Copyright News

• Jurisdiction: United States,Federal
• Citation: Vol. 44 No. 2
• Publication year: 2019
• Author: Jo Ardalan
• topic: Copyright law,Civil Procedure

Copyright News

Jo Ardalan
One LLP

COPYRIGHT JURISPRUDENCE IN THE NINTH CIRCUIT GETS A ONE-TWO PUNCH FROM THE SUPREME COURT

On the same day, the Supreme Court issued two unanimous decisions that uprooted long-held Ninth Circuit precedent.

The Left Lead: Fourth Estate Public Benefit Corp. v. Wall-Street. com, LLC

Justice Ginsburg delivered the left lead when the Court decided whether Section 411(a)'s language allows a plaintiff to file suit upon filing an application for copyright registration or whether it requires waiting until the registration has issued. Section 411 states that "no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title. In any case, however, where the deposit, application, and fee required for registration have been delivered to the Copyright Office in proper form and registration has been refused, the applicant is entitled to institute a civil action for infringement if notice thereof, with a copy of the complaint, is served on the Register of Copyrights."¹ The Ninth Circuit's precedent had required only that the Copyright Office receive a complete application for a plaintiff to file suit.² That approach benefited copyright plaintiffs to avoid what could be a seven-month delay in filing suit while the registration application was processed. Rejecting the strong policy arguments for the application approach, the Court held that the registration approach is required.³

The Court found support for its decision in the statute's text, reasoning that, "[i]f application alone sufficed to 'ma[ke]' registration complete, § 411(a)'s second sentence—allowing suit upon refusal of registration—would be superfluous."⁴ And, Section 411...