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
`__________
`
`REPLY BRIEF FOR PETITIONER
`__________
`
`
`JOEL B. ROTHMAN
`JEROLD I. SCHNEIDER
`SCHNEIDER ROTHMAN
` INTELLECTUAL PROPERTY
` LAW GROUP, PLLC
`4651 N. Federal Highway
`Boca Raton, Florida 33431
`(561) 404-4350
`
`
`
`November 13, 2018
`
`AARON M. PANNER
` Counsel of Record
`GREGORY G. RAPAWY
`GRACE W. KNOFCZYNSKI
`COLLIN R. WHITE
`KELLOGG, HANSEN, TODD,
` FIGEL & FREDERICK, P.L.L.C.
`1615 M Street, N.W.
`Suite 400
`Washington, D.C. 20036
`(202) 326-7900
`(apanner@kellogghansen.com)
`
`
`
`

`

`RULE 29.6 STATEMENT
`Pursuant to this Court’s Rule 29.6, petitioner
`Fourth Estate Public Benefit Corporation states that
`it is a public benefit corporation that has not issued
`any stock.
`
`

`

`
`
`ii
`
`TABLE OF CONTENTS
`
`Page
`RULE 29.6 STATEMENT ........................................... i
`TABLE OF AUTHORITIES ...................................... iii
`ARGUMENT ............................................................... 3
`I.
`“REGISTRATION” IS “MADE” FOR
`PURPOSES OF § 411(A) BY THE
`COPYRIGHT OWNER .................................... 3
`A. The Statute Uses the Phrase “Make
`Registration” and Its Variants To
`Refer to Compliance with the Re-
`quirements of § 408(a) ............................... 3
`B. Allowing a Copyright Owner To Sue
`for Infringement Once the Copy-
`right Owner Has Complied with the
`Registration Requirement Comports
`with the Structure of § 411(a) and
`the Rest of the Copyright Act .................. 11
`II. THE ACT’S HISTORY CONFIRMS
`THAT A COPYRIGHT OWNER MAY
`INSTITUTE AN ACTION FOR IN-
`FRINGEMENT AFTER COMPLYING
`WITH STATUTORY REQUIREMENTS
`FOR REGISTRATION .................................. 16
`III. THE COPYRIGHT ACT’S SCHEME
`OF RIGHTS AND REMEDIES FA-
`VORS ALLOWING SUITS TO PRO-
`CEED ONCE THE COYPRIGHT
`OWNER HAS COMPLIED WITH RE-
`QUIRED FORMALITIES ............................. 19
`CONCLUSION .......................................................... 22
`
`
`

`

`
`
`iii
`
`TABLE OF AUTHORITIES
`
`Page
`
`CASES
`Almendarez-Torres v. United States, 523 U.S.
`224 (1998) .............................................................. 8
`American Broad. Co. v. Aereo, Inc., 134 S. Ct.
`2498 (2014) .....................................................16, 18
`Brotherhood of R.R. Trainmen v. Baltimore &
`O.R.R. Co., 331 U.S. 519 (1947) .......................... 10
`Bruesewitz v. Wyeth LLC, 562 U.S. 223 (2011) ....... 19
`Caraco Pharm. Labs., Ltd. v. Novo Nordisk
`A/S, 566 U.S. 399 (2012) .................................... 14
`Carol Barnhart Inc. v. Economy Cover Corp.,
`773 F.2d 411 (2d Cir. 1985) ................................. 21
`Chan v. Korean Air Lines, Ltd., 490 U.S. 122
`(1989) ..................................................................... 4
`Cosmetic Ideas, Inc. v. IAC/Interactivecorp.,
`606 F.3d 612 (9th Cir. 2010) ............................... 19
`Roth Greeting Cards v. United Card Co.,
`429 F.2d 1106 (9th Cir. 1970) ......................... 2, 17
`Vacheron & Constantin-Le Coultre Watches,
`Inc. v. Benrus Watch Co., 260 F.2d 637
`(2d Cir. 1958), ....................................... 2, 16, 17, 18
`Washingtonian Publ’g Co. v. Pearson, 306 U.S.
`30 (1939) .........................................................12, 19
`White-Smith Music Publ’g Co. v. Goff, 187 F.
`247 (1st Cir. 1911) ........................................... 2, 17
`
`

