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<i>Kirtsaeng</i> Clarifies Attorney's Fees Standard In Copyright Cases, Injects More Uncertainty Into Availability of Fee Awards

BY James A. Trigg
July 01, 2016

Issuing its second decision in Supap Kirtsaeng's long-standing dispute with John Wiley & Sons ' and its first copyright decision in nearly two years ' the U.S. Supreme Court recently clarified the applicable standard for evaluating the appropriateness of an attorney's fee award under Section 505 of the Copyright Act, holding that a district court should give substantial weight to the objective reasonableness of the losing party's position, while also taking into consideration all other circumstances relevant to the attorney's fees inquiry. See, Kirtsaeng v. John Wiley & Sons, Inc., No. 15-375, 579 U.S. ____ (June 16, 2016) (slip opinion).

Case Background

The Kirtsaeng litigation initially arose as a result of Kirtsaeng's resale of English-language textbooks manufactured in Thailand and purchased there at a lower price by local family and friends, then shipped to the United States for Kirtsaeng's resale. Id. at 2. When publisher John Wiley & Sons, Inc. (Wiley) learned of Kirtsaeng's profitable business model, it sued Kirtsaeng for copyright infringement, with Kirtsaeng invoking the first sale doctrine as his defense. Id. Although the first sale doctrine permits the lawful purchaser of a book (or other work) to resell that book freely and without restriction, Wiley argued that the doctrine did not apply to books and other works manufactured abroad and then shipped into the United States. Id.

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