but this court's opinion on the merits following that ruling although affirming the district court substantially undermined the core legal premise of the district court's merits ruling that the parties contract and equivocally permitted  conduct we believe this court's ruling makes clear that you know excuse me that universal's copyright claim was objectively reasonable and for that reason and because none of the other factors relied on by the district court support the fia word  evidence that m s c i exceeded the scope of the license in section eight dollars d of the e p a this core on appeal did not embrace that core promise of the district court's ruling this court held that section eight point of the contract permitted the defendant's conduct this court instead turned on that issue to resolve the case on the basis of an affirmative defense section one hundred and seventeen dollars a that defendants had never pleaded for four years and this case and we have no way to know whether the district court would have concluded that universal's claim was reasonable had it understood number one that its interpretation of the contract might not be correct and number two that the resolution of the  enough of a basis for i believe it is because we don't know that the district court would have reached the same conclusion weighing all the factors had it concluded that universal's claim was objective a reasonable which that the award of fees that's right and i think part of the problem is that it's not clear what exactly the district was talking about big as its critiques were so vague and what we believe had been not unsubstantiated by defendants on appeal but to the extent there are court is going to impose fees based on these vague critiques and needs to number one identify particularly what they are and number two you tailor the few words to the fuse that resulted from those critiques for example one of the things a district court said was that universal's theory of the case shifted over time i don't know what that means our theory of the case was actually quite consistent throughout the litigation we consistently argued that that defendants breach our copyright fees and curren on the part of defendants if we were to find that the district court was correct in its other determinations about objective unreasonable and so on i'm not saying that we would necessarily but if we were and it bases its few words on the copyright act the discretion given to the district court to award feast revealing party aren't the aren't all of the claims here intertwined and subject to the copyright acts granted discretion to the district court or can you describe in what ways they are not intertwined so that an award should be separated out  i do believe that there is there are substantial parts of the claims that are intertwined namely that all of the claims were vested on the intro partition of a contract but if anything i think that favors us because this case was st brought not as a copyright case but as a case for violation of trade secrets breach of contract and the other common law claims that we have started in our complaint so those issues were always in this case the parties were always going to have to address interpretation of the contract it wasn't until at that a year later this isn't shifting theories this is just that's correct i know and when we thought of the st amanda complaint we added a copyright claim after the registration of universal's copyrights and so took this court seven months and a published opinion to reach that conclusion and if you look at the way this court resolve the section one hundred and seventeen dollars and claim it was substantially more developed than the arguments that defendants even offered to this court and their appeal brief and tooling and automation and i tried the case before the district court let me begin your honor with what was the focus of opposing counsel's presentation this morning which rested on the premise that because this court rode  opinion on the section one hundred and seventeen dollars issue it establishes the reasonable miss of their claims that is a flawed premise this case was not about the question of the right to modify the source code that was described by their counsel as minor modifications that issue were minor in this court's merits opinions that said at one point that ninety nine four percent of the code was the same at page forty six dollars it said that the code was pretty much identical modifications was not the focus of the trial below the key question the principle issue in this court's words in the merits opinion was whether my client microsystems had the right to provide the source code to missouri tooling for copying and on that question which is what the focus of the trial was it was a  straightforward analysis by this court because the license and the parties contract expressly said that we had a license to reproduce the source code using other supply it affects i mean you got past summary judgment right there was a trial it's a little hard for me to imagine that the district court or the you would have gotten that or that you all would have gotten that far if their position was objective leon reasonable to response yes your honor two responses to that the st is that the people came to this court on a rule fifty motion being granted which as appellants pointed out in their brief is an stream lehi standard those motions are rarely granted and this court's affirm and shows theft those were the words in opposing counsel's merits brief to this court but when the case is a theory change and that was one that was a criticism that the district court made and there were various ways that  because it wasn't simply the unreasonable miss their theory of the case it was also their litigation conduct and their advocacy that troubled the district courts below so to your question judge parks some examples of how the theories changed is that they were seeking in a case over a one million dollars contract an injunction which would have shut down the many factoring of pacemakers which is m s e e business and their expert served numerous expert reports five or six reports including without leave of the core