The SCOTUS Kirtsaeng decision: where do we go from here?


Jordan Feirman

The SCOTUS Kirtsaeng decision: where do we go from here?

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The impact that the US Supreme Court’s Kirtsaeng ruling will have on attorneys’ fees determinations in copyright cases is far from clear, but some reasonable predictions can be made, argues Jordan Feirman of Skadden.

On June 16, 2016, in Kirtsaeng v John Wiley & Sons, the US Supreme Court unanimously held (8-0) that when district courts determine whether to award attorneys’ fees to prevailing parties in copyright lawsuits, “substantial weight” should be accorded to the objective reasonableness or unreasonableness of the losing party’s position.

The court noted, however, that although objective reasonableness is an “important” factor, it is not a “controlling” one—that is, district courts still have “broad discretion” to award attorneys’ fees and “must take into account a range of considerations beyond the reasonableness of litigating positions.”

In the immediate aftermath of the ruling, the prevailing sentiment among copyright litigators (including this author) was that the Supreme Court had “clarified” the law and provided more “guidance” with respect to fee determinations (see, eg, “Supreme Court Provides Guidance on Attorneys’ Fees in Copyright Infringement Actions” and “Kirtsaeng Clarifies Standard for Award of Attorney’s Fees in Copyright Cases”). But given the wide latitude that district courts retain, and the Supreme Court’s reaffirmation of a non-exhaustive, multi-factor balancing test that applies sui generis, it is fair to question how much clarity the Kirtsaeng opinion truly provides and what, if any, systemic effects the court’s guidance will have on district courts going forward. Although it is not discussed in this article, the Supreme Court also weighed in on the litigation between these parties in 2013, regarding an issue concerning the first sale doctrine (see Kirtsaeng v John Wiley & Sons, 133 S. Ct. 1351 [2013]). 

Jordan Feirman, Skadden, attorney's fees, Kirtsaeng, US Supreme Court, copyright, Copyright Act,