`

`
`
`
`
`iv
`STATUTES AND REGULATIONS
`Berne Convention Implementation Act of 1988,
`Pub. L. No. 100-568, § 9(b)(1), 102 Stat. 2853,
`2859 ...................................................................... 19
`Copyright Act of 1909, ch. 320, 35 Stat. 1075 ......... 12,
`16, 17
`§ 13, 35 Stat. 1078 ............................................... 17
`
`Copyright Act of 1976, Pub. L. No. 94-553,
`90 Stat. 2541 .................................................. 2, 3, 7,
`9, 18, 19
`§ 110, 90 Stat. 2600, reprinted in 17 U.S.C.
`§ 407 note ............................................................... 7
`Copyright Act (17 U.S.C.) .................................. passim
`17 U.S.C. § 102(a) ...........................................12, 19
`17 U.S.C. § 205 ...................................................... 8
`17 U.S.C. § 205(a) .................................................. 8
`17 U.S.C. § 205(c) .................................................. 8
`17 U.S.C. § 205(c)(1) .............................................. 8
`17 U.S.C. § 405(b) .................................................. 6
`17 U.S.C. § 406(a) .................................................. 9
`17 U.S.C. § 406(a)(1) .............................................. 8
`17 U.S.C. § 406(a)(2) .............................................. 8
`17 U.S.C. § 408 ......................................... 1, 3, 6, 12
`17 U.S.C. § 408(a) ............................................ 3, 10
`17 U.S.C. § 408(b)(2) ............................................ 15
`17 U.S.C. § 408(c)(3) ........................................ 6, 10
`17 U.S.C. § 408(f) ............................................ 9, 15
`
`

`

`
`
`v
`17 U.S.C. § 408(f)(1) ............................................ 15
`17 U.S.C. § 408(f)(3) ............................................ 10
`17 U.S.C. § 410(c) .................................................. 6
`17 U.S.C. § 410(d) .......................................... 3, 5, 6,
`11, 13, 15, 16
`17 U.S.C. § 411(a) .............................. 1, 2, 3, 4, 5, 6,
`7, 8, 9, 11, 12, 13,
`14, 15, 16, 17, 18, 20
`17 U.S.C. § 411(b) ............................................ 4, 16
`17 U.S.C. § 411(c) ..................................... 4, 5, 6, 11
`17 U.S.C. § 412 ....................... 1, 3, 4, 5, 6, 9, 11, 20
`17 U.S.C. § 412(2) .................................................. 5
`17 U.S.C. § 508(a) ................................................ 22
`17 U.S.C. § 708(a) ...........................................7, 8, 9
`15 U.S.C. § 1173(a)(4) ............................................... 11
`45 U.S.C. § 362(i) ...................................................... 11
`37 C.F.R. § 202.16(c)(6) ............................................. 15
`
`
`LEGISLATIVE MATERIALS
`H.R. Rep. No. 109-33. pt. 1 (2005) ............................ 10
`S. 543, 91st Cong. (1969) ............................................ 4
`S. 644, 92nd Cong. (1971) ........................................... 4
`
`
`
`

`

`
`
`vi
`ADMINISTRATIVE MATERIALS
`U.S. Copyright Office, Copyright Law Revision:
`Report of the Register of Copyrights on the
`General Revision of the U.S. Copyright Law
`(Comm. Print 1961), available at https://
`www.copyright.gov/history/other_reports.
`html ......................................................................... 18
`
`
`
`
`OTHER MATERIALS
`Black’s Law Dictionary (4th ed. 1951) ................10, 11
`Robert Kasunic, Copyright from Inside the
`Box: A View from the U.S. Copyright Of-
`fice, 39 Colum. J.L. & Arts 311 (2016) ................ 21
`Webster’s Third New International Dictionary
`(2002) ..............................................................10, 11
`
`
`
`
`
`

