Supreme Court Says Of Course You Need To Register Your Copyright Before You Can Sue; Copyright Trolls & Hollywood Freak Out

from the oh,-poor-souls dept

17 USC 411(a) (part of US Copyright law) states the following:

…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.

This is pretty clear. It also becomes important in a surprising number of situations and cases, including quite a few we’ve discussed just recently, such as the various copyright lawsuits over dances in Fortnite, where it appears that none of the “dances” were actually registered with the Copyright Office. Copyright trolls, also, are somewhat notorious for threatening lawsuits over works without any copyright registration at all.

So it’s a bit bizarre that the Supreme Court even needed to weigh in on this, but there was a bit of technical confusion between a bunch of circuits as to whether or not you could sue as soon as you submitted a registration application, or if you had to wait until the Copyright Office issues the actual certificate of registration. While getting a registered copyright is mostly (though not entirely) a rubber stamp process by the Copyright Office, it still takes about six to seven months right now, though the Copyright Office has been upgrading its technology (after some earlier hiccups under the previous regime), and insists that before long the timing will be one of weeks, rather than months.

In a unanimous ruling, surprisingly written by Justice Ginsburg, the court ruled that the law is pretty clear and you have to wait until registration is complete and the certificate has been issued by the Copyright Office. It comes down to the Justices just reading what the law actually says and saying “um, that’s pretty clear.” Indeed, the ruling basically says the wording of the law wouldn’t make any sense if it meant you just had to submit the application to be able to sue:

If application alone sufficed to ?ma[ke]? registration, §411(a)?s second sentence?allowing suit upon refusal of registration?would be superfluous. What utility would that allowance have if a copyright claimant could sue for infringement immediately after applying for registration without awaiting the Register?s decision on her application? Proponents of the application approach urge that §411(a)?s second sentence serves merely to require a copyright claimant to serve ?notice [of an infringement suit] . . . on the Register.? See Brief for Petitioner 29?32. This reading, however, requires the implausible assumption that Congress gave ?registration? different meanings in consecutive, related sentences within a single statutory provision. In §411(a)?s first sentence, ?registration? would mean the claimant?s act of filing an application, while in the section?s second sentence, ?registration? would entail the Register?s review of an application. We resist this improbable construction.

As for the claims that by requiring a copyright holder to wait infringement can go on for a while, the Court points out that the law still lets them go after all that past infringement after getting the registration:

If infringement occurs before a copyright owner applies for registration, that owner may eventually recover damages for the past infringement, as well as the infringer?s profits. §504. She must simply apply for registration and receive the Copyright Office?s decision on her application before instituting suit. Once the Register grants or refuses registration, the copyright owner may also seek an injunction barring the infringer from continued violation of her exclusive rights and an order requiring the infringer to destroy infringing materials.

The court also takes a dim view on the idea that it takes too long to get the registration, and this could impact the statute of limitations on suing (three years):

Fourth Estate raises the specter that a copyright owner may lose the ability to enforce her rights if the Copyright Act?s three-year statute of limitations runs out before the Copyright Office acts on her application for registration. Brief for Petitioner 41. Fourth Estate?s fear is overstated, as the average processing time for registration applications is currently seven months, leaving ample time to sue after the Register?s decision, even for infringement that began before submission of an application

Furthermore, Ginsburg notes that even if it’s taking the Copyright Office a long time, that’s an issue for Congress to deal with rather than the courts:

True, the statutory scheme has not worked as Congress likely envisioned. Registration processing times have increased from one or two weeks in 1956 to many months today. See GAO, Improving Productivity in Copyright Registration 3 (GAO?AFMD?83?13 1982); Registration Processing Times. Delays in Copyright Office processing of applications, it appears, are attributable, in large measure, to staffing and budgetary shortages that Congress can alleviate, but courts cannot cure.

The surprising aspect of this is that Ginsburg wrote the decision. Historically, Justice Ginsburg has never seen a copyright case where she wouldn’t support the more Hollywood-friendly interpretation. Whether you agree with Ginsburg on other issues or not, she’s generally… awful on copyright with the infamous Eldred ruling being a key example (if you want to read a good half-book long rant about just how badly Ginsburg messed up nearly every aspect of the Eldred ruling, I highly recommend the book No Law, which has some choice words for that particular decision).

