             United States Court of Appeals
                        For the First Circuit

Nos. 10-2001; 11-1169

                        AIRFRAME SYSTEMS, INC.,
                     f/k/a Airline Software, Inc.,

                 Plaintiff, Appellant/Cross-Appellee,

                                  v.

                    L-3 COMMUNICATIONS CORPORATION,

                 Defendant, Appellee/Cross-Appellant,

                                  and

                           RAYTHEON COMPANY,

                              Defendant.


             APPEALS FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF MASSACHUSETTS
              [Hon. William G. Young, U.S. District Judge]


                                Before

              Torruella, Boudin, and Dyk,* Circuit Judges.


     John J. Dabney, with whom Neal E. Minahan, Michael E.
Shanahan, and McDermott Will & Emery LLP were on brief, replacing
Bruce I. Afran, for appellant/cross-appellee.
     Adam J. Kessel, with whom Kurt L. Glitzenstein, Jeffrey D.
Weber, and Fish & Richardson P.C. were on brief, for
appellee/cross-appellant.


                          September 14, 2011



     *
         Of the Federal Circuit, sitting by designation.
            DYK, Circuit Judge. In this copyright infringement case,

plaintiff-appellant Airframe Systems, Inc. (“Airframe”) appeals

from a decision of the United States District Court for the

District of Massachusetts.      The district court granted defendant-

cross-appellant   L-3    Communications    Corp.’s   (“L-3")    motion   for

summary judgment.       L-3 cross-appeals, challenging the court’s

denial of its motion for attorney’s fees.                We affirm in both

respects.

                                     I.

            In 1979, Airframe began developing proprietary aircraft

maintenance   tracking    software    known   as   the    Airline   Resource

Management    System    (“ARMS”).     Since   that   time,    Airframe   has

continually modified and expanded the source code of its ARMS

software to create updated versions of the program.           “Source code”

is the original version of a computer program that is written in

human-readable words and symbols.          Source code must be compiled

into machine-readable “object code” before a computer can read and

execute the software.       A program in source code format can be

modified by a computer programmer, whereas a program in object code

format cannot be easily modified.

            In July 2003, Airframe registered and deposited with the

United States Copyright Office copies of four versions of its ARMS

source code: (1) an “IBM version,” created and published in 1981

(Reg. No. TX 5-970-284); (2) a “PC version,” created and published


                                     -2-
in 1984 (Reg. No. TX 5-970-282); (3) a “UNIX version,” created and

published         in    1988   (Reg.    No.    TX    5-970-280);     and    (4)    a   “2003

version,” created and published in 2003 (Reg. No. TX 5-970-279).

App.       to    Br.   of   Appellant,        at    267-74.    Airframe’s         copyright

registrations became effective on April 16, 2004.

                 Airframe began licensing its ARMS software to L-31 in

1986.       L-3's license was limited to the use of ARMS in compiled

object          code   format.         Nonetheless,        while    performing         system

maintenance for L-3 at some time in either 1997 or 1998, Airframe’s

(now former) employee John Stolarz (“Stolarz”) allegedly acted

without         Airframe’s     authorization         and   copied    some    unspecified

version of the ARMS source code files onto L-3’s computer system.

Solarz allegedly used the source code to modify the ARMS software

so   that        it    could   run   on   L-3’s      newer    computers–-actions         not

authorized under L-3’s license.

                 In August 2003, Airframe’s president Gordon S. Rosen

(“Rosen”) discovered the unspecified version of the ARMS source

code on L-3’s computer system while performing system maintenance.

When Rosen demanded an explanation for why L-3 possessed the source

code, L-3 sent Airframe a letter explaining that the code must have


       1
       The original 1986 license was actually to E-Systems, Inc.,
one of L-3’s predecessors in interest. E-Systems was acquired by
Raytheon in 1995 and became part of Raytheon’s Aircraft Integration
Systems (“AIS”) division. The assets of Raytheon’s AIS division,
including the license to Airframe’s ARMS software, were acquired by
L-3 in March 2002. For simplicity, we refer to L-3 and all of L-
3’s predecessors in interest as “L-3.”

