Kirtsaeng v. John Wiley & Sons, Inc.

(Slip Opinion) OCTOBER TERM, 2015 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

KIRTSAENG, DBA BLUECHRISTINE99 v. JOHN WILEY
& SONS, INC.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SECOND CIRCUIT

No. 15–375. Argued April 25, 2016—Decided June 16, 2016
In Kirtsaeng v. John Wiley & Sons, Inc., 568 U. S. ___, this Court held
that petitioner Supap Kirtsaeng could invoke the Copyright Act’s
“first-sale doctrine,” see 17 U. S. C. §109(a), as a defense to the copy-
right infringement claim filed by textbook publisher John Wiley &
Sons, Inc. Having won his case, Kirtsaeng returned to the District
Court to seek more than $2 million in attorney’s fees from Wiley un-
der the Copyright Act’s fee-shifting provision. See §505. The District
Court denied Kirtsaeng’s application because, it reasoned, imposing a
fee award against a losing party that had taken reasonable positions
during litigation (as Wiley had done) would not serve the Act’s pur-
poses. Affirming, the Second Circuit held that the District Court was
correct to place “substantial weight” on the reasonableness of Wiley’s
position and that the District Court did not abuse its discretion in de-
termining that the other factors did not outweigh the reasonableness
finding.
Held:
1. When deciding whether to award attorney’s fees under §505, a
district court should give substantial weight to the objective reasona-
bleness of the losing party’s position, while still taking into account
all other circumstances relevant to granting fees. Pp. 3–11.
(a) Section 505 states that a district court “may . . . award a rea-
sonable attorney’s fee to the prevailing party.” Although the text
“clearly connotes discretion” and eschews any “precise rule or formu-
la,” Fogerty v. Fantasy, Inc., 510 U. S. 517, the Court has placed two
restrictions on that authority: First, a court may not “award[ ] attor-
ney’s fees as a matter of course,” id., at 533; and second, a court may
not treat prevailing plaintiffs and prevailing defendants differently,
2 KIRTSAENG v. JOHN WILEY & SONS, INC.

Syllabus

id., at 527. The Court also noted “several nonexclusive factors” for
courts to consider, e.g., “frivolousness, motivation, objective unrea-
sonableness[,] and the need in particular circumstances to advance
considerations of compensation and deterrence,” id., at 534, n. 19,
and left open the possibility of providing further guidance in the fu-
ture, id., at 534–535.
This Court agrees with both Kirtsaeng and Wiley that additional
guidance respecting the application of §505 is proper so as to further
channel district court discretion towards the purposes of the Copy-
right Act. In addressing other open-ended fee-shifting statutes, this
Court has emphasized that “in a system of laws discretion is rarely
without limits,” and it has “found” those limits by looking to “the
large objectives of the relevant Act.” Flight Attendants v. Zipes, 491
U. S. 754, 759. In accord with such precedents, this Court must de-
termine what approach to fee awards under §505 best advances the
well-settled objectives of the Copyright Act, which are to “enrich[ ]
the general public through access to creative works” by striking a
balance between encouraging and rewarding authors’ creations and
enabling others to build on that work. Fogerty, 510 U. S., at 527, 526.
Fee awards should thus encourage the types of lawsuits that advance
those aims. Pp. 3–6.
(b) Wiley’s approach—to put substantial weight on the reasona-
bleness of a losing party’s position—passes this test because it en-
hances the probability that creators and users (i.e., plaintiffs and de-
fendants) will enjoy the substantive rights the Act provides. Parties
with strong positions are encouraged to stand on their rights, given
the likelihood that they will recover fees from the losing (i.e., unrea-
sonable) party; those with weak ones are deterred by the likelihood of
having to pay two sets of fees. By contrast, Kirtsaeng’s proposal—to
give special consideration to whether a suit meaningfully clarified
copyright law by resolving an important and close legal issue—would
produce no sure benefits. Even accepting that litigation of close cases
advances the public interest, fee-shifting will not necessarily, or even
usually, encourage parties to litigate those cases to judgment. While
fees increase the reward for a victory, they also enhance the penalty
for a defeat—and the parties in hard cases cannot be confident if they
will win or lose.
Wiley’s approach is also more administrable. A district court that
has ruled on the merits of a copyright case can easily assess whether
the losing party advanced an unreasonable position. By contrast, a
judge may not know whether a newly decided issue will have broad
legal significance. Pp. 6–10.
(c) Still, objective reasonableness can be only a substantial factor
in assessing fee applications—not the controlling one. In deciding
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Syllabus

