September 04, 2018

ABA urges Supreme Court to adopt speedier approach to enforce copyright infringements

CHICAGO, Sept. 4, 2018 — The American Bar Association filed an amicus brief in the U.S. Supreme Court today, asking the justices to settle a split among lower courts by establishing an “application approach” to enforce copyright claims.

The Supreme Court has agreed to decide this coming term when the “registration of [a] copyright claim has been made” within the meaning of 17 U.S.C. § 411. The U.S. Courts of Appeal for the 5th and 9th Circuits have set the prerequisite for infringement suits when the copyright holder delivers the required application, deposit and fee to the Copyright Office while the U.S. Court of Appeals for the 10th and 11th Circuits say it is when that office acts on the application.

In endorsing the application approach, the ABA brief said it better reflects the nature of copyright law by focusing on the “copyright holder’s conduct not that of the Copyright Office.” The brief points out that as of July, the Copyright Office reported that a certificate of registration may take between three and 28 months to process, and the delay can prevent a copyright holder from filing suit immediately to prevent widespread dissemination of the infringing work.

The brief also noted that the U.S. became a signatory in 1989 to the Berne Convention for the Protection of Literary and Artistic Works, and that subsequently has led to a discrepancy between foreign and U.S. authors in the ability to sue in the U.S. for copyright protection.

“The application approach reduces the burden of this registration formality and lessens discrimination against the owners of copyrights in U.S. works,” the ABA brief said, before adding: “It is hard to see the logic in interpreting the term ‘registration’ in a way that exacerbates the already significant impediment on the ability of authors of the United States works to enforce their rights.”

The ABA amicus brief, Fourth Estate Public Benefit Corp. v. Wall and Jerrold D. Burden, is available here.