                    FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT


 GLACIER FILMS (USA), INC.;                       No. 16-35688
 GLACIER FILMS 1, LLC,
               Plaintiffs-Appellants,               D.C. No.
                                                 3:15-cv-01817-
                     v.                                SB

 ANDREY TURCHIN, FKA Doe-
 73.164.151.227,                                    OPINION
                 Defendant-Appellee.



       Appeal from the United States District Court
                 for the District of Oregon
     Stacie F. Beckerman, Magistrate Judge, Presiding

             Argued and Submitted May 15, 2018
                      Portland, Oregon

                       Filed July 24, 2018

   Before: M. Margaret McKeown and Richard A. Paez,
  Circuit Judges, and Cynthia A. Bashant, * District Judge.

                 Opinion by Judge McKeown


     *
       The Honorable Cynthia A. Bashant, United States District Judge
for the Southern District of California, sitting by designation.
2                  GLACIER FILMS V. TURCHIN

                          SUMMARY **


               Copyright Act / Attorney’s Fees

    The panel reversed the district court’s order denying
plaintiff’s motion for attorney’s fees in a copyright
infringement suit.

    A film production company sued a user of BitTorrent, a
peer-to-peer network, who illegally downloaded and
repeatedly distributed a movie. Per the parties’ agreement
in a stipulated consent judgment, the defendant stipulated to
liability and to statutory damages, and the district court
entered a permanent injunction against him.

    The panel held that the district court abused its discretion
by focusing on its generally unfavorable view of other
BitTorrent litigation and failing to faithfully apply the
“Fogerty factors” in deciding whether to award attorney’s
fees under 17 U.S.C. § 505. The panel remanded the case to
the district court.


                            COUNSEL

John Mansfield (argued), Harris Bricken, Portland, Oregon;
Carl D. Crowell, Crowell Law, Salem, Oregon; for
Plaintiffs-Appellants.




    **
       This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
                  GLACIER FILMS V. TURCHIN                        3

Klaus H. Hamm (argued), Klarquist Sparkman LLP,
Portland, Oregon; David H. Madden, Mersenne Law,
Tigard, Oregon; for Defendant-Appellee.


                           OPINION

McKEOWN, Circuit Judge:

    This appeal stems from one of the many copyright
infringement lawsuits filed against individuals who
unlawfully download and distribute movies online. As
digital pirates increasingly use BitTorrent and other peer-to-
peer networks to share media, copyright holders have
pressed the courts for recourse. These suits are not without
controversy: many involve “copyright trolls” who buy up
copyrights to adult films and then sue masses of unknown
BitTorrent users for illegally downloading pornography. 1
This one is different: a film production company sued a
single user who illegally downloaded and distributed
repeatedly American Heist, a Hollywood action movie.

    An important remedy under the Copyright Act provides
that courts “may” award attorney’s fees to a prevailing party
in an infringement action. In Fogerty v. Fantasy, Inc.,
510 U.S. 517 (1994), the Supreme Court laid out factors to
guide discretion in whether to award fees. Because the
district court did not faithfully apply the “Fogerty factors” in
this meritorious BitTorrent action, we reverse and remand


    1
      See, e.g., AF Holdings, LLC v. Does 1–1058, 752 F.3d 990, 992
(D.C. Cir. 2014); In re BitTorrent Adult Film Copyright Infringement
Cases, 296 F.R.D. 80, 82 (E.D.N.Y. 2012).
4                  GLACIER FILMS V. TURCHIN

for consideration of an award of reasonable attorney’s fees. 2
The court’s denial of fees under the present circumstances—
based on a one-size-fits-all disapproval of other BitTorrent
suits—requires a remand.

                           BACKGROUND

    For context, we discuss the proliferation of peer-to-peer
Internet piracy suits before clicking through to the specifics
of this case.

