they have to do is pay 750 dollars? Well, the intent of is the actual damages, where a copyright holder can prove, when they're under all the methods that are available in the case law, can properly prove lost profits, can properly prove a hypothetical license and go to the Asian fees. That's what recoveries they should get, and the difference being in the same context as 1498, 8 of Hatton's Frenchman, unless there's actual damages proved. And willfulness and impunishment is not an absolute consideration. Which I can point to, so for that reason, we... So the man had his material infringed repeatedly by the government over a long period of time. And the government then gets rid of all the records or documents that show exactly what the usage was, and you say he's got a lot to get 750 dollars from him. That's it, right? Well, no, there's another alternative remedy here, and that's what on Davis says, where a reasonable royal figure has that license and go to the Asian fees, are a form of actual damages. And so as opposed to lost profits, where there's a requirement for cost-for-caudation, and in the government's brief, we argue that there is no for-caudation presented for lost profits. For actual damages, that's not a requirement. You need to look at the hypothetical negotiation between a willing buyer and a willing seller. And your expert said $30,000, I agree, that that would be a reasonable royal figure. He did, but the case law requires that you look for fair market value, and I submit that RxBurge as well did not rely on it. So you were saying that the judge being presented with two experts saying $30,000 is the reasonable royalty, and we're supposed to conclude that there was zero evidence of what a reasonable royalty would be. Well, exactly. I mean, there's cases in the records where exactly that happens where an expert is not relying on a comparable license or comparable evidence of fair market value. But I don't know that there's cases where the government's own expert agrees with the reasonable royalty and the court just disregards both of them. Well, I'm not disputing it, because I don't know what I ever disputed RxBurge, or did say that that was possibly a non-unreasonable measure. But what was he looking at? The measure was..
. For actual damages, that's not a requirement. You need to look at the hypothetical negotiation between a willing buyer and a willing seller. And your expert said $30,000, I agree, that that would be a reasonable royal figure. He did, but the case law requires that you look for fair market value, and I submit that RxBurge as well did not rely on it. So you were saying that the judge being presented with two experts saying $30,000 is the reasonable royalty, and we're supposed to conclude that there was zero evidence of what a reasonable royalty would be. Well, exactly. I mean, there's cases in the records where exactly that happens where an expert is not relying on a comparable license or comparable evidence of fair market value. But I don't know that there's cases where the government's own expert agrees with the reasonable royalty and the court just disregards both of them. Well, I'm not disputing it, because I don't know what I ever disputed RxBurge, or did say that that was possibly a non-unreasonable measure. But what was he looking at? The measure was... I think he phrased it that way. Said I agree that $30,000 is the reasonable royalty. I think he did say it was not non-unreasonable, but I'm not willing to do it on the number. But the point is, this is a kin to the Unilock case, the jurisprudence here, where courts make clear that you need to have some connection with fair market value. And the point means, we point in our brief, that the hypothetical life in space that the expert was pointing to in this case was based on some internet article that was not comparable. It wasn't even a license. It was so article about works of fiction. And that's where the base came from. And under Unilock and under the Country Road music case, and under the real view 2020 case, those expert opinions were excluded. I'm sorry, they're not in Unilock, but in those two other cases, those were copyright cases, if it's just for adults. Those expert opinions were excluded for not relying on legitimate evidence of fair market value. And so we submit the Dr
. I think he phrased it that way. Said I agree that $30,000 is the reasonable royalty. I think he did say it was not non-unreasonable, but I'm not willing to do it on the number. But the point is, this is a kin to the Unilock case, the jurisprudence here, where courts make clear that you need to have some connection with fair market value. And the point means, we point in our brief, that the hypothetical life in space that the expert was pointing to in this case was based on some internet article that was not comparable. It wasn't even a license. It was so article about works of fiction. And that's where the base came from. And under Unilock and under the Country Road music case, and under the real view 2020 case, those expert opinions were excluded. I'm sorry, they're not in Unilock, but in those two other cases, those were copyright cases, if it's just for adults. Those expert opinions were excluded for not relying on legitimate evidence of fair market value. And so we submit the Dr. Cohen had a point of his contract that was available for these reasonable, such a license. And if you look, this is in the record page 870, I'm sorry, 780 to 788, this is under royalty ID 1446. And every year, you'll look to see a blank entry. Dr. Cohen never received any of the money ever under that provision of his contract. And the case law requires more than just a citation to some incomparable internet article, you need some evidence of fair market value. And I'm submit on data for the gap case, 246.3, I want 52, and at 166 makes very clear that the reason you need to have this fair market value, this comparable evidence for an account is to prevent against unrealistic claims. And in that case, the claim was for $2.5 million, and they said only when there's actual evidence of fair market value is there, is the defendant then protected from numbers will claim. And they remanded in on Davis for consideration of one sale in the past, that was worth $50. So instead of the $2
