throbber

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` OCTOBER TERM, 2018
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`Syllabus
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` NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
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` The syllabus constitutes no part of the opinion of the Court but has been
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` prepared by the Reporter of Decisions for the convenience of the reader.
` See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
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` SUPREME COURT OF THE UNITED STATES
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` Syllabus
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` FOURTH ESTATE PUBLIC BENEFIT CORP. v. WALL-
` STREET.COM, LLC, ET AL.
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` CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
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`THE ELEVENTH CIRCUIT
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`No. 17–571. Argued January 8, 2019—Decided March 4, 2019
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`Petitioner Fourth Estate Public Benefit Corporation (Fourth Estate), a
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`news organization, licensed works to respondent Wall-Street.com,
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`LLC (Wall-Street), a news website. Fourth Estate sued Wall-Street
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`and its owner for copyright infringement of news articles that Wall-
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`Street failed to remove from its website after canceling the parties’ li-
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`cense agreement. Fourth Estate had filed applications to register the
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`articles with the Copyright Office, but the Register of Copyrights had
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`not acted on those applications. Title 17 U. S. C. §411(a) states that
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`“no civil action for infringement of the copyright in any United States
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`work shall be instituted until . . . registration of the copyright claim
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`has been made in accordance with this title.” The District Court
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`dismissed the complaint, and the Eleventh Circuit affirmed, holding
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`that “registration . . . has [not] been made” under §411(a) until the
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`Copyright Office registers a copyright.
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`Held: Registration occurs, and a copyright claimant may commence an
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`infringement suit, when the Copyright Office registers a copyright.
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`Upon registration of the copyright, however, a copyright owner can
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`recover for infringement that occurred both before and after registra-
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`tion. Pp. 3–12.
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`(a) Under the Copyright Act of 1976, as amended, a copyright au-
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`thor gains “exclusive rights” in her work immediately upon the
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`work’s creation. 17 U. S. C. §106. A copyright owner may institute a
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`civil action for infringement of those exclusive rights, §501(b), but
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`generally only after complying with §411(a)’s requirement that “reg-
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`istration . . . has been made.” Registration is thus akin to an admin-
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`istrative exhaustion requirement that the owner must satisfy before
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`suing to enforce ownership rights. P. 3.
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` 2
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` FOURTH ESTATE PUB. BENEFIT CORP. v.
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` WALL-STREET.COM, LLC
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` Syllabus
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`(b) In limited circumstances, copyright owners may file an in-
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`fringement suit before undertaking registration. For example, a copy-
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`right owner who is preparing to distribute a work of a type vulnera-
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`ble to predistribution infringement—e.g., a movie or musical
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`composition—may apply to the Copyright Office for preregistration.
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`§408(f)(2). A copyright owner may also sue for infringement of a live
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`broadcast before “registration . . . has been made.” §411(c). Outside
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`of statutory exceptions not applicable here, however, §411(a) bars a
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`copyright owner from suing for infringement until “registration . . .
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`has been made.” Fourth Estate advances the “application approach”
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`to this provision, arguing that registration occurs when a copyright
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`owner submits a proper application for registration. Wall-Street ad-
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`vocates the “registration approach,” urging that registration occurs
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`only when the Copyright Office grants registration of a copyright.
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`The registration approach reflects the only satisfactory reading of
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`§411(a)’s text. Pp. 3–12.
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`(1) Read together, §411(a)’s first two sentences focus on action by
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`the Copyright Office—namely, its registration or refusal to register a
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`copyright claim. If application alone sufficed to “ma[ke]” registration,
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`§411(a)’s second sentence—which permits a copyright claimant to file
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`suit when the Register has refused her application—would be super-
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`fluous. Similarly, §411(a)’s third sentence—which allows the Regis-
