If Oracle elected statutory damages, however, its recovery would be limited to, at most, $150,000 for each of the two copyrighted versions of the Java platform at issue in this case. See 17 U.S.C. § 504(c). Oracle did not pursue statutory damages at the last trial, and has conceded that it is “unlikely” that it will do so here.

Williams, 251 at 67. CASE 0:06-cv-01497-MJD-LIB Document 130 Filed 12/03/07 Page 19 of 20 -20- CONCLUSION The United States respectfully requests that should this Court decide to address the constitutionality of 17 U.S.C. § 504(c), it should find that the statutory damages provision of the Copyright Act satisfies the Due Process Clause. Dated: December 3, 2007 Respectfully submitted, JEFFREY S. BUCHOLTZ Acting Assistant Attorney General RACHEL K. PAULOSE United States Attorney /s/ Greg Brooker GREG BROOKER Assistant United States Attorney THEODORE C. HIRT Assistant Branch Director /s/ Adam D. Kirschner ADAM D. KIRSCHNER IL Bar No. 6286601 Trial Attorney Civil Division, Federal Programs Branch United States Department of Justice 20 Massachusetts Ave., N.W., Room 7126 P.O. Box 883 Washington, D.C. 20044 Tel.: (202) 353-9265 Fax: (202) 616-8470 Email: adam.kirschner@usdoj.gov Attorneys for the United States of America CASE 0:06-cv-01497-MJD-LIB Document 130 Filed 12/03/07 Page 20 of 20

CONCLUSION The United States respectfully requests that the Court first determine whether Defendant’s motion can be resolved without reaching the constitutional question presented. If, however, the Court finds it necessary to address the constitutionality of the application of 17 U.S.C. § 504(c) in this case, it should find that it satisfies the Due Process Clause. 17 This issue is not just confined to the United States but is evident in the United States’ international agreements that require countries to have in place statutory damages to protect copyrights.

CONCLUSION The United States respectfully requests that the Court first determine whether Defendant’s motion can be resolved without reaching the constitutional question presented. If, however, the Court finds it necessary to address the constitutionality of the application of 17 U.S.C. § 504(c) in this case, it should find that it satisfies the Due Process Clause. 17 This issue is not just confined to the United States but is evident in the United States’ international agreements that require countries to have in place statutory damages to protect copyrights.

The Copyright Act only allows recovery of infringer’s profits “that are attributable to the infringement,” 17 U.S.C. § 504(b), which refers not to any “gain in economic theory,” but rather to “a more conventional view of profits” as “gross revenue less out-of-pocket costs.” Business Trends, 887 F.2d at 405-06; see also 17 U.S.C. § 504(b) (“In establishing the infringer’s profits, the copyright owner is required to present proof only of the infringer’s gross revenue . . . .”). In short, “saved Case4:07-cv-01658-PJH Document543 Filed11/05/09 Page21 of 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SVI-71862 - 18 - DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR PARTIAL SUMMARY JUDGMENT Case No. 07-CV-1658 PJH (EDL) acquisition costs” are neither actual damages nor infringer’s profits under the Copyright Act.

In the alternative, pursuant to 17 U.S.C. §504, awarding the Plaintiffs their actual damages; e. In the alternative, pursuant to 17 U.S.C. §504, awarding the Plaintiffs statutory damages; f. Pursuant to 17 U.S.C. §505, awarding costs and reasonable attorney’s fees; and g. Granting such additional and further relief as this Court deems just and proper. Tenth Claim for Relief VIOLATION OF THE COMPUTER FRAUD AND ABUSE ACT (18 U.S.C. § 1030 et seq.) (Against all Burri Defendants, Shane Fairchild, Engage Mobile, Darrin Clawson, Matthew Barksdale, Liz Corbin and Nathan Haley) 245.

00.” 17 U.S.C. § 504(c)(2). An infringer may be “innocent,” and therefore entitled to a reduction in statutory damages under section 504(c)(2) where the infringer has a license from a performing rights organization, such as BMI or ASCAP.

PageID #: 280 12 This is clearly a situation where the Plaintiffs should be awarded damages well in excess of the statutory minimum. Within the limits of $750 and $30,000 per infringement, the amount of any statutory damages award is within the discretion of this Court. 17 U.S.C. § 504(c). For nine (9) acts of infringement described in the Complaint, Plaintiffs request a total award of $10,800.2 This figure is approximately two times the amount Plaintiffs would have received in licensing fees from Defendants had their establishment properly been licensed for the past 3 years, Id.

To establish innocent infringement, Defendants must show that they were “not aware and had no reason to believe that [their] acts constituted an infringement of copyright.” 17 U.S.C. § 504(c)(2). This standard is simply antithetical to the findings of this Court and the Ninth Circuit that Defendants intentionally promoted copyright infringement.

93 (2005) (instructing the jury on the available range); Ninth Circuit Model Civil Jury Instructions § 17.25 – Copyright Damages – Statutory Damages (17 U.S.C. § 504(c)) (same); Holbrook and Harris, Model Jury Instructions: Copyright, Trademark, and Trade Dress Litigation § 1.7.