. Cohen had a point of his contract that was available for these reasonable, such a license. And if you look, this is in the record page 870, I'm sorry, 780 to 788, this is under royalty ID 1446. And every year, you'll look to see a blank entry. Dr. Cohen never received any of the money ever under that provision of his contract. And the case law requires more than just a citation to some incomparable internet article, you need some evidence of fair market value. And I'm submit on data for the gap case, 246.3, I want 52, and at 166 makes very clear that the reason you need to have this fair market value, this comparable evidence for an account is to prevent against unrealistic claims. And in that case, the claim was for $2.5 million, and they said only when there's actual evidence of fair market value is there, is the defendant then protected from numbers will claim. And they remanded in on Davis for consideration of one sale in the past, that was worth $50. So instead of the $2.5 million claim, they remanded for consideration of evidence of fair market value in 50 dollars. Again, the point we also wanted to make about actual damages was in the experts report, there were two points. Again, they break it out into law's profits and for reasonable royalty. And as far as what for a concession, I want to make an argument that they claim that these law's profits were due to law's sales and other governments to foreign purchasers and to other entities. And they never present any evidence of that. And that's why we feel like there's no evidence of law's profits, there's no evidence for a concession under this even plan that had under... And the evidence said it was out there and accessible to anyone who wanted to find it, and then they have evidence that their own publisher said we're not going to republish this because it's accessible out on the web. Well, there are two publishers, one publisher HRD Preff was the one who's selling the works. There was evidence, well there was one that dispute previously as a letter from his prior publisher, Preiger, sending a letter to Dr. Cohen saying, we think we've seen this on your website
.5 million claim, they remanded for consideration of evidence of fair market value in 50 dollars. Again, the point we also wanted to make about actual damages was in the experts report, there were two points. Again, they break it out into law's profits and for reasonable royalty. And as far as what for a concession, I want to make an argument that they claim that these law's profits were due to law's sales and other governments to foreign purchasers and to other entities. And they never present any evidence of that. And that's why we feel like there's no evidence of law's profits, there's no evidence for a concession under this even plan that had under... And the evidence said it was out there and accessible to anyone who wanted to find it, and then they have evidence that their own publisher said we're not going to republish this because it's accessible out on the web. Well, there are two publishers, one publisher HRD Preff was the one who's selling the works. There was evidence, well there was one that dispute previously as a letter from his prior publisher, Preiger, sending a letter to Dr. Cohen saying, we think we've seen this on your website. So there was an issue of fact according to Judge Hewitt as to what your website meant, did that mean FEMA or did that mean Dr. Cohen's website. But we came back later and argued that that was time mark, that was long before any tolling would encompass that date. So there's no recovery permissible for that law sale, the alleged law sale to begin with. Speaking of to tolling, I don't see anything in the brief where you actually deny that FEMA fully understood what the date was, even if it was reflected in brief letters. I mean you argue that the letters should have said more, but you don't deny that everybody that was on those phone calls knew that he was seeking compensation for the infringement. No, I don't deny that. Well, we argue that it's based on the what was required by a written claim for compensation. But again, I wanted to reiterate that this is a subsidiary issue in the case. This changes the recovery period from what we say seven days to what would otherwise be three months. And again, adding those three months does not encompass this alleged law sale to Preiger publishing where they said, we've seen this on your website. And somehow that would be the FEMA website
. So there was an issue of fact according to Judge Hewitt as to what your website meant, did that mean FEMA or did that mean Dr. Cohen's website. But we came back later and argued that that was time mark, that was long before any tolling would encompass that date. So there's no recovery permissible for that law sale, the alleged law sale to begin with. Speaking of to tolling, I don't see anything in the brief where you actually deny that FEMA fully understood what the date was, even if it was reflected in brief letters. I mean you argue that the letters should have said more, but you don't deny that everybody that was on those phone calls knew that he was seeking compensation for the infringement. No, I don't deny that. Well, we argue that it's based on the what was required by a written claim for compensation. But again, I wanted to reiterate that this is a subsidiary issue in the case. This changes the recovery period from what we say seven days to what would otherwise be three months. And again, adding those three months does not encompass this alleged law sale to Preiger publishing where they said, we've seen this on your website. And somehow that would be the FEMA website. But again, the three months wouldn't encompass that. So we feel the tolling issue is subsidiary. But it still would be a different of potential difference from seven days to three months. Exactly. You were, yes, instead of seven days, it's a range. It might be more than 750 hours. Exactly. Good. I mean, if the seven days to three months does make a consideration or change the availability of how much damage there would be. And if there is a range available, yes, that may be not consideration. But again, argument is under the statutory interpretation minimum statutory damages mean minimum statutory damages. And there's no discretion under that standard
