Objective Reasonableness Must Receive "Substantial
Weight" in Copyright Attorney-Fee Shifting
Decisions:Kirtsaeng v. John Wiley & Sons,
Inc., No. 15-375 (U.S. June 16,
2016)
Kagan, J. In a unanimous decision, the Supreme Court
clarified the Copyright Act's fee-shifting provision of 17
U.S.C. § 505, holding that district courts must give
"substantial weight to the objective (un)reasonableness of a
losing party's litigating position," while "taking
into account all other relevant factors," without raising a
presumption against granting fees where the losing party's
position was reasonable. In so holding, the Court rejected the
approach proposed by petitioner Kirtsaeng, under which courts would
grant "special consideration to whether a lawsuit resolved an
important and close legal issue and thus 'meaningfully
clarifie[d]' copyright law," finding such an approach to
be unworkable. The Court vacated the Second Circuit's decision
and remanded the case to the district court for further
consideration in light of the refined approach.
DMCA Safe Harbor Applies to Pre-1972 Sound
Recordings:Capitol Records, LLC v. Vimeo,
LLC, Nos. 14-1048/1049/1067/1068 (2d Cir.
June 16, 2016)
Leval, J. In a suit alleging copyright infringement of
plaintiffs' pre-1972 sound recordings by videos posted by third
parties to defendant Vimeo's website, the Second Circuit
affirmed in part and vacated in part the district court's
summary judgment rulings on various issues. The Second Circuit held
that the Digital Millennium Copyright Act's safe harbor
provision of 17 U.S.C. § 512(c) shields Internet service
providers from liability under state copyright law with respect to
sound recordings fixed before February 15, 1972. Regarding the
"red flag knowledge" exception to the safe harbor,
Section 512(c)(1)(A)(ii), the court held that under the standard
ofViacom International, Inc. v. YouTube, Inc. (2d Cir.
2012), a showing that "some employee of Vimeo had some contact
with a user-posted video that played all . . . of a recognizable
song" could not establish "red flag knowledge" by
Vimeo sufficient to forfeit the safe harbor. Finally, the Second
Circuit ruled that evidence cited by plaintiffs of "sporadic
instances" of Vimeo employees' encouraging infringement
could not support plaintiffs' theory that Vimeo had engaged in
a pattern of "generalized encouragement of infringement"
and thereby forfeited the safe harbor with respect to specific
videos under the doctrine of willful blindness.
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