`

`Respondents and the government cannot counter
`textual evidence that the phrase “make registration”
`and its passive-voice counterparts in the Copyright
`Act – including in § 411(a) – denote the action of a
`copyright owner in submitting the application, depos-
`it, and fee required by § 408 to “obtain registration.”
`Accordingly, their primary argument – that the word
`“registration” in the first sentence of § 411(a) un-
`ambiguously requires an affirmative determination by
`the Copyright Office that a certificate of registration
`should or should not issue before a copyright owner
`can sue – is incorrect. On the contrary, respondents
`and the government, to avoid an absurd reading of
`§ 412, eventually admit that the statute makes clear
`that registration is “made” on its effective date – but
`that is the date when the copyright owner complies
`with the requirements of § 408, not when the Regis-
`ter eventually grants registration. That reading is
`consistent with petitioner’s position, not respondents’.
`The remainder of § 411(a) – which preserves a
`copyright owner’s right to sue when “registration has
`been refused” – does not support a different reading.
`The first sentence of § 411(a) requires the copyright
`owner to make registration before bringing an action,
`and the rest of the provision clarifies the consequences
`of the Copyright Office’s refusal to register a claim.
`The fact that a copyright owner is expressly author-
`ized to initiate suit after such a refusal – which the
`first sentence might leave in doubt – hardly supports
`the argument that a copyright owner may not initi-
`ate a suit after making registration in compliance
`with the statute when the Office has not yet acted.
`On the contrary, adopting respondents’ construction
`would put the first and second sentences of § 411(a)
`into conflict – which petitioner’s interpretation avoids.
`
`

`

`
`
`2
`The history of the provision supports the plain
`meaning of the text because respondents’ interpreta-
`tion recreates the very problem that the statute was
`designed to solve: namely, that, before any infringe-
`ment action can be brought, a copyright owner might
`have to bring a mandamus action if the Register fails
`to act. That is inconsistent with the view – adopted
`by the First and Ninth Circuits before enactment of
`the 1976 Act and embodied in § 411(a) – that, once a
`copyright owner “place[s] the . . . application[] in the
`mail” and “ha[s] done everything required of it under
`the copyright law with respect to the deposit of copies
`and registration,” it is entitled to bring suit. Roth
`Greeting Cards v. United Card Co., 429 F.2d 1106,
`1108-09 (9th Cir. 1970); see White-Smith Music
`Publ’g Co. v. Goff, 187 F. 247, 247 (1st Cir. 1911); see
`also Vacheron & Constantin-Le Coultre Watches, Inc.
`v. Benrus Watch Co., 260 F.2d 637, 645 (2d Cir. 1958)
`(Clark, C.J., dissenting) (noting that the Act “[q]uite
`obviously . . . puts the condition of complying with
`the law . . . upon the copyright owner before he sues”).
`By rejecting the majority opinion in Vacheron, the
`statute is likewise properly read to reject the view
`that the Register should be the gatekeeper of copy-
`right enforcement.
`Arguments about underlying policy should be
`largely beside the point because ordinary tools of
`statutory interpretation yield a clear answer; in
`any event, such arguments likewise favor reversal.
`Respondents’ claim that petitioner takes issue with
`the registration requirement or the policies under-
`lying it is pretense: whether or not the Copyright
`Office has the power to block infringement suits
`by failing to act, copyright owners must comply with
`the registration requirement before suing. Statutory
`
`

`

`
`
`3
`incentives for prompt registration reside elsewhere,
`including in § 412. And the claim that the statute
`embodies a policy of administrative finality or exhaus-
`tion is belied by the terms and structure of the
`statute – including § 410(d), which puts courts’ deter-
`mination on equal footing with the Register’s. In the
`real world, as amici attest, action by the Register not
`only is usually long in coming, but generally does not
`address the disputed issues that a court will confront.
`When such cases occur, courts can obtain the Regis-
`ter’s views. Such concerns offer no justification for
`shielding infringers during the Copyright Office’s
`inevitable delays, depriving copyright owners of their
`intellectual property in the meantime.
`ARGUMENT
`I. “REGISTRATION” IS “MADE” FOR PUR-
`POSES OF § 411(a) BY THE COPYRIGHT
`OWNER
`A. The Statute Uses the Phrase “Make Regis-
`tration” and Its Variants To Refer to Com-
`pliance with the Requirements of § 408(a)
`That the Copyright Act of 1976 uses the construc-
`tion “make registration” and its variants to denote
`action by the copyright owner (and not the Copyright
`Office) matters for two reasons. First, it disproves
`respondents’ claim that the word “registration” by
`itself resolves this case. Second, because the statute
`consistently uses the phrase to refer to the copyright
`owner’s compliance with the requirements of § 408,
`the interpretive principle that statutory phrases
`should be given consistent meaning favors petition-
`er’s construction. Pet. Br. 21-29.
`1. Respondents’ argument that the word “registra-
`tion,” by itself, indicates that a suit can be brought
`only after the Register acts cannot be reconciled with
`
`

