a result of the reverse reversal of its attorneys who toward by awarding the plaintiff spans keep almost all of its legal fees eight hundred fifty thousand dollars worth for the entire litigation based upon an isolated incident of misconduct after the lawsuit began by a low level employee of t v any proof or finding that the fees would have been incurred but for the misconduct is absent from the opinion below did you make that argument but we did not that so i'm not in your reply brief you argue that  you didn't before this matter for the reasons you're giving now yes and you say that page eleven that while i see i could not argue the few should be awarded for misconduct i didn't ask for fees that were costly on connect and for so that the issue about causation wasn't even known at the time i did it we had been addressed in the second circuit's matthew bender decision but the supreme court had of my belief at the time of briefing not yet can tell whether the court exercised its discretion properly is the facts that are referred to in the record and that is the only factor referred to in the record the court filing the drug that that the t v p had intentionally removed your block which you refers to elsewhere but that is not litigation is caught that is convert the current prior to the suit as far as litigation misconduct is concerned and it is the primary reason which the district court cited for an award of fees it one incident involving three of the fifty one episodes taking place three months after the lawsuit began and no other incident we have no basis in this record also referred to deterrence i think the deterrence your honor is it was an inappropriate enough for some hard turns would be enough for the other so you have to win the argument that the terms was the pieces question i think there are two pieces to this to the extent of fees are awarded on litigation is calm the good your establishes defendant both the district court and this court found that my client would advance not only objectively reasonable defenses but ones that had never been ruled on by a federal appellate court before we think that there was both no case here for general using party was objective was along this downgrades what the supreme court heard sam said was substantial weight the must be given to objective reasons and they really are two sides of the same coin if a argument is objective y reasonable then as current science says we don't want to deter people from making them by awards of fees and there is no evidence or for specific deterrence because that better deals with repeat infringers or  to give the substantial way to object to real reasonable measures which the supreme court said it was required to do with i'm sorry but with respect to compensation which was the other consideration raised by the district court we think that would your tire no your honor we were saying was the birdlet lay on the plaintiff to show a reasonable rates for similar services in the community namely what is charged for copyrighted work litigation in the district of columbia they fail to provide anything of that law has continued in the direction of saying that the reference point should be the usa or matrix so when the judge says i'm going to arrest me i yell a report he has asked me to i don't you know i don't read the district thirteen of the district court's attorneys fees and i know the t v would like to make much of the fact that there was a misconduct finding and the district court did state that she could award attorney's fees based on  misconduct alone there was in attire only separate finding a basis for the award that was deterrence event in this case was a case of deterrence plus court was being quite clear at that exceptional circumstances here and this report cited well it was willful infringement and so your position that just willful infringement is an exceptional circumstance or is relevant to factor in it's a factor in exceptional circumstances just that you mean that mens rea under the copyright act this standard for an award of attorney's  under the copyright act as compared to some of the case law say by t under the patent you know statutory scheme does not require exceptional circumstances it is infringement even though their position was subject to a reasonable i can't agree because the district court below clearly did find willful volitional intentional infringe infringement that was willful but they didn't they had a check of lea reasonable argument the law didn't apply to what they were doing or didn't constitute a freshman by now i understand what you're saying what the courts skated and i actually agree with it and i think that the vast body of copyright law in attorney fees awards does support that they were you have a defendant who willfully and intentionally violates a copyright one aspect of deterrence is to keep that defendant from engaging in that conduct and yet just makes attorney's fees a matter of course any time willful infringement is frowned it's found because someone say well they will fully here correct and i'm not i'm not trying to dance around it the other aspect of deterrence that the district court actually stated unfounded and collaborated at life was at the in this particular litigation misconduct which will one instance it's not going to get to you the exceptional circumstance of fees for the entire litigation but i understand that they could get what you have against you for the rest of the litigation i'm sorry what justif fees for the entire litigation as opposed to those tied to the misconduct in this case with the district court articulated and and what i believe is the law is a deterrence factor for welfare willful infringement and as you just said we are we are but i guess i feel like i'm going to go on i'm just not understanding your point i'm going in circles here because usually you keep citing the misconduct which was the one instance and the fact of the infringement was willful but as we have already held their positions in two respects are objective really reasonable to think that they were not engaged in a violation of federal court turns out they were wrong