first is the district court's threshold error in failing to calculate a lodestar and the second is the impermissible factors that the district court applied to purport to justify a very low feel ward to eighty i am it's not necessary power most are permanently at thirty no your honor i i would not agree with that because i think it's very clear particularly after the supreme court's opinion in purdue which is issued in two thousand and ten that when regardless of regardless of what statute we're talking about if it has a fee shifting provision you have to calculate a meaningful review and very importantly you get reasonably predictable results but you calculated the lodestar did you not in the or your side that when you made the presentation to the judge you're right yes we did it and then you did that we decreased it so it was down about forty two percent or something like that it may be i am decided to request less money than it was entitle to that is correct and the attorneys fees provision in the copyright act be read analogously to the civil rights statutes is the answer that is yes you win if the if that is no you may win or maybe lose here's the thing i agree that the civil rights act and the copyright act do not have identical persons it would be silly for me to stand here before you and to say otherwise but here is what they have that is do what we've said in other courts right and calculate loads starts that are that are so if this is not a civil rights even if it's not required to be analyzed under that then what authority do you have to indicate that he this record is well founded by some stray comment that it may have made what case support you have to to indicate that he lodestar must be calculated in a copyright act yes the reason why a lone star should be calculated in a copyright case exactly like it should be calculated in a civil rights case or in a trademark case or in a patent case it is because today it has widely been regarded including by the supreme court a the best way to calculate reasonable attorney's fees because it roughly approximates the free it allows for meaningful judicial review because you know what the court did below and it brings about reasonably predictable results that is there is i and i but if i were the on the flip side i'm i'm sorry but i put it on the flip side that if there is no reason why the standard for a copyright case in terms of calculating attorney should be any different the purpose of the copyright act is to encourage creative works for the benefit of the public that is exactly what a b i and does its exams are for the benefit of the public because the public relies on the outcome of those exams to select physicians this is about protecting the public for the benefit of the public you know there's a lot of cases in which lodestar comes at the back and it's a cross check and there are certain types of cases where most are comes at the beginning such as civil rights cases but let's go back to just sort of this question how is because this five o five a copyright act how is that the same as or different obviously right so court that significant discretion right and in this case the court already decided to award the i am attorney's fees that is a separate order that isn't even up on appeal before this court that is a totally separate decision that judge joyner issued in which he said yes given that the jury found the doctor venue was a willful infringer and to promote compensation deterrence a b i and title two reasonable attorney fee that's a totally separate order and then that was affirmed based on factors other than most of our calculations and the reason for that is that the factors that the district court applied to justify the very low a fee to justify the low fee award are those factors are in permissible permits well let me let me go through the factors and discuss them one by one first is the first factor is damages the factor of damages the jury's awarded damages is really what is at stake in the case what are the stakes in the case in this case the damages awarded by the judge awarded by the jury do not reflect the enormous stakes in the case for watch no she can still practice gastroenterology she's just not for certified but for her and she said this you know this is in the record she wanted to clear her name she wanted to punish a p i m which was clear from the eleven counterclaims position the district court's decision is still reversed because given the factors that were applied they first of all that the facts that were applied to some of the factors are clearly erroneous and i would submit that it is jury gives a lower amount of damages that's actually a reason that is a stronger reason to award attorneys fees and the reason what statutes were it issue in those cases that's copyright they're both cars are both covered goes up to the back door through the measure of success because she claimed that she wasn't a cheater and that she wasn't an infringer and she lost maybe i am one and all of that and maybe i am did obtain it ninety one thousand dollars a b i and did obtain ninety one thousand miss what's the or what's the argument that this record that you know because she stopped theory here that you know it just it just feels right to do have we don't we need more than that i mean when you look at for example i mean we've judge's chambers what i believe happened is the judge issued his order saying this is the kind of case i'm going to give attorneys fees and in a footnote he said i'm going to give me a look we're going to do a lodestar counsel be conscious of the fact that you have to give a good faith duty of billing but here in the third circuit and the third circuit again back in the evans case that you can make findings of reasonableness based on a generalized sense of appropriateness and it looks like support their loads they are good and and they discounted it so they did it on their own so it would seem to say that there was duplication that is really kind of off the table because they took it off the table well it's not our number and that was that no other damages were to do this was forty three but what rights are but is they discounted it significantly in training what they were even knowing that the court looking at the information provided to it found that it was still unable after reviewing all two hundred pages to find that the lodestar the the reasonable most of the hours expended were in fact reasonable so the court turned the page knowing that it's not balanced by deciding the the third step in the actual sentence you have to have a correct calculation of what the sentencing guidelines are and here it seems that you need a least a correct calculation so that we know what we're dealing with apples versus apples with regard to the amount of time that exists for purposes of determining a proper fee award if one is proper at all in this court the district court who heard all of the evidence who handled all of the cases because this was one in a number of cases that were brought against doctors by a guy and that court is in the best position was in the best position to look at this lodestar request and realise it was for it in excess but don't you have to agree that the war had nothing to do with the loadstar i mean the judge was explicit about it the judge said i'm going to award attorneys fees equal to half the the verdict i mean that's the we don't have to speculate as to what the judge did here the judge tied this attorney's feel a ward to or a proportionality analysis that was one half the verdict isn't that true after the judge found the evidence submitted didn't meet their burden the judge then did go and