`

`
`
`4
`either § 411(c) or § 412. Section 411(c) (which was
`adopted as § 411(b), adjacent to § 411(a)) provides
`that certain infringement actions can be brought
`prior to registration if “the copyright owner . . . makes
`registration for the work” within three months.
`Section 412 bars statutory damages and attorney’s
`fees for infringement of a published work prior to
`registration unless “registration is made” within three
`months.
`The first provision makes express that registration
`is “made” once the copyright owner complies with his
`registration obligations; the second strongly implies
`it. Pet. Br. 22-24. Reading the statute in this
`straightforward way is fatal to respondents’ theory
`that the word “registration” provides the answer to
`the question presented, and respondents thus urge
`the Court to disregard the language of § 411(c) as a
`mistake – “copyright owner” is the “subject” of the
`sentence, they argue, for “ease of drafting.” Resp. Br.
`34 n.12. But if there were a conflict between the
`subject and the predicate of the sentence, it would
`have been noticed – no one would accidentally make
`it a condition of suit that the “copyright owner . . .
`grant registration” because that is not something the
`copyright owner does.1 And this Court will not find a
`“drafting error” unless that error is “obvious” and the
`result it produces is “necessarily absurd,” Chan v.
`Korean Air Lines, Ltd., 490 U.S. 122, 134 (1989),
`which respondents have made no attempt to show.
`
`
`1 It would be especially inappropriate to treat the language of
`§ 411(c) as inadvertent because that language was first intro-
`duced in 1969, seven years before the passage of the Act. See
`S. 543, 91st Cong. (1969); see also S. 644, 92nd Cong. (1971).
`
`

`

`
`
`5
`Respondents also make the unpalatable claim that,
`under § 411(c), even if the copyright owner complies
`with the registration requirement within three
`months, the copyright owner may be unable to
`maintain its suit if the Register has not acted within
`three months. This view (which the government
`rejects, see U.S. Br. 28) is, according to respondents,
`“entirely logical” because it will “prevent powerful
`stakeholders . . . from abusing Section 411(c).” Resp.
`Br. 35. That argument is practically self-refuting – it
`would be extraordinary for Congress to impose a
`three-month deadline, enforced by loss of enforcement
`rights, while leaving compliance with the deadline
`out of the copyright owner’s hands.
` Moreover, respondents lose their nerve in address-
`ing § 412. Like § 411(c), § 412(2) imposes a three-
`month deadline for “registration [to be] made,” but in
`this case respondents argue that registration is (as
`§ 410(d) makes clear) “made” on its “effective date”;
`and the “effective date” is “keyed to the copyright
`owner’s actions, not the Register’s.” Resp. Br. 33.
`But respondents offer no reason why what is true for
`§ 412 is not also true for § 411(a): registration is
`“made” on the effective date of registration – i.e., “the
`day on which an application, deposit, and fee . . .
`have all been received in the Copyright Office.” 17
`U.S.C. § 410(d). That reasoning supports petitioner,
`not respondents.
`The government’s effort to address these provisions
`leads it to the same fatal concession. The govern-
`ment does not contest that § 411(c) indicates that it
`is the copyright owner who “makes registration”; nor
`does it contest that § 412 makes no sense if “registra-
`tion is made” on the date of the Register’s action.
`Instead, it argues that the three-month deadlines
`in those provisions are of no concern because, under
`
`

