                            In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 03-2061
ASSESSMENT TECHNOLOGIES OF WI, LLC,
                                               Plaintiff-Appellee,
                               v.

WIREDATA, INC.,
                                            Defendant-Appellant.

                        ____________
            Appeal from the United States District Court
                for the Eastern District of Wisconsin.
        No. 01-C-789—Aaron E. Goodstein, Magistrate Judge.
                        ____________
   SUBMITTED DECEMBER 24, 2003—DECIDED MARCH 17, 2004
                        ____________


  Before POSNER, DIANE P. WOOD, and EVANS, Circuit Judges.
  POSNER, Circuit Judge. In reversing the judgment for the
plaintiff in this suit for copyright infringement, we de-
scribed it as a case “about the attempt of a copyright owner
to use copyright law to block access to data that not only are
neither copyrightable nor copyrighted, but were not created
or obtained by the copyright owner; the owner is trying to
secrete the data in its copyrighted program—a program the
existence of which reduced the likelihood that the data
would be retained in a form in which they would have been
readily accessible.” 350 F.3d 640, 641-42 (7th Cir. 2003). We
added: “It would be appalling if such an attempt could
succeed.” Id. at 642. And it did not succeed.
2                                                   No. 03-2061

   Before us now is the defendant’s motion for an award of
attorneys’ fees incurred by it in defending the suit both in
the district court and in our court. The Copyright Act au-
thorizes the award of a reasonable attorney’s fees to the
prevailing party in a suit under the Act. 17 U.S.C. § 505.
And unlike civil rights suits, where while a prevailing
plaintiff is presumptively entitled to an award of fees a
prevailing defendant is entitled to such an award only if the
suit was groundless, e.g., Christiansburg Garment Co. v.
EEOC, 434 U.S. 412 (1978); Johnson v. Daley, 339 F.3d 582, 587
(7th Cir. 2003) (en banc), in copyright suits “prevailing
plaintiffs and prevailing defendants are to be treated alike.”
Fogerty v. Fantasy, Inc., 510 U.S. 517, 534 (1994). The reason
is that the plaintiff in such a suit is not a little guy suing a
big guy—an employee suing an employer—but often the
reverse. For such a suit pits a property owner against an
individual or firm that will often be, and in this case is,
someone who seeks to enforce not a property right—a right
to exclude that may generate big profits—but nonexclusive
access to the intellectual public domain. The public interest
in that access is as great as the public interest in the enforce-
ment of copyright; this is shown by the restrictions with
which copyright is hedged about, of which the most
pertinent is that, as we pointed out in our original opinion,
once work enters the public domain it cannot be appropri-
ated as private (intellectual) property. 350 F.3d at 643; Feist
Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340,
348 (1991); Country Kids’N City Slicks, Inc. v. Sheen, 77 F.3d
1280, 1287 (10th Cir. 1996); Norma Ribbon & Trimming, Inc. v.
Little, 51 F.3d 45, 47 (5th Cir. 1995); Engineering Dynamics,
Inc. v. Structural Software, Inc., 26 F.3d 1335, 1344 (5th Cir.
1994); Computer Associates International, Inc. v. Altai, Inc., 982
F.2d 693, 710 (2d Cir. 1992); 3 Melville B. Nimmer & David
Nimmer, Nimmer on Copyright § 13.03[F][4], p. 13-141 (2004);
No. 03-2061                                                    3

see also Aronson v. Quick Point Pencil Co., 440 U.S. 257, 262
(1979); Gonzales v. Transfer Technologies, Inc., 301 F.3d 608,
609 (7th Cir. 2002).
   The courts have not said, however, that the symmetry of
plaintiff and defendant in copyright cases requires a pre-
sumption that the prevailing party, whichever it is, is enti-
tled to an award of attorneys’ fees. They have instead left it
to judicial discretion by setting forth a laundry list of
factors, all relevant but none determinative. Fogerty v.
Fantasy, Inc., supra, 510 U.S. at 534 n. 19; McRoberts Software,
Inc. v. Media 100, Inc., 329 F.3d 557, 571 (7th Cir. 2003);
Gonzales v. Transfer Technologies, Inc., supra, 301 F.3d at 609;
Berkla v. Corel Corp., 302 F.3d 909, 923 (9th Cir. 2002); Lotus
Development Corp. v. Borland Int’l, Inc., 140 F.3d 70, 73-74 (1st
Cir. 1998). The list, moreover, is nonexclusive, Hogan
Systems, Inc. v. Cybresource International, Inc., 158 F.3d 319,
325 (5th Cir. 1998), arguably dictum, Matthew Bender & Co.
v. West Publishing Co., 240 F.3d 116, 121 (2d Cir. 2001), and
in need of simplification—a process begun in this circuit in
Gonzales v. Transfer Technologies, Inc., supra, and continued
here.
  The two most important considerations in determining
whether to award attorneys’ fees in a copyright case are the
strength of the prevailing party’s case and the amount
of damages or other relief the party obtained. If the case was
a toss-up and the prevailing party obtained generous
damages, or injunctive relief of substantial monetary value,
there is no urgent need to add in an award of attorneys’
fees. Cf. Mathias v. Accor Economy Lodging, Inc., 347 F.3d 672,
677 (7th Cir. 2003). But if at the other extreme the claim or
defense was frivolous and the prevailing party obtained no
relief at all, the case for awarding him attorneys’ fees is
compelling. As we said with reference to the situation in
which the prevailing plaintiff obtains only a small award of
4                                                 No. 03-2061