                                               -3-
been installed by Airframe’s employee Stolarz.           L-3 contends that

it then deleted the ARMS source code files from its system at

Rosen’s request.

          Following Rosen’s discovery of the ARMS source code in L-

3’s   possession,     Airframe   initiated    a     series   of   copyright

infringement actions against L-3 in the Southern District of New

York and the District of Massachusetts.2           This appeal arises from

the third of these actions, which Airframe filed in the District of

Massachusetts in November 2008.

          Airframe alleged in the present case that L-3 copied the

ARMS source code to create a replacement aircraft maintenance

program titled “M3.”     Airframe contended that L-3 created the M3

program by   merely    translating    the   ARMS    source code   from its

original RPG programming language to the PHP language.            Airframe

further alleged that L-3 incorporated other copyrighted elements of

the ARMS software into its M3 program, including proprietary report

formats, menu terms and headings, and the ARMS user interfaces.3


      2
       See Airframe Sys., Inc. v. L-3 Commc’ns Corp., No. 05-CV-
7638, 2006 WL 2588016 (S.D.N.Y Sept. 6, 2006) (Airframe I)
(dismissing Airframe’s complaint for failure to state a claim); see
also Airframe Sys., Inc. v. Raytheon Co., 520 F. Supp. 2d 258 (D.
Mass. 2007), aff’d, 601 F.3d 9 (1st Cir. 2010) (Airframe II)
(finding Airframe’s claims res judicata as to acts of infringement
alleged to have occurred prior to the dismissal of Airframe I).
      3
       While the action below (Airframe III) was pending in the
District of Massachusetts, Airframe additionally filed an action
against the United States in the United States Court of Federal
Claims (Airframe IV) pursuant to 28 U.S.C. § 1498(b).      In its
complaint, Airframe claimed that the United States was liable for

                                     -4-
              L-3 moved for summary judgment, contending that Airframe

had failed to produce sufficient evidence to support a prima facie

case of copyright infringement.                 In opposing summary judgment,

Airframe relied on the undisputed fact that L-3 had unauthorized

access to some unspecified version of the ARMS source code on its

computer system until at least August 2003.                  Airframe additionally

offered a single declaration by Rosen--the principal designer of

the ARMS software--in support of its infringement allegations.

Rosen stated that he had examined the allegedly infringing M3

source    code    and    compared    it   to    the   most    current   version    of

Airframe’s ARMS source code (the 2009 version).                   After comparing

about    15    percent    of   the   source     code,    Rosen   reported   in    his

declaration that the programs shared “almost complete identicality

down to the use of improper hyphenation and misspelled words that

appeared in the original ARMS program.”                 App. to Br. of Appellant,

at 578.       Rosen further reported finding programmers’ comments4 in


copyright infringement on the grounds that (a) the United States
contracted with L-3 to develop a proprietary aviation maintenance
software program; (b) that L-3 made the allegedly infringing M3
program in its capacity as a government contractor and delivered
the M3 program to the United States; and (c) that the United States
has used the accused M3 program without Airframe’s authorization
since June 2006. After the district court granted summary judgment
for L-3 in Airframe III, the United States moved to dismiss the
Airframe IV action on preclusion grounds. The Claims Court heard
oral argument on the motion to dismiss, but it has not yet ruled.
     4
       In computer programming, a “comment” is an annotation left
in the source code which is ignored by the computer when compiling
and executing the program. Programmers typically leave comments
for explanatory purposes to make the code easier to understand.

                                          -5-
the M3 source code that evidenced copying, including statements

such as “I do not know what this code is used for so I will leave

it here anyway.”       Id.

             L-3 urged that the Rosen declaration was insufficient

because the ARMS source code version which Rosen compared to the M3

program--and which was the only version that Airframe produced

during discovery--was an updated version of the ARMS program

created in 2009.       L-3 contended that the updated 2009 version of

the ARMS source code was not registered and was insufficient to

establish the content of the prior source code versions covered by

Airframe’s copyright registrations (including the 1981 IBM version,

the 1984 PC version, the 1988 UNIX version, and the 2003 version).

As   such,    L-3    argued,     Airframe     could      not    prove      there   was

“substantial       similarity”    between     the   M3    source     code    and   the

registered source code that was allegedly infringed.