but is objective really reasonable in two respects to think that they were not violating copyright wasn't done in fact entirely nation so i guess i'm just i'm still not hearing and i'm sorry if i'm just not hearing your words correctly let me try and summarize it first because i'm having trouble getting to my second point in this case there is clear clearly willful intent and intentional infringement i think that in an appropriate case and what the district court found here is the deterrence factor alone can merit a full litigation misconduct now the parties dispute the extent of it t v p would have you believe that it was one isolated item of misconduct but that is not what the district court said in her opinion the district court highlighted that but referenced back her amended findings after trial which detailed deletion of files deletion of the evidence that would have shown that this was done the first trial the first item that i would describe as litigation misconduct based on the district court toward was that the computer files the actual files that generate your ability to view the programming were deleted twenty eight out of fifty one see you know in a can the quick series within two minutes the second thing which the district court focused on because it found it particularly reprehensible that you would not only kind of delete evidence but then manipulate the evidence so that it supported your case and then come to the court and present that evidence  as being factually correct when you know that would be tied to that litigation misconduct associated with putting that evidence in correct it was a who are entitled to litigate and not i think not fees he has part of the statutory damages award but but going back to the question that that we're facing why am i to make sure i'm understanding your answer when you put in your fees for this litigation yes did it start after our prior decision or did include the time did include the time in which you were also i know you didn't could the fees in our court but it did include the fees and district court for a litigant in extraterritor those arguments are actively reasonable but i submit to the court when you're a company and you know you've intentionally done something you will fully did something and instead of admitting and saying we have three two or three legal defenses to that infringement instead you deny the allegation and you inject into the case and create the cost to just expand exponentially a bunch of defenses that are based on a false premise complex commercial a biggish not all the other one does it but that what it's been used for is an in certain types of claims routine types of claims which the courts in this circuit have held your disputes where you would eventually get your fees at the end of the day this court and the district courts have held that's not complex litigation what we presented in this case was that this copyright dispute was complex litigation and that the fees for those sort of complex litigation are built into the adjusted alice i will have the matrix rights they are consistent with what you see from the various polls that were submitted litigation thank you for your time unless there's something else bruary took place before the law should be here and they were effectively found up in her determination that the infringement was willful they were not litigation misconduct they were did not in fact cause any fees to be incurred in the way that litigation reasoned well cannot hold on to that for a minute or so so assuming you haven't waived the causation argument your argument is apparent entitle to compensation for the litigation misconduct for costs arising out of the but he said misconduct but not for the other piece is right that is correct so all that all that the fees for that do is pay them back for the extra costs that has no deterrent effect because if a party can raise its opponents costs and the worst that happens is that party gets that costs back it's not really much of a deterrent so the judge said this was a grievous and she said th deterrence of future violations represents an important consideration in this case and this is not only because of can be p v p xli jason misconduct why isn't it sufficient that she is trying to deter the district court of how profound the litigation misconduct might be the principle of fee shifting is compensatory you are awarded fees for what you had to do is mail good your hire and the other cases say you can't award fees for tolerance i'm saying and that if that with respect to the litigation is high the branch of this deterrence is not relevant the federal circuit in the rembrandt case said there while the turns is a consideration as to whether few should tracked down a good year came out one month after the discourse after your brief and my case why didn't why didn't you file afterwards i don't think we were aware of it at the time you're on a supreme court decision on the very issue were we we were not aware of it your honor but i don't believe that it changes the law that defines the bias discourse review of what the district court if the supreme court has changed the law or made it clear that we were since the district court rule there is a lot of the the proof of the infringement is basically clear except for the fact of the defense that you raised on the factual issue could you that it was my client's and sear belief and i presented it to the best of my ability which i think was recognized by the district court and her merits of him in that the cause that there were there were valid reasons to contest that my client had removed your blocking that there were two forms of fail safe for geo blocking that was not removed and we presented that evidence for the consideration of the court a with their we did not view this as a walkover for the plaintiffs and we felt that it was worthwhile presented both our expert testimony and our faculty estimate for the consideration of the board or the facts simply were not agreed to and i don't put it having objectively reasonable arguments together with facts that we felt we could sustain most of which have nothing to do