Video, apps, QR Codes and LBS (for location based software, not pounds) are about to be the next tidal wave in social media. It's not that Facebook, Twitter and LinkedIn are losing any prominence (yet), but more and more businesses are waking up to see new ways to connect with their audiences. When law firms and banks (conservative by nature) start adding video to their home pages, you know something's catching on.
As these forms of social media become more popular, they raise new issues for the law to grapple with. Who owns the content? Did you get permission to include an image of that person or that song in your video? Have you informed your users that you plan to sell information about their visiting patterns whenever they view your site? Thoughts for businesses, legislatures and the courts to consider...
Showing posts with label Application Approach. Show all posts
Showing posts with label Application Approach. Show all posts
Thursday, June 16, 2011
Tuesday, August 3, 2010
Ninth Circuit Offers Best Guidance on Issues of Copyright Registration Requirement to Initiate Litigation
On March 2, 2010, the Supreme Court issued its decision in Reed Elsevier v. Muchnick. In that decision, the Court clarified that Section 411(a) of the Copyright Act "does not restrict a federal court's subject-matter jurisdiction." Instead, Section 411(a) is merely a "precondition to filing a claim." Importantly, the plurality explicitly declined to address "whether Section 411(a)'s registration requirement is a mandatory precondition to suit that . . . district courts may or should enforce sua sponte by dismissing copyright infringement claims involving unregistered works." Instead, the Court left that issue unresolved.
Picking up where Reed Elsevier left off, the Ninth Circuit specifically addressed that issue in a decision on May 25, 2010, namely what it means to "register" a copyrighted work. See Cosmetic Ideas, Inc. v. IAC/InteractiveCorp, 606 F.3d 612 (9th Cir. 2010). The Cosmetic Court issued a thoughtful decision that concluded "registration" under 411(a) is accomplished upon mere "receipt by the Copyright Office of a complete application." In so holding, the Ninth Circuit adopted what many courts refer to as the "application" approach, rather than the "registration" approach.
The Cosmetic Ideas decision provides the best analysis on the issue to date. In amplifying the sound reasoning of La Resolana Architects, PA v. Clay Realtors Angel Fire, 416 F.3d 1195, 1202-04 (10th Cir. 2005), the Cosmetic Ideas opinion examined the plain language of Section 411(a), the Copyright Act as a whole, and even the purpose of the Act. It found the plain language unhelpful in defining "registration," and it found five sections of the broader Copyright Act to be instructive, but not clearly supporting either the application approach or the registration approach. In examining the purpose of the Copyright Act, the court concluded that "the application approach better fulfills Congress's purpose of providing broad copyright protection while maintaining a robust federal register."
Specifically, the Cosmetic Ideas Court noted that the application approach offers these benefits over the registration approach: (a) "avoids unnecessary delay in copyright infringement litigation . . . [g]iven that copyright owners will ultimately be allowed to proceed regardless of how the Copyright Office treats the application"; (b) "avoids delay without impairing the central goal of copyright registration"; and (c) avoids the "worst-case scenario" under the registration approach, which "could cause a party to lose its ability to sue."
One benefit of the application approach that Cosmetic Ideas missed is that it puts U.S. works on equal footing with non-U.S. works. Under the Berne Convention, foreign works may not be subject to registration formalities prior to initiating litigation. The registration approach actually treats non-U.S. works better than U.S. works, because it requires owners of U.S. works to wait for registration prior to filing an infringement action. By adopting the application approach, U.S. works are given equally favorable treatment.
Look for the Cosmetic Ideas opinion to be the new road map for courts across the country as they grapple with deciding whether to adopt the application or registration approach. More courts should follow the analysis in Cosmetic Ideas and reach the same conclusion.
Finally, many of the courts that adopted the registration approach did so while dismissing the complaint before them for lack of subject matter jurisdiction. That is, many of them held that since 411(a) required a copyright plaintiff to obtain registration prior to filing suit (i.e., the registration approach), the court lacked subject matter jurisdiction. See Specific Software Solutions, LLC v. Institute of WorkComp Advisors, LLC, 615 F. Supp. 2d 708, 716 (M.D. Tenn. 2009). As Cosmetic Ideas notes in note 4, however, many of these cases have been abrogated, in part, by Reed Elsevier. Knowing that should help lawyers and litigants who are seeking to persuade courts to abandon the registration approach and adopt the application approach instead.
Picking up where Reed Elsevier left off, the Ninth Circuit specifically addressed that issue in a decision on May 25, 2010, namely what it means to "register" a copyrighted work. See Cosmetic Ideas, Inc. v. IAC/InteractiveCorp, 606 F.3d 612 (9th Cir. 2010). The Cosmetic Court issued a thoughtful decision that concluded "registration" under 411(a) is accomplished upon mere "receipt by the Copyright Office of a complete application." In so holding, the Ninth Circuit adopted what many courts refer to as the "application" approach, rather than the "registration" approach.
The Cosmetic Ideas decision provides the best analysis on the issue to date. In amplifying the sound reasoning of La Resolana Architects, PA v. Clay Realtors Angel Fire, 416 F.3d 1195, 1202-04 (10th Cir. 2005), the Cosmetic Ideas opinion examined the plain language of Section 411(a), the Copyright Act as a whole, and even the purpose of the Act. It found the plain language unhelpful in defining "registration," and it found five sections of the broader Copyright Act to be instructive, but not clearly supporting either the application approach or the registration approach. In examining the purpose of the Copyright Act, the court concluded that "the application approach better fulfills Congress's purpose of providing broad copyright protection while maintaining a robust federal register."
Specifically, the Cosmetic Ideas Court noted that the application approach offers these benefits over the registration approach: (a) "avoids unnecessary delay in copyright infringement litigation . . . [g]iven that copyright owners will ultimately be allowed to proceed regardless of how the Copyright Office treats the application"; (b) "avoids delay without impairing the central goal of copyright registration"; and (c) avoids the "worst-case scenario" under the registration approach, which "could cause a party to lose its ability to sue."
One benefit of the application approach that Cosmetic Ideas missed is that it puts U.S. works on equal footing with non-U.S. works. Under the Berne Convention, foreign works may not be subject to registration formalities prior to initiating litigation. The registration approach actually treats non-U.S. works better than U.S. works, because it requires owners of U.S. works to wait for registration prior to filing an infringement action. By adopting the application approach, U.S. works are given equally favorable treatment.
Look for the Cosmetic Ideas opinion to be the new road map for courts across the country as they grapple with deciding whether to adopt the application or registration approach. More courts should follow the analysis in Cosmetic Ideas and reach the same conclusion.
Finally, many of the courts that adopted the registration approach did so while dismissing the complaint before them for lack of subject matter jurisdiction. That is, many of them held that since 411(a) required a copyright plaintiff to obtain registration prior to filing suit (i.e., the registration approach), the court lacked subject matter jurisdiction. See Specific Software Solutions, LLC v. Institute of WorkComp Advisors, LLC, 615 F. Supp. 2d 708, 716 (M.D. Tenn. 2009). As Cosmetic Ideas notes in note 4, however, many of these cases have been abrogated, in part, by Reed Elsevier. Knowing that should help lawyers and litigants who are seeking to persuade courts to abandon the registration approach and adopt the application approach instead.
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