`ter to “become a party to the action with respect to the issue of regis-
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`the copyright claim”—would be negated
`trability of
`if an
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`infringement suit could be filed and resolved before the Register act-
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`ed on an application. The registration approach reading of §411(a) is
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`supported by other provisions of the Copyright Act. In particular,
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`§410 confirms that application is discrete from, and precedes, regis-
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`tration, while §408(f)’s preregistration option would have little utility
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`if a completed application sufficed to make registration. Pp. 4–7.
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`(2) Fourth Estate primarily contends that the Copyright Act uses
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`the phrases “make registration” and “registration has been made” to
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`describe submissions by the copyright owner. Fourth Estate there-
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`fore insists that §411(a)’s requirement that “registration . . . has been
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`made in accordance with this title” most likely refers to a copyright
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`owner’s compliance with statutory requirements for registration ap-
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`plications. Fourth Estate points to other Copyright Act provisions
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`that appear to use the phrase “make registration” or one of its vari-
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`ants to describe what a copyright claimant does. Fourth Estate
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`acknowledges, however, that determining how the Copyright Act uses
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`the word “registration” in a particular provision requires examining
`the “specific context” in which the term is used. The “specific con-
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`text” of §411(a) permits only one sensible reading: The phrase “regis-
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`tration . . . has been made” refers to the Copyright Office’s act grant-
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` Cite as: 586 U. S. ____ (2019)
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`ing registration, not to the copyright claimant’s request for registra-
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`tion.
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`Fourth Estate’s contrary reading stems in part from its misappre-
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`hension of the significance of certain 1976 revisions to the Copyright
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`Act. But in enacting §411(a), Congress both reaffirmed the general
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`rule that registration must precede an infringement suit and added
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`an exception in that provision’s second sentence to cover instances in
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`which registration is refused. That exception would have no work to
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`do if Congress intended the 1976 revisions to clarify that a copyright
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`claimant may sue immediately upon applying for registration. Note-
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`worthy, too, in years following the 1976 revisions, Congress resisted
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`efforts to eliminate §411(a), which contains the registration require-
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`ment.
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`Fourth Estate also argues that, because “registration is not a con-
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`dition of copyright protection,” §408(a), §411(a) should not bar a copy-
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`right claimant from enforcing that protection in court once she has
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`applied for registration. But the Copyright Act safeguards copyright
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`owners by vesting them with exclusive rights upon creation of their
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`works and prohibiting infringement from that point forward. To re-
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`cover for such infringement, copyright owners must simply apply for
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`registration and await the Register’s decision. Further, Congress has
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`authorized preregistration infringement suits with respect to works
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`vulnerable to predistribution infringement, and Fourth Estate’s fear
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`that a copyright owner might lose the ability to enforce her rights en-
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`tirely is overstated. True, registration processing times have in-
`creased from one to two weeks in 1956 to many months today. De-
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`lays, in large part, are the result of Copyright Office staffing and
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`budgetary shortages that Congress can alleviate, but courts cannot
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`cure. Unfortunate as the current administrative lag may be, that
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`factor does not allow this Court to revise §411(a)’s congressionally
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`composed text. Pp. 7–12.
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`856 F. 3d 1338, affirmed.
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` GINSBURG, J., delivered the opinion for a unanimous Court.
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` Cite as: 586 U. S. ____ (2019)
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`Opinion of the Court
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`1
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` NOTICE: This opinion is subject to formal revision before publication in the
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` preliminary print of the United States Reports. Readers are requested to
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` notify the Reporter of Decisions, Supreme Court of the United States, Wash-
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` ington, D. C. 20543, of any typographical or other formal errors, in order
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` that corrections may be made before the preliminary print goes to press.
