`
`
`
`No. 17-571
`
`
`IN THE
`Supreme Court of the United States
`
`FOURTH ESTATE PUBLIC BENEFIT CORPORATION,
`Petitioner,
`
`
`
`v.
`
`WALL-STREET.COM, LLC AND JERROLD D. BURDEN,
`
`Respondents.
`
`
`On Writ of Certiorari to the
`United States Court of Appeals for the Eleventh
`Circuit
`
`
`BRIEF OF AUTHORS GUILD AND OTHER ARTISTS’
`RIGHTS ORGANIZATIONS AS AMICI CURIAE
`IN SUPPORT OF PETITIONER
`
`MARY E. RASENBERGER
`CHERYL L. DAVIS
`AUTHORS GUILD
`31 East 32nd Street
`New York, N.Y. 10016
`(212) 563-5904
`
`
`
`
`September 4, 2018
`
`
`ELEANOR M. LACKMAN
`Counsel of Record
`LINDSAY W. BOWEN
`LINDSAY R. EDELSTEIN
`COWAN DEBAETS ABRAHAMS
`& SHEPPARD LLP
`41 Madison Avenue,
`38th Floor
`New York, N.Y. 10010
`(212) 974-7474
`
`elackman@cdas.com
`
`
`
`
`
`
`
`
`
`
`
`TABLE OF CONTENTS
`
`Page
`
`TABLE OF AUTHORITIES ..................................... iii
`
`INTEREST OF AMICI CURIAE ................................1
`
`SUMMARY OF ARGUMENT .....................................3
`
`ARGUMENT ...............................................................5
`
`I. THE COURT SHOULD CONSTRUE THE
`STATUTE IN ACCORDANCE WITH THE
`PURPOSES OF THE COPYRIGHT ACT
`AND THE ACT’S PLAIN TEXT ...........................5
`
`A. Authors Depend on Copyright for
`Their Livelihood and to Protect Their
`Constitutional Rights ...................................5
`
`B. Plain-Text Reading of the Copyright
`Act Supports
`the Position
`that
`Authors, not the Copyright Office,
`Must Act to Register Works Before
`Suit .............................................................. 11
`
`II. ADOPTING THE ELEVENTH CIRCUIT
`RULE WILL CAUSE SIGNIFICANT
`ECONOMIC HARDSHIP ON AND LOSS
`OF RIGHTS FOR AUTHORS ............................ 15
`
`A. The Copyright Office Admits There
`Are Impediments to an Author’s
`Ability
`to
`Timely Obtain
`a
`Registration Certificate .............................. 17
`
`
`
`
`
`
`
`
`
`
`ii
`
`
`
`the
`Losing
`Risk
`B. Authors
`to
`Deterrents
`Indispensable
`Infringements: Statutory Damages
`and Attorneys’ Fees .................................... 21
`
`C. The Statute of Limitations and
`Copyright Office Processing Times
`Could Create a Risk of Authors
`Losing
`the Right
`to Enforce
`Copyright Rights Completely..................... 24
`
`D.
`
`Be
`Could
`Relief
`Injunctive
`Unavailable During the Most Crucial
`Period of Publication .................................. 24
`
`III. WAITING ON ACTION FROM THE
`COPYRIGHT
`OFFICE
`IS
`NOT
`JUDICIALLY EFFICIENT ................................ 27
`
`CONCLUSION .......................................................... 29
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`iii
`
`
`
`Cases
`
`TABLE OF AUTHORITIES
`
`Page(s)
`
`A & M Records Inc. v. Napster, Inc.,
`239 F. 3d 1004 (9th Cir. 2001) ...............................9
`
`Agence France Presse v. Morel,
`No. 10 Civ. 2730 (AJN), 2014 WL
`3963124 (S.D.N.Y. Aug. 13, 2014) ................. 14, 15
`
`Am. Broad. Cos., Inc. v. AEREO, Inc.,
`874 F. Supp. 2d 373 (S.D.N.Y. 2012) .................. 25
`
`Apple Barrel Prods., Inc. v. Beard,
`730 F.2d 384 (5th Cir. 1984) ................................ 28
`
`Arista Records, LLC v. Tkach,
`122 F. Supp. 3d 32 (S.D.N.Y. 2015) .................... 26
`
`Broad. Music, Inc. v. Prana Hosp., Inc.,
`158 F. Supp. 3d 184 (S.D.N.Y. 2016) .................. 23
`
`Broad. Music, Inc. v. R Bar of Manhattan,
`Inc.,
`919 F. Supp. 656 (S.D.N.Y. 1996) ....................... 23
`
`Bryant v. Media Right Prods.,
`603 F.3d 135 (2d Cir. 2010) ................................. 21
`
`Cosmetic Ideas, Inc. v.
