In its second ruling in Kirtsaeng v. John Wiley & Sons, Inc., the Supreme Court has clarified its standard for awarding attorneys’ fees in copyright litigation. Holding that judges awarding attorneys’ fees must look to the reasonableness of the losing party’s position, the Court’s decision ensures that copyright holders will not be penalized for bringing reasonable cases they happen to lose.
This decision is part of the same case in which the Supreme Court in 2013 held that Supap Kirtsaeng had not violated copyright law by selling English-language textbooks imported from Thailand in the United States. After winning, Kirtsaeng petitioned the Court for $2 million in attorneys’ fees from Wiley, the plaintiff in the original case, to cover his legal expenses. Citing an unclear standard for awarding attorneys’ fees in copyright cases, Kirtsaeng suggested his own, which would favor awarding attorneys’ fees where the lawsuit “resolved an important and close legal issue.” This time, the Supreme Court sided unanimously against him.
Writing for a unanimous Court, Justice Kagan saw no reason to saddle Wiley with Kirtsaeng’s legal fees. Its lawsuit had not been unreasonable. Invoking the purpose of the Copyright Clause—“to promote the progress of science and useful arts”—her opinion concluded that the prospect of legal fees should not deter copyright holders from defending their creative property. Instead, judges awarding legal fees should consider a series of factors, including the objective reasonableness of each party’s case.
The standard the Court adopted, Justice Kagan reasoned, honors the purpose of the Copyright Clause because “it both encourages parties with strong legal positions to stand on their rights and deters those with weak ones from proceeding with litigation.”
Although the Court recognized the importance of the first Kirtsaeng opinion, it found Kirtsaeng’s proposed standard for awarding legal fees antithetical to the purpose of copyright law. Awarding legal fees to a victorious party whose suit resolves a major question in copyright law would “enhance the penalty for defeat.” In a setting where many corporate copyright holders are risk-averse and where many independent and individual copyright holders lack the resources necessary to file federal copyright claims, which can cost hundreds of thousands of dollars, Kirtsaeng’s standard would almost certainly discourage copyright suits that might otherwise take place.
By rejecting Kirtsaeng’s proposed standard in favor of one that embraces objective reasonableness, the Court assures that attorneys’ fees will not function as a disincentive to authors who see a legitimate threat to their work and choose to take action. Though the decision leaves it to courts to determine what exactly constitutes an objectively reasonable suit, the second Kirtsaeng decision should be lauded for the stability it creates amidst the confusion unleashed by its predecessor.
But while Kirtsaeng II represents a promising legal turn, more can be done to empower individual and independent copyright holders, especially given the prohibitively expensive costs of litigation. That’s why we’re supporting the creation of a small claims court for copyright infringement. Such a court would greatly expand authors’ access to the courts, give them real remedies and empower them to protect their literary property and reinforce their rights.
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