             The    district   court    agreed,     and    it    granted      summary

judgment for L-3.        The court concluded that Airframe “ha[d] not

produced the relevant source code” and that it was Airframe’s

“burden to prove the [allegedly infringed source] code in its

original form.”        Tr. of Mot. Hr’g, Airframe Sys., Inc. v. L-3

Commc’ns Corp., No. 1:08-CV-11940, ECF No. 109, at 4, 8 (D. Mass.

July 21, 2010) (Airframe III).           The court further stated that “a

comparison    of    updated    [ARMS]    source     code       [to   the    allegedly

infringing M3 code] simply as a matter of logic won’t do.”                     Id. at


                                        -6-
7.   Accordingly, the court concluded that Airframe had failed to

establish a prima facie case of copyright infringement.5

          Airframe appealed.        We have jurisdiction pursuant to 28

U.S.C. § 1291.

                                     II.

          We review the district court’s entry of summary judgment

de novo. Summary judgment is appropriate if the record reveals “no

genuine dispute as to any material fact and the movant is entitled

to judgment as a matter of law.”            Fed. R. Civ. P. 56(a).

          On appeal, Airframe almost exclusively argues that the

district court improperly held that its copyright registrations

were invalid     for   failure to    deposit copies   of   the allegedly

infringed source code with the Copyright Office.       But the district

court did not find Airframe’s copyright registrations invalid. The

court focused solely on the issue of whether Airframe had produced

sufficient evidence to establish a prima facie case of copyright

infringement.    See Airframe Sys., No. 1:08-CV-11940, ECF No. 109.

While we might properly affirm the district court because of

Airframe’s failure to address the issue actually decided below, we



     5
        Because Airframe voluntarily dismissed its complaint in
Airframe II, which alleged that L-3 infringed by modifying ARMS to
run on its new computers, 601 F.3d at 14, the district court also
ruled that Airframe’s claim was res judicata as to infringing acts
prior to the dismissal of Airframe II.     See Tr. of Mot. Hr’g,
Airframe Sys., Inc. v. L-3 Commc’ns Corp., No. 1:08-CV-11940, ECF
No. 31 (D. Mass. July 23, 2009). Airframe has not appealed this
ruling.

                                     -7-
think the best course is to address the merits of the district

court’s summary judgment decision. In doing so, some understanding

of the structure of the Copyright Act is necessary.

            While “registration is not a condition of copyright

protection,”    17   U.S.C.     §   408(a),6    the    Copyright    Act    makes

registration    a    precondition        to   filing    a   valid    copyright

infringement claim under the federal statute, id. § 411.              Although

the Supreme Court in Reed Elsevier, Inc. v. Muchnick, 130 S. Ct.

1237 (2010), recently held that the Copyright Act’s registration

requirement “does not implicate the subject-matter jurisdiction of

federal   courts,”   id.   at    1248,    proof   of   registration       of   the

allegedly infringed work remains an “element[] of a cause of

action” for copyright infringement, id. at 1243-44.

            In addition to the registration requirement, a plaintiff

alleging copyright infringement has the burden of proving two

elements:   “(1) ownership of a valid copyright, and (2) copying of

constituent elements of the work that are original.”                 Situation

Mgmt. Sys., Inc. v. ASP. Consulting LLC, 560 F.3d 53, 58 (1st Cir.

2009) (quoting Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499

U.S. 340, 360 (1991)).     We focus solely on the element of copying.




     6
       Copyright registration may be obtained “[a]t any time during
the subsistence of the first term of the copyright in any published
or unpublished work in which the copyright was secured before
January 1, 1978.” Id. § 408(a).

