The Supreme Court May Decide Whether Registration Is Required To File A Copyright Lawsuit

By Dave Rein

We at the Owners, Borrowers & Thieves 2.0 are big enough to admit to our mistakes when, after an exhaustive search, we can't find anyone else to blame.  Not finding anyone to blame other than the sheer height of the stack labeled:  "Interesting Things I May Never Have Time To Read", I'll have to confess that if you were interested in the post about the Dr. Jekyll and Mr. Hyde approach that the courts have taken on the issue of copyright registration, there is even more to the story. 

The issue of whether you need to register your copyright before filing a lawsuit may very well have floated up to the Supreme Court after all.  In March, the Supreme Court accepted certiorari in Reed Elsevier v. Muchnick which might resolve the copyright registration issue.  Then again, it might not.

Shourin Sen., who writes the Exclusive Rights blog, has an great post walking through the case.  For those who think these issues sound like a good substitute for a sleep aide, another commentator says oh contraire -- these issues are "sexy"!

I'm not ready to say that the issue is "sexy".  At the same time, while none of the briefs filed in the case will find their way into your local bookstore, they do make for an interesting read.  I was especially absorbed in the United States' brief filed three days ago which takes a nuanced approach to the issue.

For those who don't care to immerse themselves in reading the briefs, the take away is that even though the Petition for Certiorari focused on a couple of narrow issues, the Court ultimately asked the parties to brief a broader issue:  "Does 17 U.S.C. § 411(a) restrict the subject matter jurisdiction of the federal courts over copyright infringement actions?" 

So, although the Court could still avoid ruling on the issue directly, it is looking more and more hopeful that we will get that long-awaited guidance from the Supreme Court after all! 

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