whether to fee-shift, district courts must take into account a range of
considerations beyond the reasonableness of litigating positions.
Pp. 10–11.
2. While the Second Circuit properly calls for district courts to give
“substantial weight” to the reasonableness of a losing party’s litigat-
ing positions, its language at times suggests that a finding of reason-
ableness raises a presumption against granting fees, and that goes
too far in cabining the district court’s analysis. Because the District
Court thus may not have understood the full scope of its discretion, it
should have the opportunity to reconsider Kirtsaeng’s fee application.
On remand, the District Court should continue to give substantial
weight to the reasonableness of Wiley’s position but also take into ac-
count all other relevant factors. Pp. 11–12.
605 Fed. Appx. 48, vacated and remanded.

KAGAN, J., delivered the opinion for a unanimous Court.
 Cite as: 579 U. S. ____ (2016) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES
_________________

No. 15–375
_________________

SUPAP KIRTSAENG, DBA BLUECHRISTINE99,

PETITIONER v. JOHN WILEY & SONS, INC.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT

[June 16, 2016]

JUSTICE KAGAN delivered the opinion of the Court.
Section 505 of the Copyright Act provides that a district
court “may . . . award a reasonable attorney’s fee to the
prevailing party.” 17 U. S. C. §505. The question pre-
sented here is whether a court, in exercising that author-
ity, should give substantial weight to the objective reason-
ableness of the losing party’s position. The answer, as both
decisions below held, is yes—the court should. But the
court must also give due consideration to all other circum-
stances relevant to granting fees; and it retains discretion,
in light of those factors, to make an award even when the
losing party advanced a reasonable claim or defense.
Because we are not certain that the lower courts here
understood the full scope of that discretion, we return the
case for further consideration of the prevailing party’s fee
application.
I
Petitioner Supap Kirtsaeng, a citizen of Thailand, came
to the United States 20 years ago to study math at Cornell
University. He quickly figured out that respondent John
Wiley & Sons, an academic publishing company, sold
2 KIRTSAENG v. JOHN WILEY & SONS, INC.

Opinion of the Court

virtually identical English-language textbooks in the two
countries—but for far less in Thailand than in the United
States. Seeing a ripe opportunity for arbitrage, Kirtsaeng
asked family and friends to buy the foreign editions in
Thai bookstores and ship them to him in New York. He
then resold the textbooks to American students, reim-
bursed his Thai suppliers, and pocketed a tidy profit.
Wiley sued Kirtsaeng for copyright infringement, claim-
ing that his activities violated its exclusive right to dis-
tribute the textbooks. See 17 U. S. C. §§106(3), 602(a)(1).
Kirtsaeng invoked the “first-sale doctrine” as a defense.
That doctrine typically enables the lawful owner of a book
(or other work) to resell or otherwise dispose of it as he
wishes. See §109(a). But Wiley contended that the first-
sale doctrine did not apply when a book (like those
Kirtsaeng sold) was manufactured abroad.
At the time, courts were in conflict on that issue. Some
thought, as Kirtsaeng did, that the first-sale doctrine
permitted the resale of foreign-made books; others main-
tained, along with Wiley, that it did not. And this Court,
in its first pass at the issue, divided 4 to 4. See Costco
Wholesale Corp. v. Omega, S. A., 562 U. S. 40 (2010) ( per
curiam). In this case, the District Court sided with Wiley;
so too did a divided panel of the Court of Appeals for the
Second Circuit. See 654 F. 3d 210, 214, 222 (2011). To
settle the continuing conflict, this Court granted
Kirtsaeng’s petition for certiorari and reversed the Second
Circuit in a 6-to-3 decision, thus establishing that the
first-sale doctrine allows the resale of foreign-made books,
just as it does domestic ones. See Kirtsaeng v. John Wiley
& Sons, Inc., 568 U. S. ___, ___ (2013) (slip op., at 3).
Returning victorious to the District Court, Kirtsaeng
invoked §505 to seek more than $2 million in attorney’s
fees from Wiley. The court denied his motion. Relying on
Second Circuit precedent, the court gave “substantial
weight” to the “objective reasonableness” of Wiley’s in-
 Cite as: 579 U. S. ____ (2016) 3

