Fourth Estate Public Benefit Corp. v. Wall-Street.com
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''Fourth Estate Public Benefit Corp. v. Wall-Street.com'', 586 U.S. ___ (2019), is a
Supreme Court of the United States The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
case in which the Court unanimously ruled that a
copyright infringement Copyright infringement (at times referred to as piracy) is the use of works protected by copyright without permission for a usage where such permission is required, thereby infringing certain exclusive rights granted to the copyright holder, s ...
suit must wait until the
copyright A copyright is a type of intellectual property that gives its owner the exclusive right to copy, distribute, adapt, display, and perform a creative work, usually for a limited time. The creative work may be in a literary, artistic, education ...
is successfully registered by the
United States Copyright Office The United States Copyright Office (USCO), a part of the Library of Congress, is a United States government body that maintains records of copyright registration, including a copyright catalog. It is used by copyright title searchers who are ...
.


Background

While the
Copyright Act of 1976 The Copyright Act of 1976 is a United States copyright law and remains the primary basis of copyright law in the United States, as amended by several later enacted copyright provisions. The Act spells out the basic rights of copyright holders, cod ...
grants automatic copyright privileges to an author when it is published to the public, the Act also requires "registration" of that copyright with the Copyright Office before bringing an infringement suit if the author is American. There had been a Circuit split about whether this "registration" required the Copyright Office to grant or deny the certificate of registration, or whether applying for the certificate could qualify as registration. Some circuit courts, such as the
Eleventh In music or music theory, an eleventh is the note eleven scale degrees from the root of a chord and also the interval between the root and the eleventh. The interval can be also described as a compound fourth, spanning an octave plus a f ...
and Tenth, held that is considered registered upon the copyright's approval by the Copyright Office, known as the "registration approach." Others, including the
Ninth In music, a ninth is a compound interval consisting of an octave plus a second. Like the second, the interval of a ninth is classified as a dissonance in common practice tonality. Since a ninth is an octave larger than a second, its ...
and Fifth Circuits, held that registration occurs upon the application for registration, with the associated deposit and fee; this was known as the "application approach." Fourth Estate wrote articles and licensed them for publication by other entities. One of their clients, Wall-Street.com, cancelled their licensing arrangement, and the license required Wall-Street.com to remove the content from their site, which they refused to do. Fourth Estate sued for copyright infringement, after having submitted their application for registration but without having waited for the registration to be approved. The United States Court of Appeals for the Eleventh Circuit ruled that the infringement suit could not be brought because of that lack of approval.


Supreme Court

The case was granted ''
certiorari In law, ''certiorari'' is a court process to seek judicial review of a decision of a lower court or government agency. ''Certiorari'' comes from the name of an English prerogative writ, issued by a superior court to direct that the record of ...
'' by the Supreme Court, with oral arguments heard on January 9, 2019. Fourth Estate was represented at oral arguments by Aaron M. Panner. Peter K. Stris represented Wall-Street and Jerrold Burden. Fourth Estate contended that the Eleventh Circuit misread the statute, and believed that the requirement of "registration" refers to the action of the copyright holder, and not an action of the Copyright Office. Further, they contended normatively that a copyright holder's rights should not depend upon affirmative government action. The court ruled on March 4, 2019, that a registration certificate must be provided before a lawsuit can be filed..


Comments on the decision

It has been observed by one commentator that a decision in Fourth Estate's favor would essentially remove the Copyright Office's role in the process of moving copyright infringement cases to litigation, and concerns about the practical implications of litigating prior to the Register's grant or denial of registration were a prominent theme at the oral arguments.
Jessica Litman Jessica Litman is a leading intellectual property scholar. She has been ranked as one of the most-cited U.S. law professors in the field of intellectual property/cyberlaw. Litman graduated from Reed College, received an MFA from Southern Methodis ...

"Argument analysis: Justices wade deep into the copyright weeds"
''SCOTUSBlog'', Jan. 9, 2019.
Others have observed that the practical effect is minimal, since although the turnaround time for a registration with the Copyright Office can be months at a time, the Office offers an $800 expedited review process for cases with "compelling needs" like upcoming lawsuits, and offers preregistration for categories of works more likely to be infringed. Moreover, plaintiffs can recover for any losses accrued from infringement, even while waiting for the examination to be complete. The decision applies only to filing copyright litigation, and does not apply to other forms of enforcement, such as sending demand letters or issuing DMCA Section 512 takedown notices.


References


External links

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SCOTUSblog page
{{USCopyrightActs 2019 in United States case law United States copyright case law United States Supreme Court cases United States Supreme Court cases of the Roberts Court