Reply Brief — Rimini Street, Inc., et al., Petitioners v. Oracle USA, Inc., et al.

No. 17-1625

IN THE

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_______________

RIMINI STREET, INC., AND SETH RAVIN,

Petitioners,

v.

ORACLE USA INC., ORACLE AMERICA, INC., AND

ORACLE INTERNATIONAL CORPORATION,

Respondents.

_______________

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

_______________

REPLY BRIEF FOR PETITIONERS

_______________

BLAINE H. EVANSON

JOSEPH A. GORMAN

GIBSON, DUNN & CRUTCHER LLP

333 South Grand Avenue

Los Angeles, California 90071

(213) 229-7000

BEvanson@gibsondunn.com

MARK A. PERRY

Counsel of Record

JEREMY M. CHRISTIANSEN

GIBSON, DUNN & CRUTCHER LLP

1050 Connecticut Avenue, N.W.

Washington, D.C. 20036

(202) 955-8500

MPerry@gibsondunn.com

Counsel for Petitioners

RULE 29.6 STATEMENT

The corporate disclosure statement included in

the petition for a writ of certiorari remains accurate.

ii

TABLE OF CONTENTS

Page

REPLY BRIEF FOR PETITIONERS ...................... 1

I.

THE COURTS OF APPEALS ARE SHARPLY DIVIDED

ON THE QUESTION PRESENTED ........................... 2

II. THE DECISION BELOW IS WRONG ........................ 4

III. THIS CASE IS THE IDEAL VEHICLE FOR

ANSWERING THE QUESTION PRESENTED ............. 9

CONCLUSION ....................................................... 12

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Alyeska Pipeline Serv. Co. v. Wilderness

Soc’y, 421 U.S. 240 (1975)........................ 1, 5, 8, 10

Arlington Cent. Sch. Dist. Bd. of Educ.