`IAC/Interactivecorp.,
`606 F.3d 612 (9th Cir. 2010) .................... 24, 27, 28
`
`Eldred v. Ashcroft,
`537 U.S. 186 (2003) .......................................... 6, 13
`
`
`
`
`
`
`
`
`
`
`iv
`
`
`
`F.W. Woolworth Co. v. Contemporary Arts,
`344 U.S. 228 (1952) .................................. 21, 22, 23
`
`Feltner v. Columbia Pictures Television,
`Inc.,
`523 U.S. 340 (1998) .............................................. 21
`
`Fourth Estate Pub. Benefit Corp. v. Wall-
`Street.com, LLC,
`138 S. Ct. 2707 (2018) .................................... 19, 20
`
`Getty Images (US), Inc. v. Virtual Clinics,
`No. C13-0626 (JLR), 2014 WL 1116775
`(W.D. Wash. Mar. 20, 2014) ................................ 26
`
`Golan v. Holder,
`565 U.S. 302 (2012) .............................................. 13
`
`Gonzales v. Transfer Techs., Inc.,
`301 F.3d 608 (7th Cir. 2002) ................................ 23
`
`Harper & Row Publishers, Inc. v. Nation
`Enters.,
`471 U.S. 539 (1985) ................................................6
`
`Hounddog Prods., L.L.C. v. Empire Film
`Grp., Inc.,
`826 F. Supp. 2d 619 (S.D.N.Y. 2011) .................. 26
`
`Iconbazaar, L.L.C. v. Am. Online, Inc.,
`308 F. Supp. 2d 630 (M.D.N.C. 2004) ................. 28
`
`International Kitchen Exhaust Cleaning
`Ass’n. v. Power Washers of N. Am.,
`81 F. Supp. 2d 70 (D.D.C. 2000) .......................... 16
`
`
`
`
`
`
`
`
`
`
` v
`
`
`
`
`
`Kernel Records Oy v. Mosley,
`694 F.3d 1294 (11th Cir. 2012) ............................ 28
`
`Kirtsaeng v. John Wiley & Sons, Inc.,
`568 U.S. 519 (2013) .............................................. 14
`
`La Resolana Architects, PA v. Clay Realtors
`Angel Fire,
`416 F.3d 1195 (10th Cir. 2005) ...................... 10, 24
`
`Loree Rodkin Mgmt. Corp. v. Ross-Simons,
`Inc.,
`315 F. Supp. 2d 1053 (C.D. Cal. 2004) ................ 16
`
`Mazer v. Stein,
`347 U.S. 201 (1954) ................................................7
`
`Metro-Goldwyn-Mayer Studios Inc. v.
`Grokster, Ltd.,
`545 U.S. 913 (2005) ............................................ 8, 9
`
`Positive Black Talk, Inc. v. Cash Money
`Records, Inc.,
`394 F.3d 357 (5th Cir. 2004) .......................... 27, 28
`
`Ryan v. Carl Corp.,
`No. 97 Civ. 3873 (FMS), 1998 WL
`320817 (N.D. Cal. June 15, 1998) ....................... 17
`
`SportsMEDIA Tech. Corp. v. Upchurch,
`839 F. Supp. 8 (D. Del. 1993) .............................. 28
`
`Tang v. Hwang,
`799 F. Supp. 499 (E.D. Pa. 1992) ........................ 28
`
`
`
`
`
`
`
`
`
`
`vi
`
`
`
`Tri-Marketing v. Mainstream Mktg. Servs.,
`Inc.,
`No. 09 Civ. 09-13 (DWF) (RLE), 2009
`WL 1408741 (D. Minn. May 19, 2009) ................ 28
`
`U.S. v. Paramount Pictures, Inc.,
`334 U.S. 131 (1948) ................................................6
`
`Warner Bros. Entm’t Inc., v. WTV Sys., Inc.,
`824 F. Supp. 2d 1003 (C.D. Cal. 2011) ................ 25
`
`Wilson v. Mr. Tee’s,
`855 F. Supp. 679 (D.N.J. 1994) ........................... 28
`
`Rules & Statutes
`
`17 U.S.C. § 408(a) .................................................. 4, 13
`
`17 U.S.C. § 410(d)...................................................... 12
`
`17 U.S.C. § 411(a) .................................................. 4, 12
`
`17 U.S.C. § 412 ........................................ 13, 14, 19, 22
`
`17 U.S.C. § 502 .................................................... 24, 25
`
`17 U.S.C. § 504 .......................................................... 21
`
`17 U.S.C. § 505 .......................................................... 21
`
