This morning, the United States Supreme Court announced its decision in Kirtsaeng v. John Wiley & Sons, No. 15-375. We’ve previously covered the briefing in this case here on the blog.
In a unanimous opinion authored by Justice Kagan, the Court held that district courts must place substantial weight on the objective reasonableness of a losing party’s position when evaluating whether to award attorney’s fees in copyright cases. The Court found that emphasis on this particular factor “enhances the probability that creators and users will enjoy the substantive rights the [Copyright] Act provides.”
The Court did point out that the Second Circuit’s presumption against an award of fees upon a finding of reasonableness “goes too far.” Objective reasonableness is an “important factor in assessing fee applications,” but not the “controlling one.” The district court was ordered to place substantial weight to the reasonableness of Wiley’s position, but to also analyze the relevant Fogerty factors on remand.
Any copyright litigant can claim that they had an objectively reasonable position during litigation. Most litigants, apart from copyright trolls, will always have a good faith belief that their position is reasonable. The Supreme Court may have inadvertently created a harder standard to obtain fee awards in copyright litigation. Time will tell how the particular emphasis on the objective reasonableness of a party’s position affects fee awards.