Comments on: Supreme Court Revisits Copyright’s Attorney Fee Shifts–Kirtsaeng v. Wiley

By: Eric Goldman

Eric Goldman — Thu, 23 Jun 2016 14:47:00 +0000

In reply to rw970. Hmm...interesting how you prioritize the plaintiff's interests. I think protecting defendants from abusive enforcements is at least as important as deterring defendants from abusive defenses. At least in my world, I see way more of the former than the latter. Eric.

By: rw970

rw970 — Thu, 23 Jun 2016 14:31:00 +0000

In reply to Eric Goldman. Isn't the whole point of the fee-shifting provision to deter defendants from pursuing unmeritorious defenses? If we're not afraid of them staking out unreasonable positions, why have a 505 at all?

By: Eric Goldman

Eric Goldman — Wed, 22 Jun 2016 17:27:00 +0000

In reply to rw970. I agree with you that the fair use defense makes it harder to reach a definitive conclusion about when a copyright defense is objectively reasonable. However, I doubt defendants will pursue unmeritorious defenses just because they don't feel the pressure of a possible fee shift against them. They still face significant damages and their own attorneys' fees. I wonder if we can draw any lessons from how courts are dealing with the applicability of fair use when dealing with 512(f) cases?

By: rw970

rw970 — Wed, 22 Jun 2016 14:22:00 +0000

Eric, one of the difficulties I see with the Court’s endorsement of the “objectively reasonable” standard is what do you do with fair use cases? Fair use is a defense in virtually every copyright case – although not in Kirtsaeng. It’s very hard to come up with a fair use defense that is not objectively reasonable. If that’s the case, it’s going to be very hard for prevailing plaintiffs to get fee awards in a large majority of cases. Defendants, especially deep pocketed defendants, will be incentivized to contest even worthy infringement claims because as long as they can make a colorable fair use argument, they will not have to pay fees.