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`EXHIBIT B
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`

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`Case 2:19-cv-12240-SFC-APP ECF No. 65-3 filed 12/16/19 PageID.1478 Page 2 of 13
`
`FOURTH ESTATE PUBLIC CORP v. WALL-STREET.COM, LLC
`Cite as 139 S.Ct. 881 (2019)
`
`881
`
`to 100 percent and so Rimini’s reading of
`the word
`‘‘full’’ now adds nothing to
`‘‘costs.’’ If we assume that Congress in
`1976 did not intend ‘‘full’’ to be surplusage,
`Oracle argues that Congress must have
`employed the term ‘‘full’’ to mean expenses
`beyond the costs specified in §§ 1821 and
`1920.
`For several reasons, that argument does
`not persuade us.
`To begin with, even if the term ‘‘full’’
`lacked any continuing significance after
`1976, the meaning of
`‘‘costs’’ did not
`change. The term ‘‘costs’’ still means those
`costs specified in §§ 1821 and 1920. It
`makes little sense to think that Congress
`in 1976, when it made the award of full
`costs discretionary rather than mandatory,
`silently expanded the kinds of expenses
`that a court may otherwise award as costs
`in copyright suits.3
`Moreover, Oracle’s interpretation would
`create its own redundancy problem by ren-
`dering the second sentence of § 505 large-
`ly redundant. That second sentence pro-
`vides: ‘‘Except as otherwise provided by
`this title, the court may also award a rea-
`sonable attorney’s fee to the prevailing
`party as part of the costs.’’ 17 U.S.C.
`§ 505. If Oracle were right that ‘‘full costs’’
`covers all of a party’s litigation expendi-
`tures, then the first sentence of § 505
`would presumably already cover attorney’s
`fees and the second sentence would be
`largely unnecessary. In order to avoid
`some redundancy, Oracle’s interpretation
`would create other redundancy.
`[5] Finally, even if Oracle is correct
`that the term ‘‘full’’ has become unneces-
`sary or redundant as a result of the 1976
`amendment, Oracle overstates the signifi-
`cance of statutory surplusage or redundan-
`
`cy. Redundancy is not a silver bullet. We
`have recognized that some ‘‘redundancy is
`‘hardly unusual’
`in statutes addressing
`costs.’’ Marx v. General Revenue Corp.,
`568 U.S. 371, 385, 133 S.Ct. 1166, 185
`L.Ed.2d 242 (2013). If one possible inter-
`pretation of a statute would cause some
`redundancy and another
`interpretation
`would avoid redundancy, that difference in
`the two interpretations can supply a clue
`as to the better interpretation of a statute.
`But only a clue. Sometimes the better
`overall reading of the statute contains
`some redundancy.
`*
`*
`*
`The Copyright Act authorizes federal
`district courts to award ‘‘full costs’’ to a
`party in copyright litigation. That term
`means the costs specified in the general
`costs statute, §§ 1821 and 1920. We re-
`verse in relevant part the judgment of the
`Court of Appeals, and we remand the case
`for further proceedings consistent with
`this opinion.
`It is so ordered.
`
`,
`
`
`
`
`
`FOURTH ESTATE PUBLIC BENEFIT
`CORPORATION, Petitioner
`v.
`WALL-STREET.COM, LLC, et al.
`No. 17-571
`Supreme Court of the United States.
`Argued January 8, 2019
`Decided March 4, 2019
`Background: Licensor filed copyright in-
`fringement action against former licensee
`
`3. Rimini further suggests that ‘‘full’’ still has
`meaning after 1976 because the statute gives
`the district court discretion to award either
`full costs or no costs, unlike statutes that refer
`
`only to ‘‘costs,’’ which allow courts to award
`any amount of costs up to full costs. In light
`of our disposition of the case, we need not
`and do not consider that argument.
`
`

