My name is Harry Jacobs, I'm with the firm Ballard Spar. I represent the cross appellant, the American Board of Internal Medicine, which is known as ABIM. And what I'd like to do this morning is to address two main points today. Do you want to reserve any time for the announcement? Oh, yes, thank you. Can I reserve five minutes for the bottle? It's fine. What I'd like to do is address two main points concerning the district court's errors that occurred in calculating ABIM's attorney's fees, both of which will require reversal. First is the district court's threshold error in failing to calculate a load star. And the second is the impermissible factors that the district court applied to report to justify a very low fee award to ABIM. First, in terms of failing to calculate a load star, the district court itself expressly acknowledge the requirement to calculate a load star in page four of its opinion. I believe it even referred to the load star as the guiding light. Dr. Von Mueller also acknowledged the requirement to calculate a load star in her brief on appeal at pages 13 and 14. Well, don't you agree that even though a load star wasn't actually calculated here, that under the copyright act, it's not necessary to have a load star determining the attorney fees. No, Your Honor. I would not agree with that because I think it's very clear, particularly after the Supreme Court's opinion and Purdue, which is cited in our brief and was issued in 2010, that when regardless of what statute we're talking about, if it has a fee shifting provision, you have to calculate a load star and this circuit has also said, I mean, this circuit pioneered a load star in lending. Well, the T-Pag case set under the Copyright Act in awarding attorney fees. It's not necessary to do it with a load star. I am familiar with the T-Pag case from the first circuit, which was came down fairly recently. I don't believe, first of all, the T-Pag case, I don't believe follows Purdue
. Second, the T-Pag case involved an award of attorney fees to a defendant. It did not involve an award of attorney fees to a plaintiff. It certainly didn't involve an award of attorney fees in a case. Word of defendant was found to be a willful infringer. Well, the breakman case also, the fifth, there's nothing in the Supreme Court, but it seems the circuits have stated that under the Copyright Act, the Discord can use a load star, but it's not required. The ninth circuit has done it in a not-presential case, court-escalate URTIS. So is it necessary to have, if the District Court didn't want to use the award, what's going to but didn't, is that an absolute error? Yes, the District Court's failure to calculate a load star is an error, because the entire reason for calculating a load star is that it roughly approximates an actual fee, it permits meaningful review, and very importantly, you get reasonably predictable results. But you calculated the load star, did you not in the, or your side, when you made the presentation to the judge here, right? Yes, we did. And then you decreased it, so it was down to about 42% or something like that? A-B-I-M decided to request less money than it was entitled to, that is correct. And, I mean, it sounds, what your argument sounds like is, look, the judge here did a, you know, sort of a generic seat of the pants, I think, there's an $80,000 judgment, I'm going to give you half of that in turnies fees, and that's it. And you're saying that that isn't the way one goes about calculating. You may end up with $40,000 in the end, we don't know. Well, you're on two points on that. Yes, I agree completely that the seat of the pants, I'll give you half the award. I'll give you half, I'll give you in a turnies fees, half of what the jury awarded is exactly what this court said in Washington, you can't do, the district court cannot adjust council fees to maintain a certain ratio between the fees and taxes. What about a copyright act? That was a civil rights case, wasn't it? It was not a copyright act. So that doesn't that highlight, that highlights, it seems to me the full term upon which our decision turns. Namely, must the attorney's fees provision in the copyright act be read analogously to the civil rights statutes? If the answer to that is yes you win, if the answer to that is no, you may win or may lose
. Isn't the civil rights act really qualitatively different? But before the answer can you just answer my question? So, if you understand my question, there's a little convoluted. I believe I understand your question, and here's the thing. I agree that the Civil Rights Act and the Copyright Act do not have identical purposes. It would be silly for me to stand here before you and to say otherwise. But here is what they have that is absolutely the same. They both have a provision that entitles a prevailing party to a reasonable attorney's fee. Section 505 of the Copyright Act says a court may award a reasonable attorney's fee. That section does not say that the court may award an arbitrary $40 or $50,000 bucks. All right, but now you're two levels below where I want to get to. So let's go back for a minute. If it's a civil rights case this is an easy vacate agreement because they didn't do what we've said and other courts have said calculate the load star etc etc. So, if this is not a civil rights, if it's not required to be analyzed under that, then what authority do you have to indicate that a load star calculation was required in this case? First, the district court itself acknowledged that a load star was maybe a misspoke. I mean, what cases? I mean, you can't argue that there was a waiver and the district court is now bound by some stray comment that it may have made. What case support do you have to indicate that a load star must be calculated in a copyright act case? The reason why a load 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, as the best way to calculate reasonable attorneys' fee because it roughly approximates the fee. 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, and I put it on the flip side