                                     -8-
           The element of “copying” itself involves a bifurcated

inquiry,   because   all    “copying       does     not   invariably    constitute

copyright infringement.”         Johnson v. Gordon, 409 F.3d 12, 18 (1st

Cir. 2005); see also Coquico, Inc. v. Rodriguez-Miranda, 562 F.3d

62, 66 (1st Cir. 2009).          To establish actionable copying for the

purposes of copyright infringement, the plaintiff must prove both:

“(a) that the defendant actually copied the work as a factual

matter,” and “(b) that the defendant’s copying of the copyrighted

material was so extensive that it rendered the infringing and

copyrighted works ‘substantially similar.’”                  Situation Mgmt., 560

F.3d at 58 (quoting T-Peg, Inc. v. Vt. Timber Works, Inc., 459 F.3d

97, 108 (1st Cir. 2006)) (internal quotation marks omitted). Proof

of “[b]oth species of copying [is] essential for the plaintiff to

prevail.” 4 Melville B. Nimmer & David Nimmer, Nimmer on Copyright

§ 13.01[B], at 13-10 (2011).           In other words, “[n]ot all ‘factual’

copying constitutes legally actionable copyright infringement”; the

actual copying    must     be    extensive      enough to      render   the   works

“substantially similar.”         Creations Unlimited, Inc. v. McCain, 112

F.3d 814, 816 (5th Cir. 2003).             “Conversely, even when two works

are substantially similar with respect to protectable expression,

if the defendant did not copy as a factual matter, but instead

independently    created        the    work    at   issue,    then   infringement

liability must be denied.”            4 Nimmer & Nimmer, Nimmer on Copyright

§ 13.01[B], at 13-10.


                                         -9-
            Substantial similarity between the copyrighted work and

the   allegedly     infringing    work   “is    assessed    by    comparing   the

protected elements of the plaintiff’s work as a whole against the

defendant’s work.”       Situation Mgmt., 560 F.3d at 59.              The fact

finder gauges this element by applying the “ordinary observer”

test, under which substantial similarity is found “if a reasonable,

ordinary    observer,    upon    examination     of   the   two    works,   would

‘conclude    that     the    defendant      unlawfully      appropriated      the

plaintiff’s protectable expression.’” T-Peg, Inc., 459 F.3d at 112

(quoting Johnson, 409 F.3d at 18).7            However, before the foregoing

comparison can take place, the plaintiff must necessarily establish

the content of the copyrighted work that it contends was infringed.

Thus, to survive summary judgment in the present case, Airframe was

required to present sufficient evidence of copying (including

substantial similarity) with respect to at least one of the ARMS

source code versions covered by its copyright registrations.

            Here, the only evidence of copying Airframe presented was

Rosen’s declaration.        Rosen made no direct comparison between the



      7
       Where, as here, the copyrighted work involves specialized
subject matter such as a computer program, some courts have held
that the “ordinary observer” is a member of the work’s “intended
audience” who possesses “specialized expertise.” Dawson v. Hinshaw
Music Inc., 905 F.2d 731, 735-36 (4th Cir. 1990); see also Kohus v.
Mariol, 328 F.3d 848, 857 (6th Cir. 2003); Computer Assoc. Int’l,
Inc. v. Altai, Inc., 982 F.2d 693, 713 (2d Cir. 1992); Whelan
Assocs., Inc. v. Jaslow Dental Lab., Inc., 797 F.2d 1222, 1232-33
(3d Cir. 1986). This court has yet to directly address this issue,
and it is unnecessary to do so here.

                                     -10-
allegedly infringing M3 program and the ARMS source code versions

covered by Airframe’s copyright registrations, as would normally be

done.    Rather, he compared the M3 program to the updated 2009

version of the ARMS source code.       While this would support a

finding of substantial similarity between the M3 program and

Airframe’s “current” source code (i.e., the 2009 ARMS source code),

there is no claim that the 2009 source code was itself registered

or that the 2009 version is the same as one of Airframe’s earlier

registered versions--the 1981 “IBM version,” 1984 “PC version,” or

1988 “UNIX version.”8     Rosen’s declaration said nothing about

similarities between the 2009 ARMS version and Airframe’s earlier

registered ARMS versions. Indeed, Airframe admits that they are in

fact not the same, because the 2009 source code is a version “that

had been updated by Airframe in the ordinary course of business.”

Appellant’s Br. 15.     Having presented no evidence sufficient to

prove the content of its registered source code versions, Airframe

cannot show that any of its registered works is substantially

similar to the allegedly infringing M3 program, and Airframe has

failed to create a genuine issue of material fact as to its claim

of copyright infringement.




