Disasterpastor45: “Solicitor General files amicus in Reed Elsevier arguing that 17 U.S.C. 411(a) is a rigid case processing rule”

Thursday, June 18, 2009

“Solicitor General files amicus in Reed Elsevier arguing that 17 U.S.C. 411(a) is a rigid case processing rule”

Solicitor General files amicus in Reed Elsevier arguing that 17 U.S.C. 411(a) is a rigid claim processing rule

Posted by admin on 17 June 2009 – 1:42 am

The Solicitor General filed an amicus brief in Reed Elsevier v. Muchnick last week advocating that the Second Circuit’s decision should be vacated and remanded. The brief first argues, similarly to the petitioners and respondents, that the registration requirement set forth in 17 U.S.C. 411(a) is a processing rule and not a jurisdictional requirement. But the section of the brief is somewhat perfunctory.

It appears, instead, that the primary reach of the brief is to advocate for the Supreme Court to interpret 411(a) as a rigid requirement: That courts should raise the issue of registration sua sponte and refuse to adjudicate suits where a plaintiff has failed to comply with 411(a). After an extensive factual introduction lauding the merits of registration, the brief’s first argument that 17 U.S.C. 411(a) doesn’t limit a federal court’s jurisdiction is six pages in length, while the section arguing that the Court should interpret 411(a) as a rigid rule runs twice that.

The Solicitor General, however, noted that 411(a) shouldn’t be read so rigidly to bar “industry-wide settlements” involving non-registered works. This is important because if the Supreme Court were to read the 411(a) as a hardline requirement then, even if the registration provision isn’t a jurisdictional requirement, the parties’ settlement could potentially be barred. The SG addressed the issue in the brief’s final page:

Under the circumstances of this case, the inclusion within the plaintiff class of individuals who had not registered their copyrights provides no sound basis for vacatur of the district court’s judgment on appeal. An industry-wide settlement is unquestionably in the public interest because it recognizes freelance authors’ copyright rights while ensuring the public availability of their works—a key concern of the Copyright Act. See Fogerty v. Fantasy, Inc., 510 U.S. 517, 527 (1994) (“[C]opyright law ultimately serves the purpose of enriching the general public through access to creative works.”); New York Times Co. v. Tasini, 533 U.S. 483, 505 (2001). The parties determined that a global settlement of all possible claims—including those based on currently unregistered works (which could be registered in the future)—was necessary in order to guarantee the availability within the electronic archives of all of the newspaper and magazine contents at issue. The parties then invested substantial time and resources, all of which would be rendered nugatory by enforcement of Section 411(a)’s registration requirement at this late stage.

There’s a lot going on in the brief and it’s definitely worth a read in its entirety. For example, you know people who advocate reading 411(a) as requiring a decision by the Copyright Office before bringing suit got a kick out of footnote 14:

Section 411(a) requires the plaintiff to possess a registration certificate, to have been refused registration, or to have preregistered, at the time the suit is commenced. Although some courts have held that Section 411(a)’s precondition to suit is satisfied by simply filing an application for registration, see, e.g., Apple Barrel Prods., Inc. v. Beard, 730 F.2d 384, 386-387 (5th Cir. 1984), those decisions are contrary to Section 411(a)’s plain text, and therefore incorrect . . .

The brief also illustrates how the upcoming opinion could either have a relatively narrow footprint outside of global settlement situations or fundamentally change many aspects of copyright litigation, depending on how the Supreme Court describes the registration process. If the opinion is written broadly, it could influence the following types of questions that we’ve addressed in the past few months:

How much deference should a court grant the Copyright Office’s determination that a work has sufficient originality?;
Should a plaintiff be barred from bringing suit on a copyright claim until after the Copyright Office has addressed a registration application, or should a plaintiff be able to proceed immediately after filing?;
Should courts grant architectural depictions filed as “Architectural Works” the exclusive rights granted under the Act to “Architectural Plans,” and vice versa?;
Should a determination by the Copyright Office that a work merits registration be taken into account when accessing whether a plaintiff’s suit is objectively unreasonable for purposes of awarding attorneys’ fees?;

Document: