17 U.S.C. Sec. 505 Means What It Says: Attorney's Fees Award To Prevailing Party Discretionary

Section 505 of the Copyright Act provides that, in a copyright infringement action, the court may "in its discretion" award costs to a prevailing party. In addition, the provision provides that the court "may" award a prevailing party its reasonable attorney's fees as part of the award of costs. Despite this language, many litigants have taken the position that the prevailing party (whether it is the plaintiff or the defendant) is entitled to an award of fees and costs in most cases. The First Ciruit recently affirmed, however, that the permissive language in Section 505 means what it says: the award of attorney's fees and costs to a prevailing party is discretionary, not mandatory, and can be denied even where the asserted cklaims/defenses are considered weak.

The decision arose from a dispute between Airframe Systems, Inc. and L-3 Communications. Aiframe licensed certain software to L-3. The license included some use restrictions. At some point, an Airframe employee allegedly acted without authorization by copying some unspecified version of Airframe's source code onto L-3′s computer system (in a manner not covered by the license). Airframe later became aware that unspecified portions of its source code had been copied onto L-3′s computer system and responded by filing a copyright infringement suit against L-3. L-3 moved for summary judgment, arguing that Airframe failed to produce sufficient evidence to support a prima facie case of copyright infringement. In opposing the motion, Airframe submitted a declaration from its software designer attesting to the "similarities between the accused software and the 2009 version of the Airframe software. Because the 2009 software version was not registered and was insufficient to establish the content of the source code version covered by Airframe's prior registrations, L-3 argued that Airframe could not prove the requisite "substantial similarity" between the accused and allegedly infringed software. The district court agreed with L-3, but denied its request for an award of its attorney's fees.

Both parties appealed. The First Circuit upheal the district court's award of summary judgment to L-3, agreeing that Airframe failed to produce evidence that L-3 copied at least one of the software versions covered by its copyright registrations. This result highlights the need for copyright owners to register the original...

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