A recent NLJ story by Scott Graham, “’Full Costs’ Doesn’t Mean All Imaginable Costs, Supreme Court Rules,” reports that a copyright statute that permits an award of “full costs” does not include litigation-related expenses such as expert witness fees, jury consulting fees and e-discovery. A unanimous Supreme Court led by Justice Brett Kavanaugh held that the phrase “full costs” in Section 505 of the Copyright Act means all of the costs specifically enumerated in the general cost shifting statutes, 28 USC Sections 1821 and 1920, such as transcripts and fees for court-appointed experts and interpreters.
“A ‘full moon’ means the moon, not Mars,” Kavanaugh wrote in Rimini Street v. Oracle. “A ‘full breakfast’ means breakfast, not lunch. A ‘full season ticket plan’ means tickets, not hot dogs. So too, the term ‘full costs’ means costs, not other expenses.” The decisions resolves a circuit split against the Ninth Circuit in favor of the Eleventh and Eighth circuits, and will cost Oracle Corp. approximately $12.8 million that had been awarded in its copyright battle with Rimini Street.
Kirkland & Ellis partner Paul Clement had argued that the U.S. government as amicus curiae was talking out of both sides of its mouth: placing limits on “full” in Oracle’s case, but arguing for an expansive version of the phrase “all the expenses” in a case involving U.S. Patent and Trademark Office attorneys fees. The high court granted cert in the PTO case, Iancu v. NantKwest. Clement had also argued that Congress’ use of “full” had no meaning if it was limited to the enumerated costs. But interpreting full more broadly, Kavanaugh wrote, would then make the next sentence—which says “the court may also award a reasonable attorney’s fee to the prevailing party as part of the costs”—superfluous. “In order to avoid some redundancy, Oracle’s interpretation would create other redundancy,” Kavanaugh wrote.
The award stems from a 2015 jury verdict that found Rimini infringed Oracle’s copyright and violated anti-hacking statutes while performing third-party maintenance for Oracle enterprise software. Jurors awarded $35.6 million for infringement and $14.4 million for violations of California computer hacking statutes. U.S. District Judge Larry Hicks of Nevada tacked on $28.5 million in attorney fees, and about $17 million in costs—including the $12.8 million in dispute—and $22 million in post-judgment interest. The Ninth Circuit reversed the computer crimes verdict and threw out that portion of the award. It also instructed Hicks to reconsider the fee award.