`
`No. 17-571
`================================================================
`
`In The
`Supreme Court of the United States
`--------------------------------- ---------------------------------
`
`FOURTH ESTATE PUBLIC BENEFIT CORPORATION,
`
`Petitioner,
`
`v.
`
`WALL-STREET.COM, LLC, et al.,
`
`Respondents.
`
`--------------------------------- ---------------------------------
`
`On Writ Of Certiorari To The
`United States Court Of Appeals
`For The Eleventh Circuit
`
`--------------------------------- ---------------------------------
`
`BRIEF OF AUTHORS AND EDUCATORS AS
`AMICI CURIAE IN SUPPORT OF RESPONDENTS
`
`--------------------------------- ---------------------------------
`
`PETER JASZI
` Counsel of Record
`HILLARY BRILL
`GLUSHKO-SAMUELSON INTELLECTUAL
` PROPERTY LAW CLINIC
`WASHINGTON COLLEGE OF LAW
`AMERICAN UNIVERSITY
`4300 Nebraska Ave. NW
`Washington, DC 20016
`(202) 274-4148
`pjaszi@wcl.american.edu
`Counsel for Amici Curiae
`
`October 18, 2018
`
`================================================================
`COCKLE LEGAL BRIEFS (800) 225-6964
`WWW.COCKLELEGALBRIEFS.COM
`
`
`
`
`
`i
`
`TABLE OF CONTENTS
`
`8
`
`Page
`INTEREST OF AMICI CURIAE .........................
`1
`SUMMARY OF THE ARGUMENT .....................
`3
`INTRODUCTION ................................................
`4
`ARGUMENT ........................................................
`8
`
`I. Historically, the Copyright Office Register
`and the Registration Process Has Upheld
`Copyright Quality ......................................
` II. Congress Intended the Term “Registra-
`tion” to Mean a Final Action by the Copy-
`right Office, Not a Mere Application ......... 14
`A. The Plain Meaning of the Word “Reg-
`istration” in Section 411(a) of the Copy-
`right Act Means an Action Taken by
`the Copyright Office Because to Inter-
`pret Otherwise Does Not Make Com-
`mon Sense ............................................ 14
`B. Legislative History Supports Regis-
`tration as Meaning a Final Decision by
`the Copyright Office ............................ 19
` III. The Term “Registration” Should Mean a
`Final Action by the Copyright Office Be-
`cause the Courts, Parties to Litigation,
`and the General Public Benefit from a
`Screening Process that Supports Copy-
`right Quality .............................................. 24
`
`
`
`ii
`
`TABLE OF CONTENTS – Continued
`
`Page
`A. Courts benefit from the screening pro-
`cess before copyright litigation be-
`cause they can look to the expertise of
`the Copyright Office ............................ 24
`B. Actual and potential defendants bene-
`fit from a registration approach that
`guards against unfounded and spuri-
`ous claims ............................................ 27
`C. Creators and educators also benefit
`from the registration approach be-
`cause a screening process provides
`clarity to those seeking to safeguard
`their rights .......................................... 30
`D. The general public benefits from institu-
`tions that support copyright quality ...... 32
`CONCLUSION ..................................................... 33
`
`
`
`
`iii
`
`TABLE OF AUTHORITIES
`
`Page
`
`CASES
`Brown v. Gardner, 513 U.S. 115 (1994) ...................... 16
`Combat Zone, Inc. v. Does 1-1037, No. 3:10-cv-
`0090 (N.D.W. Va. Jan. 3, 2011) ................................ 29
`Corley v. United States, 556 U.S. 303 (2009) .............. 17
`Esquire, Inc. v. Ringer, 591 F.2d 796 (D.C. Cir.
`1978) ........................................................................ 25
`Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S.
`338 (1991) ................................................................ 32
`Fogerty v. Fantasy, Inc., 510 U.S. 517 (1991) .............. 32
`Garcia v. Google, Inc., 786 F.3d 733 (9th Cir.
`2015) ............................................................ 25, 26, 27
`Inhale, Inc. v. Starbuzz Tobacco, Inc., 755 F.3d
`1038 (9th Cir. 2014) ................................................. 25
`Petrella v. Metro-Goldwyn-Mayer, Inc., 134 S. Ct.