damages, “the smaller the damages, provided there is a real,
and especially a willful, infringement, the stronger the case
for an award of attorneys’ fees . . . . [W]e go so far as to
suggest, by way of refinement of the Fogerty standard, that
the prevailing party in a copyright case in which the mon-
etary stakes are small should have a presumptive enti-
tlement to an award of attorneys’ fees.” Gonzales v. Transfer
Technologies, Inc., supra, 301 F.3d at 610; see also Magnuson
v. Video Yesteryear, 85 F.3d 1424, 1432 (9th Cir. 1996). When
the prevailing party is the defendant, who by definition
receives not a small award but no award, the presumption
in favor of awarding fees is very strong. See Diamond Star
Building Corp. v. Freed, 30 F.3d 503, 506 (4th Cir. 1994). For
without the prospect of such an award, the party might be
forced into a nuisance settlement or deterred altogether
from enforcing his rights.
   We of course were not saying that the smaller the dam-
ages, the larger the fee. The fee is independent of the size of
the damages. The point is only that when a meritorious
claim or defense is not lucrative, an award of attorneys’ fees
may be necessary to enable the party possessing the merito-
rious claim or defense to press it to a successful conclusion
rather than surrender it because the cost of vindication
exceeds the private benefit to the party. The best illustration
is in fact a case like this, where the party awarded the fees,
being the defendant, could not obtain an award of damages
from which to pay his lawyer—no matter how costly it was
for him to defend against the suit.
  Although the plaintiff managed to obtain a judgment from
the district court, and so we do not go so far as to call the
suit frivolous, the suit was marginal, as we explained in our
opinion. The plaintiff was rather transparently seeking to
annex a portion of the intellectual public domain. And since
the prevailing party was the defendant, it obtained no
No. 03-2061                                                    5

affirmative relief from its victory. Unless a party in that
situation has a prospect for obtaining attorneys’ fees, it will
be under pressure to throw in the towel if the cost is less
than his anticipated attorneys’ fees. We suggested in our
opinion that “for a copyright owner to use an infringement
suit to obtain property protection, here in data, that copy-
right law clearly does not confer, hoping to force a settle-
ment or even achieve an outright victory over an opponent
that may lack the resources or the legal sophistication to
resist effectively,” could be a form of copyright misuse. 350
F.3d at 647. We did not reach the question whether the
plaintiff’s conduct rose to the level of actual copyright
misuse, but we made clear that it came close, and an award
of attorneys’ fees to the defendant is an appropriate sanc-
tion. For illustrative cases, see Budget Cinema, Inc. v.
Watertower Associates, 81 F.3d 729, 732-33 (7th Cir. 1996);
Bond v. Blum, 317 F.3d 385, 397-98 (4th Cir. 2003) (a case in
which misuse was found); Coles v. Wonder, 283 F.3d 798, 804
(6th Cir. 2002); Edwards v. Red Farm Studio Co., 109 F.3d 80,
83 (1st Cir. 1997).
   Most of the fees incurred by the defendant were incurred
in the district court proceedings, and ordinarily that would
argue compellingly for our limiting our award to the ap-
pellate fees and inviting the defendant to file in the district
court a motion for the award of the fees that he incurred in
that court. But in some cases in which detailed billing rec-
ords of the applicant are submitted to the court of appeals,
as the defendant has done in this case, and the opposing
party has had a chance to rebut, as it has, we can make the
full award and save the parties the added expense and the
district judge the added bother of a separate fees proceeding
in the district court. Cengr v. Fusibond Piping Systems, Inc.,
135 F.3d 445, 454 (7th Cir. 1998); Nanetti v. University of
Illinois, 944 F.2d 1416, 1422 (7th Cir. 1991); Ustrak v. Fairman,
851 F.2d 983, 989 (7th Cir. 1988); In re Thirteen Appeals, 56
6                                                  No. 03-2061

