Circuit Split Over Copyright Registrations to Get SCOTUS Attention
The U.S. Supreme Court has decided to weigh in on a circuit split that has been brewing for years regarding interpretation of the statute governing standing to litigate copyright infringement claims, 17 U.S.C. §411(a). The Court granted cert on June 28, 2018 in Fourth Estate Public Benefit Corporation v. Wall-Street.com, LLC. This blog noted the split back in 2015, reported on the Fourth Estate case at the 11th Circuit in June 2017, and later reported how a 2nd Circuit court analyzed the issue later last summer.
The “Application” vs. “Registration” Approaches
The precise issue presented for review relates to when a copyright registration actually takes place; some courts have reasoned that the statute and other provisions of the Copyright Act are ambiguous on the definition of “registration.” In the wake of this ambiguity, the circuit split is between courts that either follow the “application” or the “registration” approaches. Courts following the application approach grant standing to sue based on the Copyright Office’s receipt of the registration application, deposit materials, and fee. The 5th and 9th Circuits follow this approach. A majority of the other circuits follow the registration approach, which grants standing only after a registration certificate has been issued.
Why It Matters
The ruling will no doubt impact a plaintiff’s ability to bring copyright infringement lawsuits. If the Supreme Court sides with the 11th Circuit and the majority circuit “registration” approach, at the very least substantial delays in litigation could result because registration applications take an average of eight months to process. And while there is an expedited process, its prohibitive cost ($800 per registration) may discourage litigants with shallow pockets from enforcing their rights, or cause high-volume content providers to wait until acts of infringement are discovered before registering.
Alternately, following the “application” approach would avoid the extra cost and delays to potential litigants, but could burden courts with infringement claims for works that might not be eligible for copyright protection because of deficiencies such as lack of originality.
Background of the Petition and the Solicitor General’s Stance
The 11th Circuit upheld the district court’s dismissal of Fourth Estate’s infringement claim solely on the grounds that it did not have a copyright certificate to bring suit under §411(a), thus formally adopting the registration approach for that circuit. In its petition for a writ of certiorari Fourth Estate argued that the 11th Circuit’s interpretation of “registration” is too narrow and that as a matter of statutory interpretation, the text of the Copyright Act indicates that the phrase “registration…has been made” refers to action taken by the copyright holder, not the Copyright Office. Fourth Estate also argued that litigants unable to afford the expensive, expedited process would be forced to delay bringing suit while waiting for an actual certificate, thus potentially missing out on relief.
After a request for comment from the Supreme Court, the solicitor general filed an amicus brief recommending adoption of the registration approach. The solicitor general argued that the history of the Copyright Act and the Copyright Office’s own practices support this approach, as does the plain meaning of the Copyright Act.