v. Murphy, 548 U.S. 291 (2006) ..................... 4, 5, 6

Artisan Contractors Ass’n of Am., Inc. v. Frontier

Ins. Co., 275 F.3d 1038 (11th Cir. 2001) ............... 2

The Baltimore, 75 U.S. 377 (1869) .............................. 8

Binns v. Woodruff,

3 F. Cas. 421 (C.C.D. Pa. 1821) ............................. 7

Blunt v. Patten,

3 F. Cas. 763 (C.C.S.D.N.Y. 1828) ......................... 7

BMG Rights Mgmt. (US) LLC v. Cox Commc’ns, Inc.,

881 F.3d 293 (4th Cir. 2018) ................................ 10

Bridgeport Music, Inc. v. Diamond Time, Ltd.,

371 F.3d 883 (6th Cir. 2004) .................................. 2

Byrd v. United States,

138 S. Ct. 1518 (2018) ............................................ 3

Coles v. Wonder,

283 F.3d 798 (6th Cir. 2002) .................................. 2

Comm’r v. McCoy,

484 U.S. 3 (1987) .................................................... 3

iv

In re Costs in Civil Cases,

30 F. Cas. 1058 (C.C.S.D.N.Y. 1852) ..................... 7

Crawford Fitting Co. v. J.T. Gibbons, Inc.,

482 U.S. 437 (1987) ...................................... 1, 5, 10

CRST Van Expedited, Inc. v. EEOC,

136 S. Ct. 1642 (2016) ............................................ 6

Fogerty v. Fantasy, Inc.,

510 U.S. 517 (1994) ........................................ 1, 6, 9

Hathaway v. Roach,

11 F. Cas. 818 (C.C.D. Mass. 1846) ................... 7, 8

Henkel v. Chicago, St. P., M. & O. Ry. Co.,

284 U.S. 444 (1932) ................................................ 8

InvesSys, Inc. v. McGraw-Hill Cos.,

369 F.3d 16 (1st Cir. 2004) .................................... 2

Kirtsaeng v. John Wiley & Sons, Inc.,

136 S. Ct. 1979 (2016) ........................................ 3, 9

Lightfoot v. Cedant Mortg. Corp.,

137 S. Ct. 553 (2017) .............................................. 3

Lynce v. Mathis,

519 U.S. 433 (1997) ................................................ 3

Natkwest, Inc. v. Iancu,

--- F.3d ---, 2018 WL 3596124

(Fed. Cir. July 27, 2018) ........................................ 7

Petrella v. Metro-Goldwyn-Mayer, Inc.,

134 S. Ct. 1962 (2014) ............................................ 1

v

Pinkham v. Camex, Inc.,

84 F.3d 292 (8th Cir. 1996) ................................ 2, 4

Rensselaer & Saratoga R.R. Co. v. Davis,

55 N.Y. 145 (1873).................................................. 8

Taniguchi v. Kan Pac. Saipan, Ltd.,

566 U.S. 560 (2012) ...................................... 1, 5, 10

Twentieth Century Fox Film Corp. v. Entm’t Distrib.,

429 F.3d 869 (9th Cir. 2005) .................................. 2

Zotos v. Lindbergh Sch. Dist.,

121 F.3d 356 (8th Cir. 1997) .................................. 2

Statutes

5 U.S.C. § 504(b)(1)(A) ................................................ 5

10 U.S.C. § 2409(c)(1) .................................................. 5

11 U.S.C. § 363(n)........................................................ 5

12 U.S.C. § 1464(d)(1)(B)(vii) ...................................... 5

12 U.S.C. § 1786(p) ...................................................... 5

12 U.S.C. § 50056(b)(2)(B)........................................... 5

15 U.S.C. § 15 .............................................................. 5

15 U.S.C. § 77z-1(a)(6)................................................. 5

15 U.S.C. § 1117(a) ...................................................... 5

15 U.S.C. § 2310(d)(2) ................................................. 5

vi

15 U.S.C. § 2805(d)(1)(C) ............................................ 5

17 U.S.C. § 505 ............................................ 3, 4, 5, 6, 9

20 U.S.C. § 1415(i)(3)(B) ............................................. 6

28 U.S.C. § 1447(c) ...................................................... 5

28 U.S.C. § 1920 ...................................................... 4, 5

28 U.S.C. § 2412(d)(2)(A) ............................................ 5

29 U.S.C. § 1132(g)(1).................................................. 5

29 U.S.C. § 1370(e)(1) .................................................. 5

30 U.S.C. § 938(c) ........................................................ 6

33 U.S.C. § 1367(c) ...................................................... 6

35 U.S.C. § 145 ........................................................ 6, 7

42 U.S.C. § 247d-6d(e)(9) ............................................ 6

42 U.S.C. § 1988 .......................................................... 6

42 U.S.C. § 1988(b) ...................................................... 6

42 U.S.C. § 1988(c) ...................................................... 6

Revised Statutes of New York,

ch. X, Title I (1846–1848) ...................................... 8

Revised Statutes of the Commonwealth

of Mass. 1836, ch. 121 ........................................... 8

vii

Rules

Fed. R. Civ. P. 54(d) .................................................... 6

Other Authorities

4 Nimmer on Copyright § 14.09 .................................. 4

6 Patry on Copyright § 22:221..................................... 4

10 Wright & Miller, Fed. Prac. & Proc.

Civ. § 2666 (3d ed. April 2018) .............................. 6

Cong. Globe App., 32d Cong.,

2d Sess. app. 207 .................................................. 10

David Nimmer,

Codifying Copyright Comprehensibly,

51 U.C.L.A. L. Rev. 1233 (2004) ............................ 9

H.R. Rep. No. 2222,

60th Cong., 2d Sess. 19 (1909)............................... 7

REPLY BRIEF FOR PETITIONERS

Respondents concede that five courts of appeals

have decided whether non-taxable costs are awardable in copyright cases, resulting in a 3-2 circuit split.