`

`
`
`6
`§ 410(d), “no matter when the Copyright Office acts,
`if registration is ultimately granted, its effective date
`‘is the day on which an application, deposit, and fee
`. . . have all been received in the Copyright Office.’”
`U.S. Br. 28 (quoting § 410(d)). And, it says, “[a]s long
`as the effective date of registration falls within the
`three-month windows defined by Sections 411(c) and
`412, the requirements of those provisions are met.”
`Id. Again, if that is true for § 411(c) and § 412, so too
`it is true for § 411(a): registration is made on the
`effective date of registration, when the copyright
`owner has complied with § 408.2
`2. Respondents and the government likewise cast
`no doubt on the conclusion that the statute elsewhere
`uses the construction “make registration” to refer to
`the copyright owner’s compliance with the registra-
`tion requirement. For example, § 405(b) includes the
`phrase “registration . . . has been made under section
`408” – indicating that the copyright owner makes
`registration by complying with that statutory provi-
`sion. The government has no answer, failing to
`address this provision at all. Respondents chalk this
`up to another drafting error – registration is not
`made under § 408 after all, they insist, because the
`Register might reject an application. Resp. Br. 37.
`The statute does not use the phrase in a manner
`consistent with respondents’ argument. This is true
`as well of § 408(c)(3), which provides that “a single
`
`2 The statute uses the phrase in just this sense in § 410(c) as
`well, when it refers to a “certificate of a registration made be-
`fore or within five years after first publication of the work.” For
`this purpose, the registration must be “made” on its effective
`date – not on the date of the Register’s action – to avoid making
`nonsense of the incentives for registration, which apply to the
`copyright owner, not the Register.
`
`

`

`
`
`7
`renewal registration may be made . . . upon the filing
`of a single application and fee” – which says in so
`many words that registration “may be made . . . upon
`the filing of the application and fee” and not upon
`any action by the Register. Neither respondents (at
`36) nor the government (at 27) offer a response that
`makes sense of the text Congress adopted.
`Nor can respondents reconcile their view with
`§ 110 of the 1976 Act; the government does not
`even try. That provision states that “any deposit and
`registration made after [the Copyright Act’s effective]
`date in response to a demand under” the Act’s prede-
`cessor “shall be made in accordance with” the new
`Act – indicating that the copyright owner does both.
`17 U.S.C. § 407 note; cf. id. § 411(a) (referring to
`registration “made in accordance with this title”).
`Respondents’ only answer (at 38) is to rewrite the
`provision – asserting that the owner responds to
`the Register’s “demand by initiating the registration
`process through its application,” and “the Register
`completes that process by approving, i.e., making,
`registration.” That is not what the Act says. It
`instead indicates that, once the Register makes a
`demand, the copyright owner makes both the deposit
`and registration in response.
`3. Furthermore, it is not true that the 1976 Act,
`as adopted, ever used the phrase “registration has
`been made” to denote Register’s grant of an applica-
`tion. Respondents (at 31) and the government (at 28)
`rely on § 708(a), but that provision was altered
`in 1982 to add the language that respondents and
`the government cite, and it addresses fees, not the
`litigation-significance of registration – which petitioner
`pointed out (at 27-28) but the other side ignores. No
`one would seriously argue that the same language in
`
`

`

`
`
`8
`§ 411(a) meant one thing in 1978 and another thing
`in 1983; accordingly, § 708(a) provides no interpre-
`tive guidance. See Pet. Br. 27 (citing Almendarez-
`Torres v. United States, 523 U.S. 224, 237 (1998)).
`The government argues (at 29) that § 205(c) could
`be read to require that registration had already been
`granted, but it does not dispute that § 205(c) only
`protects a transferee who properly records a transfer
`(which it can do irrespective of whether a certificate
`of registration has issued3) if the statutory phrase
`“registration has been made” refers to the copyright
`owner’s compliance with the registration requirement,
`not the Register’s administrative determination.4
`That reading of § 205 is reinforced by § 406(a)(2),
`which imposes liability for infringement notwith-
`standing good-faith reliance on a purported transfer
`or license from a person erroneously named in a
`copyright notice when “a document executed by the
`person named in the notice and showing the owner-
`ship of the copyright had been recorded.” This means
`of notice is an alternative to “registration . . . made in
`the name of the owner of copyright,” § 406(a)(1), and
`thus indicates that the existence of a certificate of
`registration is not essential to proper recordation.
`Section 406(a)(1) – which charges an infringer with
`notice of ownership of copyright if “registration . . .
`
`3 “Any transfer of copyright ownership or other document
`pertaining to a copyright may be recorded in the Copyright
`Office.” 17 U.S.C. § 205(a) (emphasis added).
`4 Respondents’ claim (at 28) that it “would make no sense” to
`charge persons with notice of a properly recorded document is
`wrong – any person can check to see whether a transfer of a
`copyright has been recorded by searching “under the title . . . of
`the work.” 17 U.S.C. § 205(c)(1).
`
`