Still, this decision was a pretty straightforward reading of the statute, and in some ways builds on the basis that Ginsburg set forth in Eldred, in which she more or less says “hey, Congress can do what Congress wants regarding copyright.” And here, Congress has said you need to register to sue.

What’s amusing, though, is that this fairly minor step has Hollwyood and its friends completely flipping out about how much more difficult it’s going to be to stop piracy. But this makes no sense. Once a work is out there, it’s out there. It’s not like being able to sue a few months earlier is going to stop works from leaking or being available. And suing is usually not the most efficient way to stop the spread of something anyway (the DMCA takedown process still works…).

Of course, those who should really be worried are the copyright trolls who got kind of complacent about these things over the past few years. As Fight Copyright Trolls first noticed, prolific copyright trolling operation Malibu Media, has already been hit with an Order to Show Cause in response to this case for suing over works where no registration had been made:

It is hereby ORDERED that Plaintiff show cause in writing by March 12, 2019, why its complaint should not be dismissed for failure to state a claim upon which relief can be granted ? specifically, for failure to allege that registration or preregistration of the copyright claims at issue had ?been made? prior to the filing of this action. 17 U.S.C. § 411(a); see Fourth Estate Pub. Benefit Corp. v., LLC, No. 17-571, 2019 WL 1005829 (U.S. Mar. 4, 2019). If Plaintiff fails to show good cause, or does not file anything by that date, the Court may dismiss this action without further notice to Plaintiff.

Anything that causes more problems for copyright trolls has to be a good thing.

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Comments on “Supreme Court Says Of Course You Need To Register Your Copyright Before You Can Sue; Copyright Trolls & Hollywood Freak Out”

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Anonymous Coward says:

Re: Re: Re:2 Live Sports

"a copyright owner can apply for a “preregistration” and still meet the threshold to filing a lawsuit, but those are limited to works the are deemed vulnerable to infringement before release, like music compositions or movies. Exceptions also are made for live TV broadcasts."

So what exactly is the problem then? IMO, if they’re pro-active in doing the above they won’t have anything to complain about.

James Burkhardt (profile) says:

Re: Re: Re: Live Sports

SO, in any live broadcast, there will be a producer who chooses which cameras are broadcast at what time, and gives direction as to how narrow the focus should be, when to cut to the coaches, ect. Regardless of the creativity of any individual cameraman, the broadcast is an experience dictated by a producer who determines what you see. This will be present in any live sports broadcast. The courts have largely attempted to separate the question of HOW creative a visual work is with the question of if it required creativity. The trigger, from rulings I’ve read, to establish creativity seems to generally be a question of active involvement in the process of capturing the visual work. The idea that someone is, in the moment, deciding at least some of the ‘creative’ factors.

While an argument can be made that, in a live sporting event, the visual choices made are largely functional for the display of the sport, the conventional wisdom is that choices between wide shots and narrow focus, when to cut to sideline footage, and the commentary are all creative elements that you can hold copyright for.

In a live event, registration can happen before an event. That does not mean the copyright will withstand scrutiny in the subsequent court battle. But it seems unlikely the courts will overthrow the idea that the copyright eligible elements which will show up in a live sports broadcast are no longer considered copyright eligible as it would probably throw understanding of photography and videography copyright into chaos by having the courts rate how creative the work is, not merely that it contains sufficient elements of creativity..

The courts largely tend to

Anonymous Coward says:

Masnick sure likes passing judgment on high-level federal judges. Which law school did he graduate from?

Registration is no big deal. Anyone serious about their work registers it the day it’s released or earlier, to prove that they wrote it. Did that with a few of my books that I knew would be plagiarized (and which have been, many times) or imitated. Funny how major publishers, network television, and films have found "inspiration" in my work ::::cough:::::

Anyone relying on this decision as a get-out-of-judgment-free card is on pretty thin ice.

Scary Devil Monastery (profile) says:

Re: Re: Re: Re:

" He considers people quoting him back at himself as plagiarism. I don’t see how, we gladly attribute it to him. I know I don’t want credit for his nonsense…"

I think he may be in two minds about that. On the one hand he wants everyone to pay him for reading his work. On the other hand he doesn’t want people to know who he is or remember what he wrote.

