Arts organisation wades into Kirtsaeng v John Wiley dispute
A company that provides arts-related legal aid and volunteer programmes has stepped into a forthcoming US Supreme Court battle centring on whether attorneys’ fees should be awarded in a renowned copyright case.
In an amicus brief filed at the court on Wednesday, March 30, Volunteer Lawyers for the Arts has thrown its weight behind publisher John Wiley & Sons in its dispute with Supap Kirtsaeng, a graduate from Cornell University.
The case, Kirtsaeng v John Wiley, centres on a 2013 Supreme Court ruling that saw Kirtsaeng cleared of copyright infringement under the first sale doctrine.
Kirtsaeng had been re-selling copies of John Wiley-published books on eBay that his relatives had bought at reduced prices abroad.
The dispute went all the way up to the Supreme Court after both a district court and the US Court of Appeals for the Second Circuit found in favour of John Wiley.
But in 2013 the Supreme Court ruled that legally purchased textbooks and other goods can be re-sold online and in discount stores without infringing US copyright law, and sent the case back to the second circuit.
When the dispute returned to the second circuit, Kirtsaeng’s request for attorneys’ fees was rejected on the grounds that Wiley’s copyright claim was “objectively reasonable”.
Kirtsaeng then filed another writ of certiorari to the Supreme Court. He argued that if the case was litigated in other federal appeals courts, his claim for attorneys’ fees would have succeeded.
In response, John Wiley said that the Copyright Act provides room for a district court to determine when to award attorneys’ fees under its own discretion.
The Supreme Court confirmed in January that it will hear the case.
David Leichtman, partner at law firm Robins Kaplan, who wrote the brief on behalf of VLA said: “In its brief, VLA describes the experience of its artist clients with close cases under the Copyright Act, and argues against petitioner’s view that close cases necessarily warrant an award of fees.
“The brief also points out that pro bono representation should not be used to deny an award of fees in deserving cases, and should be a neutral factor in the analysis.”