`

`
`
`9
`had been made in the name of the owner of copy-
`right” – does not point to any different reading of
`§ 411(a). The government asserts (at 29-30) the
`statute’s use of “had been made” rather than “has
`been made” implies that the reference is to the Regis-
`ter’s action, but does not explain why. Instead, the
`provision refers to registration that “had been made”
`rather than “has been made” for reasons of syntax: it
`refers to an action (making registration) that must
`take place prior to the beginning of the “undertaking”
`giving rise to potential liability. And, contrary to
`respondents’ assertion (at 29), it makes sense that a
`potential infringer may be charged with notice of
`ownership once the owner has complied with the
`registration requirement: § 412 creates a similar
`dramatic difference in the consequences of infringe-
`ment, but everyone agrees that the copyright owner’s
`remedies turn on the date of the copyright owner’s
`compliance with the registration requirement, not
`the Register’s action.5
`Contrary to the government’s assertion (at 20), the
`preregistration provision, § 408(f), does not suggest
`that “submission of the required materials is an
`action distinct from ‘registration’ itself.” First of all,
`as with § 708(a), the preregistration provision was
`not part of the 1976 Act – it was adopted in 2005 –
`and it thus carries less weight in determining the
`meaning of § 411(a)’s original language.6 Further,
`
`5 There is also no reason why – in connection with either
`§ 406(a) or § 412 – the Register could not permit concerned
`potential infringers to search pending registration applications.
`6 For what it is worth, the House Report accompanying the
`2005 legislation uses the verb “register” to refer to the copyright
`owner’s action, not just the Register’s – that is, in the sense that
`
`
`

`

`
`
`10
`the government’s argument puts too much weight
`on the subsection heading of § 408(f)(3), which reads
`“[a]pplication for registration,” while the text of
`§ 408(f)(3) refers not only to the application itself
`but also to the fee and the deposit – that is, the
`materials required for making registration. It is “not
`. . . unusual” that a statutory heading “fails to refer
`to all the matters which the framers of that section
`wrote into the text,” Brotherhood of R.R. Trainmen v.
`Baltimore & O.R.R. Co., 331 U.S. 519, 528 (1947),
`and § 408(f)(3)’s heading does not outweigh Congress’s
`textual statements that “the owner . . . may obtain
`registration . . . by delivering” a deposit, application,
`and fee, § 408(a) (emphasis added), and that “regis-
`tration may be made . . . upon the filing of a[n] . . .
`application and fee,” § 408(c)(3) (emphasis added).7
`4. Dictionary definitions (discussed at Resp. Br.
`30-31) do not suggest any different understanding.
`The meaning of “registration” includes “an act . . . of
`registering,” and to “register” can mean either “to
`make or [to] secure an official entry of in a register.”
`Webster’s Third New International Dictionary 1912
`(2002) (“Webster’s Third”); see also Black’s Law
`
`respondents wrongly suggest is contrary to plain language.
`See H.R. Rep. No. 109-33, pt. 1, at 5 (2005) (explaining certain
`circumstances under which “a copyright owner of a preregis-
`tered work can register his or her work under current law”)
`(emphases added).
`7 The government does not argue that there is any difference
`between what is required under § 408(f)(3) and under § 408(a)
`or § 408(c)(3), nor does its theory explain why Congress spelled
`out the elements of registration in § 408(f)(3) rather than
`simply referring to one of the other sections. There is no inter-
`pretive principle based on any counterfactual presumption that
`Congress avoids using more words when fewer words would do.
`
`

`

`
`
`11
`Dictionary 1449 (4th ed. 1951) (“Black’s”) (definitions
`of “registration” including “[r]ecording” or “enroll-
`ment”);8 Authors Guild Br. 12. To “make,” moreover,
`can mean either “to execute in an appropriate
`manner,” as with a will or deed; or to “carry out” or
`“perform” an action. Webster’s Third 1363. Thus,
`the copyright owner’s performance of the steps statu-
`torily required to secure an official record of the
`copyright from the Register fits within the ordinary
`meaning of the phrase “make registration” – consis-
`tent with Congress’s usage of the phrase in § 411(c)
`and § 412 and elsewhere; with this Court’s usage
`in other cases about the Copyright Act, see Pet. Br.
`22; and with other statutory usages identified by
`amici, see NMPA Br. 11-12 n.5 (citing 15 U.S.C.
`§ 1173(a)(4); 45 U.S.C. § 362(i)).
`B. Allowing a Copyright Owner To Sue for
`Infringement Once the Copyright Owner
`Has Complied with the Registration Re-
`quirement Comports with the Structure of
`§ 411(a) and the Rest of the Copyright Act
`The understanding that § 411(a) authorizes actions
`for infringement once a copyright owner has regis-
`tered the work further comports with the structure of
`rights and remedies established by the Copyright
`Act. Respondents and the government offer no
`explanation for why, under their reading, § 410(d)
`would make the effective date of registration the date
`
`8 The contemporaneous edition of Black’s further defined
`(at 1449) a “registrant” as “one who registers anything (e.g., a
`trade-mark) for the purpose of securing a right or privilege
`granted by law on condition of such registration” – further
`showing that legal usage then included an owner of intellectual
`property as performing the act of registering that property.
`
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`