. I'm sorry. But I put it on the flip side that there is no reason why the standard for a copyright case in terms of calculating a attorney's fees 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 ABIM does. It is exam, 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. There are a lot of cases in which a load star comes at the back end. It is a cross check. And there are certain types of cases where a load star comes at the beginning such as civil rights cases. But let's go back to Judge Carterman's question. How is, I guess it is 505 of the Copyright Act? How is that the same as or different than civil rights acts? The civil rights act on which the Washington decision was based? Well, the best of my question is. I mean, it doesn't matter a policy. You are saying. The best of my question is, the best of my question is the same. The Court may award a reasonable attorney's fee. If a reasonable attorney's fee is the goal, the Supreme Court and this circuit that pioneered the policy. But it starts off the Court may. That is obviously the same
. The Court has had significant discretion. In this case, the Court already decided to award ABIM 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 that Dr. Vomula was a willful infringer and to promote compensation and deterrence, ABIM is entitled to a reasonable attorney fee. That's a totally separate order. And then we have the order before us right now. That's correct. That's correct. This can't be affirmed because the Court did not go forward on the calculating the fee and the method in which you indicated. But if it's not censored to have a load store, why can't this case be affirmed under the Fogarty and lead factors where no load store was calculated? And that was affirmed based on factors other than load store calculations. And the reason for that is that the factors that the district court applied to justify the very low fee award are those factors are impermissible. Under low, under Fogarty and low, they're impermissible. Well, 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 jury do not reflect the enormous stakes in the case. For ABIM, the stakes were incredibly high. It was protecting its most valuable property, the exam that it gives to measure whether a physician has the knowledge, the skills, and the judgment to be board certified
. And for Dr. Von Mueller, the stakes were her were enormously high. She won a two. Lost a license. Well, she didn't, Your Honor, she didn't lose her license. Board certification is not a license to practice. Well, lost the valuable. Board certification. The ability to special us. Well, no, she can still practice gastroenterology. She's just not board 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 ABIM, which was clear from the 11 counter claims that she brought against ABIM, and she lost on all of them. So the stakes in this case are very high to focus, to focus an award of attorney's fees just on the damages. There are many, many cases that are said to you. But let's go back to Judge Hardam's first question that he asked you that I'm not sure you answered. If we conclude that failure to calculate a load star, isn't fatal to a district court's fee decision under the Copyright Act. What happens to your position? The district court's decision is still reversed because given the factors that were applied, they, first of all, the facts that were applied to some of the factors are clearly erroneous
. And I would submit that it is absolutely an abusive. So then you have to have, okay, so then what you're saying is an abusive expression. It is an abusive discretion. And I'd like to. I'm not sure I hear it on rebuttal or now. Look at what are those. What are those clearly erroneous findings of fact by the district court and what other evidence of abusive discretion do you offer us? Okay. Another factor that the court applied, I was addressing before, that the district court expressly used the amount of damages that jury awarded. That that. Can we call that the proportionality? The proportionality is. But where, where's the case law that says again, let's, I know this is the biggest assumption because you disagree with it, but assume that we're not in the realm of civil rights act attorney's fees awards. What case law says that the district court cannot consider proportionality. There are. In fashioning a Justin and fair attorney's fees award. There are two cases that were decided by Judge Posner in the seventh circuit, which explicitly state that where the jury gives a low amount of damages. That's actually a reason that is a stronger reason to award attorney's fees and the reason. What statutes were an issue in those cases? That's copyright. They're both copyright cases
