[co-author: Mark Webb]

On September 27, 2018, the Supreme Court of the United States granted certiorari in Oracle USA v. Rimini Street to resolve a split among the United States Circuit Courts of Appeals concerning costs awarded to a prevailing party under the Copyright Act. The Sixth, Seventh, and Ninth Circuits permit an award of “full costs” under 17 U.S.C. § 505 (Copyright Act) that is not limited by the six categories of taxable costs under 28 U.S.C.  § 1920. The Eighth and Eleventh Circuits do not permit additional costs, because the “full costs” language does not “clearly,” “explicitly,” or “plainly” show congressional intent to treat costs differently under the Copyright Act.

This decision may have a major impact on how parties assess the monetary risks of going to trial. At issue for Rimini Street is whether it must pay Oracle $12,774,550.26 in costs outside those recoverable under 28 U.S.C. § 1920. In Crawford Fitting Co. v. J.T. Gibbons, Inc. (1987) the Supreme Court held there must be “plain evidence” of congressional intent to supersede 28 U.S.C. § 1920. Now the Court will have the opportunity to determine if such evidence exists for 17 U.S.C. § 505.