Opp. 13–15. Non-taxable costs are not available as a

matter of law in the Eighth and Eleventh Circuits,

while the same costs may be awarded in the First,

Sixth, and Ninth Circuits. Ibid.

This Court has repeatedly emphasized the importance of uniform nationwide application of both the

Copyright Act (see Petrella v. Metro-Goldwyn-Mayer,

Inc., 134 S. Ct. 1962, 1975 (2014); Fogerty v. Fantasy,

Inc., 510 U.S. 517, 537 (1994) (Thomas, J., concurring)), and federal statutes authorizing, or not authorizing, awards of fees, costs, and expenses (Taniguchi

v. Kan Pac. Saipan, Ltd., 566 U.S. 560, 565 (2012);

Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S.

437, 440 (1987); Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 251–52 (1975)). Yet, respondents ignore the lack of uniformity created by the

conflict in appellate decisions.

Remarkably, respondents spend over half of their

brief in opposition attempting to paint petitioners as

bad actors, “[un]deserving” of review. See Opp. 1–10,

12–13, 22–24. This effort is legally irrelevant, since

the availability vel non of non-taxable costs does not

turn on the conduct of the litigants. It is also factually

baseless, as explained below. In truth, this case is a

pristine vehicle to resolve the acknowledged circuit

split on whether the Copyright Act authorizes courts

to award non-taxable costs, and to provide needed uniformity on this recurring and important question in

copyright litigation.

2

I.

THE COURTS OF APPEALS ARE SHARPLY

DIVIDED ON THE QUESTION PRESENTED

By respondents’ own account, non-taxable costs

may be awarded in copyright cases in the First, Sixth,

and Ninth Circuits, but are unavailable as a matter of

law in identical cases in the Eighth and Eleventh Circuits. See Opp. 13–15. This acknowledged circuit

split is set forth in a long series of published opinions

culminating in the decision below. On one side are

cases concluding that the Copyright Act authorizes

courts to award non-taxable costs. See Pet. 8–10;

Twentieth Century Fox Film Corp. v. Entm’t Distrib.,

429 F.3d 869 (9th Cir. 2005); InvesSys, Inc. v.

McGraw-Hill Cos., 369 F.3d 16 (1st Cir. 2004); Bridgeport Music, Inc. v. Diamond Time, Ltd., 371 F.3d 883

(6th Cir. 2004); Coles v. Wonder, 283 F.3d 798 (6th Cir.

2002). On the other side are cases concluding the exact opposite. See Pet. 7–9 & n.3; Artisan Contractors

Ass’n of Am., Inc. v. Frontier Ins. Co., 275 F.3d 1038

(11th Cir. 2001); Pinkham v. Camex, Inc., 84 F.3d 292

(8th Cir. 1996) (per curiam); see also Zotos v. Lindbergh Sch. Dist., 121 F.3d 356 (8th Cir. 1997).

Respondents concede that the Ninth Circuit “disagree[d]” with and “did not follow” the Eighth and

Eleventh Circuits. Opp. 11, 14. Yet, despite acknowledging this entrenched circuit split, respondents unsuccessfully try to explain it away.

First, respondents call the split “shallow.” Opp. 2.

But they admit that five courts of appeals have addressed the question presented and divided 3-2 in answering it. Opp. 13–16. The next court could make it

4-2 or 3-3, but the split will remain. This established

and clear division among the courts of appeals requires resolution by this Court. See Fourth Estate

Pub. Benefit Corp. v. Wall-Street.com, LLC, No. 17-

3

571 (U.S.) (certiorari granted to resolve split between

four circuits on copyright registration); Kirtsaeng v.

John Wiley & Sons, Inc., 136 S. Ct. 1979, 1984 & n.1

(2016) (certiorari granted to resolve split between

three circuits “about how to address an application for

attorney’s fees” under Copyright Act).

Second, respondents call the split “stale.” Opp. 2.

The oldest decision on this question (Pinkham) was

decided just over 20 years ago, but this Court routinely grants certiorari in similar circumstances (e.g.,

Lightfoot v. Cedant Mortg. Corp., 137 S. Ct. 553, 558

(2017)), including to review issues under 17 U.S.C.

