UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
MATTHEW BENDER & COMPANY, INC., Plaintiff,
HYPERLAW, INC., Intervenor-Plaintiff-Appellee Cross-Appellant,
-v.-
WEST PUBLISHING CO. AND WEST PUBLISHING CORPORATION,
Defendants Appellants-Cross-Appellees.
Docket Nos. 00-7029(L), 00-7070(XAP)
August Term, 2000
Argued: November 8, 2000
Decided: January 23, 2001
240 F.3d 116
CARL J. HARTMANN, III, New York, NY (Paul J. Ruskin, Douglaston, NY, on the brief,
Alan D. Sugarman, New York, NY, of counsel), for Intervenor-Plaintiff-Appellee-Cross-
Appellant.
JAMES F. RITTINGER, Satterlee Stephens Burke & Burke (Joshua M. Rubins, on the
brief), New York, NY, for Defendants-Appellants-Cross-Appellees.
CHARLES D. OSSOLA, Arnold & Porter (Carol Lally, on the brief, Keith Kupferschmid, of
counsel), Washington, DC, for Amicus Curiae Software & Information Industry
Association.
Before: STRAUB and SOTOMAYOR, Circuit Judges, and SPATT, District Judge.(FN*)
Appeal from a judgment of the United States District Court for the Southern District of
New York (John S. Martin, Jr., Judge), awarding the intervenor-plaintiff attorneys' fees
under the Copyright Act, 17 U.S.C. § 505. Cross-appeal from the same judgment.
We hold that the District Court erred in awarding attorneys' fees based on the defendants'
"violation" of 17 U.S.C. § 403, the defendants' refusal to cooperate with the intervenor-
plaintiff prior to the initiation of the action, and the defendants' filing of a motion to
the intervenor-plaintiff's complaint on justiciability grounds. We thus vacate the award, but
remand to the District Court because it is not clear whether the court relied on additional
factors in awarding fees.
Vacated and remanded.
STRAUB, Circuit Judge:
Defendants-Appellants-Cross-Appellees West Publishing Co. and West Publishing Corp.
(collectively "West") appeal from a judgment of the United States District Court for the
Southern District of New York (John S. Martin, Jr., Judge), ordering them to pay the
attorneys' fees of Intervenor-Plaintiff-Appellee Cross-Appellant HyperLaw, Inc.
("HyperLaw"), after HyperLaw prevailed in a declaratory judgment action under the
Copyright Act, 17 U.S.C. § 101 et seq. HyperLaw cross-appeals, challenging the District
Court's calculation of the fee amount. The District Court found that West violated 17
U.S.C. § 403 by failing to delineate the portion of its works for which copyright protection
was claimed. The court also found that West's conduct of the litigation was in bad faith,
citing West's refusal to cooperate with HyperLaw before the initiation of suit and West's
filing of a motion to dismiss HyperLaw's complaint on justiciability grounds. The District
SNIPPETS:
MATTHEW BENDER & COMPANY, INC., Plaintiff,
HYPERLAW, INC., Intervenor-Plaintiff-Appellee Cross-Appellant,
AND WEST PUBLISHING CORPORATION,
CARL J. HARTMANN, III, New York, NY, for Intervenor-Plaintiff-Appellee-Cross-Appellant.
STRAUB and SOTOMAYOR, Circuit Judges, and SPATT, District Judge.Appeal from a judgment of the
Cross-appeal from the same judgment.
We hold that the District Court erred in awarding attorneys' fees based on the defendants'
We thus vacate the award, but remand to the District Court because it is not clear whether
STRAUB, Circuit Judge:
Defendants-Appellants-Cross-Appellees West Publishing Co. and West Publishing Corp. appeal
The court also found that West's conduct of the litigation was in bad faith, citing West's
For the reasons given below, we hold that the District Court exceeded its allowable
This case comes to us at the attorneys' fees stage, after a long and contentious battle over
Detailed factual accounts are set forth in two prior Second Circuit opinions: Matthew Bender
"Star pagination" consists of cross-reference citations that show the page location of
According to the court, even if there was a non-frivolous basis for West's claims, West's
, and then proceeded to list several nonexclusive factors courts should consider when
several other circuits have accorded the objective reasonableness factor substantial weight
("The touchstone of attorney's fees under § 505 is whether imposition of attorney's fees will
Sections 401and 402prevent an alleged infringer from asserting an "innocent infringement"
The appeals of both the star pagination issue and the editorial enhancements issue were heard
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