     8
      We do not understand Airframe to be alleging that L-3 copied
the registered “2003 version” of the ARMS source code, Reg. No. TX
5-970-279, as this version was created over five years after L-3
gained unauthorized access to some unspecified version of the ARMS
source code in either 1997 or 1998.

                                -11-
           This court previously addressed this precise issue in

Unistrut Corp. v. Power, 280 F.2d 18 (1st Cir. 1960). In Unistrut,

the plaintiff sought to prove infringement of the 1942 version of

its catalog that it had registered with the Copyright Office, but

the only evidence the plaintiff produced was an unregistered 1943

edition   of     the   catalog     “which    admittedly         contained   some,

unspecified, additions.”          Id. at 23.     Though the “1943 edition

. . . was clearly shown to have been pirated,” the court dismissed

the plaintiff’s case “for want of proof” because the plaintiff had

offered “no proof that the infringed material was contained in the

[allegedly infringed] 1942 edition.”           Id.

           The    Fifth   Circuit    addressed     a    similar    situation   in

Bridgmon v. Array Sys. Corp., 325 F.3d 572 (5th Cir. 2003), which

like the present case involved computer source code.                 Because the

plaintiff had offered no admissible evidence that could prove the

content of his copyrighted source code, the district court found

the evidence “insufficient to create a genuine issue of material

fact as to whether [the copyrighted and accused programs] are

‘substantially similar.’” Id. at 576. The Fifth Circuit affirmed,

holding that the plaintiff’s “failure to adduce evidence to allow

a   comparison    between   the     [copyrighted       source    code]   and   the

allegedly infringing program vitiates his claim.” Id. at 577. The

plaintiff’s failure to produce sufficient evidence to prove the

element of “substantial similarity” was fatal to his infringement


                                      -12-
claim,    even   though   there   may   have   been   “evidence   of   direct

copying.”    Id.9

            Here, Airframe has produced insufficient evidence to

create a genuine issue of material fact regarding the necessary

element of substantial similarity. As such, we affirm the district

court’s grant of summary judgment in favor of L-3.10


     9
        In Bridgmon, the plaintiff had attempted to offer a
“reconstruction” of his original source code made by his expert,
but the district court excluded the reconstruction under the Best
Evidence Rule. Id. at 576 n.5. The Best Evidence Rule requires
that a party seeking to prove the “content” of a writing must
introduce the “original” or a “duplicate” of the original, unless
it is established that (1) all originals have been lost or
destroyed (absent bad faith by the proponent); (2) the original
cannot be obtained; (3) the original is in the possession of an
opposing party who refuses to produce it; or (4) the writing is not
closely related to a controlling issue. See Fed. R. Evid. 1001-
1004; see also Seiler v. Lucasfilm, Ltd., 808 F.2d 1316, 1319 (9th
Cir. 1986) (excluding a “reconstruction” of plaintiff’s allegedly
infringed Star Wars artwork under the Best Evidence Rule, and
further noting: “The dangers of fraud in this situation are clear.
The [Best Evidence Rule] ensure[s] that proof of the infringement
claim consists of the works alleged to be infringed. Otherwise,
‘reconstructions’ which might have no resemblance to the purported
original would suffice as proof for infringement of the
original.”). We note that, if the Best Evidence Rule is satisfied,
evidence other than the original may be sufficient to establish the
content of a copyrighted work. See Data East USA, Inc. v. EPYX,
Inc., 862 F.2d 204, 207 & n.3 (9th Cir. 1988) (evidence sufficient
where plaintiff sought to prove the content of a video game by
offering still photographs of the game being played); Seiler, 808
F.2d at 1319 (noting that plaintiff must “produce the original or
show that it is unavailable through no fault of his own”) (emphasis
added). Airframe has made no effort to satisfy the requirements of
the Best Evidence Rule here.
     10
       While this case was pending on appeal, Airframe informed
this court that it had filed a motion with the district court
seeking to set aside the court’s judgment under Fed. R. Civ. P.
60(b). In its Rule 60(b) motion, Airframe informed the district
court that it has since obtained copies of its registered source

                                    -13-
                                  III.

