[00:00:11] Speaker 03:
Like this court stated in law.

[00:00:49] Speaker 03:
based on Walmart's meritorious defenses.

[00:00:53] Speaker 03:
And she was awarded only 5 to 10 percent of the copyright claims for a total of $75,000 in statutory damages or $27,000 in actual damages.

[00:01:25] Speaker 03:
The district court is just a proportional award of 20 times the damages.

[00:01:31] Speaker 04:
I'm sorry, I thought you thought the jury got it wrong, at least with respect to the copyright claims.

[00:01:36] Speaker 03:
Absolutely.

[00:01:37] Speaker 03:
Yes, we are maintaining both.

[00:01:39] Speaker 03:
We do think the jury got it wrong as to the copyright infringement.

[00:01:42] Speaker 03:
But as far as the degree of success, if we do move on both grounds that the copyright infringement ruling should be

[00:01:55] Speaker 03:
was that the jury got right about $75,000.

[00:02:49] Speaker 04:
I think the analysis might be different with respect to those.

[00:02:52] Speaker 04:
So if I can ask you to address the sale of the lamps themselves.

[00:02:58] Speaker 04:
The jury heard evidence that the listings said that they were sold and shipped by Walmart.

[00:03:06] Speaker 04:
And there was evidence, I think, in the agreement with the vendor that Walmart would take title to the lamps and designated how they were shipped.

[00:03:23] Speaker 04:
were actually doing the sale, and that's enough of the Volitional Act.

[00:04:37] Speaker 03:
and to two other people.

[00:04:38] Speaker 03:
So when you say take title, it's only for risk of loss after it's been sold, after it's been distributed, such as if you're receiving something from FedEx or in the mail, if who has the risk of loss.

[00:04:50] Speaker 03:
That's the only issue with the sold of the ship by Walmart label, is that Walmart takes responsibility after the product has already left the third party vendor.

[00:04:58] Speaker 04:
But couldn't, I mean, that all seems reasonable and maybe would persuade a jury, but

[00:05:38] Speaker 03:
or Amazon, they're taking on the risk of loss, and you can call them afterwards.

[00:05:44] Speaker 03:
That's nothing to do with a copyright analysis.

[00:05:46] Speaker 03:
And what most of this litigation was spent was regarding the Lanham Act claims and the unfair competition of punitives, where my friend the other side was trying to blame Walmart for the sold and shipped by label, which is just an automatically applied label.

[00:06:00] Speaker ?:
The listing also says, manufacturers, suppliers, and others provide what you see here, and we have

[00:06:19] Speaker 03:
And the jury should have understood that, suddenly, they both displayed the goods, they uploaded the images, and they distributed.

[00:06:30] Speaker 03:
So if I can move on to the fees.

[00:06:32] Speaker 03:
You talked about the Hensley analysis, and I think the court was right.

[00:06:35] Speaker 03:
And the last case, also about Walmart, of course.

[00:06:37] Speaker ?:
So it's not lost to me that the Hensley analysis governs here.

[00:06:41] Speaker ?:
And so we think, like in law,

[00:06:53] Speaker 03:
including Lowry, and would not further person the Copyright Act.

[00:06:57] Speaker 04:
Can you address our decision in Glacier Films?

[00:06:59] Speaker 04:
Because as I understand that case, we said that if you get something on each of your copyright claims, that counts as success.

[00:07:08] Speaker 04:
And it might be the way you got on each claim was small, but we want to encourage, the Copyright Act wants to encourage people to bring those claims even when they're small.

[00:07:33] Speaker 03:
plaintiff asked, Ms.

[00:07:34] Speaker 03:
Russell asked for $850,000 plus punitives.

[00:07:37] Speaker 03:
So it's not like Glacier Films.

[00:07:39] Speaker 03:
They asked for $750 in Glacier Films.

[00:07:42] Speaker 03:
They got $750.

[00:07:42] Speaker 03:
100 percent, 100 percent success.

[00:07:46] Speaker 03:
Here, there was only 10 percent success.