Opinion of the Court

fringement claim. See No. 08–cv–07834 (SDNY, Dec. 20,
2013), App. to Pet. for Cert. 18a, 2013 WL 6722887, *4. In
explanation of that approach, the court stated that “the
imposition of a fee award against a copyright holder with
an objectively reasonable”—although unsuccessful—“lit-
igation position will generally not promote the purposes of
the Copyright Act.” Id., at 11a (quoting Matthew Bender
& Co. v. West Publishing Co., 240 F. 3d 116, 122 (CA2
2001) (emphasis deleted)). Here, Wiley’s position was
reasonable: After all, several Courts of Appeals and three
Justices of the Supreme Court had agreed with it. See
App. to Pet. for Cert. 12a. And according to the District
Court, no other circumstance “overr[o]de” that objective
reasonableness, so as to warrant fee-shifting. Id., at 22a.
The Court of Appeals affirmed, concluding in a brief sum-
mary order that “the district court properly placed ‘sub-
stantial weight’ on the reasonableness of [Wiley’s] posi-
tion” and committed no abuse of discretion in deciding
that other “factors did not outweigh” the reasonableness
finding. 605 Fed. Appx. 48, 49, 50 (CA2 2015).
We granted certiorari, 577 U. S. ___ (2016), to resolve
disagreement in the lower courts about how to address an
application for attorney’s fees in a copyright case.1
II
Section 505 states that a district court “may . . . award a
reasonable attorney’s fee to the prevailing party.” It thus
authorizes fee-shifting, but without specifying standards
that courts should adopt, or guideposts they should use, in
——————
1 Compare, e.g., Matthew Bender & Co. v. West Publishing Co., 240

F. 3d 116, 122 (CA2 2001) (giving substantial weight to objective
reasonableness), with, e.g., Bond v. Blum, 317 F. 3d 385, 397–398 (CA4
2003) (endorsing a totality-of-the-circumstances approach, without
according special significance to any factor), and with, e.g., Hogan
Systems, Inc. v. Cybersource Int’l, Inc., 158 F. 3d 319, 325 (CA5 1998)
(presuming that a prevailing party receives fees).
4 KIRTSAENG v. JOHN WILEY & SONS, INC.