just under the circumstances i don't think the judge simply have the amount without thinking about the case there's any judge no doubt about the judge thought about the case you know as we say where i grew up a complexity of the case the court considered the fact that there were other cases the court considered the deterrence factor in the could consider the lack of actual malice the court considered the degree that's not what he said and the opinion that it may well that's not that's not what your chicken lay that's the reason for the the that's that's that's good a law that you're taking off there but that's not what he said was the basis for the it were or were those the things that he talked about he talked about how the fact that there had been this award and the fact that this person had been put out of business would deter other doctors from doing what she had done he at the end of the of that opinion before the court moved on the court said clearly that the district court is not bound to give an attorney's fees that is discretionary and that if the district court finds one is not necessary that one doesn't have to be given and in specific the court states that if the district court concludes that fees are proper issues then consider the relative simplicity of the defense the judge did that here and whether the retention of accounts out of town council with the company increase was necessary that's not happened here but the summer question is large and we note that it may be disproportionate to the amount at stake and excessive in light of the probably just resources the judge considered the problem you have is on page four but not to the judge acknowledges that the load stars presume to be reasonable and in the footnote it has many virtues and then goes on and you need to calculate  understand that your honor the i agree that the court in its original order granting attorneys the in its mind was going to apply a lodestar in reviewing the documents provided by a b i and the court obviously shift gears and decides not  or as a matter of process what you want us to do while you're not do additional theory as well though your honor but i think that the court was right in saying that here the difference it's the copyright case and this copyright under the copyright r even though it requires a deep hard look at lodestar the fact that the court here acknowledges that the fact that it wasn't done it's ok because and in the future the next case when you're on the other side to worry about it's ok you can somehow every now and then put yourself in our position as to what we would do and how we're not screwing it up for the next case down the road not one that i think your run of the court either has to take the hard line of saying that in all of these kinds of cases where there's a fee shifting provision a lodestar must be done in the court must go through all two hundred pages in eliminating the ones that it finds to be unreasonable or the court has to say this is a copyright act case and in the copyright act the court are reasonable but i can look and looking for pizza level of the court's opinion the court says in a ride with appropriate award under the circumstances presented by this case we consider those factors outlined by the third circuit and in those in that from page eleven to all two hundred pages of the bills and knowing what may happen in terms of the deterrence factor in terms of what did happen to this person and deciding that in fact is an appropriate number use as i said before this may go back and this judge may do exactly the same thing and it may be quite likely maybe the right result no no problem but there is a process that you have to go through and that's what we're talking about here we're not saying that this was the forty thousand is ultimately the wrong number and i realize your position as an advocate is a try to to get it affirmed in the here and now but the we have to think about what happens down the road and i don't have an answer for you when you're not supplying me want to stop why we should ignore the process that we normally have in place in most cases with respect to the wording of fees well i think that the court arjan you could have made is perhaps is that a you know what low start shouldn't be a front it should be just a cross check is as in some other instances it is just a cross check for to be sure that you've arrived at a number that makes public policy driving a copyright which which is which is all another way of saying you need to convince us to apply a different standard in copyright cases than we can do that different standard is going to give trial judges substantially more latitude to fashion just an equitable fee awards than they would otherwise have in those civil rights cases correct yes your honor i think that is a standard because the copyright act the main purpose of the copyright act is not to protect authors the main objective of the copyright act is to allow for progress unsigned and here if you look at what happened here this plaintiff was a key this defendant was accused of copying seventy seven questions at the end of the day she was only found to have infringed twenty one if you if you accept a b i and interpretation of the jury's verdict sheet which which obviously dr von miller believes much are arguing she only treated on twenty one question it's really not helps you but it's not a matter of cheating only on twenty one questions it's a matter that all those other questions that she was alleged to infringe on they now are part of the public domain there has to be a place for people who are putting together review courses they're the people that are p review courses for doctors or former doctors who have sat for this exam and if they're faced with the choice of oh maybe the question i'm crafting is maybe i'm questioning i'm going to be hit with hundreds of thousand dollars of attorney's fees then they're not going to do that so is your argument that one should take twenty one over seventy seven and that should be the proportion that we do source of proportionality test well no your honor because that is can't be it can't be that but what you have here is you have a jury coming out down the middle and judge posner talked about toss up copyright cases in the cessna technologies case and you have a jury coming down the middle saying look that this was half of the questions are we'll give you half of the questions but half of the questions she's accused of or in france never met her about it isn't a toss up case what this says is if you look back later an individual was found by a jury to have violated the copyright act with respect to twenty one questions or specializations sort of occasion exam period that's will come out but that's history the fact that they argued there was more and that the jury found doesn't help us well i understand it doesn't help in setting a standard for the copyright act to do attorneys fees so what standard would you have ask us to apply here i think that the standard that should be applied is  discretion standard what factors should we take into account in order to decide whether there has been an abuse of discretion while the factor should be should be the ward the damages award it should be and where do you start complexity of the case s those are the kinds of factors that have already been laid out by this court and it varies of opinion x case no your honor the district court found there wasn't a complex case there were five witnesses they were eleven thousand pages of documents and there were no experts according to a b i am even though dr daniel who argued that one of the witnesses was technically an expert