    PEER-TO-PEER INTERNET PIRACY SUITS

    Peer-to-peer networking involves a “decentralized
infrastructure whereby each participant in the network . . .
acts as both a supplier and consumer of information
resources.” Columbia Pictures Indus., Inc. v. Fung,
710 F.3d 1020, 1024 (9th Cir. 2013). In other words, “peers”
download content from fellow peers, while leaving their own
folders of digital content available for others to download.
One type of peer-to-peer networking involves the BitTorrent
protocol, in which a file is broken up into smaller pieces
from various peers and then reassembled upon completion
of a download. See AF Holdings, 752 F.3d at 998. With
BitTorrent, “each user is both downloading and uploading
several different pieces of a file from and to multiple other
users.” Fung, 710 F.3d at 1027. Peer-to-peer networks like
BitTorrent are “ideally suited for sharing large files, a feature
that has led to their adoption by, among others, those
wanting access to pirated media, including music, movies,

    2
       The parties consented to a magistrate judge for all district court
proceedings, including the entry of final orders. Hence, we review
directly the magistrate judge’s order denying fees. We refer to the
magistrate judge as “the district court” or “the court” throughout the
opinion.
                 GLACIER FILMS V. TURCHIN                     5

and television shows.” Id. at 1025; see also Metro-Goldwyn-
Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 919–20
(2005).

   Digital piracy of copyrighted materials on peer-to-peer
networks can have severe financial consequences for
copyright holders. As one member of Congress put it:

       Under U.S. law, stealing intellectual property
       is just that—stealing. It hurts artists, the
       music industry, the movie industry, and
       others involved in creative work. And it is
       unfortunate that the software being used—
       called “file sharing,” as if it were simply
       enabling friends to share recipes, is helping
       create a generation of Americans who don’t
       see the harm.

Privacy and Piracy: the Paradox of Illegal File Sharing on
Peer-To-Peer Networks and the Impact of Technology on the
Entertainment Industry: Hearing Before the S. Comm. on
Governmental Affairs, 108th Cong. 10–14 (2003) (statement
of Sen. Levin); see also id. at 1–2 (statement of Sen. Boxer)
(asserting that “downloading copyrighted works is theft” and
“is a real problem”).

    To combat losses from peer-to-peer file sharing,
copyright holders have filed a spate of lawsuits against
infringers in federal courts across the country. See, e.g.,
BMG Rights Mgmt. (US) LLC v. Cox Commc’ns, Inc.,
881 F.3d 293, 298–99 (4th Cir. 2018); Killer Joe Nevada,
LLC v. Does 1–20, 807 F.3d 908, 910 (8th Cir. 2015); Dallas
Buyers Club, LLC v. Madsen, No. C14-1153RAJ, 2015 WL
6680260, at *1 (W.D. Wash. Nov. 2, 2015) (noting that the
action is “one of 13 practically identical cases filed” alleging
6                     GLACIER FILMS V. TURCHIN

BitTorrent users’ infringement of the movie Dallas Buyers
Club).

    Facing a “large number of similar peer-to-peer copyright
infringement cases,” in March 2016 the United States
District Court for the District of Oregon sought a practical
solution and established special procedural rules in a “Case
Management Order.” See U.S. District Court for the District
of Oregon, Standing Order 2016-8, available at
https://www.ord.uscourts.gov/index.php/rules-orders-and-
notices/standing-orders/active-standing-orders#civil-matters
(last accessed July 11, 2018). Among other things, the Order
allows copyright holders to seek limited discovery from an
Internet Service Provider to establish a potential infringer’s
identity, directs that holders must alert potential defendants
of the availability of pro bono counsel to defend against
infringement claims, and limits holders to suing one alleged
BitTorrent infringer at a time.

    GLACIER’S LAWSUIT IN OREGON 3

    Glacier Films (USA), Inc. and Glacier Films 1, LLC
(collectively, “Glacier”) hold valid and enforceable
copyrights in the film American Heist. 4 Scheduled for
widespread theatrical release in January 2015, Heist instead
leaked prematurely on BitTorrent, where it became a top
downloaded (i.e., pirated) movie. According to Glacier,
over 100,000 Internet Protocol (“IP”) addresses illegally



    3
        The parties stipulated to the relevant facts.

    4
      Glacier Films (USA), Inc. was a producer of American Heist;
Glacier Films 1, LLC is a movie-production company that holds the
copyright to the film’s screenplay.
                GLACIER FILMS V. TURCHIN                     7

downloaded and exchanged the copyrighted film on
BitTorrent.

    Tracking one such infringing IP address to Oregon,
Glacier brought suit in district court against the John Doe
owner and subpoenaed records from Comcast to ascertain
the Doe’s identity. Glacier selected that particular IP address
because the user distributed the film 80 times and was
associated with over 700 other titles. When records revealed
Andrey Turchin as the owner of the IP address, Glacier sent
two letters seeking his participation in determining who
downloaded the movie.          After Turchin proved non-
responsive, Glacier obtained leave to depose him. At his
deposition, Turchin admitted to downloading copyrighted
content with that IP address, right up until the day before his
deposition.