`

`Case 2:19-cv-12240-SFC-APP ECF No. 65-3 filed 12/16/19 PageID.1479 Page 3 of 13
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`882
`
`139 SUPREME COURT REPORTER
`
`and its owner. The United States District
`Court for the Southern District of Florida,
`No. 0:16-cv-60497-RNS, Robert N. Scola,
`Jr., J., dismissed complaint, and licensor
`appealed. The Court of Appeals for the
`Eleventh Circuit, William Pryor, Circuit
`Judge, 856 F.3d 1338, affirmed. Certiorari
`was granted.
`Holding:
` The Supreme Court, Justice
`Ginsburg, held that registration of a copy-
`right claim occurs, and a copyright claim-
`ant may commence an infringement suit,
`when the Copyright Office registers a
`copyright, not when a copyright owner
`submits the application, materials, and
`registration fee to the Copyright Office,
`abrogating Cosmetic Ideas, Inc. v. IAC/In-
`teractivecorp., 606 F.3d 612.
`Affirmed.
`
`1. Copyrights and Intellectual Property
`O75.5
`Upon registration of a copyright, the
`copyright owner can recover for infringe-
`ment that occurred both before and after
`registration. 17 U.S.C.A. § 411(a).
`
`2. Copyrights and Intellectual Property
`O50.30
`Register of Copyrights is the director
`of the Copyright Office of the Library of
`Congress, and is appointed by the Librari-
`an of Congress. 17 U.S.C.A. § 701(a).
`
`3. Copyrights and Intellectual Property
`O50.30
`Copyright Act delegates to the Regis-
`ter of Copyrights all administrative func-
`tions and duties under title 17.
` 17
`U.S.C.A. § 701(a).
`
`4. Copyrights and Intellectual Property
`O4
`Under the Copyright Act, as amend-
`ed, copyright protection attaches to ‘‘origi-
`nal works of authorship,’’ prominent
`among them, literary, musical, and dra-
`
`matic works fixed in any tangible medium
`of expression. 17 U.S.C.A. § 102(a).
`
`5. Copyrights and Intellectual Property
`O36
`Under the Copyright Act, an author
`gains ‘‘exclusive rights’’ in her work imme-
`diately upon the work’s creation, including
`rights of reproduction, distribution, and
`display. 17 U.S.C.A. § 106.
`
`6. Copyrights and Intellectual Property
`O76
`Copyright Act entitles a copyright
`owner to institute a civil action for in-
`fringement of her exclusive rights. 17
`U.S.C.A. § 501(b).
`
`7. Copyrights and Intellectual Property
`O75.5
`infringement
`Before pursuing an
`claim in court, a copyright claimant gener-
`ally must comply with the requirement of
`the Copyright Act that registration of the
`copyright claim has been made.
` 17
`U.S.C.A. § 411(a).
`
`8. Copyrights and Intellectual Property
`O75.5
`Although a copyright owner’s rights
`exist apart from registration, registration
`is akin to an administrative exhaustion re-
`quirement that the owner must satisfy be-
`fore suing to enforce ownership rights. 17
`U.S.C.A. §§ 408(a), 411(a).
`
`9. Copyrights and Intellectual Property
`O50.16, 75.5
`In limited circumstances, copyright
`owners may file an infringement suit be-
`fore undertaking registration; for example,
`if a copyright owner is preparing to dis-
`tribute a work of a type vulnerable to
`predistribution
`infringement, notably, a
`movie or musical composition, the owner
`may
`apply
`for preregistration.
` 17
`U.S.C.A.
`§ 408(f)(2);
`37
`C.F.R.
`§ 202.16(b)(1).
`
`

