Full Cost in Translation: Awarding Expert Witness Fees in Copyright Litigation

By Nicholas Vennekotter

When deciding whether to bring or defend against copyright infringement claims, the cost of litigation plays a critical role in the minds of potential litigants. The cost of retaining experts, particularly, is a large factor in this calculus. Although U.S. courts generally require each party to cover the cost of their own legal fees during litigation, the Copyright Act of 1976 permits courts, in their discretion, to allow the prevailing party to recover “full costs.” Yet, the language “full costs” is considered ambiguous, which leads to inconsistent awards of costs among the appellate courts. The circuits disagree whether the Copyright Act merely allows parties to recover modest costs, such as docket fees and witness travel expenses, or to recover more substantial costs, like expert witness fees. Accordingly, the level of discretion afforded to a court can essentially be the difference between an award that includes nontaxable costs in the tens of millions of dollars and an award that does not include nontaxable costs at all. Recently, in Oracle USA, Inc. v. Rimini Street, Inc., the judgment awarded to the prevailing party included an additional $12 million in costs because it was brought in a circuit that allows awards of nontaxable costs under the Copyright Act.

This Note concludes that the Copyright Act, as it stands, does not allow a court to award expert witness fees to a prevailing party. However, given the objectively important need for expert testimony in copyright litigation, this Note argues that Congress should amend the Copyright Act to allow for the shifting of expert fees at courts’ discretion.