§ 505 (Kirtsaeng, 136 S. Ct. at 1984 n.1 (split involved

cases ranging from 13 to 18 years old)). More importantly, the decision below is of very recent vintage.

The Ninth Circuit expressly followed its own approach, rejected petitioners’ argument that intervening precedent from this Court established error in

that approach, and declined en banc review in the face

of an acknowledged circuit conflict. Pet. App. 35a,

37a. The split is thus ripe for this Court’s resolution.

Third, respondents note that Pinkham and Artisan Contractors were per curiam and suggest that

they “contain little reasoning in support of their results.” Opp. 15. But the unsigned nature of a court of

appeals’ decision “carries no weight in [this Court’s]

decision to review the case.” Comm’r v. McCoy, 484

U.S. 3, 7 (1987) (per curiam). The Court routinely

grants review of circuit splits involving such decisions. E.g., Byrd v. United States, 138 S. Ct. 1518,

1526 (2018); Lightfoot, 137 S. Ct. at 558; Lynce v.

Mathis, 519 U.S. 433, 436 (1997). That is because, like

Pinkham and Aritisan Contractors, they are the binding law of their respective circuits. And neither opin-

4

ion lacks “reasoning.” Opp. 15. Each faithfully applies this Court’s precedents and is no less reasoned

than the Ninth Circuit’s decision in Twentieth Century

Fox.

E.g., Pinkham, 84 F.3d at 295 (applying

“longstanding” “in pari materia” rule under Crawford

Fitting and concluding the word “full” does not evince

“congressional intent to treat 17 U.S.C. § 505 costs differently from costs authorized in other statutes”).

* * *

The leading copyright treatises recognize that

“[c]ourts are split on whether nontaxable costs (those

not listed in section 1920) may be awarded under section 505.” 6 Patry on Copyright § 22:221; see also 4

Nimmer on Copyright § 14.09, pp. 14-312 to 14-313.

District courts across the country have similarly recognized the split in appellate authority. Pet. 9–10 &

nn.3–4. Respondents admit as much. Opp. 13–16.

The question presented warrants review.

II. THE DECISION BELOW IS WRONG

While respondents urge the Court to deny review

on the theory that the decision below is correct (Opp.

16–22), the law is clarified through affirmances as

well as reversals. Thus, certiorari should be granted

even assuming, dubitante, that the Ninth Circuit got

it right. In all events, the Ninth Circuit approach is

wrong.

As this Court has recognized (and as respondents

ignore), “costs” is “a term of art” that “does not include

expert fees,” for instance, but is “obviously” a reference to “the list set out in 28 U.S.C. § 1920, the general

statute governing the taxation of costs in federal

court.” Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 302 (2006) (emphases added). The

5

decision below cannot be reconciled with this Court’s

decisions and has no basis in the Copyright Act.

1. Respondents begin from a faulty premise, calling Section 1920 a “default federal cost-shifting statute.” E.g., Opp. i. But Section 1920 does not authorize

cost-shifting; it “defines the term ‘costs’” as used in

federal cost-shifting statutes and rules. Crawford Fitting, 482 U.S. at 441. Thus, because Congress used

Sections 1920 and 1821 to “comprehensively regulate[]” the definition of costs “in the federal courts”

(Crawford Fitting, 482 U.S. at 440; Alyeska Pipeline,

421 U.S. at 251–52), this Court in Crawford Fitting

laid out a clear-statement test for analyzing all federal cost-shifting statutes and rules: if a party claims

entitlement to litigation expenses that are not listed

in Sections 1920 and 1821, then there must be “explicit statutory authority indicating that Congress intended for that sort of fee- [or cost-]shifting.” Murphy,

548 U.S. at 295.

The Ninth Circuit’s approach fails this test. The

Copyright Act’s authorization for “full costs” (17

U.S.C. § 505) says nothing about expert witness fees,

jury consulting fees, or any of the other non-taxable

costs respondents were awarded below. “Although

‘costs’ has an everyday meaning synonymous with ‘expenses,’” federal cost-shifting statutes draw a sharp

distinction between “costs,” “fees,” and “expenses.”

