Rimini Street and Oracle were once again at odds in the courtroom yesterday, as the US Supreme Court heard oral arguments in the pair's long-running copyright battle.
The legal wrangling has shifted from the initial complaint – alleging the third party support vendor infringed Big Red's copyright – and onto the matter of how "costs" are defined under the Copyright Act.
The issue has reached the Supremes because, as the highest court in the US, it has a duty to resolve splits between lower courts.
The court seeks to answer a question of interpretations of two statutory provisions: the general norm set by 28 U.S.C. § 1920 that even a winning party pays a substantial share of the costs; and Section 505 of the Copyright Act, which allows courts to award "full costs" to the winning party.
These are described in more detail on the SCOTUS blog.
In this case, the Ninth Court ruled that Rimini needed to pay Oracle some $12.8m in non-taxable costs – but the support vendor seized on previous rulings in other courts that said “full costs” did not apply to non-taxable costs.
In oral arguments (PDF) in the court on 14 January, Mark Perry made the case for Rimini Street, arguing that the dispute was not about the description "full", but about "costs".
"Just as the full moon doesn't tell us anything about Mars and Venus, 'full costs', we submit, doesn't tell the court anything about fees and expenses," he said.
His firm's position is backed by the US government, whose counsel Allon Kedem argued that the term "full costs" had been used, historically, in a meaningful but narrow way.
For instance, he said, in the past, half of any forfeiture would go to the government and the other half would go to the plaintiff, along with their full costs.
"So the word 'full' in that phrase tells you, even though the plaintiff is only getting half of the recovery, nevertheless, the plaintiff gets their full costs," he said.
However, Oracle's counsel, Paul Clement, argued that the fact Congress, when drafting the statute, had used the modifier "full" indicated that they wanted to adopt a broader meaning than the narrow one proposed by Rimini.
Justice Sotomayor, though, questioned whether Clement's "open-ended" interpretation meant there wasn't a way for judges to exercise reasonable discretion.
"Under your definition of 'full costs', I'm assuming the babysitter for the witness who has to come to court is covered. I'm assuming experts, which could include experts like a body language reader," she said.
During the hearing, both sides acknowledged a lack of case law to go on, with Perry saying this was because opposing cost bills was usually greater than the cost bill itself.
"It's only in a case like this one where many tens of millions of dollars have been added in for non-cost expenses that would get to litigation of these points," he said.
Both sides also aimed to argue that the other's interpretation rendered parts of the Copyright Act superfluous.
Perry said that the entire second sentence of Section 505 – which authorises attorneys' fees – "is rendered superfluous under Mr Clement's definition" because it makes clear that they are not part of costs.
Clement later countered that there had been no point in history when the second sentence was superfluous, but that the alternative view created "a lot of wreckage and carnage for ignoring the plain meaning of a statute".
However, Justice Kavanaugh chimed in to say he wasn't sure this was "carnage" because, when Congress drafts statutes, "there is a lot of redundancy because people speak redundantly or sometimes because Congress just wants to make doubly sure".
A similar point was made by Justice Breyer, who said he "might be unique" in his view, but he "often" thinks that when Congress "uses these words doesn't really think about it".
He said: "They go up to the drafting section, there is a drafting section, and you'll get a young man or woman there who has to write a very complicated statute, and - and they might use words they don't really think about."
The Supreme Court has yet to set a date for an opinion or vote in the case. ®