US Supreme Court to review attorneys’ fee awards in copyright cases
Publisher John Wiley & Sons and a graduate from Cornell University are heading back to the US Supreme Court after a writ concerning the standard for awarding attorneys’ fees in copyright cases was granted.
Supap Kirtsaeng complained there is a “circuit split” over the issue and requested that the Supreme Court define what the “appropriate standard for awarding attorneys’ fees” is under section 505 of the Copyright Act.
The Supreme Court confirmed on Friday, January 15, that it will hear the case.
In 2013, the Supreme Court ruled that Kirtsaeng’s business was protected under the first sale doctrine.
Kirtsaeng’s business involves re-selling Wiley’s books. The books were originally sold by Wiley outside the US but Kirtsaeng sold them within the US on eBay and placed a higher price on them.
But returning to the US Court of Appeals for the Second Circuit, Kirtsaeng’s request for attorneys’ fees was rejected on the grounds that Wiley’s copyright claim was “objectively reasonable”.
Kirtsaeng subsequently filed a writ of certiorari in September. He argued that if the case was litigated in other federal appeals courts his claim for attorneys’ fees would have succeeded.
“Unlike other circuits, the second circuit places ‘substantial weight’ on whether the losing party’s claim defence was objectively reasonable ... The second circuit’s emphasis on objective unreasonableness is not grounded in the fee provision of the US Copyright Act.
“Instead, it originates in a rule from a bygone era, long rejected by this court, that fee awards in copyright cases, especially for prevailing defendants, should be a rare punishment against plaintiffs who brought frivolous, baseless, or unreasonable lawsuits,” Kirtsaeng argued.
In response, Wiley said that the Copyright Act provides room for a district court under its own “discretion” to determine when to award attorneys’ fees.
Wiley criticised Kirtsaeng’s “exaggerated descriptions of differences with other circuits” and stated that the objective reasonable standard is one that “every circuit emphasises”.