Taniguchi, 566 U.S. at 573; see also, e.g., 5 U.S.C.

§ 504(b)(1)(A); 10 U.S.C. § 2409(c)(1); 11 U.S.C.

§ 363(n); 12 U.S.C. §§ 1464(d)(1)(B)(vii), 1786(p), &

50056(b)(2)(B); 15 U.S.C. §§ 15, 77z-1(a)(6), 1117(a),

2310(d)(2), & 2805(d)(1)(C); 28 U.S.C. §§ 1447(c),

2412(d)(2)(A); 29 U.S.C. §§ 1132(g)(1), 1370(e)(1); 30

U.S.C. § 938(c); 33 U.S.C. § 1367(c); 42 U.S.C.

6

§§ 247d-6d(e)(9), 1988(b), (c); 10 Wright & Miller,

Fed. Prac. & Proc. Civ. § 2666 (3d ed. April 2018).

Respondents’ position is that Crawford Fitting,

Casey, and Murphy are not controlling because they

did not involve Section 505 of the Copyright Act. Opp.

17–19. But this Court has repeatedly emphasized

that it interprets federal fee- and cost-shifting statutes “in a consistent manner,” applying those constructions across-the-board. CRST Van Expedited,

Inc. v. EEOC, 136 S. Ct. 1642, 1646 (2016); see also

Fogerty, 510 U.S. at 537 (Thomas, J., concurring in the

judgment). In defending the Ninth Circuit’s decision

to construe the Copyright Act differently from all

other federal statutes, respondents ignore this wellsettled doctrine as well as the separation-of-powers

concerns that animate it. See Pet. 21.

Under “the principle recognized in Crawford Fitting, … no statute” or rule—not Rule 54(d), not 42

U.S.C. § 1988, not 20 U.S.C. § 1415(i)(3)(B), and not

the Copyright Act—“will be construed as authorizing

the taxation of” litigation expenses outside the scope

of Sections 1920 and 1821 “unless the statute refers

explicitly” to those categories of expenses. Murphy,

548 U.S. at 301. The Copyright Act does not do so.

While respondents emphasize that “‘[f]ull costs’

means full costs” (Opp. 16), the important point is that

Section 505 is limited to “full costs.” The en banc Federal Circuit recently made the same point with respect

to 35 U.S.C. § 145, which provides that “[a]ll the expenses of the proceedings shall be paid by the applicant” in certain PTO cases. (Emphasis added). The

court recognized that the term “expenses” bears a particular meaning in federal statutes (one distinct from

“costs” and “fees”), and that even with the modifier

“all,” it does not include attorneys’ fees. Natkwest,

7

Inc. v. Iancu, --- F.3d ---, 2018 WL 3596124, at *12

(Fed. Cir. July 27, 2018) (en banc). Just as “the word

‘all’ sheds no light on the breadth of ‘expenses’” under

35 U.S.C. § 145 (id.), so too, the word “full” does not

expand the breadth of costs available under the Copyright Act. The word full means that “whatever the

[‘costs’] are” under the Copyright Act, “[the full

amount] must be paid” by the losing party. Ibid.

Costs are defined by Sections 1920 and 1821.

2. Respondents’ effort to explain the genesis of

the “full costs” provision in the Copyright Act is astonishingly ahistorical.

The purpose of the “full costs” language of the

1831 Copyright Act is clear: Congress wanted copyright litigants in the circuit courts to receive their

costs, even if they recovered less than $500 in damages. See Pet. 16–17 & n.6; Act of 1789, ch. 20, § 20, 1

Stat. 73, 83; Hathaway v. Roach, 11 F. Cas. 818, 819

(C.C.D. Mass. 1846) (Woodbury, Circuit Justice); H.R.