Opinion of the Court

determining when such awards are appropriate.
In Fogerty v. Fantasy, Inc., 510 U. S. 517 (1994), this
Court recognized the broad leeway §505 gives to district
courts—but also established several principles and criteria
to guide their decisions. See id., at 519 (asking “what
standards should inform” the exercise of the trial court’s
authority). The statutory language, we stated, “clearly
connotes discretion,” and eschews any “precise rule or
formula” for awarding fees. Id., at 533, 534. Still, we
established a pair of restrictions. First, a district court
may not “award[ ] attorney’s fees as a matter of course”;
rather, a court must make a more particularized, case-by-
case assessment. Id., at 533. Second, a court may not
treat prevailing plaintiffs and prevailing defendants any
differently; defendants should be “encouraged to litigate
[meritorious copyright defenses] to the same extent that
plaintiffs are encouraged to litigate meritorious claims of
infringement.” Id., at 527. In addition, we noted with
approval “several nonexclusive factors” to inform a court’s
fee-shifting decisions: “frivolousness, motivation, objective
unreasonableness[,] and the need in particular circum-
stances to advance considerations of compensation and
deterrence.” Id., at 534, n. 19. And we left open the possi-
bility of providing further guidance in the future, in re-
sponse to (and grounded on) lower courts’ evolving experi-
ence. See id., at 534–535; Martin v. Franklin Capital
Corp., 546 U. S. 132, 140, n. (2005) (noting that Fogerty
was not intended to be the end of the matter).
The parties here, though sharing some common ground,
now dispute what else we should say to district courts.
Both Kirtsaeng and Wiley agree—as they must—that §505
grants courts wide latitude to award attorney’s fees based
on the totality of circumstances in a case. See Brief for
Petitioner 17; Brief for Respondent 35. Yet both reject the
position, taken by some Courts of Appeals, see supra, at 3,
n. 1, that Fogerty spelled out the only appropriate limits
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Opinion of the Court

on judicial discretion—in other words, that each district
court should otherwise proceed as it sees fit, assigning
whatever weight to whatever factors it chooses. Rather,
Kirtsaeng and Wiley both call, in almost identical lan-
guage, for “[c]hanneling district court discretion towards
the purposes of the Copyright Act.” Brief for Petitioner 16;
see Brief for Respondent 21 (“[A]n appellate court [should]
channel a district court’s discretion so that it . . . further[s]
the goals of the Copyright Act”). (And indeed, as discussed
later, both describe those purposes identically. See infra,
at 6.) But at that point, the two part ways. Wiley argues
that giving substantial weight to the reasonableness of a
losing party’s position will best serve the Act’s objectives.
See Brief for Respondent 24–35. By contrast, Kirtsaeng
favors giving special consideration to whether a lawsuit
resolved an important and close legal issue and thus
“meaningfully clarifie[d]” copyright law. Brief for Peti-
tioner 36; see id., at 41–44.
We join both parties in seeing a need for some additional
guidance respecting the application of §505. In addressing
other open-ended fee-shifting statutes, this Court has
emphasized that “in a system of laws discretion is rarely
without limits.” Flight Attendants v. Zipes, 491 U. S. 754,
758 (1989); see Halo Electronics, Inc. v. Pulse Electronics,
Inc., ante, at 8. Without governing standards or princi-
ples, such provisions threaten to condone judicial “whim”
or predilection. Martin, 546 U. S., at 139; see also ibid.
(“[A] motion to [a court’s] discretion is a motion, not to its
inclination, but to its judgment; and its judgment is to be
guided by sound legal principles” (quoting United States v.
Burr, 25 F. Cas. 30, 35 (No. 14,692d) (CC Va. 1807) (Mar-
shall, C. J.))). At the least, utterly freewheeling inquiries
often deprive litigants of “the basic principle of justice that
like cases should be decided alike,” Martin, 546 U. S., at
139—as when, for example, one judge thinks the parties’
“motivation[s]” determinative and another believes the
6 KIRTSAENG v. JOHN WILEY & SONS, INC.