The only way I can reconcile those two rather obvious views of his is that he’s somehow miffed people aren’t just giving him all their money for nothing.

Anonymous Coward says:

Re: Re: Re:

Except if I did that it would trigger a wave of actionable harassment, defamation, etc.

You REALLY do not understand the level of criminality surrounding some who frequent this site. Like I said, there is already police involvement. This isn’t just some internet game. One member of this little group fucked up BIG a while back when it picked on me like I was some random internet slug.

You think I give a shit about publicizing the people already taken down because of this garbage? Maybe you’re a dumb Aspie or something; they never really grasp reality very well.

Scary Devil Monastery (profile) says:

Re: Re: Re:2 Re:

"Well that is a whopper."

Actually I wouldn’t put it past poor old Baghdad bob there to regularly try to report this site to some long-suffering police officer who very rightly doesn’t give a rat’s ass about what commenters say about some anonymous troll whose hobby is to shit in a text box and proudly display the results.

Scary Devil Monastery (profile) says:

Re: Re: Re:4 Re:

Hey, "being wrong on the internet" should probably be a crime in the eyes of many.

The weird thing about Baghdad bob is that if that was what he was after he’d be the first one behind bars, given how often he tries to talk established reality out of existing.

I can only surmise that in his mind, then, given his long demonstrated behavior, being right on the internet needs to be criminal…

Rocky says:

Re: Re: Re: Re:

One member of this little group fucked up BIG a while back when it picked on me like I was some random internet slug.

If you post stupid shit as an AC you are a "random internet slug", and as an AC there can’t be any kind of defamation etc going on since any opinion or statement given isn’t connected to a real persona – ie. you real life reputation and character was never impinged.

Anonymous Coward says:

Re: Re: Re:

If the wave of actionable harassment is so huge and the level of criminality is so deep then go for it, dumbass. You’ve had six months, what’s stopping you and your powerful patrons from wasting one measly little site?

I think someone who wants to gloat about these achievements so badly would put a name or face to them. You know, as a warning against anyone who fails to take you seriously. As it stands you’re doing a terrible job of it.

Rico R. (profile) says:

Re: Re: Re:

Maybe you’re a dumb Aspie or something; they never really grasp reality very well.

Steve Jobs. Albert Einstein. Adam Young. Temple Grandin. All successful and sane people who either have Asperger’s/Autism or is believed to have had it. In fact, Einstein helped us change our perspective on reality. Really, that’s why one of his theories is called Special Relativity.

Anyway, I’m autistic as well, and copyright has been one of my "obsessive interests". Ask anyone from my college classes. So I know that plagiarism isn’t necessarily a case of copyright infringement. And again, no source is given, let alone the title of the books you said were plagiarized. So why should we believe you?

And as far as being "picked on" by being "some random internet slug", I think you need to re-evaluate your "dumb Aspie" remark before you complain about any harassment going on. Any sane person, autistic or not, will find that offensive!

bhull242 (profile) says:

Re: Re: What a moron! (Pronounced like maroon)

Maybe you’re a dumb Aspie or something; they never really grasp reality very well.

I don’t think you understand Asperger’s syndrome (high-functioning autism spectrum disorder or ASD) at all. We aren’t dumb or unable to “really grasp reality very well”.

Here’s a list of some of the symptoms of ASD:

  • Hyper-focusing on things of interest, while often lacking focus in things that are not of interest
  • Diminished social and emotional intelligence
  • highly analytical thinking
  • difficulty understanding figurative language and a tendency to take things literally
  • hypersensitivity to sensory information like bright, flashing lights, loud noises, weird or strong tastes or food textures, or strong scents
  • difficulty understanding nonverbal communication or picking up subtle hints

We don’t necessarily fail to grasp reality; we often just view it from a different angle, noticing some things others fail to while failing to notice what others do. Other times it’s a result of miscommunication that a seeming failure to understand reality occurs. And it varies greatly even within the relatively narrow portion of the spectrum that is commonly known as Asperger’s syndrome. Some of them don’t even seem atypical to a casual observer. It is a spectrum after all. While it’s generally wrong to paint an entire group with a single brush for sharing a particular mental disorder anyway, it’s particularly nonsensical to do so with those whose mental disorder is explicitly described as a spectrum in its name.