            We turn next to L-3’s cross-appeal contending that the

district court erred in denying its motion for attorney’s fees. We

review a district court’s determination regarding attorney’s fees

for abuse of discretion.       Spooner v. EEN, Inc., 644 F.3d 62, 66

(1st Cir.    2011).     “Apart from     mistakes   of   law–-which   always

constitute abuses of a court’s discretion–-we will set aside a fee

[determination] only if it clearly appears that the trial court

ignored a factor deserving significant weight, relied upon an

improper factor, or evaluated all the proper factors (and no

improper ones), but made a serious mistake in weighing them.”           Gay

Officers Action League v. Puerto Rico, 247 F.3d 288, 292-93 (1st

Cir. 2001) (internal citations omitted).

            Under     the   so-called    “American      Rule,”   litigants

customarily bear responsibility for their own legal fees.            Alyeska

Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 247 (1975).

The Copyright Act, however, creates an exception to this general

rule by providing that a district court, “in its discretion,” may




code deposits from the Copyright Office.       Airframe apparently
asserted that its third-party expert and Mr. Rosen concluded that
at least one of Airframe’s registered source code versions is
substantially similar to L-3’s allegedly infringing M3 program.
The district court denied Airframe’s Rule 60(b) motion on August
22, 2011. We express no opinion as to the merits of Airframe’s
failed motion, and we decide the present appeal based solely on the
record before us.

                                  -14-
“award a reasonable attorney’s fee to the prevailing party” in a

copyright infringement action.                17 U.S.C. § 505.

              In Fogerty v. Fantasy, Inc., 510 U.S. 517, 521, 534

(1944), the      Supreme     Court      interpreted          § 505   as       requiring   an

“evenhanded” approach under which “[p]revailing plaintiffs and

prevailing     defendants      are      to    be    treated     alike.”         The   Court

expressly      rejected     the     practice        of   requiring        a    showing     of

frivolousness or bad faith before a prevailing defendant could be

awarded attorney’s fees. Id. at 531-32. The Court however further

noted that “attorney’s fees are to be awarded to prevailing parties

only as a matter of the court’s discretion.”                      Id. at 534.         While

the   Court    found   there      was    “no       precise    rule   or       formula”    for

exercising      such      discretion,         the     Court     “suggested         several

nonexclusive factors” that courts could consider, including:

              frivolousness,      motivation,      objective
              unreasonableness (both in the factual and in
              the legal components of the case) and the need
              in   particular   circumstances   to   advance
              considerations of compensation and deterrence.

Id. at 534 n.19 (internal citation omitted).

              We have interpreted Fogerty as allowing an award of

attorney’s fees to a prevailing party if the opposing party’s

claims are “objectively quite weak.”                     See Garcia-Goyco v. Law

Envtl. Consultants, Inc., 428 F.3d 14, 20-21 (1st Cir. 2005)

(noting that      “this     court    has      applied     the   Fogerty         factors    in

affirming awards of attorney’s fees where the plaintiff’s copyright


                                             -15-
claim was neither frivolous nor instituted in bad faith,” but was

“objectively quite weak”); see also Latin Am. Music Co. v. ASCAP,

629 F.3d 262, 263 (1st Cir. 2010); InvesSys, Inc. v. McGraw-Hill

Cos., 369 F.3d 16, 20-21 (1st Cir. 2004) (holding that “dishonesty

is not required for an award [of attorney’s fees]; even a case that

is merely objectively quite weak can warrant such an award”).

            L-3 contends that the district court applied an incorrect

attorney’s fees standard.     This is not a case like the Supreme

Court’s decision in Fogerty, 510 U.S. at 531-32, or this court’s

decision in Edwards v. Red Farm Studio Co., 109 F.3d 80, 82 (1st

Cir. 1997), where the district court denied fees solely on the

basis that the claim was not frivolous or brought in bad faith.

