WHAT’S NEW -

Yesterday, the Supreme Court provided substantial guidance in an unsettled area of law by holding that, in deciding whether to award attorneys’ fees under the Copyright Act’s fee-shifting provision, 17 U.S.C. § 505, a court should give substantial weight to the objective reasonableness of the losing party’s position, while still taking into account all other circumstances relevant to granting fees. Kirtsaeng v. John Wiley & Sons, Inc., No. 15-375 (U.S. Jun. 16, 2016).

BACKGROUND -

This story begins with an enterprising college student buying foreign textbooks on the cheap to sell in the United States for a profit. Petitioner Supap Kirtsaeng came to the United States from Thailand to study math at Cornell University. Respondent John Wiley & Sons (“Wiley”), an academic publishing company, sells textbooks to students in U.S. and foreign markets. Kirtsaeng noticed an arbitrage opportunity: Wiley’s textbooks sold in Thailand were virtually identical to their American counterparts, but much cheaper. Kirtsaeng asked family and friends to buy the foreign editions so that he could sell them to his fellow students for a profit.