Registration Crucial Check on Copyright Lawsuits, High Court Told
Internet and communications companies risk litigation over “every blog post, electronic mail, voice mail, instant message, text message, and ’tweet'” if owners of unregistered works can sue for copyright infringement, according to a friend of the court brief filed with the Supreme Court. The Computer and Communications Industry Association and the NetCoalition, which includes Google, Yahoo, InterActiveCorp and Bloomberg, asked the high court to uphold a 2nd U.S. Circuit Court of Appeals decision. The appeals court tossed out an $18 million settlement between publishers and freelances in Reed Elsevier v. Muchnick over posting of freelance work online, saying it didn’t have jurisdiction over the unregistered works covered by the settlement (WID March 3 p5).
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“By imposing this minor hurdle to access the courthouse, the registration system separates wheat from chaff,” the groups said. “Every day, the servers operated by Internet companies make copies of billions of copyrightable works,” the vast majority of which aren’t registered with the Copyright Office. If securing or applying for registration isn’t a prerequisite for infringement litigation under Section 411 of the Copyright Act, “class-action lawyers will declare open season on Internet companies” and “copyright trolls” will seek “quick nuisance value settlements,” they said.
CCIA and NetCoalition asked the Supreme Court to ignore “less than a handful” of trial court opinions that opened the door to lawsuits over unregistered works, and go with the uniform interpretation of Section 411 by every appeals court to consider it. “There is no circuit split” justifying Supreme Court involvement, the filing said. It’s hard to believe that publishers and authors were “bushwhacked” when the 2nd Circuit raised the jurisdictional issue of its own accord, it said.
The entire settlement rests on compliance with Section 411, the filing said. That provision was used by the plaintiffs with registered works as the “hammer” by which the other plaintiffs would be given “the smallest possible award, and possibly zero,” leading those without registered works to “cry foul.” With the Supreme Court having upheld the propriety of suing over unauthorized online posting of works in 2001’s Tasini ruling, the only dispute in Muchnick was over money, the filing said. Eventually it was decided that unregistered authors would be paid only if registered authors’ claims didn’t max out the $18 million. Section 411 was thoroughly discussed with a mediator and then the trial court, the plaintiffs dodging the issue only when the 2nd Circuit asked for supplementary briefing, CCIA and NetCoalition said. Even plaintiffs’ petition to the Supreme Court makes the case that courts can “release claims that they lacked jurisdiction to adjudicate” in the interest of reaching settlements, they said.
Plaintiffs’ briefs have an “air of unreality” in arguing that Congress uses “jurisdiction-speak” only when the word “jurisdiction” is used throughout a statutory chapter that’s “clearly demarcated” as jurisdictional, the filing said. Section 411 mentions jurisdiction at the very end, saying a court still retains authority over an infringement suit concerning unregistered works if the Copyright Office declines to join the suit and explain its rejection of the works. The statute clearly means that “failure to comply deprives a court of jurisdiction, but the failure of the Register of Copyrights to join does not,” the filing said. Section 411 “should not be sliced and diced into fragments so that the parts are less than its whole.”