`
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`12
`on which the copyright owner complies with the
`requirements of § 408, yet § 411(a) would bar suits
`for infringement – including suits for injunctive relief
`to put a stop to ongoing infringement – after that
`effective date. They do not explain why the same
`provision clarifies that the same effective date applies
`if a court, rather than the Register, determines that
`the copyright owner complied with the registration
`requirement. See NMPA Br. 8. They offer no justifi-
`cation for rendering a copyright effectively valueless
`during any period of administrative delay by the
`Copyright Office, when the statute provides that the
`right to exclude exists by virtue of fixation, not
`compliance with any statutory formalities. 17 U.S.C.
`§ 102(a). And they fail to confront the point –
`persuasively argued by amici – that Washingtonian
`Publishing Co. v. Pearson, 306 U.S. 30 (1939), estab-
`lishes a presumption against a doubtful construction
`that deprives a copyright owner of its exclusive rights.
`See NMPA Br. 15-17. Nor do respondents offer any
`structural evidence to contradict the conclusion that
`the words of the statute require.
`1. There is no force to the argument (Resp. Br.
`20) that, because § 411(a) provides that a copyright
`owner can initiate suit after the Register has refused
`registration, it should be inferred that it cannot
`initiate suit if the Register has not acted. Courts
`applying the registration and deposit requirement of
`the 1909 Act divided on the question of what should
`happen where the Copyright Office refuses registration
`notwithstanding the copyright owner’s compliance
`with the requirements of the statute. The second
`sentence of § 411(a) gives the answer by providing
`that, in any case where the copyright owner has
`made registration (that is, has delivered the required
`
`

`

`
`
`13
`application, deposit, and fee to the Copyright Office)
`but registration has been refused, the copyright
`owner may sue.
`That had to be made explicit because, where
`the Register has refused registration, whether the
`copyright owner has acted “in accordance with” the
`statute is in doubt – the Register has found that
`it has not. But that does not prevent a suit from
`proceeding, in which, as § 410(d) provides, “a court of
`competent jurisdiction” ultimately determines whether
`the owner’s submission was “acceptable for registra-
`tion.” Thus, the second sentence of § 411(a) is not an
`exception to the categorical registration requirement
`in the first sentence – it simply imposes an additional
`procedural requirement and clarifies that the Regis-
`ter is entitled to intervene. That is a better reading
`of the word “however,” which does not, in ordinary
`language, signal contradiction. Pet. Br. 30.
`The word “institute” in the second sentence of
`§ 411(a) does not imply, as respondents suggest (at
`23 n.6), that the Register’s action must always come
`before a lawsuit begins. Rather, it mirrors the phras-
`ing of the first sentence, which states that “no civil
`action for infringement . . . shall be instituted until
`. . . registration . . . has been made.” Usually (almost
`always), registration is granted and the second sen-
`tence will not come into play. The second sentence
`addresses the unusual case where registration has
`been refused before the copyright owner institutes an
`action. That does not speak to what should happen
`when registration is refused after the suit is initiated,
`but § 410(d) clarifies that, in such a case, the court
`may find compliance with the registration require-
`ment. Neither part of § 411(a) is offended where
`a copyright owner complies with the registration
`
`

`

`
`
`14
`requirement before instituting an action and the
`Register or a court later concludes that compliance
`was acceptable: either way, the copyright’s effective
`date of registration comes before the action’s date of
`institution. Respondents argue that Congress used
`the word “institute” to rule out the possibility o