`

`Case 2:19-cv-12240-SFC-APP ECF No. 65-3 filed 12/16/19 PageID.1480 Page 4 of 13
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`FOURTH ESTATE PUBLIC CORP v. WALL-STREET.COM, LLC
`Cite as 139 S.Ct. 881 (2019)
`
`883
`
`10. Copyrights and Intellectual Property
`O50.20
`If a copyright owner has applied for
`preregistration, the Copyright Office will
`conduct a limited review of the application
`and notify the claimant upon completion of
`the
`preregistration.
` 17 U.S.C.A.
`§ 408(f)(2); 37 C.F.R. §§ 202.16(c)(7),
`202.16(c)(10).
`
`11. Copyrights and Intellectual Property
`O75.5
`Once preregistration has been made, a
`copyright claimant may institute a suit for
`infringement. 17 U.S.C.A. § 411(a).
`
`12. Copyrights and Intellectual Property
`O50.16
`Preregistration of a copyright claim
`serves only as a preliminary step prior to a
`full registration. 17 U.S.C.A. § 408(f)(2).
`
`13. Copyrights and Intellectual Property
`O75.5
`Infringement suit brought in reliance
`on preregistration risks dismissal unless
`the copyright owner applies for registra-
`tion promptly after the preregistered
`work’s publication or infringement.
` 17
`U.S.C.A. § 408(f)(3)-(4).
`
`14. Copyrights and Intellectual Property
`O50.16, 75.5
`Copyright owner may sue for infringe-
`ment of a live broadcast before registra-
`tion has been made, but faces dismissal of
`her suit if she fails to make registration for
`the work within three months of its first
`transmission. 17 U.S.C.A. § 411(c).
`
`15. Copyrights and Intellectual Property
`O75.5
`Even
`in the exceptional scenarios
`when copyright owners may file an in-
`fringement suit before undertaking regis-
`tration, an owner must eventually pursue
`registration in order to maintain a suit for
`
`infringement.
`411(c).
`
` 17 U.S.C.A. §§ 408(f)(2),
`
`16. Copyrights and Intellectual Property
`O50.16, 75.5
`‘‘Registration’’ of a copyright claim oc-
`curs, and a copyright claimant may com-
`mence an
`infringement suit, when the
`Copyright Office registers a copyright, not
`when a copyright owner submits the appli-
`cation, materials, and registration fee to
`the Copyright Office; abrogating Cosmetic
`Ideas, Inc. v. IAC/Interactivecorp., 606
`F.3d 612. 17 U.S.C.A. § 411(a).
`See publication Words and Phrases
`for other judicial constructions and
`definitions.
`
`17. Statutes O1375
`In reading statute, court would resist
`‘‘improbable construction’’ that would re-
`quire implausible assumption that Con-
`gress gave a word different meanings in
`consecutive, related sentences within a sin-
`gle statutory provision.
`
`18. Copyrights and Intellectual Property
`O75.5
`Preregistration allows the author of a
`work vulnerable to predistribution copy-
`right infringement to enforce her exclusive
`rights in court before obtaining registra-
`tion or refusal thereof.
` 17 U.S.C.A.
`§ 408(f)(2).
`
`19. Copyrights and Intellectual Property
`O75.5
`In enacting the section of the Copy-
`right Act providing that a copyright claim-
`ant may not commence an infringement
`suit until registration of the copyright
`claim has been made in accordance with
`title 17, Congress both reaffirmed the gen-
`eral rule that registration must precede an
`infringement suit, and added an exception
`to cover instances in which registration is
`refused. 17 U.S.C.A. § 411(a).
`
`

`

`Case 2:19-cv-12240-SFC-APP ECF No. 65-3 filed 12/16/19 PageID.1481 Page 5 of 13
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`884
`
`139 SUPREME COURT REPORTER
`
`20. Copyrights and Intellectual Property
`O36
`Copyright Act safeguards copyright
`owners,
`irrespective of registration, by
`vesting them with exclusive rights upon
`creation of their works and prohibiting
`infringement from that point forward. 17
`U.S.C.A. §§ 106, 408(a).
`
`21. Copyrights and Intellectual Property
`O75.5, 87(3.1)
`If infringement occurs before a copy-
`right owner applies for registration, that
`owner may eventually recover damages for
`the past infringement, as well as the in-
`fringer’s profits; she must simply apply for
`registration and receive the Copyright Of-
`fice’s decision on her application before
`instituting suit. 17 U.S.C.A. § 504.
`
`22. Copyrights and Intellectual Property
`O71, 75.5, 86
`Once
`the Register of Copyrights
`grants or refuses registration, the copy-
`right owner may seek an injunction bar-
`ring the infringer from continued violation
`of her exclusive rights and an order re-
`quiring the infringer to destroy infringing
`materials. 17 U.S.C.A. §§ 502, 503(b).
`
`23. Copyrights and Intellectual Property
`O50.20
`Copyright Office allows copyright
`claimants to seek expedited processing of a
`claim for an additional $800 fee.
`
`24. Copyrights and Intellectual Property
`O75.5
`Delays in the Copyright Office’s pro-
`cessing of applications, though unfortunate
`and sometimes resulting in registration
`processing times of many months, did not
`permit court to revise the congressionally
`composed text of the section of the Copy-
`right Act providing that a copyright claim-
`
`ant may not commence an infringement
`suit until registration of the copyright
`claim has been made.
` 17 U.S.C.A.
`§ 411(a).
`
`Syllabus *
`Petitioner Fourth Estate Public Bene-
`fit Corporation (Fourth Estate), a news
`organization, licensed works to respondent
`Wall-Street.com, LLC
`(Wall-Street), a
`news website. Fourth Estate sued Wall-
`Street and its owner for copyright in-
`fringement of news articles that Wall-
`Street failed to remove from its website
`after canceling the parties’ license agree-
`ment. Fourth Estate had filed applications
`to register the articles with the Copyright
`Office, but the Register of Copyrights had
`not acted on those applications. Title 17
`U.S.C. § 411(a) states that ‘‘no civil action
`for infringement of the copyright in any
`United States work shall be instituted until
`TTT registration of the copyright claim has
`been made in accordance with this title.’’
`The District Court dismissed the com-
`plaint, and the Eleventh Circuit affirmed,
`holding that ‘‘registration TTT has [not]
`been made’’ under § 411(a) until the Copy-
`right Office registers a copyright.
`
`Held: Registration occurs, and a copy-
`right claimant may commence an infringe-
`ment suit, when the Copyright Office reg-
`isters a copyright. Upon registration of the
`copyright, however, a copyright owner can
`recover for
`infringement that occurred
`both before and after registration. Pp.
`887 – 892.
`
`(a) Under the Copyright Act of 1976,
`as amended, a copyright author gains ‘‘ex-
`clusive rights’’ in her work immediately
`upon the work’s creation. 17 U.S.C. § 106.
`A copyright owner may institute a civil
`
`* The syllabus constitutes no part of the opinion
`of the Court but has been prepared by the
`Reporter of Decisions for the convenience of
`
`the reader. See United States v. Detroit Timber
`& Lumber Co., 200 U.S. 321, 337, 26 S.Ct.
`282, 50 L.Ed. 499.
`
`

`

`Case 2:19-cv-12240-SFC-APP ECF No. 65-3 filed 12/16/19 PageID.1482 Page 6 of 13
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`FOURTH ESTATE PUBLIC CORP v. WALL-STREET.COM, LLC
`Cite as 139 S.Ct. 881 (2019)
`
`885
`
`action for infringement of those exclusive
`rights, § 501(b), but generally only after
`complying with § 411(a)’s requirement
`that ‘‘registration TTT has been made.’’
`Registration is thus akin to an administra-
`tive exhaustion requirement that the own-
`er must satisfy before suing to enforce
`ownership rights. Pp. 887 – 888.
`(b) In limited circumstances, copy-
`right owners may file an infringement suit
`before undertaking registration. For ex-
`ample, a copyright owner who is preparing
`to distribute a work of a type vulnerable to
`predistribution infringement—e.g., a movie
`or musical composition—may apply to the
`Copyright Office
`for preregistration.
`§ 408(f)(2). A copyright owner may also
`sue for infringement of a live broadcast
`before ‘‘registration TTT has been made.’’
`§ 411(c). Outside of statutory exceptions
`not applicable here, however, § 411(a) bars
`a copyright owner from suing for infringe-
`‘‘registration TTT has been
`ment until
`made.’’ Fourth Estate advances the ‘‘appli-
`cation approach’’ to this provision, arguing
`that registration occurs when a copyright
`owner submits a proper application for
`registration. Wall-Street advocates the
`‘‘registration approach,’’ urging that regis-
`tration occurs only when the Copyright
`Office grants registration of a copyright.
`The registration approach reflects the only
`satisfactory reading of § 411(a)’s text. Pp.
`887 – 892.
`(1) Read together, § 411(a)’s first two
`sentences focus on action by the Copyright
`Office—namely, its registration or refusal
`to register a copyright claim. If application
`alone sufficed to
`‘‘ma[ke]’’ registration,
`§ 411(a)’s second sentence—which permits
`a copyright claimant to file suit when the
`Register has refused her application—
`would be superfluous. Similarly, § 411(a)’s
`third sentence—which allows the Register
`to ‘‘become a party to the action with
`respect to the issue of registrability of the
`copyright claim’’—would be negated if an
`
`infringement suit could be filed and re-
`solved before the Register acted on an
`application. The registration approach
`reading of § 411(a) is supported by other
`provisions of the Copyright Act. In partic-
`ular, § 410 confirms that application is dis-
`crete from, and precedes, registration,
`while § 408(f)’s preregistration option
`would have little utility if a completed ap-
`plication sufficed to make registration. Pp.
`888 – 890.
`(2) Fourth Estate primarily contends
`that the Copyright Act uses the phrases
`‘‘make registration’’ and ‘‘registration has
`been made’’ to describe submissions by the
`copyright owner. Fourth Estate therefore
`insists that § 411(a)’s requirement that
`‘‘registration TTT has been made in accor-
`dance with this title’’ most likely refers to
`a copyright owner’s compliance with statu-
`tory requirements for registration applica-
`tions. Fourth Estate points to other Copy-
`right Act provisions that appear to use the
`phrase ‘‘make registration’’ or one of its
`variants to describe what a copyright
`claimant does. Fourth Estate acknowl-
`edges, however, that determining how the
`Copyright Act uses the word ‘‘registration’’
`in a particular provision requires examin-
`ing the ‘‘specific context’’ in which the
`term is used. The ‘‘specific context’’ of
`§ 411(a) permits only one sensible reading:
`The phrase ‘‘registration TTT has been
`made’’ refers to the Copyright Office’s act
`granting registration, not to the copyright
`claimant’s request for registration.
`Fourth Estate’s contrary reading
`stems in part from its misapprehension of
`the significance of certain 1976 revisions to
`the Copyright Act. But
`in enacting
`§ 411(a), Congress both reaffirmed the
`general rule that registration must pre-
`cede an infringement suit and added an
`exception in that provision’s second sen-
`tence to cover instances in which registra-
`tion is refused. That exception would have
`
`

`

`Case 2:19-cv-12240-SFC-APP ECF No. 65-3 filed 12/16/19 PageID.1483 Page 7 of 13
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`886
`
`139 SUPREME COURT REPORTER
`
`no work to do if Congress intended the
`1976 revisions to clarify that a copyright
`claimant may sue immediately upon apply-
`ing for registration. Noteworthy, too, in
`years following the 1976 revisions, Con-
`gress resisted efforts to eliminate § 411(a),
`which contains the registration require-
`ment.
`Fourth Estate also argues that, be-
`cause ‘‘registration is not a condition of
`copyright protection,’’ § 408(a), § 411(a)
`should not bar a copyright claimant from
`enforcing that protection in court once she
`has applied for registration. But the Copy-
`right Act safeguards copyright owners by
`vesting them with exclusive rights upon
`creation of their works and prohibiting
`infringement from that point forward. To
`recover for such infringement, copyright
`owners must simply apply for registration
`and await the Register’s decision. Further,
`Congress has authorized preregistration
`infringement suits with respect to works
`vulnerable to predistribution infringement,
`and Fourth Estate’s fear that a copyright
`owner might lose the ability to enforce her
`rights entirely is overstated. True, regis-
`tration processing times have increased
`from one to two weeks in 1956 to many
`months today. Delays, in large part, are
`the result of Copyright Office staffing and
`budgetary shortages that Congress can al-
`leviate, but courts cannot cure. Unfortu-
`nate as the current administrative lag may
`be, that factor does not allow this Court to
`revise § 411(a)’s congressionally composed
`text. Pp. 889 – 892.
`856 F.3d 1338, affirmed.
`GINSBURG, J., delivered the opinion
`for a unanimous Court.
`
`Peter K. Stris, Los Angeles, CA, for
`Respondents.
`Aaron M. Panner, Washington, DC, for
`Petitioner.
`
`Jonathan Y. Ellis for the United States
`as amicus curiae, by special leave of the
`Court, supporting the Respondents.
`
`David A. Geller, FL, Peter K. Stris,
`Brendan S. Maher, Elizabeth Brannen,
`Rachana A. Pathak, Douglas D. Geyser,
`Victor O’Connell, John Stokes, Stris &
`Maher LLP, Los Angeles, CA, for Respon-
`dents.
`
`Joel B. Rothman, Jerold I. Schneider,
`Schneider Rothman, Intellectual Property
`Law Group, PLLC, FL, Aaron M. Panner,
`Gregory G. Rapawy, Grace W. Knofczyn-
`ski, Kellogg, Hansen, Todd, Figel & Fred-
`erick, P.L.L.C., Washington, DC, for Peti-
`tioner.
`
`For U.S. Supreme Court briefs, see:
`2018 WL 5962886 (Reply.Brief)
`2018 WL 4091715 (Pet.Brief)
`2018 WL 5013769 (Resp.Brief)
`
`Justice GINSBURG delivered the
`opinion of the Court.
`
`[1] Impelling prompt registration of
`copyright claims, 17 U.S.C. § 411(a) states
`that ‘‘no civil action for infringement of the
`copyright in any United States work shall
`be instituted until TTT registration of the
`copyright claim has been made in accor-
`dance with this title.’’ The question this
`case presents: Has ‘‘registration TTT been
`made in accordance with [Title 17]’’ as
`soon as the claimant delivers the required
`application, copies of the work, and fee to
`the Copyright Office; or has ‘‘registration
`TTT been made’’ only after the Copyright
`Office reviews and registers the copyright?
`We hold, in accord with the United States
`Court of Appeals for the Eleventh Circuit,
`that registration occurs, and a copyright
`claimant may commence an infringement
`suit, when the Copyright Office registers a
`copyright. Upon registration of the copy-
`right, however, a copyright owner can re-
`
`