     Glacier amended its complaint to name the avid
BitTorrent user as the single defendant and sent Turchin a
letter advising him of the district court’s pro bono program
so that he could obtain assistance in filing a responsive
pleading. After nearly three months of attempting to contact
Turchin, Glacier filed a motion for default. The court
appointed pro bono counsel, who filed an answer raising
various affirmative defenses, denying liability, and seeking
costs and attorney’s fees. On that same day, Turchin
provided Glacier with a Rule 68 Offer of Judgment in which
Turchin offered to pay $2,501 to Glacier in exchange for
Glacier’s agreement that the sum would satisfy all debts and
obligations related to the suit, including any claim for
damages, costs and attorney’s fees. A few days later,
Turchin filed an amended answer removing five of the seven
affirmative defenses, but continuing to deny liability and
maintaining his own request for costs and fees.
8                GLACIER FILMS V. TURCHIN

    After conferring, the parties reached a stipulated consent
judgment. Per the agreement, Turchin stipulated to the
“allegations that give rise to liability for the infringement of
[Glacier’s] rights” and to $750 in statutory damages. The
court permanently enjoined Turchin from using the Internet
to reproduce, copy or publish American Heist, and ordered
him to immediately delete any unlicensed copies of the
movie in his possession. The parties agreed that “any award
of reasonable attorneys fees shall be determined by the
[c]ourt in accordance with 17 U.S.C. § 505 and pursuant to
[Federal Rule of Civil Procedure] 54.” Glacier moved for
costs of $791.70 and attorney’s fees totaling $4,833.35. The
court awarded costs to Glacier but denied any attorney’s
fees.

                          ANALYSIS

    The Copyright Act, coupled with extensive precedent
from both the Supreme Court and our court, lay the
foundation for our analysis. The statute states simply that
the district court “may . . . award a reasonable attorney’s fee
to the prevailing party as part of the costs.” 17 U.S.C. § 505.
Although the court enjoys “wide latitude to award attorney’s
fees based on the totality of circumstances in a case,” its
discretion must remain tethered to judicial guideposts.
Kirtsaeng v. John Wiley & Sons, Inc., 136 S. Ct. 1979, 1985
(2016).

    The Supreme Court in Fogerty provided a nonexclusive
list of factors for courts to consider in making a fee
determination: “frivolousness, motivation, objective
unreasonableness (both in the factual and in the legal
components of the case) and the need in particular
circumstances to advance considerations of compensation
and deterrence.” 510 U.S. at 534 n.19; see also Kirtsaeng,
136 S. Ct. at 1985. We have added factors that “may be
                 GLACIER FILMS V. TURCHIN                     9

considered” and “need not all be met”: the degree of success
obtained in the litigation, the purposes of the Copyright Act,
and “whether the chilling effect of attorney’s fees may be too
great or impose an inequitable burden on an impecunious
[litigant].” Perfect 10, Inc. v. Giganews, Inc., 847 F.3d 657,
675 (9th Cir. 2017).          We recently re-affirmed our
commitment to these factors, but emphasized that district
courts should “accord substantial weight to” the
“reasonableness of [the] losing party’s legal and factual
arguments.” Shame On You Prods., Inc. v. Banks, 893 F.3d
661, 666 (9th Cir. 2018); see also Kirtsaeng, 136 S. Ct. at
1989 (giving the factor “significant weight”).

   I. THE DISTRICT COURT ABUSED ITS DISCRETION IN
      APPLYING THE FACTORS

    Although the court properly cited all of the Supreme
Court and Ninth Circuit factors, it focused on three—
“minimal success” in the litigation, the lack of need for
further deterrence, and the goals of the Copyright Act. The
court’s analysis was infused with criticism of other
BitTorrent cases as well as a critique of Glacier’s counsel in
other file sharing litigation. While we understand that
prolific BitTorrent litigation has taxed the courts and that the
District of Oregon has adopted a sensible way to manage its
dockets, individual cases nonetheless deserve to be judged
on their own merits and not saddled with a blanket
indictment against peer-to-peer copyright litigation. The
sheer volume of suits should not preordain a court’s fee
determination in any one suit. Nor should an individual
client, such as Glacier, be penalized for the tactics of its
counsel in other cases.

     For these and the more specific reasons explained below,
we conclude that the court misapplied the factors on which
it focused while omitting analysis of other factors that may
10                 GLACIER FILMS V. TURCHIN

counsel toward an award of fees—including the
unreasonableness of the losing party’s (Turchin’s) conduct.