[00:07:48] Speaker 03:
$850,000 plus punitive

[00:08:02] Speaker 03:
defending that Wal-Mart was not the party that caused the infringement, and that the Sultanship by label is irrelevant to the copyright analysis.

[00:08:10] Speaker 02:
I can just add to Judge Miller's question, and I know you've cited Lowry, and I think Lowry's a great opinion of Wal-Rid and Wal-Reason, but it is a slightly different context, and that was on class action fees.

[00:08:21] Speaker 02:
And here on the copyright, we do

[00:08:28] Speaker 02:
analysis for class action, even if it's a small damage, you can have the deterrent effect by seeking class action to hold the other party accountable.

[00:08:36] Speaker 02:
With copyrights, generally you can't do class actions.

[00:08:39] Speaker 02:
Maybe the damage is small.

[00:08:40] Speaker 02:
So there are some policy goals further in the Copyright Act.

[00:08:44] Speaker 02:
So courts, it can't be limited to just the amount of damage awarded, because there is that kind of policy goal that courts can consider if they think it's an important one.

[00:08:54] Speaker 02:
Right.

[00:08:55] Speaker 03:
And we agree that law-raiser rate opinion, of course,

[00:09:09] Speaker 03:
So, I think that's a good point.

[00:09:59] Speaker 03:
It's even more egregious here.

[00:10:28] Speaker 03:
All of those arguments were that Walmart was deceiving customers, deceiving the public.

[00:10:32] Speaker 03:
We won on all those things.

[00:10:33] Speaker 03:
We won on punitives.

[00:11:01] Speaker 03:
$75,250,000.

[00:11:02] Speaker 03:
I see that I'm into my time.

[00:11:06] Speaker 03:
Can I reserve

[00:11:31] Speaker 01:
of a Rule 50B motion.

[00:11:34] Speaker 01:
At least that was my understanding reading the opening brief.

[00:11:37] Speaker 01:
And as we explained, the court doesn't have jurisdiction to address the denial of a Rule 50B motion because under Federal Rule of Appellate Procedure 4A, 4A, there was no subsequent notice of appeal filed after that ruling.

[00:11:54] Speaker 01:
So it's not entirely clear what is being appealed that is a prejudgment ruling, but also to the extent

[00:12:02] Speaker 01:
district court found that Walmart waived the appeal, excuse me, waived its argument as challenges to the jury verdict, at least with respect to infringement, because they did not challenge the 58th stage, or for that matter, in their opening brief on the 50-B motion, many of the bases for the verdict.

[00:12:22] Speaker 01:
Walmart, in its opening brief, did not address waiver, and in fact, Walmart waived the challenge to waive

[00:12:36] Speaker 01:
The verdict is amply supported here, despite what my friend on the other side says.

[00:12:42] Speaker 01:
This is a case where Walmart itself was selling lamps and posted images of my client's copyrighted photographs of her also copyrighted sculptural works to sell cheap knockoffs.

[00:12:57] Speaker 01:
Do you dispute that the lamps, in fact, came from Sunsea and Rancho

[00:13:05] Speaker 01:
The lamps may have been manufactured by Sunsea, but in terms of who sold them and who posted them, what the evidence shows is Walmart has what it calls third-party sellers, 3P, and it has first-party sellers, 1P, and the evidence

[00:13:31] Speaker 01:
posted up, or some Walmart agent that they hire that they call a dropship vendor.

[00:14:01] Speaker 04:
in a box in Rancho Cucamonga.

[00:14:04] Speaker 04:
Right.

[00:14:04] Speaker 04:
Is that, that's what, that's what your friend on the other side says, the evidence showed, and that that was undisputed.

[00:14:10] Speaker 04:
Did you have some evidence disputing that?

[00:14:12] Speaker 01:
The evidence of that, in our view, was inconclusive as to who was the physical person that did that.

