is bigger than this case the district court's decision if upheld will effectively render copyrights meaningless for prevailing plaintiffs in relatively small dollar award cases this is  should have been a garden variety copyright dispute copyright infringement case where our plaintiffs photographer mr philip pot on the one hand and the defendant radio station a media company on the other hand which i refer to as l m communication you know the copyright issue that's right your honor because while it with our client did prevail on the i thought the court found you did not prevail that's actually got that's the st issue isn't that's correct that's a clarification yes we well it's the prevailing party determination which is important i think that's what the court erred in finding that you were not the prevailing party and i i think that was clear error and the issue is whether that affected the denial of the attorney fees although the district court did go through the factors at least purported to apply the factors yes your honor abuse of discretion is one of the definitions is if they apply the wrong legal standard and i guess my question is was it the wrong legal standard apply yes and then did it affect the not award of attorney all of that is is essentially our position today your honor  honor with respect to the courts and nalla sense of the folk are two factors here which would include a look at the parties conduct that's one factor but backing up the court had an obligation under curtseying to look specifically at the reasonableness of the losing party here because the court erred and not finding mr philip to the b to be the prevailing party the court then did not properly analyze the factors  curtseying because it didn't find elam communications to be the losing party and that's where the focus needs to be with respect to the unreasonable ness of the it of the parties positions we would also submit your honor that the analysis of the frivolousness and motivation factors under fogarty were in error because the court did not look at elam communications frivolousness of their malicious prosecution of their abuse of process claims only looked at the fact that this infringement claim was not frivolous it completely ignored l m communications conduct in that regard the only a look at both parties conduct was under the on reasonable ness  factor and in that case in that particular factor here the court should only have looked at l m communications conduct and i can certainly go into some of the detail be find the motions the discovery motions that were filed but very specifically mr philip filed one motion to compel which was effectively granted a motion for attorney's fees which was in response to defendant's motion for sanctions it was filed in the response brief and by rule b had to become its own motion for sanctions and the rd motion was for an adverse inference based on ellen communication spoliation of evidence which went to mr philip potts copyright management information claim essentially an elevated damages standard when they failed to preserve the native post and the native photo mr philip had absolutely no evidence from which he could tell whether l m communications actually removed that met a data we had no choice but to file a motion for sanctions for an adverse inference once the court denied that motion for sanctions mr phelps let go of that particular heighten damage claim but nonetheless he succeeded on his core claim of copyright infringement and succeeded on all of the l m communications claims and defenses again as as judge you have said that it is clear error that he was not determined to be the prevailing party but that necessarily impacted the court's analysis of the remaining factors again the court ignored her saying that is not only an application of the wrong standard but she misapplied the factors of those are two bases for this court to reverse for abuse of discretion and with respect he did not look at the losing parties conduct that's the essence of the argument is that for the on reasonable ness factor one she did not give that substantial weight under curtseying so that is to be kind of the benchmark factor among consideration of the other factors but that is to be sort of the i mean it's to me that there's not a lot of money involved it seems like that would have been the thing to do was just to admit liability and do it or make an offer judgment i guess rather than  admit liability at all until the trial they did not invent liability at all they don't or at all we want summary judgment on that issue and again it wasn't just that they didn't admit liability they went on the o here with with claims that they alternately did not defend that summary judgment but nonetheless mr philip pot was forced to move for summary judgment on those if you use a process a malicious prosecution claims where they demand a greater than one hundred thousand dollars and damages with respect to what we would suggest was one of the things that i found difficult to figure out here was  was part of elam's response here though prompted by the fact that this the claim was that this was a willful violation worthy of one hundred and fifty thousand dollars i mean it  didn't seem looking at the facts of this case that there was a whole lot of basis for claiming a willful violation here so it was like everybody was trying to get the other side to to respond as outrageously as possible your honor with respect to the amount of damages that is a question that we did not even move for summary judgment on we understood that that was something that was going to be more of a question of fact but the fact that we had to move for summary judgment at all on liability sort of sets the tone here and gives an example of of how unnecessarily contentious this case was when we did not appeal the willfulness decision we do believe there were facts in the record to support our pushing for that particular assessment and simply because we had a trial on the question of whether the conduct rose to the level of  others testified he's been in the business for thirty years he knows copyrights they do this day in day out with respect to music licenses and this is not the st time this particular radio station entity has been sued for copyright infringement but they also had no controls in place no process no training no nothing he couldn't even identify who was in turns were at the time who bears the burden of that consequence given the trial court's decision mr phil pot is now four to bear the burden of that consequence and that brings me back to the original point which is in small dollar infringements there is nowhere else to go to seek and for some of your remedies and here with in the six circuit which we