. So comes to the back door through the measure of success in the litigation, even though it, even though you can't have proportionality between the fee and the award. But it's a question of whether or not the litigation was successful. Well, but in this case, the litigation was overwhelmingly successful because damages, the way that you've damages is, is one piece of that. And here, the jury found that the defendant was a willful infringer. A.B.I.M. prevailed on 13 of the 14 claims in the case. Dr. Vomula was also seeking millions of dollars in damages because she claimed that she wasn't a cheater and that she wasn't an infringer. And she lost. A.B.I.M. won on all of that. And A
.B.I.M. did obtain $91,000. A.B.I.M. did obtain $91,000 for infringement of 50 questions. I do see the red light, but I just, I really do want to go back to. We'll get you back on the robot. You'll get the back from the robot. We have five minutes. Okay. And you might be up longer than that. Okay. Thank you. Mr
. Ellis. Good afternoon, Your Honours. My name is Glenn Ellis from Laser and Freebold. And I have the privilege of representing Dr. Sarah Vomula in this appeal. The district court didn't... What's the argument that district court did a, you know, a gestalt theory here that, you know, it just, it just feels right to do have. I mean, don't we need more than that? I mean, when you look at, for example, I mean, we've got some tough cases here where Evans V. Port Authority, which is a third certification, 2001, Judge Manesman wrote that we have to do a line by line analysis, which seems to be an awfully tough standard. Right, Your Honour. And this is a copyright case where there is no case that says the judge has to do a load star. Well, the judge actually do a load star here and, or, or didn't do a load star. Well, not being in the 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 load star. Council, be conscious of the fact that you have to, you have a good faith, duty of excluding redundant and excessive billing. And submit it to me
. And what the judge got was 200 pages of unclear, ambiguous, vague, duplicate, billing. But you're in the third circuit and the third circuit, again, back in the Evans case says that you cannot make findings of reasonableness based on a generalized sense of appropriateness. And it looks like the judge here made a, I mean, at least the baseline record that we have looks like a generalized sense of what is appropriate. And aren't we bound by our president? Well, Your Honour, it appears that the court in his opinion cited to specific examples. And I believe he said there are two numerous examples. He cited it to a lot of examples to show that there was duplication. But one could make a very easy repost to that and say that yes, but they discounted the substantially the amount of fees requested initial or at least what their load star showed by what became about the 43% is what they actually requested. Well, Your Honour, it's their burden to submit the necessary and factual information to support their load star. They did 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 clear other than saying we're going to seek less. We're going to cut 42% off. Why they cut the 42% off. But even if they say we're going to cut the 42% off. Did they ask for 43% or did they discount it by 42%? I think they discounted it by 42%. They said this is our number. That was a no, I thought the damage was 42. This was 43. But right. It's not about the same point is they discounted it significantly in terms of what they require. Even knowing that the court looking at the information provided to it found that it was still unable after reviewing all 200 pages to find that the load star, the reasonableness of the hours extended were in fact reasonable. So the court turned the page knowing that it's not bound by deciding the case on load star. The court turned the page looked at all the more reason to have a correct low start. It's sort of like in sentencing. I don't know if you know any criminal work, but in sentencing before you get to the third step, the actual sentence, you have to have a correct calculation of what the sentencing guidelines are. And here it seems that you need at 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 or 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 doctorate by any guy. That court is in the best position. It wasn't the best position to look at this load star request and realize it was foreign excess. But don't you have to agree that the award had nothing to do with the load star? I mean, the judge was explicit about it. The judge said, I'm going to award the attorney's fees equal to half the verdict. I mean, that's, that we don't have to speculate as to what the judge did here. The judge tied this attorney's fee award to a proportionality analysis that was one half the verdict, isn't that true? After the judge found that the evidence submitted didn't meet their burden, the judge then did go about reaching the number a different way
