idea that infringement cases are comparable to d m c a cases is just plain wrong for different purposes they have their own statutory damages and plaintiff is seeking up to one hundred fifty million of statutory damages which besides being absurd leads me to think well they should at least be able to prove that they're copyright that they have a copyright in the work so let me go on to that will reset the clock for you  we think that because the test that should be applied is the octane test which is an exceptional cases one that stands out from most cases with respect to the relative merits  wasn't argued to the district court no and i think i understand why i wasn't there but the second circuit why isn't that forfeited well first of all we have to work a little bit backwards if this court were to decide that the octane test should apply in the second circuit then the cases clearly say that a change in the law should be applied even as long as the case is still pending we we sit here on  a i won't say a daily basis but from month to month where prescient attorneys who are paid to be prescient argue to us a case that they know is contrary to circuit precedent for example in order to preserve that issue to take it up to the supreme court well and i suspect that happens even more frequently in the district court where they know that circuit precedent is against them but they feel an obligation particularly criminal cases to preserve an issue for their clients in case the supreme court wants to take another look at it so why shouldn't in the civil case that your client be held to that same standard well it's very straightforward city of nassau every time this has been before the court when that's when the more changes in that case there was an educational amendments that that the supreme court had interpreted differently then the district court had applied so the case was on appeal and the court said that it's necessary to apply the change the law that's faith she did go on to say more even even it moreover even if tri state could establish bad faith the court would exercise its discretion to deny the award in this case courts in the circuit circuit have declined to award fees in cases like this one that quote present a number of close and contested issues and quote and where the outcome what was by no means a foregone conclusion so didn't she also apply that lesser standard than the bad faith test it's it's not inconsistent i just think that the court might rule differently if it applies a different standard and if you're honest about the standard discretion whether or not to sue ward fees even if the case was found to be exceptional ok because the octane case talks about what is definition exceptional and beyond that the district court retains absolute discretion to decide whether or not fees are appropriate  e district judge could not have been more clear in threw out not only the lanham act pieces of this fee decision but throughout the rest of the decision that in her view this is a very hard fought case this was a small piece of the key piece and it wasn't a frivolous argument it was something that just just was unsuccessful and and her view she said both that it was an exceptional and that even if it was was exceptional she would decline to discretion to decline toward fees i don't see how there's any way her opinion would change if the standard was slightly different and they do do you feel that the standard octane standard isn't really so different from the standard applied by this court now