Opinion of the Court

need for “compensation” trumps all else, Fogerty, 510
U. S., at 534, n. 19. And so too, such unconstrained discre-
tion prevents individuals from predicting how fee deci-
sions will turn out, and thus from making properly in-
formed judgments about whether to litigate. For those
reasons, when applying fee-shifting laws with “no explicit
limit or condition,” Halo, ante, at 8, we have nonetheless
“found limits” in them—and we have done so, just as both
parties urge, by looking to “the large objectives of the
relevant Act,” Zipes, 491 U. S., at 759 (internal quotation
marks omitted); see supra, at 5.
In accord with such precedents, we must consider if
either Wiley’s or Kirtsaeng’s proposal well advances the
Copyright Act’s goals. Those objectives are well settled.
As Fogerty explained, “copyright law ultimately serves the
purpose of enriching the general public through access to
creative works.” 510 U. S., at 527; see U. S. Const., Art. I,
§8, cl. 8 (“To promote the Progress of Science and useful
Arts”). The statute achieves that end by striking a bal-
ance between two subsidiary aims: encouraging and re-
warding authors’ creations while also enabling others to
build on that work. See Fogerty, 510 U. S., at 526. Ac-
cordingly, fee awards under §505 should encourage the
types of lawsuits that promote those purposes. (That is
why, for example, Fogerty insisted on treating prevailing
plaintiffs and prevailing defendants alike—because the
one could “further the policies of the Copyright Act every
bit as much as” the other. 510 U. S., at 527.) On that
much, both parties agree. Brief for Petitioner 37; Brief for
Respondent 29–30. The contested issue is whether giving
substantial weight to the objective (un)reasonableness of a
losing party’s litigating position—or, alternatively, to a
lawsuit’s role in settling significant and uncertain legal
issues—will predictably encourage such useful copyright
litigation.
The objective-reasonableness approach that Wiley fa-
vors passes that test because it both encourages parties
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Opinion of the Court

with strong legal positions to stand on their rights and
deters those with weak ones from proceeding with litiga-
tion. When a litigant—whether plaintiff or defendant—is
clearly correct, the likelihood that he will recover fees from
the opposing (i.e., unreasonable) party gives him an incen-
tive to litigate the case all the way to the end. The holder
of a copyright that has obviously been infringed has good
reason to bring and maintain a suit even if the damages at
stake are small; and likewise, a person defending against
a patently meritless copyright claim has every incentive to
keep fighting, no matter that attorney’s fees in a pro-
tracted suit might be as or more costly than a settlement.
Conversely, when a person (again, whether plaintiff or
defendant) has an unreasonable litigating position, the
likelihood that he will have to pay two sets of fees discour-
ages legal action. The copyright holder with no reasonable
infringement claim has good reason not to bring suit in the
first instance (knowing he cannot force a settlement and
will have to proceed to judgment); and the infringer with
no reasonable defense has every reason to give in quickly,
before each side’s litigation costs mount. All of those
results promote the Copyright Act’s purposes, by enhanc-
ing the probability that both creators and users (i.e., po-
tential plaintiffs and defendants) will enjoy the substan-
tive rights the statute provides.
By contrast, Kirtsaeng’s proposal would not produce any
sure benefits. We accept his premise that litigation of
close cases can help ensure that “the boundaries of copy-
right law [are] demarcated as clearly as possible,” thus
advancing the public interest in creative work. Brief for
Petitioner 19 (quoting Fogerty, 510 U. S., at 527). But we
cannot agree that fee-shifting will necessarily, or even
usually, encourage parties to litigate those cases to judg-
ment. Fee awards are a double-edged sword: They in-
crease the reward for a victory—but also enhance the
penalty for a defeat. And the hallmark of hard cases is
8 KIRTSAENG v. JOHN WILEY & SONS, INC.