on the eve of trial seeking enormous amounts of damages tens and at one point hundreds of millions of dollars in damages in this one million dollar dispute that's one way of shifting of theories shifting at trial as opposing counsel mentioned in the presentation they devised a new theory of breach that a different provision section eight three was what was breached which was not a theory that was pled to the district court their expert at the trial relied on documents that were not disclosed during the expert discoveries process the defendant also change face of it if i'm understanding your question correctly judge we had numerous defenses because we our client was faced with the prospect of its business being shut down by this injunction and potentially hundreds of millions of dollars  in damages so there were sixteen witnesses that were on the stand in the case and there were numerous defenses to all of the potential theories that were being positive by the plaintiffs that the reason the section one seventeen perhaps i'm not understanding your question but but to address one point that came up earlier the section one there was broad language in the answer about the rights conferred by the contract being the basis for our affirmative defenses and of rights include statutory rights under one hundred and seventeen and the reason that the answer came very late in these proceedings is that there was a pending rule twelve b motion that was before the court for a long time and that was not resolved until the summary judgment decision came along so that was the reason the one section section one hundred and seventeen issue came up relatively late in the proceedings and as i said before the real grab them in of this case the theory of wrongdoing was the notion that this was a breeze and theft was not the modifications issue  if i could address an issue that was raised by dr park which is that even if this court were to conclude that their theory was objective lee reasonable and we do not agree with that because the unreasonable exposed at trial the appropriate course of action is simply to affirm the district court anyway under the supreme court's decision in curse thing because that's only one factor and indeed the core  thing pinion is not to place too much weight on the objective reasonableness of the theory and instead to afford the appropriate amount of deference which is even a heightened form of deference to the district co when considering the totality of the circumstances i'd like to address if i may in my final couple of minutes the subject of our cross appeal because that presents a slightly different question this is not a matter of whether the district court abused his discretion sharp because this presents an issue of law and judge sharp interpreted this court's precedents including principally the decision in hill which was a panel that included justice o'connor among other eminent jurists and just that and judge sharp interpreted that president that precedent as requiring him to start from the premise that he had to use in district rates in setting a reasonable attorneys fees and then it would be incumbent on the prevailing party to show that no firm in the northern district of new york could have achieved a similar results and we submit that is the wrong way of looking at the issue as articulated in hilton and subsequent  jurisprudence by this court the key question that courts are trying to get at is what a reasonable paying client would pay and the forum rule is a way in the words of the orb or h decision for a court to discipline the market because in those circumstances a civil rights case in noncommercial case there is not an actual paying client there is in effect no market so the reasonableness of the case was exposed at trial it was factual on reasonable miss universal's c e o universal knew at the time it filed its complaints that to use the words from it o at trial there was a dispute shortly after the contract was signed over who would own the source code and then for purely business reasons universal decided to willingly and voluntarily give the source code to microsystems engineering universal knew that fact the district court did not know that fact the project manager for universal testified at trial that the provision of that source code in october of two thousand and eight resolved the issue of ownership in microsystems engineering's favor so whatever legal theory might one might be able to devise doesn't change that there were these facts peculiarly in the knowledge of the plaintiffs which made their claim on reasonable turning in my final seconds i would simply suggest that under or hill on our cross appeal and the other jurisprudence the relevant approach the appropriate approach the correct interpretation of those decisions is the approach that judge lynch took which is that the starting point here should have been that act a reasonable client actually paid these invoices and absent any evidence there was anything wrong with that or they were doing it in anything other than the ordinary course of business that should have been the starting point and setting the amount of fees not northern district rates thank you thank you very much mr moore you have two minutes thank you unless the court has questions about the the cross appeal i would just note that the district court did exactly what this court told it to do in sentence which also involved eminent jurists and which clarified the a the defendants have found no case and cited no case to the court where notwithstanding the fact that this court concluded a claim to be objectively reasonable it nonetheless affirmed without knowing how the district court would have balanced the remaining performance in the case and rd it comes to rely heavily on these facts that came out at trial with respect to ownership of the source code and i think this is an important point because it shows this actually was a very hard case defendants argument in the trial court and to this court on appeal was that the final customer acceptance letter and the testimony about that letter showed that they owned the copyright itself that they owned universal's copyright very much i will reserve decision