Supap Kirtsaeng v. John Wiley & Sons, Inc. (15-375)

argument 15-375

Supap Kirtsaeng v. John Wiley & Sons, Inc.

Supreme Court of the United States 57 min 6 speakers 8 chapters transcribed 6 days ago official recording ↗

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What is the central issue the parties are arguing before the Supreme Court?

John G. Roberts 0:00

We'll hear argument first this morning in case fifteen three seven five, Supop Kurt Sang versus John Wiley and Sons. Mr Rosenkrantz?

Cameron N. Norris 0:09

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.

Cameron N. Norris 0:58

and is inconsistent with this court's opinion in poverty. It does nothing to encourage a defendant who has a good defence but is facing off against a powerful adversary armed with a reasonable position. That encouragement has not happened once in the last fifteen years. That's not once in a hundred and eighty seven cases decide uh decided under the Second Circuits, Matthew Bender, Rubrik. And will never happen anywhere outside the second circuit.

Elena Kagan 1:33

Kerzeng 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 important decision. It needs both sides to be aired. before the court. So suppose he had lost And while he won. Would Wiley be entitled to attorney's fees?

Cameron N. Norris 1:56

Why we would have an argument, Your Honor, f 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

Elena Kagan 2:06

more than that. It would have had circuit precedent. It could have been found willfully Infringing, correct?

Cameron N. Norris 2:14

If I

Elena Kagan 2:15

were gonna bet, I would say yes to that question, wouldn't you?

Cameron N. Norris 2:18

I'm sorry. M our client would have in uh it was already found to have willfully infringed.

Stephen G. Breyer 2:23

Right.

Cameron N. Norris 2:24

So our client had a lot already weighing against him. But just to get back to 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. Kurtsang would have had much less of an incentive to do anything other than to cave.

Elena Kagan 2:51

Why, it was a lucrative business he was engaged in.

Cameron N. Norris 2:54

Your Honor, he was a student who had this side business who was making just a few dollars per uh book. I mean it was a it was a large volume, but the problem

Stephen G. Breyer 3:04

thousand.

Cameron N. Norris 3:05

uh uh several hundred thousand dollars in revenues, Your Honor, but not in profit. And uh as to while uh as to the books of Wiley that he sold, it was thirty seven thousand dollars, Your Honors, for which he was hit with a six hundred thousand dollar judgment, which also would have been considered by the district court. It would have thought, it would have asked itself, is this fair? But the problem with the Second Circuit's position is that it prejudges in every case there is going to be substantial weight on the reasonableness.

Anthony M. Kennedy 3:38

Mr Rosenkins, just to continue on with what Justice Ginsburg was asking you, as an ex post matter you have a great David versus Goliath story to tell. But as an ex ante matter I wonder if the rule that you suggest is not going to harm the Kurtzangs of the world. And uh you know, you might take an these couple of things into account. But the Kurtzangs of the world will probably think that the that they are spending less on their lawyers than the John Wileys of the world. And that they're also more risk averse because they have less money. So um you know, given those two factors, doesn't your rule actually as an ex antimatter uh cut against the Kurtzangs of the rule. Mm-hmm.

Cameron N. Norris 4:25

Your Honor the answer is no in for this reason. The Kurt Sangs of the world when they are facing off against John Wiley, the first question on their minds before they ever think about attorneys' fees being awarded against them