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`SUPREME COURT OF THE UNITED STATES
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`_________________
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` No. 17–571
`_________________
`FOURTH ESTATE PUBLIC BENEFIT CORPORATION,
`PETITIONER v. WALL-STREET.COM, LLC, ET AL.
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`ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
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`APPEALS FOR THE ELEVENTH CIRCUIT
`[March 4, 2019]
`JUSTICE GINSBURG delivered the opinion of the Court.
`Impelling prompt registration of copyright claims, 17
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`U. S. C. §411(a) states that “no civil action for infringe-
`ment of the copyright in any United States work shall be
`instituted until . . . registration of the copyright claim has
`been made in accordance with this title.” The question
`this case presents: Has “registration . . . been made in
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`accordance with [Title 17]” as soon as the claimant deliv-
`ers the required application, copies of the work, and fee to
`the Copyright Office; or has “registration . . . been made”
`only after the Copyright Office reviews and registers the
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`copyright? We hold, in accord with the United States
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`Court of Appeals for the Eleventh Circuit, that registra-
`tion occurs, and a copyright claimant may commence an
`infringement suit, when the Copyright Office registers a
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`copyright. Upon registration of the copyright, however, a
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`copyright owner can recover for infringement that oc-
`curred both before and after registration.
`Petitioner Fourth Estate Public Benefit Corporation
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`(Fourth Estate) is a news organization producing online
`journalism. Fourth Estate licensed journalism works to
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`2
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`FOURTH ESTATE PUB. BENEFIT CORP. v.
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`WALL-STREET.COM, LLC
`Opinion of the Court
`respondent Wall-Street.com, LLC (Wall-Street), a news
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`website. The license agreement required Wall-Street to
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`remove from its website all content produced by Fourth
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`Estate before canceling the agreement. Wall-Street can-
`celed, but continued to display articles produced by Fourth
`Estate. Fourth Estate sued Wall-Street and its owner,
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`Jerrold Burden, for copyright infringement. The com-
`plaint alleged that Fourth Estate had filed “applications to
`register [the] articles [licensed to Wall-Street] with the
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`Register of Copyrights.” App. to Pet. for Cert. 18a.1
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`Because the Register had not yet acted on Fourth Estate’s
`applications,2 the District Court, on Wall-Street and Bur-
`den’s motion, dismissed the complaint, and the Eleventh
`Circuit affirmed. 856 F. 3d 1338 (2017). Thereafter, the
`Register of Copyrights refused registration of the articles
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`Wall-Street had allegedly infringed.3
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`We granted Fourth Estate’s petition for certiorari to
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`resolve a division among U. S. Courts of Appeals on
`when registration occurs in accordance with §411(a). 585
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`U. S. ___ (2018). Compare, e.g., 856 F. 3d, at 1341 (case
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`below) (registration has been made under §411(a) when
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`the Register of Copyrights registers a copyright), with,
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`e.g., Cosmetic Ideas, Inc. v. IAC/Interactivecorp, 606 F. 3d
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`612, 621 (CA9 2010) (registration has been made under
`§411(a) when the copyright claimant’s “complete applica-
`tion” for registration is received by the Copyright Office).
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`——————
` 1The Register of Copyrights is the “director of the Copyright Office of
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`the Library of Congress” and is appointed by the Librarian of Congress.
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`17 U. S. C. §701(a). The Copyright Act delegates to the Register “[a]ll
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` administrative functions and duties under [Title 17].” Ibid.
`2Consideration of Fourth Estate’s filings was initially delayed be-
`cause the check Fourth Estate sent in payment of the filing fee was
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` rejected by Fourth Estate’s bank as uncollectible. App. to Brief for
`United States as Amicus Curiae 1a.
`3The merits of the Copyright Office’s decision refusing registration
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`are not at issue in this Court.
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`3
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` Cite as: 586 U. S. ____ (2019)
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`Opinion of the Court
`I
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`Under the Copyright Act of 1976, as amended, copyright
`protection attaches to “original works of authorship”—
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`prominent among them, literary, musical, and dramatic
`works—“fixed in any tangible medium of expression.” 17
`U. S. C. §102(a). An author gains “exclusive rights” in her
`work immediately upon the work’s creation, including
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`rights of reproduction, distribution, and display. See §106;
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`Eldred v. Ashcroft, 537 U. S. 186, 195 (2003) (“[F]ederal
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`copyright protection . . . run[s] from the work’s creation.”).
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`The Copyright Act entitles a copyright owner to institute a
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`civil action for infringement of those exclusive rights.
`§501(b).
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`Before pursuing an infringement claim in court, how-
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`ever, a copyright claimant generally must comply with
`§411(a)’s requirement that “registration of the copyright
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`claim has been made.” §411(a). Therefore, although an
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`owner’s rights exist apart from registration, see §408(a),
`registration is akin to an administrative exhaustion re-
`quirement that the owner must satisfy before suing to
