- Palladium Music, Inc. v. Eatsleep Music, Inc., No. 046061 (10th Cir. Feb. 14, 2005) (Briscoe, J.), slip op. at 1314 (citation omitted):
In denying the defendants attorney's fees, the district court explicitly considered the nonexclusive Fogerty factors and found in its discretion that while Palladium's claims were unsuccessful, it would not award attorney's fees to the defendants. The district court also outlined the competing interests furthered by the Copyright Act and determined that neither would be served by awarding fees in this case. As such, the district court appropriately considered the applicable legal standard and the facts of the case. We cannot conclude that the district court made a clear error of judgment or exceeded the bounds of permissible choice under the circumstances.
- Woodhaven Homes & Realty, Inc. v. Hotz, No. 034158 (7th Cir. Jan. 28, 2005) (Evans, J.), slip op. at 3 (PDF):
But in the time period since the district court's decision, we issued an opinion clarifying the Fogerty standard. In Assessment Technologies of WI, LLC v. Wiredata, Inc., 361 F.3d 434, 436 (7th Cir. 2004), we held that prevailing defendants in copyright cases, like Robbins, are presumptively entitled (and strongly so) to recover attorney fees:
[T]he prevailing party in a copyright case in which the monetary stakes are small should have a presumptive entitlement to an award of attorneys' fees. When the prevailing party is the defendant, who by definition receives not a small award but no award, the presumption in favor of awarding fees is very strong. For without the prospect of such an award, the party might be forced into a nuisance settlement or deterred all together from exercising his rights.
I think these are just a little bit inconsistent. The Tenth Circuit says it's a matter of discretion to be determined after weighing the factors based on the individual case. The Seventh Circuit says it's a default to be awarded to defendants, and weighing the factors must keep that in mind.
That neither opinion is really all that consistent with Fogerty, or the intent of § 505, is beside the point. We have a pretty clear circuit split.