         A. THE DEGREE OF SUCCESS IN THE LITIGATION

    The district court noted that Glacier’s suit was “not
frivolous,” but went on to conclude that its success was
“minimal.” In fact, Glacier’s infringement suit against
Turchin was a “total success.” Maljack Prods., Inc. v.
GoodTimes Home Video Corp., 81 F.3d 881, 890 (9th Cir.
1996). Glacier alleged that Turchin copied and distributed
American Heist through a public BitTorrent network without
Glacier’s permission; Turchin’s actions infringed on
Glacier’s exclusive rights under the Copyright Act; and
Turchin’s conduct was “willful, intentional, in disregard of
and indifferent to [Glacier’s] rights with the intent to deprive
[Glacier] of income and cause [Glacier] harm.” Turchin
stipulated to those facts giving rise to liability and to $750 in
statutory damages for violating the Copyright Act. 5 Despite
Glacier’s complete victory, the district court did not weigh
the degree of success in the litigation in Glacier’s favor;
instead, the court twisted total triumph into a conclusion that
“the degree of success in each of these BitTorrent copyright
cases is minimal.”

    The court’s reasons for reaching this unexpected
outcome lack support in the law and the record. To begin,
the court observed that “the $750 statutory damage award
Defendant has agreed to pay is low in relation to the amount
of attorney fees Plaintiffs have accrued ($4,833.45), to

     5
       The parties contest whether the stipulation encompasses the
allegation that Turchin infringed Glacier’s copyright willfully. Because
the underlying facts surrounding Turchin and American Heist are
undisputed, the answer to that legal question does not affect the outcome.
                GLACIER FILMS V. TURCHIN                   11

achieve that result.” This is a flawed premise that mixes and
matches actual success with the determination of a
reasonable fee award. Actual success in an infringement
action involves establishing the defendant’s liability. See
Wall Data Inc. v. Los Angeles Cty. Sheriff’s Dep’t, 447 F.3d
769, 787 (9th Cir. 2006) (affirming an award of fees under
the appropriate factors and noting that a “plaintiff will
ordinarily be regarded as the prevailing party if he succeeds
. . . in establishing the defendant’s liability, even if the
damages awarded are nominal or nothing”). An award of a
“reasonable” attorney’s fee requires a separate
determination of an amount, which may consider the hours
worked among other factors. See The Traditional Cat Ass’n,
Inc. v. Gilbreath, 340 F.3d 829, 832–33 (9th Cir. 2003) (“In
applying [17 U.S.C. § 505], district courts are charged with
two tasks: first, deciding whether an award of attorneys’ fees
is appropriate, and second, calculating the amount of fees to
be awarded.”).

    The court did not cite any precedential authority that a
small (and agreed upon) amount of statutory damages is a
reflection of “minimal success.” To the contrary, we have
expressed concern that a “small award for damages,”
without fees, may be “insufficient to deter future copyright
infringements such as the one at issue here.” Magnuson v.
Video Yesteryear, 85 F.3d 1424, 1432 (9th Cir. 1996); see
also Wall Data Inc., 447 F.3d at 787.

     The Seventh Circuit has gone so far as to announce a
“presumptive entitlement” to fees for a “prevailing party in
a copyright case in which the monetary stakes are small.”
Gonzales v. Transfer Techs., Inc., 301 F.3d 608, 610 (2002)
(citing Magnuson, 85 F.3d at 1432). We do not adopt such
a presumption because doing so would collide with Supreme
Court guidance and is not consistent with the statute. See
12               GLACIER FILMS V. TURCHIN

Kirtsaeng, 136 S. Ct. at 1988–89 (underscoring that “§ 505
confers broad discretion on district courts” and rejecting an
approach that effects a presumption of fees under certain
circumstances).      Nevertheless, the policy rationale
underlying the presumption—that “willful infringements
involving small amounts of money” may not be “adequately
deterred” absent an award of fees—is a principle that bears
on the calculus of whether to award fees. Gonzales, 301 F.3d
at 609–10.

    As a factual matter, we consider it curious that the
district court focused on the $750 statutory damages amount.
In doing so, the district court elided that Turchin offered to
pay Glacier $2,501 in exchange for Glacier’s agreeing that
the sum would satisfy all debts and obligations related to
Glacier’s lawsuit, including any claim for damages, costs
and attorney’s fees. That Glacier’s counsel rejected the
$2,501 offer in favor of $750 in stipulated damages and the
opportunity for costs and fees hardly reveals “minimal
success” in the litigation; rather, it underscores a belief that
Glacier had a strong legal case for costs and fees.