`17 U.S.C. § 507 .......................................................... 24
`
`37 C.F.R. § 201.3(c) ................................................... 15
`
`37 C.F.R. § 202.16 ..................................................... 15
`
`Supreme Court Rule 37 ..............................................1
`
`
`
`
`
`
`
`
`
`
`vii
`
`
`
`Other Authorities
`
`A Section White Paper: A Call for Action
`for Online Piracy and Counterfeiting
`Legislation, 2014 A.B.A. SEC. OF
`INTELL PROP. L. .................................................... 10
`
`Annual Report of the Register of
`Copyrights (2009) ..................................... 10, 11, 28
`
`AUTHORS GUILD, The Wages of Writing:
`Key Findings from the Authors
`Guild (2015) ....................................................... 6, 7
`
`Doug Preston, Why is it so Goddamned
`Hard to Make a Living as a Writer
`Today?, AUTHORS GUILD BULLETIN
`(Spring/Summer 2017) ..........................................7
`
`GRAPHIC ARTISTS GUILD, GRAPHIC
`ARTISTS GUILD HANDBOOK: PRICING
`& ETHICAL GUIDELINES (Graphic
`Artists Guild, 15th ed. 2018) .................................7
`
`New Oxford American Dictionary (3d
`ed. 2010) ............................................................... 12
`
`Policy Decision Announcing Fee for
`Special Handling of Applications for
`Copyright Registration, 47 Fed. Reg.
`19,254 (May 4, 1982) ............................................ 19
`
`S. REP. NO. 105-190 (1998)..........................................8
`
`
`
`
`
`
`
`
`
`
`viii
`
`
`
`Targeting Websites Dedicated to
`Stealing American Intellectual
`Property: Hearing Before the S.
`Comm. on the Judiciary, 112th
`Cong. (2011) ....................................................... 8, 9
`
`U.S. Copyright Office, “Registration
`Processing Times,”
`https://www.copyright.gov/registrati
`on/docs/processingtimes-faqs.pdf .................. 11, 17
`
`William Landes and Richard Posner,
`An Economic Analysis of Copyright
`Law, 18 J. LEG. STUD. 325 (1989) ..........................8
`
`
`
`
`
`
`
`
`
`
`
`
`
`BRIEF OF AUTHORS GUILD AND OTHER
`ARTISTS’ RIGHTS ORGANIZATIONS AS
`AMICI CURIAE IN SUPPORT OF
`PETITIONER
`
`Pursuant to Rule 37 of the Supreme Court of the
`Unites States, amici curiae The Authors Guild, Inc.
`and 12
`other artists’
`rights
`organizations,
`respectfully submit this brief in support of the
`request of petitioner Fourth Estate Public Benefit
`Corporation, that the May 18, 2017 Order of the
`United States Court of Appeals for the Eleventh
`Circuit be reversed.1
`
`INTEREST OF AMICI CURIAE
`
`Founded in 1912, the Authors Guild, Inc. (the
`“Guild”) is a national non-profit association of
`approximately 10,000 professional, published writers
`of all genres
`including periodicals and other
`composite works. The Guild counts historians,
`biographers, academicians, journalists, and other
`writers of nonfiction and fiction as members. The
`Guild works to promote the rights and professional
`interests of authors in various areas, including
`
`
`1 Pursuant to Sup. Ct. R. 37.6, amici curiae state that no
`counsel for any party authored this brief in whole or in part,
`and no party or counsel for any party made a monetary
`contribution intended to fund the preparation or submission of
`this brief.
` Only amici curiae made such a monetary
`contribution.
` The Clerk has noted Petitioner’s and
`Respondents’ blanket consent to amicus curiae briefs, dated
`July 24, 2018 and July 25, 2018, respectively, on the docket.
`
`
`
`
`
`
`
`
`
`
`
`
` 2
`
`
`
`copyright, freedom of expression, and taxation.