did not address at length in our briefs because the willfulness issue was not part of this appeal we submit that the reckless disregard standard also falls within the idea of intentional conduct right so because again media company radio station this is their bread and butter copyrights and licensing issues if they don't know better who does who can be held to even that that standard and again mr philip pot should not have to bear the burden of that in your honour's we would respectfully request that this court reversed the trial court's decision on prevailing party on mr phelps and title meant to fees but go one dollar step further here and not reman to the trial court to determine whether mr philpot is entitled to attorney's fees the record is clear that he should be and this court has the authority and the power to remand for the dollar amount the reasonableness of the attorney's fear ward and that is what phil pot for whatever reason discovered the infringement or the posting of the photograph in april of two thousand and fourteen but did not report it telecommunications for six months for that reason elam communications was constrained in its ability to find out how this happened now it is true and to this day we don't know how it happened the we think that an in turn posted the copy the photo and posted it on the website of the community events page of the website posting the willie nelson concert but we don't know for sure we know what happened and ellen communications admitted that from the beginning there was never an issue about whether or not the image was copied and posted to the website there was an issue about whether or not mr philip ott was able to prove that he was the the owner of that copyright and there were as the isn't that a matter of public record it is a matter of public quite why were you able to discover that yourself well i felt that it was mr phil potts duty to prove his case prove his case i mean if you have a public that you just don't bother to check and then your defenses well they haven't proved that they registered it when it's it's in the record i mean i don't i don't quite understand that argument well you know that was that was an issue but a stretch batchelder indicated this case was very aggressively prosecuted by mr phil pot and i think once you make an offer judgment for three thousand five hundred dollars it just meant that you violated their copyright and move on i mean instead you litigated you you filed a counter claim for one hundred thousand dollars well malicious prosecution i mean things that i mean talk about frivolous i thought your your your counter claim was totally frivolous well of the district court agreed with you apparently because jeff listed and you have an appeal that right now  no going back to your question again on its experiences with copyrights it is true it's a radio station and it deals with music licensing all the time this is a little bit different a copyright in a photo and going back in and fourteen the internet wasn't what it is today and the way it was used is not the way it is used today so this was a very small side light of its business it main business is being a radio station and doesn't he own other radio stations as well as he does on many other radio stations as he only eleven others so it's not just five employees here he's got eleven radio stations so he ha it in three states three states that is correct if we have a sophisticated event here right i would not disagree that he's a sophisticated businessman i would not disagree with that i'd like to turn to the question of the court's ruling on who was the prevailing party what the court said this the court finds that philpott cannot be said to be the clear prevailing party given the amount of claims he lodged in the relatively  was the prevailing party of the court found that mr phil pot was the prevailing party they it i think the language that i just quoted from the opinion really the upshot of that was that the court felt that the the claim had been overly aggressively prosecuted by mr phil pot and that he was even through a trial and after trial was asking the court to find make a finding so he was the prevailing party and for that reason the court went ahead and engaged in an analysis of the folk at the factors the most so again the district court was in the best position to observe what was going on in its court and i think the quote that i just read together with the rest of the opinion suggests that the court felt that this was being overly aggressively prosecuted by mr phil pot and indeed if you look in his post trial proposed findings of fact and conclusions of law he did ask for a finding of willfulness even though he admitted at trial that he had no evidence elam communications knew it was committing copyright infringement when it copied the photo and also asked for an award of statutory damages up to one hundred and fifty thousand dollars they want to characterize this is a small dollar claim it became a small dollar claim when the court ruled before that it was a big dollar claim and i think that that that is part of what is reflected in the district court's decision and  i might say also that congress gave district courts broad discretion to to grant or deny attorney's fees and copyright claims for a very good reason in the hands it is true they argue this and i agree that in the hands of a an honorable litigant the prospect of a field ward does provide access to the courts and counsel for copyright owners with even small claims however once a perception develops that a an award of attorney's fees is guaranteed the dynamic changes at that point politically even with a small claim has every incentive to overly aggressively prosecute it and go for the gold ring every time and i think that's what happened in this case that is why this court should not do anything that would constrain the district court's discretion to deny an award of attorney's  case before it was filed and after and during the litigation i can tell you there were significant efforts to come to a reasonable presentation but now i mean we have a mediation office i mean this is not a big case for us i mean you're you guys are arguing about some amount of attorney well there's been an effort to mediate in our court yes and there was an effort to mediate in the district court  value for us to send it back to where our mediation office t worthwhile for us to send it back to the mediation office or not well based on my experience and making efforts to resolve this i would say that there is not there is not ok but you know that's not because of my unsaid the court instead will focus on the reasonable to this of the suit and the parties actions along with the deterrence value of