`enforce ownership rights, see Tr. of Oral Arg. 35.
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`In limited circumstances, copyright owners may file an
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`infringement suit before undertaking registration. If a
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`copyright owner is preparing to distribute a work of a type
`vulnerable to predistribution infringement—notably, a
`movie or musical composition—the owner may apply for
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`preregistration. §408(f)(2); 37 CFR §202.16(b)(1) (2018).
`The Copyright Office will “conduct a limited review” of the
`application and notify the claimant “[u]pon completion of
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`the preregistration.” §202.16(c)(7), (c)(10). Once “prereg-
`istration . . . has been made,” the copyright claimant may
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`institute a suit for infringement. 17 U. S. C. §411(a).
`Preregistration, however, serves only as “a preliminary
`step prior to a full registration.” Preregistration of Cer-
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`tain Unpublished Copyright Claims, 70 Fed. Reg. 42286
`(2005). An infringement suit brought in reliance on pre-
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`4
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`FOURTH ESTATE PUB. BENEFIT CORP. v.
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`WALL-STREET.COM, LLC
`Opinion of the Court
`registration risks dismissal unless the copyright owner
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`applies for registration promptly after the preregistered
`work’s publication or infringement.
`§408(f)(3)–(4). A
`copyright owner may also sue for infringement of a live
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`broadcast before “registration . . . has been made,” but
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`faces dismissal of her suit if she fails to “make registration
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`for the work” within three months of its first transmission.
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`§411(c). Even in these exceptional scenarios, then, the
`copyright owner must eventually pursue registration in
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`order to maintain a suit for infringement.
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`II
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`All parties agree that, outside of statutory exceptions
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`not applicable here, §411(a) bars a copyright owner from
`suing for infringement until “registration . . . has been
`made.” Fourth Estate and Wall-Street dispute, however,
`whether “registration . . . has been made” under §411(a)
`when a copyright owner submits the application, materi-
`als, and fee required for registration, or only when the
`Copyright Office grants registration. Fourth Estate ad-
`vances the former view—the “application approach”—
`while Wall-Street urges the latter reading—the “registra-
`tion approach.” The registration approach, we conclude,
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`reflects the only satisfactory reading of §411(a)’s text. We
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`therefore reject Fourth Estate’s application approach.
`A
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`Under §411(a), “registration . . . has been made,” and a
`copyright owner may sue for infringement, when the
`Copyright Office registers a copyright.4 Section 411(a)’s
`——————
` 4Section 411(a) provides, in principal part: “[N]o civil action for in-
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`fringement of the copyright in any United States work shall be insti-
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`tuted 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 deliv-
` ered to the Copyright Office in proper form and registration has been
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`refused, the applicant is entitled to institute a civil action for infringe-
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`5
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`Cite as: 586 U. S. ____ (2019)
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`Opinion of the Court
`first sentence provides that no civil infringement action
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`“shall be instituted until preregistration or registration of
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`the copyright claim has been made.” The section’s next
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`sentence sets out an exception to this rule: When the
`required “deposit, application, and fee . . . have been deliv-
`ered to the Copyright Office in proper form and registra-
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`tion has been refused,” the claimant “[may] institute a
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`civil action, if notice thereof . . . is served on the Register.”
`Read together, §411(a)’s opening sentences focus not on
`the claimant’s act of applying for registration, but on
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`action by the Copyright Office—namely, its registration or
`refusal to register a copyright claim.
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`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
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`infringement immediately after applying for registration
`without awaiting the Register’s decision on her applica-
`tion? Proponents of the application approach urge that
`§411(a)’s second sentence serves merely to require a copy-
`right claimant to serve “notice [of an infringement suit]
`. . . on the Register.” See Brief for Petitioner 29–32. This
`reading, however, requires the implausible assumption
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`that Congress gave “registration” different meanings in
`consecutive, related sentences within a single statutory
`provision. In §411(a)’s first sentence, “registration” would
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`mean the claimant’s act of filing an application, while in
`the section’s second sentence, “registration” would entail
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`the Register’s review of an application. We resist this
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`improbable construction. See, e.g., Mid-Con Freight Sys-
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`tems, Inc. v. Michigan Pub. Serv. Comm’n, 545 U. S. 440,
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`——————
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` ment if notice thereof, with a copy of the complaint, is served on the
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` Register of Copyrights. The Register may, at his or her option, become
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` a party to the action with respect to the issue of registrability of the
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` copyright claim . . . .”
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`