`Many Guild members earn their livelihoods through
`their writing. Their work covers important issues in
`history, biography, science, politics, medicine,
`business, and other areas; they are
`frequent
`contributors to the most
`influential and well-
`respected publications in every field.
`
`The Guild’s members are the creators on the
`front line. They file registrations, police and enforce
`their intellectual property rights, send demand
`letters to those violating such rights – and, if all else
`fails – they seek intervention from the federal
`judiciary to enjoin
`infringers who violate the
`Copyright Act and to obtain just compensation for
`the fruits of their labor.
`
`The various artists’ rights organizations who join
`this brief support, and have an interest in the
`theory, law and practice of copyrights, property
`rights, and contracts.2 The organizations have no
`other stake in the outcome of this particular case,
`but are interested in ensuring that copyright law
`
`
`2 The organizations are American Photographic Artists,
`American Society of Media Photographers, Dramatists Guild of
`America, Graphic Artists Guild, Horror Writers Association,
`National Association of Science Writers, National Press
`Photographers Association, North American Nature
`Photography Association, Professional Photographers of
`America, Science Fiction and Fantasy Writers of America,
`Songwriters Guild of America, Inc., and Textbook & Academic
`Authors Association. Their descriptions are included in the
`Appendix to this brief.
`
`
`
`
`
`
`
`
`
`
`
`
` 3
`
`
`
`develops in a way that best promotes creativity,
`innovation and competition throughout the world.
`
`SUMMARY OF ARGUMENT
`
`As a matter of law and policy, the Court should
`interpret the Copyright Act in favor of a reading that
`supports authors (in the broad sense, including all
`creators and rightsholders). Such a reading is
`particularly important in an era where the ability to
`make a living as a creator is increasingly difficult,
`due in large part to widespread infringement,
`predominantly online, and the
`limited means
`available to curtail such infringement. As the
`incentives to create are diminished, so is society’s
`ability to realize the fundamental goal of the
`Copyright Act: to foster creation and innovation in
`writing, the arts, and countless other forms of
`expression that benefit it as a whole.
`
`While infringement has ballooned, so has the
`processing time of applications at the U.S. Copyright
`Office. It now can take up to 16 months for an online
`application and 28 months for a paper application.
`
`Under an interpretation of Section 411(a) of the
`Copyright Act that requires authors to wait to
`enforce their rights until the Copyright Office has
`fully processed the registration of the infringed
`work, the delay can have a monumental impact on
`an author’s ability to protect the fruits of her
`creative endeavors.
`
`
`
`
`
`
`
`
`
`
`
`
` 4
`
`
`
`As Petitioner argues, under a correct reading of
`the Copyright Act, Section 411(a) is satisfied upon
`the filing of a complete application for registration.
`The language of the statute itself, particularly when
`read in conjunction with other provisions in the
`same chapter of the Act, including Sections 408, 410,
`and 412, clarifies that the date a registration is
`“made” is the date on which the complete application
`(with the deposit copy and fee) are deposited with
`the Copyright Office. A reading to the contrary
`would make Section 411(a) an outlier within Chapter
`4 of the Copyright Act.
`
`Such a contrary reading would cause hardships
`to authors, effectively barring them from the
`courthouse in many cases. An author may have to
`wait for well over a year from submission to pursue
`infringing activity.
` Even where
`expedited
`registration is possible, the filing fee of $800 per
`work is prohibitively expensive for many authors –
`especially if multiple works are infringed. As a
`result, an author may have to make the choice of
`spending more to register the infringed work than
`she was paid to create it, or of waiting without
`recourse for many months while her works continue
`to be
`infringed. Further,
`the
`“registration”
`interpretation forces an interpretation of other
`sections of the Copyright Act that curtail the ability
`of infringed authors to bring suit and be made whole,
`including
`to
`recover statutory damages and
`attorneys’ fees, as well as injunctive relief.
`
`
`
`
`
`
`
`
`
`
`
`
` 5
`
`
`
`This result cannot be what Congress intended when
`it required that “registration of the copyright claim
`[be] made” prior to filing a claim for infringement.
`As a matter of law and policy, the Court should rule
`in favor of finding that Petitioner’s view is correct.
`
`ARGUMENT
`
`I. THE COURT SHOULD CONSTRUE THE
`STATUTE IN ACCORDANCE WITH THE
`PURPOSES OF THE COPYRIGHT ACT AND
`THE ACT’S PLAIN TEXT.