Opinion of the Court

that no party can be confident if he will win or lose. That
means Kirtsaeng’s approach could just as easily discour-
age as encourage parties to pursue the kinds of suits that
“meaningfully clarif[y]” copyright law. Brief for Petitioner
36. It would (by definition) raise the stakes of such suits;
but whether those higher stakes would provide an incen-
tive—or instead a disincentive—to litigate hinges on a
party’s attitude toward risk. Is the person risk-preferring
or risk-averse—a high-roller or a penny-ante type? Only
the former would litigate more in Kirtsaeng’s world. See
Posner, An Economic Approach to Legal Procedure and
Judicial Administration, 2 J. Legal Studies 399, 428
(1973) (fees “make[ ] the expected value of litigation less
for risk-averse litigants, which will encourage [them to]
settle[ ]”). And Kirtsaeng offers no reason to think that
serious gamblers predominate. See, e.g., Texas Industries,
Inc. v. Radcliff Materials, Inc., 451 U. S. 630, 636, n. 8
(1981) (“Economists disagree over whether business deci-
sionmakers[ ] are ‘risk averse’ ”); CIGNA Corp. v. Amara,
563 U. S. 421, 430 (2011) (“[M]ost individuals are risk
averse”). So the value of his standard, unlike Wiley’s, is
entirely speculative.2
What is more, Wiley’s approach is more administrable
——————
2 This
case serves as a good illustration. Imagine you are Kirtsaeng
at a key moment in his case—say, when deciding whether to petition
this Court for certiorari. And suppose (as Kirtsaeng now wishes) that
the prevailing party in a hard and important case—like this one—will
probably get a fee award. Does that make you more likely to file,
because you will recoup your own fees if you win? Or less likely to file,
because you will foot Wiley’s bills if you lose? Here are some answers to
choose from (recalling that you cannot confidently predict which way
the Court will rule): (A) Six of one, half a dozen of the other. (B) De-
pends if I’m feeling lucky that day. (C) Less likely—this is getting
scary; who knows how much money Wiley will spend on Supreme Court
lawyers? (D) More likely—the higher the stakes, the greater the rush.
Only if lots of people answer (D) will Kirtsaeng’s standard work in the
way advertised. Maybe. But then again, maybe not.
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Opinion of the Court

than Kirtsaeng’s. A district court that has ruled on the
merits of a copyright case can easily assess whether the
losing party advanced an unreasonable claim or defense.
That is closely related to what the court has already done:
In deciding any case, a judge cannot help but consider the
strength and weakness of each side’s arguments. By
contrast, a judge may not know at the conclusion of a suit
whether a newly decided issue will have, as Kirtsaeng
thinks critical, broad legal significance. The precedent-
setting, law-clarifying value of a decision may become
apparent only in retrospect—sometimes, not until many
years later. And so too a decision’s practical impact (to the
extent Kirtsaeng would have courts separately consider
that factor). District courts are not accustomed to evaluat-
ing in real time either the jurisprudential or the on-the-
ground import of their rulings. Exactly how they would do
so is uncertain (Kirtsaeng points to no other context in
which courts undertake such an analysis), but we fear that
the inquiry would implicate our oft-stated concern that an
application for attorney’s fees “should not result in a sec-
ond major litigation.” Zipes, 491 U. S., at 766 (quoting
Hensley v. Eckerhart, 461 U. S. 424, 437 (1983)). And we
suspect that even at the end of that post-lawsuit lawsuit,
the results would typically reflect little more than edu-
cated guesses.
Contrary to Kirtsaeng’s view, placing substantial weight
on objective reasonableness also treats plaintiffs and
defendants even-handedly, as Fogerty commands. No
matter which side wins a case, the court must assess
whether the other side’s position was (un)reasonable. And
of course, both plaintiffs and defendants can (and some-
times do) make unreasonable arguments. Kirtsaeng
claims that the reasonableness inquiry systematically
favors plaintiffs because a losing defendant “will virtually
always be found to have done something culpable.” Brief
for Petitioner 29 (emphasis in original). But that conflates
10 KIRTSAENG v. JOHN WILEY & SONS, INC.