. That was a no, I thought the damage was 42. This was 43. But right. It's not about the same point is they discounted it significantly in terms of what they require. Even knowing that the court looking at the information provided to it found that it was still unable after reviewing all 200 pages to find that the load star, the reasonableness of the hours extended were in fact reasonable. So the court turned the page knowing that it's not bound by deciding the case on load star. The court turned the page looked at all the more reason to have a correct low start. It's sort of like in sentencing. I don't know if you know any criminal work, but in sentencing before you get to the third step, the actual sentence, you have to have a correct calculation of what the sentencing guidelines are. And here it seems that you need at 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 or 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 doctorate by any guy. That court is in the best position. It wasn't the best position to look at this load star request and realize it was foreign excess. But don't you have to agree that the award had nothing to do with the load star? I mean, the judge was explicit about it. The judge said, I'm going to award the attorney's fees equal to half the verdict. I mean, that's, that we don't have to speculate as to what the judge did here. The judge tied this attorney's fee award to a proportionality analysis that was one half the verdict, isn't that true? After the judge found that the evidence submitted didn't meet their burden, the judge then did go about reaching the number a different way. And any lamented or noted at least that what they were requesting was 22% excuse me, the verdict they earned was only 22% of the fees that they were asking for. Again, what drove this was, was Judge Ambrose suggested a feel, a sense of what is equitable and just under the circumstances. I don't think the judge simply have the amount without thinking about the case. There's no doubt about the judge's thought about the case. As we say where I go, I ain't no doubt about it. But there is. But the question is, how do you go about it in a way in which it can be reviewed by somebody who decides to take a view? Well, and in thinking about the case, the judge applied the factors from this court and lived and looked at the complexity of the case. The fact that there were multiple cases involved here which would provide judicial efficiency to the ABIM. And also at the success of the case. If he didn't use the load star, and obviously he did not use the load star this case, even though he said he was going to. But he didn't use the load star. Tell me what was the standard that he applied in determining what would be a reasonable attorney's team. There's got to be a standard so that we can review that standard that he applied. In the lives case, this court says that there are factors the courts should consider. And those are the factors the court considered. In specific, the court considered the complexity of the case. The court considered the fact that there were other cases. The court considered the deterrence factor
. And any lamented or noted at least that what they were requesting was 22% excuse me, the verdict they earned was only 22% of the fees that they were asking for. Again, what drove this was, was Judge Ambrose suggested a feel, a sense of what is equitable and just under the circumstances. I don't think the judge simply have the amount without thinking about the case. There's no doubt about the judge's thought about the case. As we say where I go, I ain't no doubt about it. But there is. But the question is, how do you go about it in a way in which it can be reviewed by somebody who decides to take a view? Well, and in thinking about the case, the judge applied the factors from this court and lived and looked at the complexity of the case. The fact that there were multiple cases involved here which would provide judicial efficiency to the ABIM. And also at the success of the case. If he didn't use the load star, and obviously he did not use the load star this case, even though he said he was going to. But he didn't use the load star. Tell me what was the standard that he applied in determining what would be a reasonable attorney's team. There's got to be a standard so that we can review that standard that he applied. In the lives case, this court says that there are factors the courts should consider. And those are the factors the court considered. In specific, the court considered the complexity of the case. The court considered the fact that there were other cases. The court considered the deterrence factor. And the court considered the lack of actual malice. The court considered a degree of success. Now, ABIM claims it was a great success. That's not what he said in the opinion that he gave. Well, that's not what he articulated. That's the reason for the fee. That's good. A law that you're taking off there. But that's not what he said was the basis for the fee award. Well, those are 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 talked about how there were multiple cases which would have provided efficiency to ABIM. He talked about how most of the discovery was gained through other individuals. Let me mention this that this adjust as he mentioned the load star. But the. Well, this was just as Judge Ambrose said the $64 question is what standard if he didn't use the load star standard. What did he use? Well, Your Honor, what I'm saying is he used the lives factors which at the end of that opinion before the court moved on
