In Kirtsaeng v. John Wiley & Sons, Inc., Appeal No. 15-375, the Supreme Court unanimously held that in fee-shifting cases for copyright infringement, courts should give substantial but not dispositive weight to the objective reasonableness of the losing party’s position.

Kirtsaeng purchased Wiley’s foreign-version textbooks abroad and sold them in the United States.  Wiley sued Kirtsaeng for copyright infringement and Kirtsaeng asserted the first sale doctrine as a defense.  In a previous decision, the Supreme Court held that the first-sale doctrine allows for the resale of foreign made books.  On remand, Kirtsaeng sought attorney’s fees under the Copyright Act’s fee shifting provision, 17 U.S.C. § 505.  The district court denied Kirtsaeng’s motion.  In denying the motion, the district court gave substantial weight to the objective reasonableness of Wiley’s infringement claim.   The Second Circuit affirmed.

The Supreme Court affirmed, explaining that the objective reasonableness approach encourages parties with strong legal positions to protect their rights, and discourages individuals with unreasonable positions from litigating.  However, the Court held that objective reasonableness can only be an important factor, not the controlling one, and the Court rejected the suggestion that a finding of reasonableness raises a presumption against granting fees.