[00:14:17] Speaker 01:
What the, they had two witnesses, and both of them ultimately testified that they don't know the answer, and they presented documents, and both of them ultimately said, we actually don't, we're not familiar with the

[00:14:37] Speaker 04:
in terms of right but it's your you're the plaintiff right so if the answer is we just have no idea that seems like that would mean that you lose right you have to prove or present evidence from which a rational jury could conclude that like it was actually Walmart that did this right I have to prove

[00:15:26] Speaker 01:
a dropship vendor, that Walmart itself, even if it was a dropship vendor, in those contexts, as Your Honor pointed out, Walmart actually takes title to those items, and Walmart is the one that actually makes the sale to the consumer.

[00:15:45] Speaker 01:
Walmart also has a whole host of rules and regulations about how things are posted.

[00:16:28] Speaker 04:
allows Unsee to put pictures on the listing?

[00:16:31] Speaker 01:
Well, I think this is different than the sort of typical case where you have a third party come in.

[00:16:38] Speaker 01:
Again, what Walmart says, according to their own contract, is you have either an employee or a contractor, who's a 1099 essentially, that will post it at the direction of Walmart on Walmart's behalf.

[00:16:52] Speaker 01:
And what your case law has said is when you look at these elements of the copyright claim, you look at agency principles.

[00:17:19] Speaker 04:
and the person putting the pictures on it, but then anything done by the uploading person is therefore attributable to the host of the website and her agency principles?

[00:17:31] Speaker 04:
No.

[00:17:32] Speaker 01:
I'm saying as long as there's a contracting principle, excuse me, as long as there's a contract where through the contract Walmart allows that person to hold themselves out as Walmart, that would be ostensible authority.

[00:17:44] Speaker 01:
In other words, this isn't, Walmart has

[00:17:54] Speaker 01:
This is sold and shipped by maybe SunSea, maybe somebody else, right?

[00:17:58] Speaker 01:
That's not these listings.

[00:18:22] Speaker 01:
in the post.

[00:18:23] Speaker 01:
It's also different how the images are delivered, right?

[00:18:26] Speaker 01:
Because with a Walmart DSV, like a Walmart employee, all of the images are actually stored on the Walmart server and delivered by Walmart itself.

[00:18:39] Speaker 04:
Similarly, with a DSV, the other... But that's true, no matter whether it's a third party or when, right?

[00:18:47] Speaker 04:
And it has to be stored on the Walmart server.

[00:18:55] Speaker 01:
where a third party, in some of the cases, actually stores the website itself, but it gets redirected because of a link, as opposed to the images actually being delivered by Walmart itself.

[00:19:06] Speaker 01:
And it's actually- Have we ever suggested that that makes a difference?

[00:19:09] Speaker 04:
I think in Zillow, the pictures were on a Zillow server, weren't they?

[00:19:13] Speaker 01:
I think in Zillow, and I have to go back and look at this, I think it was actually, there was a link, and in some of the Giga news cases, there was a link.

[00:19:21] Speaker 01:
And I think the older difference here, of course, is

[00:19:23] Speaker 01:
Walmart itself requires these pictures, right?

[00:19:26] Speaker 01:
This is not a third party, like you look at YouTube and there's a content provider that's posted something to YouTube and you can, same thing with the DMCA, you can say, hey Walmart, take down the picture because company ABC is supposed to get our content.

[00:19:39] Speaker 01:
To everybody in the public, and again, even to the Walmart employees to testify, this appears as a Walmart 1P poster.

[00:20:08] Speaker 02:
is they allowed them to be portrayed as Walmart, I guess is what you were saying, what else was introduced, a trial that shows kind of the more active involvement of Walmart, as opposed to having the legal authority and right to intervene if it wanted to.

[00:20:24] Speaker 01:
Well, I think it said that Walmart actually requires

[00:20:42] Speaker 01:
So I think there's quite a bit of evidence of that.

[00:21:18] Speaker 01:
place where third parties are posting things on there and Walmart, it's not on behalf of Walmart.

[00:21:23] Speaker 01:
This is a different category of products where these are on behalf of Walmart with Walmart's employees deeply involved and the only difference is this happens to be someone, if it wasn't needed at DSV, then it was someone that was contracted to act as Walmart in Walmart's name as opposed to someone that was

[00:21:44] Speaker 01:
And so that's even if we get to any of the marriage, which I don't see how we do.