`
`A. Authors Depend on Copyright for Their
`Livelihood
`and
`to Protect Their
`Constitutional Rights.
`
`“Literature is my Utopia. Here I am
`not disenfranchised. No barrier of the
`senses shuts me out from the sweet,
`gracious discourses of my book friends.
`They
`talk
`to
`me
`without
`embarrassment or awkwardness.”
`
`HELEN KELLER, THE STORY OF MY
`LIFE (Dover Publications 2012)
`(1903).
`
`is a horrible,
`“Writing a book
`exhausting struggle, like a long bout of
`some painful illness.”
`
`GEORGE ORWELL, WHY I WRITE
`(Penguin Books 2015) (1946).
`
`
`
`
`
`
`
`
`
`
`
`
`
`
` 6
`
`
`
`The goal of copyright law in the United States, as
`enshrined in the Constitution, is “[t]o promote the
`Progress of Science and useful Arts.” U.S. CONST.
`art. I, § 8, cl. 8. The Copyright Act achieves this goal
`by
`creating economic
`incentives
`for authors
`(including writers, dramatists, photographers, and
`other artists, like the members of amici), to release
`the products of their creative endeavors to the
`public. See Eldred v. Ashcroft, 537 U.S. 186, 212
`n.18 (2003) (“[C]opyright law serves public ends by
`providing individuals with an incentive to pursue
`private ones.”); see also Harper & Row Publishers,
`Inc. v. Nation Enters., 471 U.S. 539, 558 (1985) (“By
`establishing a marketable right to the use of one’s
`expression,
`copyright
`supplies
`the
`economic
`incentive to create and disseminate ideas.”); U.S. v.
`Paramount Pictures, Inc., 334 U.S. 131, 158 (1948).
`
`The life of a creator is not easy. Aside from the
`deadlines, writer’s block, and constant scrutiny –
`authors face an uphill battle to make sustainable
`wages. For example, a 2015 Authors Guild study
`shows that the average income of a full-time writer
`decreased 30% from 2009 to 2015: from $25,000 a
`year, to $17,500. See THE AUTHORS GUILD, The
`Wages of Writing: Key Findings from the Authors
`Guild (2015), https://www.authorsguild.org/industry-
`advocacy/the-wages-of-writing/.
` Specifically, full-
`time writers with more than 15 years of experience
`saw a 67% drop from $28,750 a year to $9,500; part-
`time authors saw a 38% decrease in the average
`
`
`
`
`
`
`
`
`
`
`
`
` 7
`
`
`
`income, from $7,500 a year to $4,500. Id. Creators
`in other genres do not fare much better. Comparing
`salary statistics (adjusted for inflation) shows that
`salaries for illustrators have remained stagnant for
`the fifteen years from 2003 to 2018. GRAPHIC
`ARTISTS GUILD, GRAPHIC ARTISTS GUILD HANDBOOK:
`PRICING & ETHICAL GUIDELINES (Graphic Artists
`Guild, 15th ed. 2018).
`
`The stagnating and even plummeting incomes of
`creators “is not a problem. It’s not even a crisis. It’s a
`catastrophe . . . [and when a creator] can’t make a
`living and switches to working in another field, an
`entire lifetime” of works are never made.3
`
`The Founders realized that the intellectual and
`artistic labor of such creators was crucial to the
`nation, but that without the protection of legal
`remedies, there was little incentive for them to
`pursue their crafts. See Mazer v. Stein, 347 U.S.
`201, 219 (1954) (“The economic philosophy behind
`the clause empowering Congress to grant patents
`and copyrights is the conviction that encouragement
`of individual effort by personal gain is the best way
`to advance public welfare through the talents of
`authors and inventors in ‘Science and the useful
`Arts.’”).
` This
`is
`in part because
`financially
`successful creative works are often brought forth
`
`3 Doug Preston, Why is it so Goddamned Hard to Make a Living
`as a Writer Today?, AUTHORS GUILD BULLETIN (Spring/Summer
`2017), https://www.authorsguild.org/the-writing-life/why-is-it-
`so-goddamned-hard-to-make-a-living-as-a-writer-today/.
`
`
`
`
`
`
`
`
`
`
`
`
` 8
`
`
`
`only intermittently over lifetimes spent honing craft.
`For every successful creative endeavor, there are
`innumerable failures, all requiring equal hardships.