     Next, the court reasoned that because American Heist
had been illegally downloaded over 100,000 times and this
suit yielded an injunction against only one infringer, “that
result is de minimis in relation to the serious online piracy
problem Plaintiffs seek to combat.” This conclusion makes
little sense in light of the district court’s Case Management
Order, which allows copyright holders to sue only one
BitTorrent infringer at a time. Under that Order, an
injunction against one infringer is the best possible result
Glacier could have achieved in this suit. An assertion that
“lots of other people are doing it, too” is not a persuasive
equitable principle and does not counsel toward a denial of
fees. Instead, we see dissonance between the district court’s
                GLACIER FILMS V. TURCHIN                    13

citation to the large number of infringers and its conclusion
that fees are unnecessary as a deterrent.

       B. DETERRENCE

    Overall, the district court did not appropriately weigh the
interests of deterrence and compensation. See Magnuson,
85 F.3d at 1432 (“Because it is not apparent from the district
court’s decision that it considered the factors listed in
Fogerty, particularly the goal of deterring future copyright
infringements, we remand for reconsideration of this
issue.”). The court asserted without support that a “financial
penalty” of $1,500 (consisting of the costs and the agreed
statutory damages) “is sufficient to deter [Turchin], as well
as others, from illegally downloading movies in the future.”
The record belies this contention.

    In fact, Turchin continued to use BitTorrent to pirate
copyrighted content even after he received notice that he
might be at risk of legal penalties—right up until the day
before his deposition. See Kirtsaeng, 136 S. Ct. at 1989
(noting that a court may order fee-shifting to deter repeated
instances of infringement). Turchin was “associated with”
700 pirated titles, an amount that may be worth more in
economic value than $1,500. An avid BitTorrent user like
Turchin may rationally decide that the risk of being caught
and sued for $1,500 is worth the price of admission for
access to unlimited media.

     Further, the district court identified various BitTorrent
cases with stipulated consent judgments of over $8,000 that
settled before Turchin continued to download copyrighted
titles. See, e.g., Cobbler Nevada, LLC v. Reardon, No. 3:15-
cv-01077-ST, 2015 WL 9239773, at *2 (D. Or. Dec. 16,
2015). If those larger judgments did not deter Turchin and
his peers from using BitTorrent, why would a “penalty” a
14               GLACIER FILMS V. TURCHIN

fraction of that size deter willful infringements in the future?
The district court’s assertion does not add up.

    We recognize that new technologies have strained
application of certain sections of the Copyright Act, but the
attorney’s fee provision is not one of them. In fact, in
recognition of the ubiquity of file sharing and the need to
enhance deterrence, in 1999, Congress increased available
statutory damages: raising minimum damages from $500 to
$750, maximum damages for non-willful infringements
from $20,000 to $30,000, and maximum damages for willful
infringements from $100,000 to $150,000. Pub. L. No. 106-
160, 113 Stat. 1774 (codified at 17 U.S.C. § 504). One need
look no further than the statutory title to see what Congress
had in mind: The Digital Theft Deterrence and Copyright
Damages Improvement Act. As one member of Congress
stated at the time: “Copyright piracy . . . is flourishing in the
world. With the advanced technologies available and the
fact that many computer users are either ignorant of the
copyright laws or simply believe that they will not be caught
or punished, the piracy trend will continue” absent increased
penalties. 145 Cong. Rec. H12884-01 (daily ed. Nov. 18,
1999) (statement of Rep. Coble). By passing the Deterrence
Act, “Congress specifically acknowledged that consumer-
based, noncommercial use of copyrighted materials
constituted actionable copyright infringement” and
“contemplate[d] that suits like this were within the Act.”
Sony BMG Music Entm’t v. Tenenbaum, 660 F.3d 487, 500
(1st Cir. 2011).

    In raising the stakes for unlawful digital file-sharing,
however, Congress left the attorney’s-fees provision intact.
Given that congressional choice, it is not logical to resolve
that statutory damages alone sufficiently deter this species of
copyright infringement—while making fees categorically
                GLACIER FILMS V. TURCHIN                    15

unavailable. If now, almost two decades after the Deterrence
Act, copyright trolls and mass filings present a further public
policy issue, then Congress should step in. See Sony Corp.
of Am. v. Universal City Studios, Inc., 464 U.S. 417, 430–31
(1984) (“[A]s new developments have occurred in this
country, it has been the Congress that has fashioned the new
rules that new technology made necessary.”). Meanwhile,
we must judge each case on its own merits.

