IP Clinic Student Attorneys File Amici Curiae Brief with U.S. Supreme Court

U.S. Supreme Court Building

October 19, 2018: A team of student attorneys from Glushko-Samuelson Intellectual Property Clinic filed an amici curiae brief with the U.S. Supreme Court today urging the Court to affirm a decision of the U.S. Court of Appeals for the Eleventh Circuit, which held that Section 411(a) of the Copyright Act allows plaintiffs to sue for copyright infringement only after the Copyright Office has issued a final action on an application for registration. The brief was filed on behalf of individual authors and educators and was written by students Andrew Levey, Ben Kessler, Hailie Ingman, Mariana Viera, and Ted Sotland under the supervision of Professors Hillary Brill and Peter Jaszi.

The Supreme Court has taken on the case to resolve the circuit split over whether “registration” means, as the plaintiff argues, the mere filing of an application for registration. The Fifth and Ninth Circuits have taken that view. The Eleventh and Tenth Circuits, however, hold that the registration requirement in Section 411(a) means the Copyright Office has either approved or denied registration.

The amici curiae brief argues that the plaintiff’s reading of “registration” undermines the institutional history of the Copyright Office and the registration system, negates Congressional intent, and creates legal ambiguity and inefficiency for courts, parties, and the general public. Interpreting the term “registration” to mean a final action from the Copyright Office upholds the standards of copyright quality and respects the Copyright Office’s expertise in issues of copyrightability. Thus, the Eleventh Circuit’s decision that “register” means an action by the Copyright Office should be upheld.

The initial case arises from an infringement action by the petitioner, Fourth Estate Public Benefit Corporation, which creates online news content and licenses it to third-parties. The respondents, Wall-Street.com published some of the petitioner’s content under a licensing agreement. After canceling the licensing agreement, respondents allegedly continued to publish the petitioner’s content. Fourth Estate sued for infringement immediately after applying for registration.

While the petitioner’s application was pending, respondents moved to dismiss the complaint under pre-litigation registration requirement in Section 411(a) of the Copyright Act. The district court dismissed the case on the grounds that “registration” required a final action by the Copyright Office, rather than the mere filing of an application. The Eleventh Circuit affirmed.  The Supreme Court is expected to hear argument in January.

CLICK HERE to view the brief.


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The Program on Information Justice and Intellectual Property (PIJIP) is the internationally recognized intellectual property and information law research and academic program of American University Washington College of Law (AUWCL). PIJIP’s academic programs, including our new LL.M. degree in Intellectual Property, and a first in the nation IP Clinic, offer an unparalleled course of study in the fields of intellectual property and information law. PIJIP’s faculty is among the most prolific and engaged IP faculties in the world. Full-time faculty teach courses in every major topic of the field, including Copyright, Patent, Trademark, Trade Secret, Cyberlaw, and a full array of international intellectual property law courses.