`

`Case 2:19-cv-12240-SFC-APP ECF No. 65-3 filed 12/16/19 PageID.1484 Page 8 of 13
`
`FOURTH ESTATE PUBLIC CORP v. WALL-STREET.COM, LLC
`Cite as 139 S.Ct. 881 (2019)
`
`887
`
`cover for infringement that occurred both
`before and after registration.
`
`[2, 3] Petitioner Fourth Estate Public
`Benefit Corporation (Fourth Estate) is a
`news organization producing online jour-
`nalism. Fourth Estate licensed journalism
`works
`to respondent Wall-Street.com,
`LLC (Wall-Street), a news website. The
`license agreement required Wall-Street to
`remove from its website all content pro-
`duced by Fourth Estate before canceling
`the agreement. Wall-Street canceled, but
`continued to display articles produced by
`Fourth Estate. Fourth Estate sued Wall-
`Street and its owner, Jerrold Burden, for
`copyright infringement. The complaint al-
`leged that Fourth Estate had filed ‘‘appli-
`cations to register [the] articles [licensed
`to Wall-Street] with the Register of Copy-
`rights.’’ App. to Pet. for Cert. 18a.1 Be-
`cause the Register had not yet acted on
`Fourth Estate’s applications,2 the District
`Court, on Wall-Street and Burden’s mo-
`tion, dismissed the complaint, and the
`Eleventh Circuit affirmed. 856 F.3d 1338
`(2017). Thereafter, the Register of Copy-
`rights refused registration of the articles
`Wall-Street had allegedly infringed.3
`We granted Fourth Estate’s petition for
`certiorari to resolve a division among U.S.
`Courts of Appeals on when registration
`occurs in accordance with § 411(a). 585
`U.S. ––––, 138 S.Ct. 2707, 201 L.Ed.2d
`1095 (2018). Compare, e.g., 856 F.3d at
`1341 (case below) (registration has been
`made under § 411(a) when the Register of
`Copyrights registers a copyright), with,
`
`1. The Register of Copyrights is the ‘‘director
`of the Copyright Office of the Library of Con-
`gress’’ and is appointed by the Librarian of
`Congress. 17 U.S.C. § 701(a). The Copyright
`Act delegates to the Register ‘‘[a]ll administra-
`tive functions and duties under [Title 17].’’
`Ibid.
`
`2. Consideration of Fourth Estate’s filings was
`initially delayed because the check Fourth
`
`e.g., Cosmetic Ideas, Inc. v. IAC/Interacti-
`vecorp, 606 F.3d 612, 621 (C.A.9 2010)
`(registration has been made under
`§ 411(a) when the copyright claimant’s
`‘‘complete application’’ for registration is
`received by the Copyright Office).
`
`I
`[4–6] Under the Copyright Act of 1976,
`as amended, copyright protection attaches
`to ‘‘original works of authorship’’—promi-
`nent among them, literary, musical, and
`dramatic works—‘‘fixed in any tangible
`medium of expression.’’ 17 U.S.C. § 102(a).
`An author gains ‘‘exclusive rights’’ in her
`work immediately upon the work’s cre-
`ation, including rights of reproduction, dis-
`tribution, and display. See § 106; Eldred v.
`Ashcroft, 537 U.S. 186, 195, 123 S.Ct. 769,
`154 L.Ed.2d 683 (2003) (‘‘[F]ederal copy-
`right protection TTT run[s] from the work’s
`creation.’’). The Copyright Act entitles a
`copyright owner to institute a civil action
`for infringement of those exclusive rights.
`§ 501(b).
`
`[7, 8] Before pursuing an infringement
`claim in court, however, a copyright claim-
`ant generally must comply with § 411(a)’s
`requirement that ‘‘registration of the copy-
`right claim has been made.’’ § 411(a).
`Therefore, although an owner’s rights exist
`apart from registration, see § 408(a), reg-
`istration is akin to an administrative ex-
`haustion requirement that the owner must
`satisfy before suing to enforce ownership
`rights, see Tr. of Oral Arg. 35.
`
`Estate sent in payment of the filing fee was
`rejected by Fourth Estate’s bank as uncollect-
`ible. App. to Brief for United States as Amicus
`Curiae 1a.
`
`3. The merits of the Copyright Office’s decision
`refusing registration are not at issue in this
`Court.
`
`