`
`While creative work comes at a high cost for
`authors, it can be stolen by copyright infringers at
`bargain prices. See Metro-Goldwyn-Mayer Studios
`Inc. v. Grokster, Ltd., 545 U.S. 913, 961 (2005)
`(“deliberate unlawful copying is no less an unlawful
`taking of property than garden-variety theft”);
`William Landes and Richard Posner, An Economic
`Analysis of Copyright Law, 18 J. LEG. STUD. 325, 326
`(1989) (“While the cost of creating a work subject to
`copyright protection – for example, a book, movie,
`song, ballet, lithograph, map, business directory, or
`computer software program – is often high . . . once
`copies are available to others, it is often inexpensive
`for these users to make additional copies.”); S. REP.
`NO. 105-190 at 8 (1998). Copyright law attempts to
`correct this imbalance by placing a heavy financial
`and legal risk on such infringers.
`
`As the former president of the Authors Guild,
`Scott Turow, has put it, copyright law has been one
`of history’s greatest public policy successes for over
`300 years, because the markets created by copyright
`laws “have for hundreds of years encouraged authors
`here and abroad to spend countless hours writing
`books that they hope readers will value and the
`marketplace will reward.”
` Targeting Websites
`Dedicated to Stealing American Intellectual Property:
`
`
`
`
`
`
`
`
`
`
`
`
` 9
`
`
`
`Hearing Before the S. Comm. on the Judiciary, 112th
`Cong. 7-9
`(2011)
`(testimony of Scott Turow,
`President of the Authors Guild).
`
`But the statutory balance has tipped away from
`authors in recent years. The sinister downside of the
`digital
`era’s
`exponential
`advancements
`in
`information distribution is that not only has the
`marginal cost of infringement come down to almost
`nothing, but the speed at which such theft can take
`place has become the mirror image of long-toiling
`author. See Grokster, 545 U.S. at 923; A & M
`Records Inc. v. Napster, Inc., 239 F. 3d 1004, 1019
`(9th Cir. 2001).
`
`For example, the combination of the proliferation
`of e-books and the speed at which print books also
`can be obtained online has sped up the market for
`new books. Many books can even be ordered prior to
`their publication date and received on
`the
`publication date. At the same time, the prevalence
`of e-books has made it easier to illegally copy books.
`Counterfeit copies can be made in the blink of an
`eye, creating a multitude of new counterfeit markets,
`which are growing every day.
`
`As another example, a photojournalist has the
`capability to transmit an image within moments of
`taking it. These images – which may document
`events
`of great national and
`international
`importance, including political campaigns, wars,
`breaking news and sports – are easily infringed.
`
`
`
`
`
`
`
`
`
`
`10
`
`
`
`Because of the enormous public appetite in the
`subject matter, within seconds of its creation, such
`an image may be downloaded and unlawfully re-
`posted many times, becoming “viral” – and virally
`infringed – in short order.
`
`This digital revolution has had a measurable
`effect not only on authors’ incomes, but also on the
`entire economy.
` It
`is estimated by various
`government and private sector experts
`that
`intellectual property theft – including U.S.-produced
`digital content such as music, film, photography, and
`books (the types of works produced by members of
`the amici) – costs the U.S. economy over $100 billion
`per year. See A Section White Paper: A Call for
`Action
`for Online Piracy and Counterfeiting
`Legislation, 2014 A.B.A. SEC. OF INTELL PROP. L.,
`available at http://perma.cc/9GCY-3D3D.
`
`It is in this context that the Respondents’
`arguments and the decision below of the Eleventh
`Circuit, along with a similar decision of the Tenth
`Circuit, see La Resolana Architects, PA v. Clay
`Realtors Angel Fire, 416 F.3d 1195 (10th Cir. 2005)
`abrogated in part by Reed Elsevier, Inc. v. Muchnick,
`559 U.S. 154 (2010), are pernicious. Because as the
`time to publish, distribute, purchase and consume
`both legitimate and infringing copies of works has
`vastly accelerated, the time required
`for the
`Copyright Office to process authors’ registrations
`has ballooned. Processing times have gone from an
`
`
`
`
`
`
`
`
`
`
`11
`
`
`
`average of 82 days in 2005 to an average of seven to
`16 months in 2018. U.S. Copyright Office, Annual
`Report of the Register of Copyrights 47 (2009),
`available
`at
`https://www.copyright.gov/reports/annual/2009/ar20
`20.pdf (“2009 Annual Report”). See also U.S.
