In a lot of semantic silliness over the meaning of the word "full," SCOTUS completely eliminated a district court's discretion to award non-taxable costs as part of "full costs." This means the next bartender serving Justice Kavanaugh a "full" beer will leave that frosty mug mostly empty. Let's figure out how we got here.
17 U.S. Code § 505. Remedies for infringement: Costs and attorney’s fees
In any civil action under this title, the court in its discretion may allow the recovery of full costs by or against any party other than the United States or an officer thereof. Except as otherwise provided by this title, the court may also award a reasonable attorney’s fee to the prevailing party as part of the costs.
Section 505 has made many copyright litigants thirsty for a win. For many years we understood that Congress wished to encourage copyright litigants to pursue rights as a matter of policy, and Congress understood that the costs of litigation, including attorneys fees, often outweighed the benefits of a particular case.
The oral argument is found here. Essentially the Court limited the meaning of "full costs" to "taxable costs" (which are in most cases more than half a pint short of a pint glass of costs) that are found in
A judge or clerk of any court of the United States may tax as costs the following:
(2) Fees for printed or electronically recorded transcripts necessarily obtained for use in the case;
(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.
A bill of costs shall be filed in the case and, upon allowance, included in the judgment or decree.
Section 1920 was passed in 1948. Because taxable "costs" are generally so low and routinely awarded by the Clerk of the Court, there is very little litigation over the meaning of costs. In a spirited and interesting oral argument, on behalf of Oracle, Paul Clement argued that reading the word "full" out of Section 505 and reading 1920's cramped view of "costs" (ie taxable costs) as "full costs" would do "carnage" to the statute and common grammar. Clement pointed out that Congress revisited Section 505 in 1984 and made it clear that "full costs" in Section 505 of the Copyright Act clearly meant non-taxable costs based on a plain reading of the English language.
Here is the grammar lesson from the full SCOTUS opinion:
Oracle argues that the word “full” authorizes courts to award expenses beyond the costs specified in §§1821 and 1920. We disagree. “Full” is a term of quantity or amount. It is an adjective that means the complete measure of the noun it modifies. See American Heritage Dictionary 709 (5th ed. 2011); Oxford English Dictionary 247 (2d ed. 1989). As we said earlier this Term: “Adjectives modify nouns—they pick out a subset of a category that possesses a certain quality.” Weyerhaeuser Co. v. United States Fish and Wildlife Serv., 586 U. S. ___, ___ (2018) (slip op., at 8).The adjective “full” in §505 therefore does not alter the meaning of the word “costs.” Rather, “full costs” are all the “costs” otherwise available under law. The word “full” operates in the phrase “full costs” just as it operates in other common phrases: A “full moon” means the moon, not Mars. 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 dispute here, therefore, turns on the meaning of the word “costs.” And as we have explained, the term “costs” refers to the costs generally available under the federal costs statute—§§1821 and 1920. “Full costs” are all the costs generally available under that statute.
The flaw in the argument is that "full costs" have been in copyright statutes since the Statute of Anne. Lawyer are always shot down by clerks for including non-taxable costs. A full moon means the full moon because the meaning hasn't changed since Galileo looked at it. A full breakfast means you get to eat ALL of your eggs and sausages. A full season ticket plan means ALL tickets. A full beer means....
To avoid giving the winning party full costs, SCOTUS looked to Section 1920 - a 1948 statute giving a judge or a clerk the power to tax certain items as costs. The court also created a new category of costs - "litigation expenses" -- that Congress had supposedly forgotten to mention in drafting Section 505.
Acknowledging the flaw in the Court's approach, the opinion concludes: "Sometimes the better overall reading of the statute contains some redundancy."
Chapter 18 of my book Copyright Litigation Handbook (2018-2019) Thomson Reuters, available on Westlaw, is titled Attorneys Fees and Costs (full table of contents here. This year, I will write a full update of that chapter over a full breakfast following a full moon for those of you who have purchased a full season ticket plan.