Rep. No. 2222, 60th Cong., 2d Sess. 19 (1909). Respondents say this “makes no sense” because “a prevailing party in a copyright case was barred from recovering any costs” prior to 1831. Opp. 21. That is

incorrect. Federal courts routinely taxed costs in copyright cases prior to 1831. E.g., Blunt v. Patten, 3 F.

Cas. 763, 767 (C.C.S.D.N.Y. 1828) (Thompson, Circuit

Justice); Binns v. Woodruff, 3 F. Cas. 421, 424 (C.C.D.

Pa. 1821) (Washington, Circuit Justice). “The usage

and practice of the circuit courts” was “uniformly” to

tax costs “according to the fee bill of the [forum] state.”

In re Costs in Civil Cases, 30 F. Cas. 1058, 1059

(C.C.S.D.N.Y. 1852) (Nelson, Circuit Justice); see also

The Baltimore, 75 U.S. 377, 390-91 (1869). But the

$500-threshold for cost recovery still applied in circuit

courts until Congress eliminated it in 1831.

8

Respondents postulate that the 1831 Act “reinstate[d] the default state rule, under which prevailing

copyright litigants received all of their costs, not just

a subset.” Opp. 21–22. That unsupported contention

is inconsistent with history.

When state courts “award[ed] full costs” it was “at

the rates prescribed by the Code” (Rensselaer & Saratoga R.R. Co. v. Davis, 55 N.Y. 145, 149 (1873)), and

only “for services mentioned in [the] act” (Revised

Statutes of New York, ch. X, Title I, § 7.1 (1846–1848)

(enacted in 1830))—i.e., the full amount of enumerated costs at enumerated rates. That is why statutes

often provided for “full costs,” “double costs,” or “one

quarter” costs (Revised Statutes of the Commonwealth of Mass. 1836, ch. 121, §§ 4, 8, 18 (enacted

1795)), and why “[a]ll parties recovering costs in civil

causes” were entitled to, at most, the full rate for

listed costs (id. § 32).

Accordingly, if the state statute did not list a category of expense, such as expert fees, a court could not

award it. E.g., Hathaway, 11 F. Cas. at 820 (“I am not

aware [of] any courts” that awarded fees for “experts

and men of science” without “express [statutory] provision” in England or the United States.); see also

Henkel v. Chicago, St. P., M. & O. Ry. Co., 284 U.S.

444, 446 (1932).

Weary of the disuniformity among state statutes,

Congress passed the Fee Act. See Alyeska Pipeline,

421 U.S. at 247–50 & n.19. Thus, when the Copyright

Act says “full costs,” it means the full amount of enumerated costs at enumerated rates under Sections

1920 and 1821.

9

III. THIS CASE IS THE IDEAL VEHICLE FOR

ANSWERING THE QUESTION PRESENTED

This case presents the ideal opportunity to resolve

an entrenched circuit split on an important and recurring federal question in copyright law. Nothing respondents say changes that reality.

First, respondents admit that “attorneys’ fees, interest, and other post-judgment issues” “regularly”

merit this Court’s review. Opp. 23–24; see also

Kirtsaeng, 136 S. Ct. at 1984; Fogerty, 510 U.S. at 521

(granting certiorari “to address an important area of

federal law,” i.e., the “standard for awarding attorneys’ fees under § 505”). That is because the issue is

“nationally significant.” David Nimmer, Codifying

Copyright Comprehensibly, 51 U.C.L.A. L. Rev. 1233,

1286-88 & Tbl. A (2004). And, contrary to respondents’ half-hearted assertion (Opp. 22), the absence of

amicus curiae briefs at this stage does not mean this

issue is unimportant, as demonstrated by the numerous cases on this term’s docket that lacked such briefs

at the certiorari stage. E.g., Mt. Lemmon Fire Dist. v.