an award of attorney's fees the parties and the court have expended considerable time energy and resources to an action that is not complicated but was made so due to the actions of the parties both parties filed numerous discovery and sanctions type motions necessitating the court's constant involvement in oversight likewise both parties dropped various claims that were largely unsubstantiated but only after the other party expended time in fees to address those claims there's no question the court considered the conduct of both parties no question she said she did now she didn't say every single consideration and the way to given to every single consideration in the conduct of the parties but she clearly clearly considered the conduct of both parties and i don't believe that it is correct to create truck statement of the law that the focus has to be exclusively on the the conduct of the losing party the way i read the law the district courts authorize to consider the entire case any and all considerations bearing on the case now the conduct of the parties is a key or an important factor but it's not controlling and the supreme court said that explicitly your view did that i mean assume and i know you're appealing the prevailing party determination you use you claim that the district court got it correct by saying that the plaintiff was not the prevailing party but assuming you're wrong on that and the district court erred in that ruling did that not affect her evaluation of these factors that she considered that she starts out by i mean when i mean there's a legal standard of a prevailing party which i think we all know what it means but i don't know what clear of really party means but well i do i do term to me the way i read her opinion in context she was saying that he was not the clear prevailing party in the sense that he didn't recover all that he was c e o so what i mean what ok well i don't know very very few plaintiffs say a personal injury case get everything they want if they sue for three million dollars and they only get a one million dollars well they did not clearly prevail on everything because they they didn't get the other two million they were suing but they're still the prevailing party they still win the case  she ruled in his favor and she didn't have any problem really his favor either i don't know she had to rule in his favor under the you know under the statute she had well why didn't you admit it why did you get liability then i mean you contested liability all the way through this case and you say she had no choice well why were you defending the statutory damages well i don't want to make an offer judgment for one chip in hindsight that might have been a good thing to do or why did you not well i guess she denied it in your in your answer because you hadn't checked the public record to determine that it actually had registered the copyright that's right you to do your job to check the public well i took discovery from mr phil pot i thought that with the experience that he had had in litigating these cases that he'd be able to come with evidence very quickly that would put the matter to rest and he didn't ok that the standard for review here is very deferential to the district court the district court did exactly what it was supposed to do it considered the fogarty factors made a proper analysis and exercised its very broad discretion for that reason i think i'm just going to spend my time addressing a few specific points that were made that i think are in error here one the the trial courts failure to find mr fell apart a prevailing party is because essentially there's a new standard that was set forth in the district court's opinion that he should be a clear prevailing party that is simply contrary to the law that is not the standard is to be reviewed did no vote but that is a clear air of the law that is not the requirement the law is also clear and occurred saying that the look at the objective unreasonable miss factor is to be focused on the losing party and even as the police counsel and analyzed the district court's opinion for you on that factor the most she looked at was quote the parties in passing and a couple of sentences but the two pages devoted to that analysis were ninety percent focused solely on mr  that itself is misapplication of the law and an abuse of discretion with respect to that same factor the frivolousness of the counter claims and the unreasonable demand for one hundred thousand dollars should absolutely have been a significant from when he says he discovered it to putting them on notice at the infringement if a sophisticated company can identify its interned six months ago i would submit there may be a greater problem there but with respect to  that delay being a meaningful factor here in the in sort of the litigation of the contentiousness and the attorneys fees it's meaningless and irrelevant and this court can also see from just backing to your rd point there so is it your position that i think we should all concede that the court heard with regard to the prevailing party question but is it your position that let's assume that both sides just engage in reprehensible litigation conduct but one side prevails as a matter of law on the core issue but not on a bunch of other issues both sides are reprehensible the court can't take into account the plaintiff's reprehensible conduct has to focus only on the defendants with regard to attorney's fees is that your position no your honor it's not our position here is that the factor of unreasonable ness in the litigation conduct that is to be given substantial weight is to be focused on the losing party but that's one way factor matter if the plaintiff is a also unreasonable certainly the court can consider that but that is occurred before curtseying where there were situations of reprehensible conduct on post sides here the docket is clear this court can look at the record there was not reprehensible conduct mr phelps was never sanctioned he was never reprimanded  in fact the motions here on discovery in my view were frankly normal course motions as mr allen noted there were efforts to resolve this case but there was no  but clearly just simply did not engage in that kind of conduct i see that amount of time your honor for the questions just on the bench or perhaps we should ask the other side whether in her view there is simply no point in trying to resolve this disagree with mr allen so representations about the are there the level of effort made i would agree that i don't think that there is a lot of benefit to that at this point that's all we want to know we were not into futile exercises here thank you all right thank you very much case will be submitted may call the next case