`Copyright Office, “Registration Processing Times”
`(reporting average processing times of 7 to 16
`months
`of
`registration
`materials),
`https://www.copyright.gov/registration/docs/processi
`ngtimes-faqs.pdf.
`
`Indeed, in the case sub judice, the Copyright
`Office took the upper range of those averages, 16
`months, to act on Petitioner’s registration. See U.S.
`Inv. Br. App. 3a-4a. Such delays are dangerous for
`authors whose livelihoods depend on time-sensitive
`copyright remedies.
`
`B. Plain-Text Reading of the Copyright Act
`Supports the Position that Authors, not
`the Copyright Office, Must Act
`to
`Register Works Before Suit.
`
`“Hell is truth seen too late.”
`
`THOMAS HOBBES, LEVIATHAN
`(Oxford University Press 1996)
`(1651).
`
`The members of amici, many of whom are writers
`and are habitually concerned with words, note that
`the
`issue
`in
`the case revolves around
`the
`
`
`
`
`
`
`
`
`
`
`12
`
`
`
`interpretation of the language in the Copyright Act,
`setting forth as a prerequisite for an infringement
`lawsuit that, “registration of a copyright claim has
`been made.” 17 U.S.C. Section 411(a). Does it
`require, as Petitioner and amici argue, that the
`author has made a registration (i.e., filed a complete
`application), or instead, as Respondents argue, does
`it require that the Copyright Office has completed
`processing of that registration and
`issued a
`registration certificate?
`
`Amici agree with Petitioner that the word
`“registration” normally can refer either to the action
`of a registrant or a registrar. See, e.g., New Oxford
`American Dictionary 1470 (3d ed. 2010) (definition of
`“registration” as “the action or process of registering
`or of being registered”). However, amici also note
`that Section 410 of the Act, entitled “Registration of
`Claim and Issuance of Certificate” resolves the
`quandary by unambiguously stating that the
`effective date of registration is when the application
`is received in the Copyright Office. 17 U.S.C. §
`410(d).4 Indeed, countless authors have long relied
`on such an interpretation.
`
`
`4 Section 410 further clarifies that authors do not have to wait
`for the Copyright Office to make a determination on the
`sufficiency of their filings, because a “court of competent
`jurisdiction” can determine that such materials were acceptable
`when they were deposited. Id.
`
`
`
`
`
`
`
`
`
`
`
`13
`
`
`
`That statutory text should be the end of the
`analysis. The Court has “stressed . . . that it is
`generally for Congress, not the courts, to decide how
`best to pursue the Copyright Clause’s objectives.”
`Eldred, 537 U.S. at 212. Here, Congress has already
`spoken. Section 410(d) cannot be read to mean that
`the earlier date is the effective date for some
`purposes and not others, when it is clearly intended
`to establish the key date regarding registrations in
`all five consecutive Sections of the Act that address
`registration, Sections 408 through 412.
`
`For example, Section 408, the section that defines
`copyright registration, does not refer to any
`requirement that the Copyright Office approve an
`application or materials. 17 U.S.C. § 408(a). It
`simply states that registration
`is an author’s
`submission of the application, deposit, and fee (and
`makes clear that registration is not a condition of
`copyright protection). Id.
`
`Like Section 411, Section 412 makes registration
`(or preregistration) a prerequisite – but for certain
`remedies, rather than for the ability to bring a suit.
`Specifically, registration must be made prior to the
`infringement of a work or within three months of its
`publication to be eligible for an award of statutory
`damages and attorney’s fees. 17 U.S.C. § 412. Like
`Section 411,
`this reflects Congress’s goal of
`encouraging registration. Golan v. Holder, 565 U.S.
`302, 314 n.11 (2012). But for authors, this language
`
`
`
`
`
`
`
`
`
`
`14
`
`
`
`also allows flexible access to the most invaluable
`economic tools that protect the results of their labor.
`
`Section 412’s exception, or grace period,
`specifically refers to Section 410’s “effective date”
`rule – meaning that the act required within three
`months is a completed application by the author.
`See 17 U.S.C. §§ 412 & 412(2). This interpretation of
`Section 412 is consistent with canons of statutory
`interpretation, well-established policy goals, and the
`expectations of the industry and all parties involved.
`Indeed, neither the Copyright Office nor any court
`has ever adopted a contrary rule that the Copyright
`Office must have processed the application.
