The case of Kirstaeng v. Wiley hit the headlines in 2013 when the Supreme Court held that importation and sale in the United States of books bought from the copyright owner in Thailand was not an infringement of copyright, even though a notice in the books stated ‘This book is authorized for sale in Europe, Asia, Africa and the Middle East and may not be exported out of these territories.” The Court applied the first sale doctrine to this situation and read 17 USC 109(a) which gives “the owner of a particular copy … lawfully made under this title” the right “without the authority of the copyright owner to sell or otherwise dispose of the possession of that copy” as extending to books made and sold by the copyright owner in Thailand.
Following this, Kirstaeng sought to recover his attorney fees under the provisions of 17 USC 505 which provides that a district court “may … award attorney fees to the prevailing party.” The district court and the Second Circuit Court of Appeals denied the request on the ground that, since prior to the Supreme Court’s decision in 2013 it was unclear whether the first sale doctrine applied when the initial sale was outside the United States, the defendant’s position was “objectively reasonable” and that is such situations no award of attorney fees should be made.