BTW, why should we believe you re:police involvement with or criminality of anyone involved with this site? You’ve cried wolf frequently before, no one has corroborated any of what you just claimed, and you don’t give any specifics as to who, what, when, where (as in where they live, as what is actionable varies from state to state and country to country), why, or how.

If you want us to “give a shit” about the people you’ve allegedly “already taken down because of this garbage”, you need to give more information. And if you want us to believe that you’ve been plagiarized, you need to give us that info as well. If you’d already been proven to be trustworthy (not just the default state of “maybe he’s trustworthy, but maybe not”), we may have been more willing to take you at your word until proven otherwise, but you’ve proven to be untrustworthy, which means we need clear and convincing evidence to even begin to trust anything you say and are more likely to presume you’re lying absent other evidence.

If we “don’t understand”, then don’t bring it up unless you’re willing to take steps to help us to understand. You haven’t even given us sufficient evidence to suggest that clarifying your claims of being plagiarized “would trigger a wave of actionable harassment, defamation, etc.” Why in the world would it do that? Actionable harassment has a pretty high bar to achieve, and defamation even more so, especially when talking about someone anonymous. It sounds to me more like something you’re just making up. Either put up or shut up.

Anonymous Coward says:

Re: Re:

Anyone relying on this decision as a get-out-of-judgment-free card is on pretty thin ice

That’s… not what the decision said. The decision said that copyright holders still had free rein to go after infringement that occurred. And this decision came from one of the most copyright-friendly judges ever.

Literally the only people this negatively affects are copyright trolls who try to use unregistered copyrights to sue grandmothers, so the fact that these are the people you chose to sing the defense of is… telling. Unsurprising, but very, very telling.

You can blame your copyright enforcers for sounding the alert to Justice Ginsburg and derailing your own gravy train. Nice job fucking it up for yourselves, genius!

Anonymous Anonymous Coward (profile) says:

Re: Re: Re:

"And this decision came from one of the most copyright-friendly judges ever."

It was a unanimous decision, so…

You can blame your copyright enforcers for sounding the alert to Justice Ginsburg and derailing your own gravy train."

Did they speak to the rest of the court as well?

Techdirt’s position has always been that infringement is not a good thing, but that in light of overreach by, not creators, but by legacy copyright holders, understandable. The difference between taking a copy of a file, and trying to sell the copy of that file is a big one. The legacy industry tries to obfuscate that difference, and that might just be illegal. That concept was not covered in this decision.

Anonymous Coward says:

Re: Re: Re:

I don’t have unregistered copyrights so you’re really inaccurate.

Also another anonymous mouth, maybe a sockpuppet for one of the criminals or just one of their pawns. Doesn’t matter much.

Those who need to be taken down and haven’t been yet will be soon enough.

Anyone who thinks someone can take a "beating" in the comments section is a joke. Try being arrested or worse (legally).

Anonymous Coward says:

Re: Re: Re: Re:

I don’t have unregistered copyrights so you’re really inaccurate.

Then the decision doesn’t affect you adversely, you triggered little snowflake. Why all the anger over something that literally doesn’t penalize you in any meaningful way?

The only reason you could have is because it does affect you, and the only reason why that would be the case is because you profit from the enforcement of unregistered copyrights.

Those who need to be taken down and haven’t been yet will be soon enough.

Oh, I’m not worried that Malibu Media will eventually get their comeuppance.

Anonymous Coward says:

Re: Re: Re:2 Re:

I actually want him to sue.

We’d be able to put a face and name to the 4chan poster who thinks he’s such an accomplisher being all hipster and edgy and counterculture.

I’d finally know what creative works to actively avoid.

And I want to see a judge laugh him out of court for trying to sue an international collection of readers and commenters because his panties got twisted one too many times.

ysth (profile) says:


If application alone sufficed to “ma[ke]” registration, §411(a)’s second sentence—allowing suit upon refusal of registration—would be superfluous.

But in Oracle vs Rimini St, also unanimous, Justice Kavanaugh just wrote "redundancy is not a silver bullet" in response to Oracle’s claims that "full costs" must be meant to include costs other than the types enumerated in the law.

So which is it? I agree wholeheartedly with both rulings, but is this just a "I know it when I see it" kind of distinction?

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