`
`However, because the nearly identical language
`in Sections 411 and 412 should be interpreted the
`same way, Respondents’ reading of Section 411
`creates
`tension with
`this universally-accepted
`interpretation of Section 412. See Kirtsaeng v. John
`Wiley & Sons, Inc., 568 U.S. 519, 536 (2013)
`(presuming that a statutory phrase “carr[ies] the
`same meaning when [it] appear[s] in different but
`related sections”).
`
`Under such a reading of Section 412, (again,
`which no court has adopted or should adopt), it
`would be impossible for claimants to take advantage
`of
`the
`three-month grace period, since, as
`demonstrated supra p. 11, it takes an average of
`seven to 16 months to receive a registration
`certificate, longer than the three months that would
`
`
`
`
`
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`
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`15
`
`
`
`be allowed for registration to “be made.” See Agence
`France Presse v. Morel, No. 10 Civ. 2730 (AJN), 2014
`WL 3963124, at *13 (S.D.N.Y. Aug. 13, 2014)
`(awarding significant statutory damages where
`plaintiff submitted registration materials within the
`three-month safe harbor). This would effectively
`strike the grace period, robbing authors of the most
`powerful protections and remedies available to them
`(see infra pp. 21-24).
`
`is not a solution to these
`Preregistration
`problems. Only specified works – for example,
`advertising or marketing photographs – can be
`preregistered. See 37 C.F.R. § 202.16. Furthermore,
`preregistration is meant to be permissive, not
`mandatory. If this Court adopts the Eleventh
`Circuit’s approach,
`costly preregistration will
`effectively become mandatory, which will add to the
`burden on authors to produce works. See 37 C.F.R.
`§ 201.3(c) ($140 cost of pre-registration application,
`four times the standard fee).
`
`II. ADOPTING THE ELEVENTH CIRCUIT
`RULE WILL
`CAUSE
`SIGNIFICANT
`ECONOMIC HARDSHIP ON AND LOSS OF
`RIGHTS FOR AUTHORS.
`
`
`“Estragon: Charming spot.
`(He turns, advances to front, halts facing
`auditorium.) Inspiring prospects. (He turns to
`Vladimir.) Let’s go.
`
`
`
`
`
`
`
`
`
`
`16
`
`
`
`Vladimir: We can’t.
`Estragon: Why not?
`Vladimir: We’re waiting for Godot.”
`
`SAMUEL BECKETT, WAITING FOR
`GODOT
`(Grove Press
`2011)
`(1952).
`
`“I imagined a labyrinth of labyrinths, a
`maze of mazes, a twisting, turning,
`ever-widening labyrinth that contained
`both past and future and somehow
`implied the stars.”
`
`JORGE LUIS BORGES, THE GARDEN
`OF FORKING PATHS
`(Penguin
`2018) (1941).
`
`Any bar to the courthouse doors that does not
`center on the actions of authors themselves, and
`depends on the timing of bureaucratic action entirely
`outside of their control, will cause significant
`economic hardship and the loss of rights for such
`authors. See, e.g., International Kitchen Exhaust
`Cleaning Ass’n. v. Power Washers of N. Am., 81 F.
`Supp. 2d 70, 72
`(D.D.C. 2000)
`(registrant
`approach: “To best effectuate the interests of justice
`and promote judicial economy, the court endorses
`the position that a plaintiff may sue once the
`Copyright Office receives the plaintiff’s application,
`work, and filing fee.”); Loree Rodkin Mgmt. Corp. v.
`Ross-Simons, Inc., 315 F. Supp. 2d 1053, 1056-57
`(C.D. Cal. 2004) (registration certificate approach:
`
`
`
`
`
`
`
`
`
`
`17
`
`
`
`“The Court shares the sentiments of the Ryan court
`that, while this is an ‘inefficient and peculiar result,’
`‘the Court is not free to redraft statutes to make
`them more sensible or just.’”) (quoting Ryan v. Carl
`Corp., No. 97 Civ. 3873 (FMS), 1998 WL 320817, at
`*3 (N.D. Cal. June 15, 1998)) (internal citation
`omitted).
`
`A. The Copyright Office Admits There Are
`Impediments to an Author’s Ability to
`Timely Obtain a Registration Certificate.
`
`The Eleventh Circuit’s decision effectively puts
`copyright owner’s profits at the mercy of the
`Copyright Office, and its action – or failure to act –
`in response to registration materials submitted by
`such owners. It is no secret that Copyright Office
`resources are lacking, which,
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