F.3d 295, 312 (1st Cir. 1995); cf. Walz v. Town of Smithtown, 46
F.3d 162, 170 (2d Cir. 1995). Such an approach furthers the
principle that the fees tail should not be allowed to wag the
merits dog too vigorously. Ustrak v. Fairman, supra, 851 F.2d
at 987-88; see also Hensley v. Eckerhart, 461 U.S. 424, 437
(1983).
  In all the cases cited, except Hensley and Walz, the court of
appeals was fixing fees for services incurred in the district
court as well, as we are asked to do here; and that might
seem contrary to the principle that the award of fees is
committed to the discretion of the court in which the
services for which fees are being sought were rendered; for
that is the court that observed the rendition of the services.
Ordinarily, of course, discretion is to be exercised by the
judicial officer to whom that discretion has been confided.
Icicle Seafoods, Inc. v. Worthington, 475 U.S. 709 (1986). But
the scope of a judicial officer’s discretion varies with the
circumstances. Sometimes it is broad, sometimes a mere
point. In this case, because there is no room for disagree-
ment over the reasonableness of the various fees sought by
the defendant for the work in the district court, there is no
discretion for the district court to exercise and so no pur-
pose would be served by a remand.
  The defendant’s lawyer billed the defendant for 778.2
hours of work, up to and including the trial in the district
court, at an average rate of $115 per hour, for a total of
$88,374.35. The plaintiff does not question the total number
of hours billed or the billing rate. But some of this work, the
plaintiff contends and the defendant concedes, was alloca-
ble to the state court proceedings discussed in our opinion
on the merits, and the defendant suggests that we reduce
the total amount by a third, to $58,916.23, to reflect this fact.
Our examination of the billing records persuades us that
this is indeed the correct discount.
No. 03-2061                                                   7

  The defendant’s lawyer billed the defendant another
$7,849.05 for 68.7 hours of work spent challenging the
plaintiff’s request in the district court for an award of attor-
neys’ fees, plus a flat fee of $7,500 for work on the wording
of the injunction and another flat fee of $17,500 for repre-
senting the defendant on appeal. The defendant wants us to
ignore the flat fees and award a larger fee based on the
number of hours that the lawyer actually worked on the two
matters.
  The courts of appeals have split three ways on the ques-
tion of the weight to be given to the terms of the contract
between the party and his lawyer in determining an award
of attorneys’ fees in a copyright case. Compare Pinkham v.
Camex, Inc., 84 F.3d 292, 294 (8th Cir. 1996) (no weight), with
Crescent Publishing Group, Inc. v. Playboy Enterprises, 246 F.3d
142, 144 (2d Cir. 2001) (some weight), with Lieb v. Topstone
Industries, 788 F.2d 151, 156 (3d Cir. 1986) (controlling
weight in the sense that the contract places a ceiling on what
the court can award the lawyer). This court has not opined
on the issue, but we think the Third Circuit has it right. The
best evidence of the value of the lawyer’s services is what
the client agreed to pay him. See Medcom Holding Co. v.
Baxter Travenol Laboratories, Inc., 200 F.3d 518, 520 (7th Cir.
1999).
   This conclusion may seem in tension with the decision of
the Supreme Court in Blanchard v. Bergeron, 489 U.S. 87, 92-
96 (1989), to decline to give controlling weight to the fees
specified in contingent-fee contracts in civil rights cases. But
the reason was related to the structure of contingent-fee
contracts, and we are not dealing with such a contract in
this case. Even a generous such contract will not yield a
significant fee if the damages that the plaintiff obtains are
slight: 40 percent of $1,000 is not enough to induce a com-
petent lawyer to handle even a slam-dunk case. The lawyer
8                                                 No. 03-2061

might nevertheless take on a contingency basis a case
unlikely to yield more, if there were some probability of a
larger award. And so one observes contingent-fee contracts
in cases in which the likeliest recovery is small. In those
cases, were it not for the expectation of an additional, court-
ordered award if the suit was successful but yielded little in
the way of damages, the plaintiff might not have been able
to interest a lawyer in taking the case in the first place. So
the percentage specified in the contract should not cap such
awards. Conceivably, the fixed fees that the defendant’s
lawyer charged his client here were influenced by the
prospect of a larger fee if the defendant won the case and
persuaded the court to award fees, for his contract with the
defendant required that any additional award be turned
over to him. In the circumstances, however, the negotiated
fees should be the ceiling. For work on the wording of the
injunction, the defendant is seeking $9,973, which is almost
$2,500 above the agreed-on $7,500 fee for this service, and
strikes us as excessive. For the appeal, the defendant is
seeking $42,056, a sum not unreasonable in itself, but
supported by time sheets for only $5,031, which is less than
a third of the flat fee of $17,500 that the lawyer charged.
   That the defendant did not prevail on every single one of
its contentions is no reason to cut down the award of fees,
however. E.g., Hensley v. Eckerhart, supra, 461 U.S. at 440. As
we pointed out recently, “a plaintiff is not to be denied full
attorneys’ fees merely because he lost some interim rulings
en route to ultimate success. Such setbacks are well-nigh
inevitable, and a lawyer who nevertheless was sedulous to
avoid them might lose a good case through an excess of
caution.” Alliance to End Repression v. City of Chicago, 356
F.3d 767, 770 (7th Cir. 2004) (citations omitted).
  To summarize, the plaintiff is ordered to pay the defen-
dant a total of $91,765.28 ($58,916.23 + $7,849.05 + $7,500 +
$17,500) in attorneys’ fees.
No. 03-2061                                             9

A true Copy:
       Teste:

                      _____________________________
                       Clerk of the United States Court of
                         Appeals for the Seventh Circuit




                USCA-02-C-0072—3-17-04