Rather, the district court here quoted verbatim the factors that

the Supreme Court suggested in Fogerty, and, as the Supreme Court

recommended, it considered other factors as well.         See Order,

Airframe Sys., Inc. v. L-3 Commc’ns Corp., No. 1:08-CV-11940, ECF

No. 122, at 1-2 (D. Mass. Feb. 8, 2011) (quoting Fogerty, 510 U.S.

at 534 n.19).   L-3 nonetheless argues that the court erred because

it “did not cite, discuss, or       quote from any of [the First

Circuit’s] precedents” which have interpreted Fogerty as permitting

a district court to award attorney’s fees when the opposing party’s

claims are “objectively quite weak.”        Appellee’s Br. 49.    We

disagree.    This court’s opinions in Garcia-Goyco, 428 F.3d at 20,

InvesSys, 369 F.3d at 20, and Latin Am. Music Co., 629 F.3d at 263,


                                 -16-
applied the Fogerty standard.          As such, the district court’s

recitation of the standard as stated by the Supreme Court in

Fogerty was an accurate statement of the law, and the court was not

required to elaborate by citing First Circuit opinions that have

applied the Fogerty standard.        We see no reason here to presume

that the district court failed to understand the contours of the

standard that it recited and applied.

           L-3 also contends that, even if the district court did

apply the correct standard, the court abused its discretion in

declining to award L-3 attorney’s fees because Airframe’s claims

were in fact “objectively quite weak.”      L-3 argues that Airframe’s

claims were “doomed to fail for lack of proof from the outset”

because “Airframe could not meet its burden of proof to show

infringement of [the] copyrighted source code absent evidence of

the source code in question.”        Appellee’s Br. 51.        However, L-3

ignores two important points.

           First, while the Fogerty standard--as interpreted in

Garcia-Goyco and other cases--permits a court to award attorney’s

fees when the opposing party’s claims are objectively weak, it does

not require the court to do so.      A district court has discretion to

decline   to   award   attorney’s   fees   even   when   the    plaintiff’s

copyright infringement case is quite weak.11


     11
       See Garcia-Goyco, 428 F.3d at 20 (holding that “attorney’s
fees are to be awarded to prevailing parties only as a matter of
the court’s discretion” and noting that fees have been awarded in

                                    -17-
          Second, there has been no showing that the district court

abused its discretion in declining to award L-3 attorney’s fees on

the facts of this case.    As this court recently held in Latin

American Music Co. v. ASCAP, 642 F.3d 87 (1st Cir. 2011):

                 Our review of a fee award to a prevailing
          party is extremely deferential. We will disturb
          a ruling under section 505 only if the record
          persuades us that the trial court indulged in a
          serious lapse in judgment.

Id. at 91 (internal citations and quotation marks omitted).   Here,

the court expressly considered the fact that “Airframe’s claims in

the present case ultimately failed to survive summary judgment due

to a lack of admissible evidence on certain essential elements” of

its infringement claim.   Airframe Sys., ECF No. 122, at 2.    The

court however went on to apply each of the Fogerty factors and

concluded that, despite the failure of proof issue, there were “no

particular circumstances [that] agitate[d] in favor of compensation

by way of attorney’s fees.”     Id.    The court did “not consider

Airframe’s claims to have been frivolous, improperly motivated, or

objectively unreasonable,” and it further emphasized that the

“contentious nature” and “reasonably swift resolution” of the case

weighed against a fees award.   Id.


instances “where the claim was ‘objectively weak’”) (emphasis
added) (citation omitted); see also Latin Am. Music Co., 629 F.3d
at 263 (holding that the Fogerty standard “permits courts, in their
discretion, to award reasonable attorney’s fees” when the
opponent’s claims are “objectively weak”) (emphasis added);
InvesSys, 369 F.3d at 21 (holding that a case that is “objectively
quite weak can warrant [a fees] award”) (emphasis added).

                                -18-
          While a district court may, under some circumstances,

abuse its discretion in declining to award attorney’s fees, see,

e.g., Mag Jewelry Co. v. Cherokee, Inc., 496 F.3d 108, 122-24 (1st

Cir. 2007), each of these cases depends on its own particular

facts.   Given the early stage at which the present case was

resolved and the fact that evidence may have been available to

support Airframe’s claim, we cannot say that the district court

abused its discretion in denying L-3’s motion for attorney’s fees.

                               IV.

          For the foregoing reasons, we affirm both the district

court’s order granting summary judgment in favor of L-3 and its

order denying L-3’s motion for attorney’s fees.

          Affirmed.

          No costs.




                              -19-