       C. THE GOALS OF THE COPYRIGHT ACT

    Finally, the district court erred in its assessment of
whether awarding fees in this case would “further the
purposes of the [Copyright] Act.” Mattel, Inc v. MGA
Entm’t, Inc., 705 F.3d 1108, 1111 (9th Cir. 2013). Some of
our earlier opinions have called this the “most important
factor” in granting or denying a request for fees. See SOFA
Entm’t, Inc. v. Dodger Prods., Inc., 709 F.3d 1273, 1280 (9th
Cir. 2013); Mattel, 705 F.3d at 1111; Fantasy, Inc. v.
Fogerty, 94 F.3d 553, 558 (9th Cir. 1996). After Kirtsaeng’s
2016 endorsement of a “totality of circumstances” approach
and its statement that the losing party’s reasonableness
carries “significant weight,” it is unclear whether the
purposes-of-the-Copyright-Act factor remains the “most
important” one. 136 S. Ct. at 1989. In any event, it is
sufficient to note that because the guiding principles of the
Copyright Act run throughout the other factors, it remains
important.

    The goal of the Copyright Act is “to promote creativity
for the public good.” Jackson v. Axton, 25 F.3d 884, 890
(9th Cir. 1994); see also Fogerty, 510 U.S. at 524 (“The
primary objective of the Copyright Act is to encourage the
production of original literary, artistic, and musical
expression for the good of the public.”). Inherent in the
Act’s purpose is that “a copyright holder has always had the
16               GLACIER FILMS V. TURCHIN

legal authority to bring a traditional infringement suit against
one who wrongfully copies.” Grokster, 545 U.S. at 963. In
the Internet Age, such suits “have served as a teaching tool,
making clear that much file sharing, if done without
permission, is unlawful[,] and apparently have had a real and
significant deterrent effect.” Id.

    This case fits squarely within the tradition of copyright
enforcement. Turchin’s conduct—pirating and distributing
dozens of copies of Glacier’s film—does not “promote the
Progress of Science and useful Arts” by “assur[ing] authors
the right to their original expression” and “encourag[ing]
others to build freely upon the ideas and information
conveyed by a work.” Feist Publ’ns, Inc. v. Rural Tel. Serv.
Co., 499 U.S. 340, 349–50 (1991). This is not a case of the
infringer creating something new and incorporating a
copyrighted element into that new, creative work. See
Williams v. Gaye, 885 F.3d 1150, 1177 (9th Cir. 2018)
(affirming the denial of fees in an infringement award
involving the 2013 Robin Thicke and Pharrell Williams song
“Blurred Lines” and the 1977 Marvin Gaye song “Got to
Give It Up”). Rather, this case is the digital equivalent of
standing outside the neighborhood Redbox—or Blockbuster
Video, for fans of history—and giving away copies of the
movie for free. Nevertheless, the district court did not
analyze whether Turchin’s conduct furthers or frustrates the
goals of the Copyright Act.

    Nor did the district court find that Glacier acted contrary
to those goals in this particular case. Instead, its decision
rested on a view that awarding “attorney fees in this case
would only contribute to the continued overaggressive
assertion and negotiation of” other copyright claims.
Apparently, the court saw the fact that Glacier’s counsel had
filed 300 copyright actions against BitTorrent infringers as
                   GLACIER FILMS V. TURCHIN                          17

an “overaggressive assertion[] of copyright claims,” which
counseled toward a denial of fees. 6

    The district court initially erred by positing that “[i]n
Kirtsaeng, the Supreme Court noted that a court may also
consider the need to ‘deter . . . overaggressive assertions of
copyright claims’” in denying fees. See 136 S. Ct. at 1989.
That paraphrasing of the Kirtsaeng decision is inaccurate.