[00:21:50] Speaker 01:
But I do want to talk about the fees issues, because I think that's also very important.

[00:21:55] Speaker 01:
And I think on the fees issues, what we have here is a case that we have an artist that says, I'm looking at a Walmart page, and I see my copyrighted pictures of my copyrighted sculptures being used.

[00:22:23] Speaker 01:
It's a marketplace seller which ended up being false and so we have to bring along

[00:23:22] Speaker 01:
The court said this, plaintiff attempted to isolate the amount of revenue associated only with the accused listings.

[00:23:29] Speaker 01:
But Walmart asserted that it doesn't keep the data.

[00:23:32] Speaker 01:
Plaintiff could not now be faulted for Walmart's failure to keep more specific data.

[00:23:36] Speaker 01:
And it goes on to explain the burdens.

[00:23:38] Speaker 01:
And so a lot of those damages were not because plaintiff came in and said, I'm looking for tens of millions of dollars.

[00:23:43] Speaker 01:
This is a plaintiff that said, I'm looking to vindicate my rights.

[00:23:47] Speaker 01:
And she tried to do that without filing suit.

[00:23:51] Speaker 01:
Similarly, the suggestion from my friend on the other side was that this involved only four lamps that was hotly disputed at trial.

[00:24:00] Speaker 01:
What ended up happening is that there was never any concrete evidence as to how many lamps were actually sold.

[00:24:06] Speaker 01:
And of course, regardless of how many lamps were sold, the images were also used on the website.

[00:24:11] Speaker 01:
And there was also a suggestion that somehow the fees were about the Land Act that supported

[00:24:25] Speaker 01:
is that the reason the fees got to where they were was because Walmart put them there.

[00:24:31] Speaker 01:
Because Walmart litigated issues and relitigated issues.

[00:25:02] Speaker 01:
kept litigating and litigating them.

[00:25:05] Speaker 01:
They rejected her.

[00:25:05] Speaker 01:
They disputed her authorship.

[00:25:08] Speaker 01:
There are instances within the summary judgment record where the court says that Walmart essentially fabricated this theory that somehow Ms.

[00:25:15] Speaker 01:
Russell had given, had referred an inquiry to somebody else for licensing.

[00:25:21] Speaker 01:
None of that was true.

[00:25:23] Speaker 01:
And even after the court multiple times said these arguments were meritless, frivolous, had been rejected, Walmart said,

[00:25:43] Speaker 01:
it out I think it's a class action case and it's specific to a class action case but the court here did go through all of the factors in quite some detail it talked about what the overall

[00:27:44] Speaker 03:
conduct by Walmart.

[00:27:45] Speaker 02:
They are merely a platform just like Amazon, just like everybody else.

[00:28:19] Speaker 02:
had to have known more, been involved more?

[00:28:23] Speaker 03:
We don't believe so that it was reasonable for the jury to infer that.

[00:28:26] Speaker 03:
That's a different situation of active involvement where, like Redbubble, where they're actually printing the t-shirts.

[00:28:33] Speaker 03:
It's different from the situation with Walmart.

[00:28:35] Speaker 03:
These are just third-party sellers on Walmart.

[00:28:37] Speaker 03:
How the third parties decide to ship, they can ship either as a DSV or as a marketplace seller, the same vendor.

[00:28:44] Speaker 03:
It's just a question of how post-sale activities

[00:29:42] Speaker 03:
27,000 actual damages, because there was only four sales.

[00:29:45] Speaker 03:
So Walmart's meritorious defenses, that they were not involved, they were not... Sunsea, they weren't... Sunsea was not their agent.

[00:29:54] Speaker 03:
Walmart had a contract with Sunsea where Sunsea had to indemnify Walmart.

[00:29:59] Speaker 03:
Walmart never talked to Sunsea.

[00:30:17] Speaker 03:
that Walmart has a term, they have repeated infringer policy, they recently implemented it here, here since he was kicked off the platform.