`

`Case 2:19-cv-12240-SFC-APP ECF No. 65-3 filed 12/16/19 PageID.1485 Page 9 of 13
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`888
`
`139 SUPREME COURT REPORTER
`
`[9–15] In limited circumstances, copy-
`right owners may file an infringement suit
`before undertaking registration. If a copy-
`right owner is preparing to distribute a
`work of a type vulnerable to predistribu-
`tion
`infringement—notably, a movie or
`musical composition—the owner may apply
`for preregistration. § 408(f)(2); 37 CFR
`§ 202.16(b)(1) (2018). The Copyright Office
`will ‘‘conduct a limited review’’ of the appli-
`cation and notify the claimant ‘‘[u]pon com-
`pletion
`of
`the
`preregistration.’’
`§ 202.16(c)(7), (c)(10). Once ‘‘preregistra-
`tion TTT has been made,’’ the copyright
`claimant may institute a suit for infringe-
`ment. 17 U.S.C. § 411(a). Preregistration,
`however, serves only as ‘‘a preliminary
`step prior to a full registration.’’ Preregis-
`tration of Certain Unpublished Copyright
`Claims, 70 Fed. Reg. 42286 (2005). An
`infringement suit brought in reliance on
`preregistration risks dismissal unless the
`copyright owner applies for registration
`promptly after the preregistered work’s
`publication or infringement. § 408(f)(3)–
`(4). A copyright owner may also sue for
`infringement of a live broadcast before
`‘‘registration TTT has been made,’’ but
`faces dismissal of her suit if she fails to
`‘‘make registration for the work’’ within
`three months of its first transmission.
`§ 411(c). Even in these exceptional scenar-
`ios, then, the copyright owner must even-
`tually pursue registration in order to main-
`tain a suit for infringement.
`
`II
`[16] All parties agree that, outside of
`statutory exceptions not applicable here,
`
`§ 411(a) bars a copyright owner from su-
`ing for
`infringement until
`‘‘registration
`TTT has been made.’’ Fourth Estate and
`Wall-Street dispute, however, whether
`‘‘registration TTT has been made’’ under
`§ 411(a) when a copyright owner submits
`the application, materials, and fee re-
`quired for registration, or only when the
`Copyright Office grants
`registration.
`Fourth Estate advances the former view—
`the
`‘‘application approach’’—while Wall-
`Street urges the latter reading—the ‘‘reg-
`istration approach.’’ The registration ap-
`proach, we conclude, reflects the only sat-
`isfactory reading of § 411(a)’s text. We
`therefore reject Fourth Estate’s applica-
`tion approach.
`
`A
`Under § 411(a), ‘‘registration TTT has
`been made,’’ and a copyright owner may
`sue for infringement, when the Copyright
`Office registers a copyright.4 Section
`411(a)’s first sentence provides that no civil
`infringement action ‘‘shall be instituted un-
`til preregistration or registration of the
`copyright claim has been made.’’ The sec-
`tion’s next sentence sets out an exception
`to this rule: When the required ‘‘deposit,
`application, and fee TTT have been deliv-
`ered to the Copyright Office in proper
`form and registration has been refused,’’
`the claimant ‘‘[may] institute a civil action,
`if notice thereof TTT is served on the Reg-
`ister.’’ Read together, § 411(a)’s opening
`sentences focus not on the claimant’s act of
`applying for registration, but on action by
`the Copyright Office—namely, its registra-
`
`4. Section 411(a) provides, in principal part:
`‘‘[N]o civil action for infringement of the
`copyright in any United States work shall be
`instituted until preregistration or registration
`of the copyright claim has been made in ac-
`cordance with this title. In any case, however,
`where the deposit, application, and fee re-
`quired for registration have been delivered to
`
`the Copyright Office in proper form and regis-
`tration has been refused, the applicant is enti-
`tled to institute a civil action for infringement
`if notice thereof, with a copy of the complaint,
`is served on the Register of Copyrights. The
`Register may, at his or her option, become a
`party to the action with respect to the issue of
`registrability of the copyright claim TTTT’’
`
`