    Kirtsaeng actually stated that a district court “may order
fee-shifting . . . to deter . . . overaggressive assertions of
copyright claims, again even if the losing position was
reasonable in a particular case.” 136 S. Ct. at 1988–89
(emphases added). For example, the Supreme Court cited a
Sixth Circuit case “awarding fees against a copyright holder
who filed hundreds of suits on an overbroad legal theory,
including in a subset of cases in which it was objectively
reasonable” to do so. Id. at 1989 (citing Bridgeport Music,
Inc. v. WB Music Corp., 520 F.3d 588, 593–94 (6th Cir.
2008)). But crucially, Bridgeport Music was a case in which
the copyright holder lost, even though it asserted some
objectively reasonable claims. See 520 F.3d at 593. The
court nonetheless awarded fees to the prevailing alleged
infringers in an effort to deter the copyright holder from
over-aggressively filing losing claims. Id. Contrary to the
district court’s statement, nowhere in Kirtsaeng did the
Supreme Court promote denying fees in meritorious claims
because     those      winning      claims     are   somehow
“overaggressive.” Indeed, it is difficult to see how pursuing
a meritorious infringement claim “less aggressively”


    6
       That Glacier’s counsel filed many actions may be a product of the
district court’s Case Management Order, which provides that copyright
holders may name only one potential infringer per BitTorrent suit.
18               GLACIER FILMS V. TURCHIN

furthers “the Copyright Act’s essential goals.” Kirtsaeng,
136 S. Ct. at 1989.

    The court also based its decision on generalizations
about other BitTorrent cases, not on the “totality of
circumstances in [this] case.” Id. at 1985. It is revealing that
the court observed that another district court had denied fees
in a “similar BitTorrent copyright case,” despite the fact that
the other case is quite dissimilar. In Countryman Nevada,
LLC v. DOE, copyright holders “conducted th[e] litigation
in a manner calculated to increase the opposing party’s
costs.” 193 F. Supp. 3d 1174, 1182 (D. Or. 2016). Unlike
Turchin, the alleged infringer downloaded the movie by
accident, “promptly conduct[ed] an investigation,” admitted
liability, and offered to settle without asserting spurious
defenses. Id. at 1176–77, 1183. The copyright holders
refused to settle unless the infringer paid $8,500, even after
the infringer claimed financial hardship. Id. at 1177.

     The district court nonetheless lumped the present case
together with the worst of “these BitTorrent copyright
cases,” even though it shares none of the unsavory
characteristics. Here, Glacier did not “demand thousands of
dollars to settle a claim . . . where the infringing defendant
admits early in the case that they illegally downloaded the
movie.” The company did not seek a confidential or
uncounseled settlement not subject to court approval, or
“pursue particularly vulnerable individuals.” Nor is Glacier
a quintessential “copyright troll”—a term defined by the
district court as an entity “more focused on the business of
litigation than on selling a product or service or licensing
their [copyrights] to third parties to sell a product or
                  GLACIER FILMS V. TURCHIN                        19

service.” 7 Glacier produced American Heist, a Hollywood
feature film with a substantial budget and a recognizable
cast, including Hayden Christensen, Adrien Brody, and
Jordana Brewster. The company prepared the film for
widespread North American theatrical release. When that
fell through—in part, Glacier contends, because of illegal
downloads before the release date—Glacier released the
movie on DVD and Blu-Ray and licensed the movie for
legal, commercial download on services such as Amazon.
Glacier’s production and marketing of artistic content shares
little resemblance to entities hiding in the shadows, buying
the copyrights to pornographic films (without creating
anything), and seeking settlements from crowds of John
Does embarrassed that they were “caught” downloading
tawdry titles. See AF Holdings, 752 F.3d at 992–93
(describing the “modus operandi” of a copyright troll).

        D. OBJECTIVE     UNREASONABLENESS                       AND
           FRIVOLOUSNESS

    District courts do not necessarily need to analyze all of
the factors set out in the cases, as those factors are
discretionary and non-exclusive. But in misapplying the
three factors on which it focused, the court passed over a
factor that “carries significant” or “substantial weight.”
Kirtsaeng, 136 S. Ct. at 1989; Shame On You, 893 F.3d at
666. Notably, the district court never once mentioned the
unreasonableness of the losing party’s (Turchin’s) factual
and legal position. Instead, the court referred only to the
prevailing party’s (Glacier’s) position, confirming that “a
copyright holder’s action against an individual BitTorrent

    7
      C.f. Berkla v. Corel Corp., 302 F.3d 909, 924 (9th Cir. 2002)
(“Corel’s attempt to paint Berkla as a litigious schemer who ‘set up’
Corel obscures Corel’s underlying wrongful conduct . . . .”).
20               GLACIER FILMS V. TURCHIN

copyright infringer is not frivolous under the Copyright
Act.”