. But again, the three months wouldn't encompass that. So we feel the tolling issue is subsidiary. But it still would be a different of potential difference from seven days to three months. Exactly. You were, yes, instead of seven days, it's a range. It might be more than 750 hours. Exactly. Good. I mean, if the seven days to three months does make a consideration or change the availability of how much damage there would be. And if there is a range available, yes, that may be not consideration. But again, argument is under the statutory interpretation minimum statutory damages mean minimum statutory damages. And there's no discretion under that standard. And even if there is discretion, Judge Hugh has already explained that there's no entitlement more than seven days. Otherwise, the language is as the court considers just and you would say that the court clearly considered seven-fifty to be just. Exactly. I mean, that's again, to reiterate this, as far as this being a summary judge case, I didn't want to reference two cases at the Federal Circuit where a non-movement had relied on expert testimony and it was no bar in a summary judgment. Those two cases are the perfect web text versus info USA and the text search case. In both cases, the non-movement did have expert testimony that was used in the conclusionary. But to answer your question more specifically, there's no question that Judge Hugh had given you for review every submission presented and Dr. Cohen can't claim that he's been denied that a great opportunity to present all the supporting evidence from discovery. Wasn't it really a motion summary judgment? Fact discovery had closed, expert discovery had closed, and he'd even been given another opportunity after that first expert discovery post for more facts discovery. So, I re-feel that there is a full range within the court's discretion as what the court considers just. And after no further questions, we ask that the panel further judge on the trial. Thank you, Mr
. And even if there is discretion, Judge Hugh has already explained that there's no entitlement more than seven days. Otherwise, the language is as the court considers just and you would say that the court clearly considered seven-fifty to be just. Exactly. I mean, that's again, to reiterate this, as far as this being a summary judge case, I didn't want to reference two cases at the Federal Circuit where a non-movement had relied on expert testimony and it was no bar in a summary judgment. Those two cases are the perfect web text versus info USA and the text search case. In both cases, the non-movement did have expert testimony that was used in the conclusionary. But to answer your question more specifically, there's no question that Judge Hugh had given you for review every submission presented and Dr. Cohen can't claim that he's been denied that a great opportunity to present all the supporting evidence from discovery. Wasn't it really a motion summary judgment? Fact discovery had closed, expert discovery had closed, and he'd even been given another opportunity after that first expert discovery post for more facts discovery. So, I re-feel that there is a full range within the court's discretion as what the court considers just. And after no further questions, we ask that the panel further judge on the trial. Thank you, Mr. Ruddy. Mr. Dowd will give you two minutes of a bottle tone. Thank you. I'll use that two minutes just to address a few points. I'm raised by my colleague. I believe Dr. Ruddy mentioned the fact that 1490 AB refers to the specific minimum number in 504C, but I think what's important to recognize is that 1490 AB refers to the entire subsection of 504C. But I could have referred specifically to 504C1, which refers to the minimum, but it refers to that whole subsection. That's important in terms of considering the scope of 1490 AB. Mr. Ruddy also mentioned the uni law case, but again, that's a patent case
. Ruddy. Mr. Dowd will give you two minutes of a bottle tone. Thank you. I'll use that two minutes just to address a few points. I'm raised by my colleague. I believe Dr. Ruddy mentioned the fact that 1490 AB refers to the specific minimum number in 504C, but I think what's important to recognize is that 1490 AB refers to the entire subsection of 504C. But I could have referred specifically to 504C1, which refers to the minimum, but it refers to that whole subsection. That's important in terms of considering the scope of 1490 AB. Mr. Ruddy also mentioned the uni law case, but again, that's a patent case. It's not a copyright case, and I submit that the way courts approach damages and copyright cases is very different than an patent case. And country road music is a prime example. Although there, the court excluded the evidence is because there are clearly different licenses. One license was about performance, the performance right under the top of the right law, and the question at issue in that case was the right to reproduce and top of the right deals with those uses. And that is differently, parties like this, and then differently at different rates. And I would submit in response to Judge Laurie's question, I don't think the court below considered $750 as a just form of compensation in this case. I believe Chief Judge Ewood could help her hands her time given her interpretation of the statute. And I don't think any reasonable fact finder could conclude that given the scope of infringement here at $750 is entire and reasonable compensation. Thank you, Your Honor. Thank you, Mr. Dodd. We'll take the case on her side