. And the court considered the lack of actual malice. The court considered a degree of success. Now, ABIM claims it was a great success. That's not what he said in the opinion that he gave. Well, that's not what he articulated. That's the reason for the fee. That's good. A law that you're taking off there. But that's not what he said was the basis for the fee award. Well, those are 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 talked about how there were multiple cases which would have provided efficiency to ABIM. He talked about how most of the discovery was gained through other individuals. Let me mention this that this adjust as he mentioned the load star. But the. Well, this was just as Judge Ambrose said the $64 question is what standard if he didn't use the load star standard. What did he use? Well, Your Honor, what I'm saying is he used the lives factors which at the end of that opinion before the court moved on. The court said clearly that the district court is not bound to give an attorney's fee that it's discretionary. And that if the district court finds one is not necessary, then one doesn't have to be given. And in specific, the court states that if the district court concludes that fees are proper, it should then consider the relative simplicity of the defense. The judge did that here and whether the retention of out of town council with the company increased with necessary, that's not applicable here. But the sum request that is large and we note that it may be disproportionate to the amount at stake and excessive in light of the plaintiffs' resources. The judge considered the proportionality. I'm out. The problem you have is on page four and I put note to the judge acknowledges that the load star standard. The court was presumed to be reasonable and in the footnote it has many virtues. And then it goes on and you need to calculate the load star and then the court doesn't do it. I mean, that's like a slam dunk. The court doesn't do it because it wasn't provided the information it needed by ABIM. And the court. And in the end, you may win. But we're talking about process here. No, I understand that, Your Honor. I agree that the court in its original order granting attorney's fees and its mind was going to apply a load star. In reviewing the documents provided by ABIM, the court obviously shifts gears and decides not to use a load star
. The court said clearly that the district court is not bound to give an attorney's fee that it's discretionary. And that if the district court finds one is not necessary, then one doesn't have to be given. And in specific, the court states that if the district court concludes that fees are proper, it should then consider the relative simplicity of the defense. The judge did that here and whether the retention of out of town council with the company increased with necessary, that's not applicable here. But the sum request that is large and we note that it may be disproportionate to the amount at stake and excessive in light of the plaintiffs' resources. The judge considered the proportionality. I'm out. The problem you have is on page four and I put note to the judge acknowledges that the load star standard. The court was presumed to be reasonable and in the footnote it has many virtues. And then it goes on and you need to calculate the load star and then the court doesn't do it. I mean, that's like a slam dunk. The court doesn't do it because it wasn't provided the information it needed by ABIM. And the court. And in the end, you may win. But we're talking about process here. No, I understand that, Your Honor. I agree that the court in its original order granting attorney's fees and its mind was going to apply a load star. In reviewing the documents provided by ABIM, the court obviously shifts gears and decides not to use a load star. And it's not bound to use the back of the picture. Put yourself in our position. We've got precedent that says that load star is very important. So important that our circuit probably maybe unlike any other says that you need to go line by line. I mean, that's a toughy. The court says, yep, got to do a load star. And it's got, and there's important reasons, important virtues as to why you should do a load star. And then doesn't do a load star. As a matter of process, what do you want us to do? Well, you want to do a good stall theory as well. You know, Your Honor. But I think that the court was right in saying that here the difference is this is a copyright case. And this copyright under the copyright act, it's not the same as a civil rights act or a class action. Not the time I wanted you to answer my question. I think the court should affirm because the court here didn't merely happen to be this important. So we're saying that, you know what, even though this circuit requires load star, even though it requires a deep hard look at load star, the fact that it, and the court here acknowledges that, the fact that it wasn't done, it's okay. And in the future, the next case, when you're on the other side, don't worry about it. It's okay. You've got to 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
. And it's not bound to use the back of the picture. Put yourself in our position. We've got precedent that says that load star is very important. So important that our circuit probably maybe unlike any other says that you need to go line by line. I mean, that's a toughy. The court says, yep, got to do a load star. And it's got, and there's important reasons, important virtues as to why you should do a load star. And then doesn't do a load star. As a matter of process, what do you want us to do? Well, you want to do a good stall theory as well. You know, Your Honor. But I think that the court was right in saying that here the difference is this is a copyright case. And this copyright under the copyright act, it's not the same as a civil rights act or a class action. Not the time I wanted you to answer my question. I think the court should affirm because the court here didn't merely happen to be this important. So we're saying that, you know what, even though this circuit requires load star, even though it requires a deep hard look at load star, the fact that it, and the court here acknowledges that, the fact that it wasn't