`

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` FOURTH ESTATE PUB. BENEFIT CORP. v.
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` WALL-STREET.COM, LLC
`Opinion of the Court
`448 (2005) (declining to read “the same words” in con-
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`secutive sentences as “refer[ring] to something totally
`different”).
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`The third and final sentence of §411(a) further per-
`suades us that the provision requires action by the Regis-
`ter before a copyright claimant may sue for infringement.
`The sentence allows the Register to “become a party to the
`action with respect to the issue of registrability of the
`copyright claim.” This allowance would be negated, and
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`the court conducting an infringement suit would lack the
`benefit of the Register’s assessment, if an infringement
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`suit could be filed and resolved before the Register acted
`on an application.
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`Other provisions of the Copyright Act support our read-
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`ing of “registration,” as used in §411(a), to mean action by
`the Register. Section 410 states that, “after examination,”
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`if the Register determines that “the material deposited
`constitutes copyrightable subject matter” and “other legal
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`and formal requirements . . . [are] met, the Register shall
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`register the claim and issue to the applicant a certificate of
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`registration.” §410(a). But if the Register determines that
`the deposited material “does not constitute copyrightable
`subject matter or that the claim is invalid for any other
`reason, the Register shall refuse registration.” §410(b).
`Section 410 thus confirms that application is discrete
`from, and precedes, registration. Section 410(d), further-
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`more, provides that if the Copyright Office registers a
`claim, or if a court later determines that a refused claim
`was registrable, the “effective date of [the work’s] copy-
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`right registration is the day on which” the copyright owner
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`made a proper submission to the Copyright Office. There
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`would be no need thus to specify the “effective date of a
`copyright registration” if submission of the required mate-
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`rials qualified as “registration.”
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`Section 408(f)’s preregistration option, too, would have
`little utility if a completed application constituted regis-
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`6
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`7
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` Cite as: 586 U. S. ____ (2019)
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`Opinion of the Court
`tration. Preregistration, as noted supra, at 3–4, allows the
`author of a work vulnerable to predistribution infringe-
`ment to enforce her exclusive rights in court before obtain-
`ing registration or refusal thereof. A copyright owner who
`fears prepublication infringement would have no reason to
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`apply for preregistration, however, if she could instead
`simply complete an application for registration and imme-
`diately commence an infringement suit. Cf. TRW Inc. v.
`Andrews, 534 U. S. 19, 29 (2001) (rejecting an interpreta-
`tion that “would in practical effect render [a provision]
`superfluous in all but the most unusual circumstances”).
`B
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`Challenging the Eleventh Circuit’s judgment, Fourth
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`Estate primarily contends that the Copyright Act uses
`“the phrase ‘make registration’ and its passive-voice coun-
`terpart ‘registration has been made’” to describe submis-
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`sions by the copyright owner, rather than Copyright Office
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`responses to those submissions. Brief for Petitioner 21.
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`Section 411(a)’s requirement that “registration . . . has
`
`been made in accordance with this title,” Fourth Estate
`insists, most likely refers to a copyright owner’s compli-
`ance with the statutory specifications for registration
`applications. In support, Fourth Estate points to Copy-
`
`right Act provisions that appear to use the phrase “make
`
`registration” or one of its variants to describe what a
`copyright claimant does. See id., at 22–26 (citing 17
`U. S. C. §§110, 205(c), 408(c)(3), 411(c), 412(2)). Further-
`more, Fourth Estate urges that its reading reflects the
`reality that, eventually, the vast majority of applications
`are granted. See Brief for Petitioner 41.
`
`Fourth Estate acknowledges, however, that the Copy-
`
`right Act sometimes uses “registration” to refer to activity
`by the Copyright Office, not activity undertaken by a
`
`copyright claimant. See id., at 27–28 (citing 17 U. S. C.
`§708(a)). Fourth Estate thus agrees that, to determine
`
`
`
`
`
`
`
`

