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Costs Awarded in Copyright Infringement Matter Are Limited to Costs Codified in Statutes

In Rimini Street, Inc., et al. v. Oracle USA, Inc., et al. (March 4, 2019)(Opinion available here), the Supreme Court held that the term “full costs” in §505 of the Copyright Act means the costs specified in the general costs statute codified at §§1821 and 1920. Courts may not award litigation expenses that are not specified in §§1821 and 1920 absent explicit authority.

Oracle alleged that Rimini, in the course of providing software support services to Oracle customers, copied Oracle’s software without licensing it. A jury awarded Oracle damages after finding that Rimini Street had infringed various Oracle copyrights. After judgment, the District Court further awarded Oracle fees and costs, including $12.8 million for litigation expenses such as expert witnesses, e-discovery, and jury consulting. In affirming the $12.8 million award, the Ninth Circuit acknowledged that it covered expenses not included within the six categories of costs that the general federal statute authorizing district courts to award costs, 28 U. S. C. §§1821 and 1920, provides maybe awarded against a losing party. The Ninth Circuit nonetheless held that the award was appropriate because the Copyright Act gives federal district courts discretion to award “full costs” to a party in copyright litigation. 17 U. S. C. §505. The Supreme Court reversed. The question presented in this case is whether the Copyright Act’s reference to “full costs” authorizes a court to award litigation expenses beyond the six categories of “costs” specified by Congress in the general costs statute. The Supreme Court relied on the statutory text and precedents to establish that the answer is no.

Sections 1821 and 1920 create a default rule and establish a clear baseline against which Congress may legislate. If, for particular kinds of cases, Congress wants to authorize awards of expenses beyond the six categories specified in the general costs statute, Congress may do so. Indeed, the Copyright Act expressly provides for awards of attorney’s fees as well as costs. 17 U. S. C. §505. But absent such express authority, courts may not award litigation expenses that are not specified in §§1821 and 1920.

The six categories that a federal court may award as costs are: (1) Fees of the clerk and marshal; (2) Fees for printed or electronically recorded transcripts necessarily obtained for use in the case; (3) Fees and disbursements for printing and witnesses;(4) Fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case; (5) Docket fees under section 1923 of this title; (6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title. See 28 U. S. C. §1920. In addition, §1821 provides particular reimbursement rates for witnesses’ “[p]er diem and mileage” expenses. Any other costs must be explicitly authorized by Congress.

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