Guido, No. 17-587; Lorenzo v. SEC, No. 17-1077;

Nutraceutical Corp. v. Lambert, No. 17-1094. Once

the Court grants certiorari, there will be ample opportunity for amici to weigh in on both sides.

Second, the question presented is recurring. See

Pet. 9, 19–20 & nn. 3–4, 7–8. Respondents contradict

themselves when they simultaneously argue that the

issue might not be recurring (Opp. 24), while at the

same time insisting that “it should not take long for a

more suitable vehicle to come along” (Opp. 23). The

truth is that this issue arises in virtually every copyright case, but it frequently escapes appellate review,

let alone this Court’s review. Pet. 9–10 & nn.3–4, 19–

10

20 & nn. 7–8, 22; BMG Rights Mgmt. (US) LLC v. Cox

Commc’ns, Inc., 881 F.3d 293, 301 n.1 (4th Cir. 2018).

Third, respondents are conspicuously silent on

the importance of national uniformity. Congress has

explicitly condemned a taxable costs regime in which

“[o]ne system prevails in one district, and a totally different one in another.” Cong. Globe App., 32d Cong.,

2d Sess. app. 207; see also Alyeska Pipeline, 421 U.S.

at 247–50 & n.19; Crawford Fitting, 482 U.S. at 439;

Taniguchi, 566 U.S. at 565. Yet, respondents do not

contest that staggering non-taxable cost awards are

routine in the Ninth Circuit but entirely unavailable

in other jurisdictions. Pet. 20.

Finally, in a transparent effort to distract the

Court’s attention from the glaring circuit split on the

meaning of an important statutory provision, respondents fill their brief in opposition with a litany of

accusations directed at Rimini and its CEO, Seth

Ravin, of “lying under oath,” “egregious” behavior,

“fake customer[s],” “[un]ambiguous” infringement,

and “false[] represent[ations].” Opp. 1–10, 22–24. But

this false narrative was rejected by the jury and the

Ninth Circuit. Rimini was exonerated by either the

jury or the Ninth Circuit on every claim relating to

false statements or intentional conduct. Rimini was

found liable for copyright infringement, but the jury

unanimously found that every instance of infringement was “innocent” (Pet. App. 81a–82a), meaning

that Rimini “was not aware” and “had no reason to believe” that its conduct was unlawful (Instruction 35,

No. 2:10-cv-106, Dkt. 880 at 43). And after a trial and

an appeal, Mr. Ravin has been exonerated of any liability whatsoever. Pet. App. 26a, 78a, 84a–86a, 90a.

It is beyond the pale for respondents to present as

11

their “Statement of the Case” factual allegations that

have been squarely rejected in this very litigation.

More importantly, and contrary to respondents’

repeated assertion, this case is not about a district

court’s exercise of “discretion” to award costs based on

alleged misconduct (or, for that matter, any other reason). E.g., Opp. i, 1, 13, 16, 23. The question presented—whether Congress has conferred authority to

award non-taxable costs in copyright cases at all—is

antecedent. Only if the First, Sixth, and Ninth Circuits are correct, as respondents assume, could the

district court exercise its discretion to award non-taxable costs based on the circumstances of a particular

case. But if the Eighth and Eleventh Circuits are correct, district courts have no discretion to award nontaxable costs, regardless of the circumstances. Only

one of these diametrically opposed approaches can be

correct under the statute. This Court should resolve

the circuit split so that litigants in copyright cases are

governed by the same rules regardless of where suit is

filed.

12

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

BLAINE H. EVANSON

JOSEPH A. GORMAN

GIBSON, DUNN & CRUTCHER LLP

333 South Grand Avenue

Los Angeles, California 90071

(213) 229-7000

BEvanson@gibsondunn.com

MARK A. PERRY

Counsel of Record

JEREMY M. CHRISTIANSEN

GIBSON, DUNN & CRUTCHER LLP

1050 Connecticut Avenue, N.W.

Washington, D.C. 20036

(202) 955-8500

MPerry@gibsondunn.com

Counsel for Petitioners

August 14, 2018