Kirtsaeng v. John Wiley & Sons - Oral Argument - April 25, 2016

Kirtsaeng v. John Wiley & Sons

Media for Kirtsaeng v. John Wiley & Sons

Audio Transcription for Opinion Announcement - June 16, 2016 in Kirtsaeng v. John Wiley & Sons

Audio Transcription for Oral Argument - April 25, 2016 in Kirtsaeng v. John Wiley & Sons

John G. Roberts, Jr.:

We'll hear argument first this morning in Case 15-375, Supap Kirtsaeng v. John Wiley & Sons. Mr. Rosenkranz.

E. Joshua Rosenkranz:

Thank you, Mr. Chief Justice, and may it please the Court: When Congress modified the American Rule in the Copyright Act, it was not just trying to punish those who took unreasonable positions.

It wanted to encourage parties to advance important principles even where the other side's arguments are good; indeed, I would say, especially where the other side's arguments are good. When a defendant is trying to decide whether to fight for a principle, the availability of attorneys' fees can make all the difference in that decision, and in turn can make all the difference in whether the public's rights are vindicated. The Second Circuit's standard flouts

the plain language of the statute undermines Congress's goal and is consistent with this Court's opinion in Fogerty. It does nothing to encourage a defendant who has a good defense but is facing off against a powerful adversary armed with a reasonable position.

That encouragement has not happened once in the last 15 years.

That's not once in 187 cases decide -- decided under the Second Circuit's Matthew Bender rubric, and will never happen anywhere outside the Second Circuit.

Ruth Bader Ginsburg:

Mr. Rosenkranz, if Kirtsaeng had lost this case -- if he had lost this case, should fees have been awarded to Wiley, given the significance of this decision? I mean, it's an important decision.

It needs both sides to be aired before the Court.

So suppose he had lost and Wiley won, would Wiley be entitled to attorneys' fees?

E. Joshua Rosenkranz:

Wiley would have an argument, Your Honor, certainly on one of the factors that we have suggested, which is it would say we won an important case.

It didn't win it against the --

Sonia Sotomayor:

It would have had more than that.

It would have had circuit precedent.

It could have been woefully infringing, correct?

E. Joshua Rosenkranz:

Not --

Sonia Sotomayor:

If I were going to bet, I would say yes to that question.

Wouldn't you?

E. Joshua Rosenkranz:

I'm sorry.

Our client would have been -- was already found to have woefully infringed.

Sonia Sotomayor:


E. Joshua Rosenkranz:

So our client had a lot already weighing against him. But just to get back to finish the answer to Justice Ginsburg's question, but there would have been other factors.

The Court would have -- the district court would have evaluated what the incentives for both sides were.

So Wiley would have had an enormous economic incentive to advance its position.

Kirtsaeng would have had much less of an incentive to do anything other than to cave.

Ruth Bader Ginsburg:

Why? It was a lucrative business he was engaged in.

E. Joshua Rosenkranz:

Your Honor, he was a student who had this side business who was making just a few dollars per book.

I mean, it was a -- it was a large volume, but the --

Stephen G. Breyer:

Several hundred thousand.

E. Joshua Rosenkranz:

Several hundred thousand dollars in revenues, Your Honor, but not in profit.

And as to Wiley -- as to the books of Wiley that he sold, it was $37,000, Your Honors, for which he was hit with a $600,000 judgment, which also would have been considered by the district court.