`

`8
`
`
`
`
` FOURTH ESTATE PUB. BENEFIT CORP. v.
`
` WALL-STREET.COM, LLC
`Opinion of the Court
`how the statute uses the word “registration” in a particu-
`
`
`lar prescription, one must “look to the specific context” in
`which the term is used. Brief for Petitioner 29. As ex-
`
`plained supra, at 4–7, the “specific context” of §411(a)
`permits only one sensible reading: The phrase “registra-
`
`tion . . . has been made” refers to the Copyright Office’s act
`
`granting registration, not to the copyright claimant’s
`request for registration.
`
`Fourth Estate’s contrary reading of §411(a) stems in
`part from its misapprehension of the significance of cer-
`tain 1976 revisions to the Copyright Act. Before that year,
`§411(a)’s precursor provided that “[n]o action or proceed-
`ing shall be maintained for infringement of copyright in
`
`any work until the provisions of this title with respect to
`
`the deposit of copies and registration of such work shall
`
`have been complied with.” 17 U. S. C. §13 (1970 ed.).
`Fourth Estate urges that this provision posed the very
`
`question we resolve today—namely, whether a claimant’s
`
`application alone effects registration. The Second Circuit
`
`addressed that question, Fourth Estate observes, in
`
`Vacheron & Constantin-Le Coultre Watches, Inc. v. Benrus
`
`
`Watch Co., 260 F. 2d 637 (1958). Brief for Petitioner 32–
`34. In that case, in an opinion by Judge Learned Hand,
`
`the court held that a copyright owner who completed an
`application could not sue for infringement immediately
`upon the Copyright Office’s refusal to register. Vacheron,
`260 F. 3d, at 640–641. Instead, the owner first had to
`
`obtain a registration certificate by bringing a mandamus
`
`action against the Register. The Second Circuit dissenter
`
`would have treated the owner’s application as sufficient to
`
`permit commencement of an action for infringement. Id.,
`at 645.
`
`Fourth Estate sees Congress’ 1976 revision of the regis-
`tration requirement as an endorsement of the Vacheron
`
`dissenter’s position. Brief for Petitioner 34–36. We dis-
`agree. The changes made in 1976 instead indicate Con-
`
`
`
`

`

`9
`
`
`
`
`
`
`
` Cite as: 586 U. S. ____ (2019)
`
`Opinion of the Court
`
`gress’ agreement with Judge Hand that it is the Register’s
`
`
` action that triggers a copyright owner’s entitlement to sue.
`In enacting 17 U. S. C. §411(a), Congress both reaffirmed
`the general rule that registration must precede an in-
`fringement suit, and added an exception in that provi-
`sion’s second sentence to cover instances in which regis-
`tration is refused. See H. R. Rep. No. 94‒1476, p. 157
`
`(1976). That exception would have no work to do if, as
`
`Fourth Estate urges, Congress intended the 1976 revisions
`to clarify that a copyright claimant may sue immediately
`upon applying for registration. A copyright claimant
`
`would need no statutory authorization to sue after refusal
`
`of her application if she could institute suit as soon as she
`has filed the application.
`Noteworthy, too, in years following the 1976 revisions,
`
`
`Congress resisted efforts to eliminate §411(a) and the
`registration requirement embedded in it. In 1988, Con-
`gress removed foreign works from §411(a)’s dominion in
`order to comply with the Berne Convention for the Protec-
`tion of Literary and Artistic Works’ bar on copyright for-
`malities for such works. See §9(b)(1), 102 Stat. 2859.
`Despite proposals to repeal §411(a)’s registration require-
`
`ment entirely, however, see S. Rep. No. 100‒352, p. 36
`(1988), Congress maintained the requirement for domestic
`works, see §411(a). Subsequently, in 1993, Congress
`considered, but declined to adopt, a proposal to allow suit
`immediately upon submission of a registration application.
`See H. R. Rep. No. 103–338, p. 4 (1993). And in 2005,
`Congress made a preregistration option available for
`works vulnerable to predistribution infringement. See
`Artists’ Rights and Theft Prevention Act of 2005, §104,
`
`
`119 Stat. 221. See also supra, at 3–4. Congress chose that
`course in face of calls to eliminate registration in cases of
`
`
`predistribution infringement. 70 Fed. Reg. 42286. Time
`
`and again, then, Congress has maintained registration as
`prerequisite to suit, and rejected proposals that would
`
`
`
`
`
`