`

`Case 2:19-cv-12240-SFC-APP ECF No. 65-3 filed 12/16/19 PageID.1486 Page 10 of 13
`
`FOURTH ESTATE PUBLIC CORP v. WALL-STREET.COM, LLC
`Cite as 139 S.Ct. 881 (2019)
`
`889
`
`tion or refusal to register a copyright
`claim.
`
`[17] If application alone sufficed to
`‘‘ma[ke]’’ registration, § 411(a)’s second
`sentence—allowing suit upon refusal of
`registration—would be superfluous. What
`utility would that allowance have if a copy-
`right claimant could sue for infringement
`immediately after applying for registration
`without awaiting the Register’s decision on
`her application? Proponents of the applica-
`tion approach urge that § 411(a)’s second
`sentence serves merely to require a copy-
`right claimant to serve ‘‘notice [of an in-
`fringement suit] TTT on the Register.’’ See
`Brief for Petitioner 29–32. This reading,
`however, requires the implausible assump-
`tion that Congress gave ‘‘registration’’ dif-
`ferent meanings in consecutive, related
`sentences within a single statutory provi-
`sion. In § 411(a)’s first sentence, ‘‘registra-
`tion’’ would mean the claimant’s act of
`filing an application, while in the section’s
`second sentence, ‘‘registration’’ would en-
`tail the Register’s review of an application.
`We resist this improbable construction.
`See, e.g., Mid-Con Freight Systems, Inc. v.
`Michigan Pub. Serv. Comm’n, 545 U.S.
`440, 448, 125 S.Ct. 2427, 162 L.Ed.2d 418
`(2005) (declining to read ‘‘the same words’’
`in consecutive sentences as ‘‘refer[ring] to
`something totally different’’).
`
`The third and final sentence of § 411(a)
`further persuades us that the provision
`requires action by the Register before a
`copyright claimant may sue for infringe-
`ment. The sentence allows the Register to
`‘‘become a party to the action with respect
`to the issue of registrability of the copy-
`right claim.’’ This allowance would be ne-
`gated, and the court conducting an in-
`fringement suit would lack the benefit of
`the Register’s assessment, if an infringe-
`ment suit could be filed and resolved be-
`fore the Register acted on an application.
`
`Other provisions of the Copyright Act
`support our reading of ‘‘registration,’’ as
`used in § 411(a), to mean action by the
`Register. Section 410 states that, ‘‘after
`examination,’’ if the Register determines
`that ‘‘the material deposited constitutes
`copyrightable subject matter’’ and ‘‘other
`legal and formal requirements TTT [are]
`met, the Register shall register the claim
`and issue to the applicant a certificate of
`registration.’’ § 410(a). But if the Register
`determines that the deposited material
`‘‘does not constitute copyrightable subject
`matter or that the claim is invalid for any
`other reason, the Register shall refuse
`registration.’’ § 410(b). Section 410 thus
`confirms that application is discrete from,
`and precedes, registration. Section 410(d),
`furthermore, provides that if the Copy-
`right Office registers a claim, or if a court
`later determines that a refused claim was
`registrable, the
`‘‘effective date of [the
`work’s] copyright registration is the day
`on which’’ the copyright owner made a
`proper submission to the Copyright Office.
`There would be no need thus to specify the
`‘‘effective date of a copyright registration’’
`if submission of the required materials
`qualified as ‘‘registration.’’
`
`[18] Section 408(f)’s preregistration op-
`tion, too, would have little utility if a com-
`pleted application constituted registration.
`Preregistration, as noted supra, at 887 –
`888, allows the author of a work vulnerable
`to predistribution infringement to enforce
`her exclusive rights in court before obtain-
`ing registration or refusal thereof. A copy-
`right owner who fears prepublication in-
`fringement would have no reason to apply
`for preregistration, however, if she could
`instead simply complete an application for
`registration and immediately commence an
`infringement suit. Cf. TRW Inc. v. An-
`drews, 534 U.S. 19, 29, 122 S.Ct. 441, 151
`L.Ed.2d 339 (2001) (rejecting an interpre-
`tation that ‘‘would in practical effect ren-
`
`

`

`Case 2:19-cv-12240-SFC-APP ECF No. 65-3 filed 12/16/19 PageID.1487 Page 11 of 13
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`890
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`139 SUPREME COURT REPORTER
`
`der [a provision] superfluous in all but the
`most unusual circumstances’’).
`
`B
`
`Challenging the Eleventh Circuit’s judg-
`ment, Fourth Estate primarily contends
`that the Copyright Act uses ‘‘the phrase
`‘make registration’ and its passive-voice
`counterpart ‘registration has been made’ ’’
`to describe