done, it's okay. And in the future, the next case, when you're on the other side, don't worry about it. It's okay. You've got to 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. You know what, the one that? I think Your Honor, the court either has to take the hard line of saying that all of these kinds of cases where there's a fee shifting provision, a load star must be done. And the court must go through all 200 pages and eliminate 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 has tremendous discretion to decide what the amount the court has to be given. You want us to say that the load star doesn't have to be calculated in copyright cases. I think that if it does, you lose, right? Well, Your Honor, if it does then, yes, are original below when we objected to the reasonable of the fees we actually said either the court should deny the fee petition or send the A, B, I, M, back to recalculate it. The court decided to say, well, the fees are unreasonable, but I can look and looking to page 11 of the court's opinion, the court says in arriving the 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 11 to page 13, the court annunciates and enumerates why he reached that number. Now, it just- Which is not a load star approach. It's a totality of the circumstance. It is, Your Honor. It's looking at the case, having lived with the case, knowing, having looked through all 200 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. Now- You know what? And it may be an appropriate number. 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 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 40,000, it's ultimately the wrong number
. You know what, the one that? I think Your Honor, the court either has to take the hard line of saying that all of these kinds of cases where there's a fee shifting provision, a load star must be done. And the court must go through all 200 pages and eliminate 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 has tremendous discretion to decide what the amount the court has to be given. You want us to say that the load star doesn't have to be calculated in copyright cases. I think that if it does, you lose, right? Well, Your Honor, if it does then, yes, are original below when we objected to the reasonable of the fees we actually said either the court should deny the fee petition or send the A, B, I, M, back to recalculate it. The court decided to say, well, the fees are unreasonable, but I can look and looking to page 11 of the court's opinion, the court says in arriving the 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 11 to page 13, the court annunciates and enumerates why he reached that number. Now, it just- Which is not a load star approach. It's a totality of the circumstance. It is, Your Honor. It's looking at the case, having lived with the case, knowing, having looked through all 200 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. Now- You know what? And it may be an appropriate number. 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 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 40,000, it's ultimately the wrong number. And I realized your position as an advocate is to try 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, and you're not supplying me one of the stuff, why we should ignore the process that we normally have in place, in most cases, with respect to the awarding of fees. Well, I think the court said in other cases that have looked beyond the load star for deciding this kind of copyright cases. And here you have to remember that the purpose of the copyright act is not- For example, what Arjun you could have made is perhaps, is that a, you know what, load star shouldn't be a front. It should be just a cross check, as in some other instances it is. It's just a cross check for the be sure that you've arrived at a number that makes some sense. Well, that is what load star is, and that is what this court said, the court looked at the fees and said, well, you're requesting your award and damages is 22% of the fee of your load star. Your load star is obviously unreasonable. And in the court- Not in a civil rights case, I mean the cases are legion where- Not in the civil rights case. It's the right cases, people get $100 and they get $50,000 in legal fees. Right, you're right. But the public policy driving the civil rights case is different than the public policy driving a copyright act. Right, which is- Which is all another way of saying you need to convince us to apply a different standard in copyright cases. And that different standard is going to give trial judges substantially more latitude to fashion just inequitable fee awards than they would otherwise have in those civil rights cases. Correct? Yes, Your Honor, and 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 and signs. And here, if you look at what happened here, this plaintiff was a- This defendant was accused of copying 77 questions