`

`
`
`10
`
`
`
`FOURTH ESTATE PUB. BENEFIT CORP. v.
`
`WALL-STREET.COM, LLC
`Opinion of the Court
`have eliminated registration or tied it to the copyright
`
` claimant’s application instead of the Register’s action.5
`Fourth Estate additionally argues that, as “registration
`
`
`is not a condition of copyright protection,” 17 U. S. C.
`§408(a), §411(a) should not be read to bar a copyright
`claimant from enforcing that protection in court once she
`
`has submitted a proper application for registration. Brief
`
`for Petitioner 37. But as explained supra, at 3, the Copy-
`
`right Act safeguards copyright owners, irrespective of
`registration, by vesting them with exclusive rights upon
`
`creation of their works and prohibiting infringement from
`that point forward. If infringement occurs before a copy-
`right owner applies for registration, that owner may even-
`tually 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 contin-
`ued violation of her exclusive rights and an order requir-
`ing the infringer to destroy infringing materials. §§502,
`
`503(b).
`Fourth Estate maintains, however, that if infringement
`
`
`occurs while the Copyright Office is reviewing a registra-
`tion application, the registration approach will deprive the
`
`owner of her rights during the waiting period. Brief for
`Petitioner 41. See also 1 P. Goldstein, Copyright §3.15,
`
`
`
`——————
` 5Fourth Estate asserts that, if a copyright owner encounters a
`
`
`lengthy delay in the Copyright Office, she may be forced to file a
`mandamus action to compel the Register to rule on her application, the
`very problem exposed in Vacheron & Constantin-Le Coultre Watches,
`
`Inc. v. Benrus Watch Co., 260 F. 2d 637 (CA2 1958), see supra, at 8.
`But Congress’ answer to Vacheron, codified in §411(a)’s second sen-
`
`tence, was to permit an infringement suit upon refusal of registration,
`not to eliminate Copyright Office action as the trigger for an infringe-
`ment suit.
`
`
`
`

`

`
`
`
`
`
`
`
`11
`
`
`Cite as: 586 U. S. ____ (2019)
`
`Opinion of the Court
`p. 3:154.2 (3d ed. 2018 Supp.) (finding application ap-
`
`proach “the better rule”); 2 M. Nimmer & D. Nimmer,
`Copyright §7.16[B][3][a], [b][ii] (2018) (infringement suit is
`conditioned on application, while prima facie presumption
`of validity depends on certificate of registration). The
`Copyright Act’s explicit carveouts from §411(a)’s general
`registration rule, however, show that Congress adverted to
`this concern. In the preregistration option, §408(f), Con-
`gress provided that owners of works especially susceptible
`to prepublication infringement should be allowed to insti-
`tute suit before the Register has granted or refused regis-
`tration. See §411(a). Congress made the same determina-
`
` tion as to live broadcasts. §411(c); see supra, at 4.6 As to
`
`all other works, however, §411(a)’s general rule requires
`owners to await action by the Register before filing suit for
`infringement.
`
`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. See U. S. Copyright
`
`
`
`Office, Registration Processing Times (Oct. 2, 2018) (Regis-
`
`tration Processing Times), https://www.copyright.gov/
`registration/docs/processing-times-faqs.pdf (as last visited
`——————
`6Further, in addition to the Act’s provisions for preregistration suit,
`
`
`the Copyright Office allows copyright claimants to seek expedited
`
`
`processing of a claim for an additional $800 fee. See U. S. Copyright
`Office, Special Handling: Circular No. 10, pp. 1–2 (2017). The Copy-
`
`right Office grants requests for special handling in situations involving,
`
`inter alia, “[p]ending or prospective litigation,” and “make[s] every
`
`attempt to examine the application . . . within five working days.”
`
`Compendium of U. S. Copyright Practices §623.2, 623.4 (3d ed. 2017).
`
`
`
`
`
`

`

`12
`
`
`
`
` FOURTH ESTATE PUB. BENEFIT CORP. v.
`
` WALL-STREET.COM, LLC
`Opinion of the Court
`
`Mar. 1, 2019).
`
`
`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 C

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