The Supreme Court has produced an interesting post-script to the landmark Kirtsaeng v. Wiley case, in which it had previously ruled permitted importation and resale of less-expensive textbooks from other parts of the world. Kirtsaeng had prevailed in that case, but lower courts declined to award Kirtsaeng’s lawyers the $2 million in attorney fees they requested.

The trial court and appeals court declined the award because of case law stating that “As such, the imposition of a fee award against a copyright holder with an objectively reasonable litigation position will generally not promote the purposes of the Copyright Act.” In other words, the courts found that Wiley believed it had a valid concern, and shouldn’t be penalized for trying to protect its own interests in the matter.

However, in a Thursday opinion (PDF), Justice Kagan pointed out that the objective reasonableness of the losing party’s position should not be the sole deciding factor on which courts make that decision—it “must also give due consideration to all other circumstances relevant to granting fees,” and it still has the discretion to award fees even if the losing party brought the case in good faith. Since the Justices weren’t sure the lower courts had fully understood that point, the Supreme Court remanded the matter back down to the lower court for reconsideration on that basis.

This doesn’t necessarily mean that Kirtsaeng’s attorneys will get their fee award after all—the SCOTUS opinion made it clear that they didn’t mean to intimate that the court should reach a different conclusion—but it at least gives them a better shot at it. John Wiley & Sons insists that a ruling against it in that matter could have a chilling effect on the filing of legitimate copyright cases. However, Cory Doctorow notes on BoingBoing that such a ruling would swing power back to the side of “future defendants in bogus copyright suits” who otherwise get the message “that even if they won, they’d lose.”

Even after bringing about a major change in the way fair use is considered, Kirtsaeng v. Wiley isn’t done yet. However this case comes out could have a major effect on the future of copyright litigation down the road.


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