     We emphasize the reasonableness factor because
“[w]hen a litigant . . . is clearly correct, the likelihood that
he will recover fees from the opposing (i.e., unreasonable)
party gives him an incentive to litigate the case all the way
to the end. The holder of a copyright that has obviously been
infringed has good reason to bring and maintain a suit even
if the damages at stake are small.” Kirtsaeng, 136 S. Ct. at
1986. The Supreme Court’s guidance squarely addresses the
present case.

    The failure to analyze Turchin’s conduct in the litigation
is particularly problematic because his actions added to
Glacier’s attorney’s fees. Although an “infringer with no
reasonable defense has every reason to give in quickly,
before each side’s litigation costs mount,” id. at 1987,
Turchin delayed resolution of this case for nearly eight
months from when he was first notified of Glacier’s claims.
Because Turchin did not respond to letter inquiries, Glacier
needed to seek leave to subpoena Turchin for a deposition.
There, Turchin admitted to regularly using BitTorrent to
download content. Notwithstanding those admissions,
Turchin did not file a responsive pleading for almost three
months, causing Glacier to file a notice of default in May
2016. Only then did Turchin file an answer.

    Despite having previously admitted to regularly using
BitTorrent to download media without permission and
conceding that he downloaded American Heist, Turchin
denied liability, sought costs and fees from Glacier, and
asserted seven baseless affirmative defenses. For example,
Turchin argued that “[a]ny downloading or uploading of the
copyrighted work was permitted by the doctrine of fair use”
and that the film was not eligible for copyright protection
                   GLACIER FILMS V. TURCHIN                         21

under the doctrine of scenes a faire. But, in fact, this was
not “a close and difficult case.” Seltzer v. Green Day, Inc.,
725 F.3d 1170, 1181 (9th Cir. 2013). The district court,
however, never considered the unreasonableness of
Turchin’s positions. 8

        E. OTHER FACTORS

    We also note that the district court did not assess
motivation, a potentially relevant factor here. Given
Turchin’s constant BitTorrent use (even after receiving
notice of this suit) and his multiple admissions to unlawfully
downloading content on the network (including American
Heist), it may be that Turchin’s affirmative defenses were
not made in good faith. See Halicki Films, LLC v. Sanderson
Sales & Mktg., 547 F.3d 1213, 1231 (9th Cir. 2008). And
because Turchin repeatedly distributed copies despite the
express warnings in American Heist that unlicensed
duplication is illegal and will result in penalties, it may be
that his copyright infringement was willful. See Historical
Research v. Cabral, 80 F.3d 377, 379 (9th Cir. 1996) (noting
that “willful infringement is an important factor favoring an
award of fees”).




     8
       We acknowledge that Turchin’s counsel filed an Amended Answer
revising the defenses soon after the initial Answer and it may be that
researching the defenses only minimally increased Glacier’s attorney’s
fees. That is a factor to weigh in calculating the reasonableness of the
claimed fee. We do not criticize pro bono counsel, but rather assess
holistically Turchin’s legal positions in this litigation.
22                 GLACIER FILMS V. TURCHIN

     II. ON REMAND, THE DISTRICT COURT MUST ASSESS
         THE SPECIFICS OF THIS CASE

    In sum, based on a generally unfavorable view of other
BitTorrent litigation, the district court abused its discretion
by denying fees without assessing the particulars of this case.
The court’s analysis of whether fees are warranted should be
based on Glacier’s case against Turchin—and not on the
court’s view of BitTorrent litigation in general or on the
conduct of Glacier’s counsel in other suits. 9 To be sure, the
unfortunate facts of other BitTorrent cases may well warrant
a denial of fees in certain cases. But an approach that
furthers the goals of the Copyright Act considers the facts of
a given case, weighs the appropriate factors, and makes a fee
determination based on the conduct of both parties.

    As the Supreme Court recently counseled, the district
court “must view all the circumstances of a case on their own
terms, in light of the Copyright Act’s essential goals.”
Kirtsaeng, 136 S. Ct. at 1989 (emphasis added). We thus
reverse and remand for application of the factors and
reconsideration of whether to award reasonable attorney’s
fees. See VMG Salsoul, LLC v. Ciccone, 824 F.3d 871, 887
(9th Cir. 2016) (vacating a fees decision and remanding for
“reconsideration”).

     REVERSED AND REMANDED.




    9
      If, indeed, the court objects to counsel’s conduct in other cases,
appropriate procedures exist to address that behavior.