Opinion of the Court

two different questions: whether a defendant in fact in-
fringed a copyright and whether he made serious argu-
ments in defense of his conduct. Courts every day see
reasonable defenses that ultimately fail (just as they see
reasonable claims that come to nothing); in this context, as
in any other, they are capable of distinguishing between
those defenses (or claims) and the objectively unreason-
able variety. And if some court confuses the issue of liabil-
ity with that of reasonableness, its fee award should be
reversed for abuse of discretion.3
All of that said, objective reasonableness can be only an
important factor in assessing fee applications—not the
controlling one. As we recognized in Fogerty, §505 con-
fers broad discretion on district courts and, in deciding
whether to fee-shift, they must take into account a range
of considerations beyond the reasonableness of litigating
positions. See supra, at 4. That means in any given case
a court may award fees even though the losing party
offered reasonable arguments (or, conversely, deny fees
even though the losing party made unreasonable ones).
——————
3 Kirtsaeng also offers statistics meant to show that in practice, even
if not in theory, the objective reasonableness inquiry unduly favors
plaintiffs; but the Solicitor General as amicus curiae has cast signifi-
cant doubt on that claim. According to Kirtsaeng, 86% of winning
copyright holders, but only 45% of prevailing defendants, have received
fee awards over the last 15 years in the Second Circuit (which, recall,
gives substantial weight to objective reasonableness). See Reply Brief
17–18; supra, at 2–3. But first, the Solicitor General represents that
the overall numbers are actually 77% and 53%, respectively. See Tr. of
Oral Arg. 41. And second, the Solicitor General points out that all
these percentages include default judgments, which almost invariably
give rise to fee awards—but usually of a very small amount—because
the defendant has not shown up to oppose either the suit or the fee
application. When those cases are taken out, the statistics look fairly
similar: 60% for plaintiffs versus 53% for defendants. See id., at 42.
And of course, there may be good reasons why copyright plaintiffs and
defendants do not make reasonable arguments in perfectly equal
proportion.
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Opinion of the Court

For example, a court may order fee-shifting because of a
party’s litigation misconduct, whatever the reasonableness
of his claims or defenses. See, e.g., Viva Video, Inc. v.
Cabrera, 9 Fed. Appx. 77, 80 (CA2 2001). Or a court may
do so to deter repeated instances of copyright infringement
or overaggressive assertions of copyright claims, again
even if the losing position was reasonable in a particular
case. See, e.g., Bridgeport Music, Inc. v. WB Music Corp.,
520 F. 3d 588, 593–595 (CA6 2008) (awarding fees against
a copyright holder who filed hundreds of suits on an over-
broad legal theory, including in a subset of cases in which
it was objectively reasonable). Although objective reason-
ableness carries significant weight, courts must view all
the circumstances of a case on their own terms, in light of
the Copyright Act’s essential goals.
And on that score, Kirtsaeng has raised serious ques-
tions about how fee-shifting actually operates in the Sec-
ond Circuit. To be sure, the Court of Appeals’ framing of
the inquiry resembles our own: It calls for a district court
to give “substantial weight” to the reasonableness of a
losing party’s litigating positions while also considering
other relevant circumstances. See 605 Fed. Appx., at 49–
50; Matthew Bender, 240 F. 3d, at 122. But the Court of
Appeals’ language at times suggests that a finding of
reasonableness raises a presumption against granting
fees, see ibid.; supra, at 2–3—and that goes too far in
cabining how a district court must structure its analysis
and what it may conclude from its review of relevant
factors. Still more, district courts in the Second Circuit
appear to have overly learned the Court of Appeals’ lesson,
turning “substantial” into more nearly “dispositive”
weight. As Kirtsaeng notes, hardly any decisions in that
Circuit have granted fees when the losing party raised a
reasonable argument (and none have denied fees when the
losing party failed to do so). See Reply Brief 15. For these
reasons, we vacate the decision below so that the District
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Opinion of the Court

Court can take another look at Kirtsaeng’s fee application.
In sending back the case for this purpose, we do not at all
intimate that the District Court should reach a different
conclusion. Rather, we merely ensure that the court will
evaluate the motion consistent with the analysis we have
set out—giving substantial weight to the reasonableness
of Wiley’s litigating position, but also taking into account
all other relevant factors.
* * *
The judgment of the Court of Appeals is vacated, and
the case is remanded for further proceedings consistent
with this opinion.
It is so ordered.