. And I realized your position as an advocate is to try 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, and you're not supplying me one of the stuff, why we should ignore the process that we normally have in place, in most cases, with respect to the awarding of fees. Well, I think the court said in other cases that have looked beyond the load star for deciding this kind of copyright cases. And here you have to remember that the purpose of the copyright act is not- For example, what Arjun you could have made is perhaps, is that a, you know what, load star shouldn't be a front. It should be just a cross check, as in some other instances it is. It's just a cross check for the be sure that you've arrived at a number that makes some sense. Well, that is what load star is, and that is what this court said, the court looked at the fees and said, well, you're requesting your award and damages is 22% of the fee of your load star. Your load star is obviously unreasonable. And in the court- Not in a civil rights case, I mean the cases are legion where- Not in the civil rights case. It's the right cases, people get $100 and they get $50,000 in legal fees. Right, you're right. But the public policy driving the civil rights case is different than the public policy driving a copyright act. Right, which is- Which is all another way of saying you need to convince us to apply a different standard in copyright cases. And that different standard is going to give trial judges substantially more latitude to fashion just inequitable fee awards than they would otherwise have in those civil rights cases. Correct? Yes, Your Honor, and 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 and signs. And here, if you look at what happened here, this plaintiff was a- This defendant was accused of copying 77 questions. At the end of the day, she was only found to have infringed 21 if you accept A, B, I, M's interpretation of the jury's verdict sheet. Which obviously, Dr. Vamula believes- I'm not sure arguing she only cheated on 21 questions. But it's not- It's not- It's not a matter of cheating only on 21 questions. It's a matter that all those other questions that she was elected to have infringed 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 presenting together 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 an A, B, I, M question, and 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 21 over 77 and that should be the proportion that we do, so it should be a proportionality test? Well, no, you're honored because that- It 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 assessment technologies case. And you have a jury coming down the middle saying, look- This was half of the questions are- We'll give you half of the questions, but half of the questions she's accused of aren't infringed. No, wait a minute, time out. 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 21 questions on a board specialization certification exam period. That's where it'll come down. That's history. The fact that they argued there was more and that the jury found less- The historical fact is that this person was found to have violated the copyright with respect to 21 questions
. At the end of the day, she was only found to have infringed 21 if you accept A, B, I, M's interpretation of the jury's verdict sheet. Which obviously, Dr. Vamula believes- I'm not sure arguing she only cheated on 21 questions. But it's not- It's not- It's not a matter of cheating only on 21 questions. It's a matter that all those other questions that she was elected to have infringed 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 presenting together 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 an A, B, I, M question, and 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 21 over 77 and that should be the proportion that we do, so it should be a proportionality test? Well, no, you're honored because that- It 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 assessment technologies case. And you have a jury coming down the middle saying, look- This was half of the questions are- We'll give you half of the questions, but half of the questions she's accused of aren't infringed. No, wait a minute, time out. 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 21 questions on a board specialization certification exam period. That's where it'll come down. That's history. The fact that they argued there was more and that the jury found less- The historical fact is that this person was found to have violated the copyright with respect to 21 questions. Yes, Geron, with respect to 21, which is less than 50% of what she was alleged to have done- You just said yourself that the argument that the path you're leading down doesn't help us. Well, I understand it doesn't help in setting a standard for the copyright act to do attorney's fees. So what standard would you have asked us to apply here? I think that the standard that should be applied is the discretion of the court to look at the factors listed. No, no, no, no, no. I understand that. But what standard should we apply in assessing whether the court has properly used this discretion? It's an abuse of discretion standard. No, no, no. If we're looking at an abuse of discretion standard, what factors should we take into account in order to decide whether there has been an abuse of discretion? Well, the factors should be the ward, the damages award, it should be- And where do you start? Complexity of the case. Where do you start? The damages award? Where do you start? Well, you could start at the damages award. Then you move on to the complexity of the case. You move on to the deterrence after all, copyright act is about deterring other infringers. Those are the kinds of factors that have already been laid out by this court. Was it- And it's very subpoena. It's a complex case. No, your honor, the district court found that it wasn't a complex case. There were five witnesses. There were 11,000 pages of documents. And there were no experts according to A
.D.I.M. Even though Dr. Vomula had argued that one of their witnesses was technically an expert