`1962 (2014) .............................................................. 24
`Righthaven, LLC v. Democratic Underground,
`791 F. Supp. 2d 968 (D. Nev. 2011) ......................... 30
`Righthaven, LLC v. DiBiase, No. 2:10-cv-01343,
`2011 WL 5101938 (D. Nev. Oct. 26, 2011) .............. 30
`S.O.S., Inc. v. Payday, Inc., 886 F.2d 1081 (9th
`Cir. 1989) ................................................................. 31
`Star Athletica, LLC v. Varsity Brands, Inc., 137
`S. Ct. 1002 (2017) .............................................. 14, 16
`
`
`
`iv
`
`TABLE OF AUTHORITIES – Continued
`
`Page
`
`Third World Media, LLC v. Does 1-1568, No. C
`10-04470 LB, 2011 WL 4344160 (N.D. Cal.
`Sept. 15, 2011) ......................................................... 29
`Varsity Brands, Inc. v. Star Athletica, LLC, 799
`F.3d 468 (6th Cir. 2015), aff ’d, 137 S. Ct. 1002
`(2017) ................................................................. 25, 26
`
`
`CONSTITUTIONAL PROVISIONS
`U.S. Const. art. I, § 8, cl. 8 ............................................. 3
`
`STATUTES AND REGULATIONS
`8 Anne, c. 2 (1710) ......................................................... 9
`Act of May 31, 1790, ch. 15, § 3, 1 Stat. 124 (1790
`Act) ............................................................................ 9
`17 U.S.C. § 53 (1909) ................................................... 11
`Va. Code Ann. (1989)
` Va. Code Ann. § 46.2-600 ........................................ 16
` Va. Code Ann. § 46.2-645 ........................................ 16
`17 U.S.C. (2018)
` 17 U.S.C. § 410(a) .................................................... 16
` 17 U.S.C. § 410(b) .................................................... 16
` 17 U.S.C. § 410(c) ................................................. 7, 31
` 17 U.S.C. § 410(d) ........................................ 17, 18, 19
` 17 U.S.C. § 411 ................................................... 19, 21
`
`
`
`
`
`v
`
`TABLE OF AUTHORITIES – Continued
`
`Page
` 17 U.S.C. § 411(a) ............................................ passim
` 17 U.S.C. § 412 ......................................................... 18
`14 C.F.R. § 47.39 (2010) .............................................. 15
`37 C.F.R. § 201.2 (2018) ................................................ 7
`
`LEGISLATIVE AUTHORITIES
`Abe Goldman, The History of U.S.A. Copyright
`Law Revision From 1901 to 1954, in S. Comm.
`on the Judiciary Subcomm. on Patents, Trade-
`marks, and Copyrights, 86th Cong., Copyright
`Law Revision (Study No. 1) (Comm. Print
`1960) ........................................................................ 11
`Benjamin Kaplan, The Registration of Copy-
`right, in S. Comm. on the Judiciary Subcomm.
`on Patents, Trademarks, and Copyrights, 86th
`Cong., Copyright Law Revision (Study No. 17)
`(Comm. Print 1960) ................................. 9, 10, 11, 12
`Caruthers Berger, Authority of the Register of
`Copyrights to Reject Applications for Registra-
`tion, in S. Comm. on the Judiciary Subcomm. on
`Patents, Trademarks, and Copyrights, 86th
`Cong., Copyright Law Revision (Study No. 18)
`(Comm. Print 1960) ................................................. 12
`134 Cong. Rec. S28302 (daily ed. Oct. 5, 1988)
`(Joint Explanatory Statement on Amendment
`to S. 1301) ................................................................ 21
`
`
`
`
`
`
`vi
`
`TABLE OF AUTHORITIES – Continued
`
`Page
`
`Copyright Office Operations, Accomplishments,
`and Challenges: Hearing Before the Subcomm.
`on Courts, and Intellectual Property of the H.
`Comm. on the Judiciary, 105th Cong. (1998)
`(Statement of Marybeth Peters, The Register
`of Copyrights) ............................................................ 5
`Energy and Water, Legislative Branch, and Mil-
`itary Construction and Veterans Affairs Ap-
`propriations Act of 2019, Pub. L. No. 115-244
`(2018) ......................................................................... 6
`Fiscal 2019 Budget Request of the United States
`Copyright Office: Hearing Before the Sub-
`comm. on Leg. Branch Appropriations of the
`H. Comm. on Appropriations, 115th Cong.
`(2018) (Statement of Karyn Temple, Acting
`Register, United States Copyright Office) ................ 5
`H. Comm. on the Judiciary, 87th Cong., Rep. on
`Copyright Law Revision (Comm. Print 1961)
`(Report of the Register of Copyrights, General
`Revision of Copyright Law) .............................. 20, 21
`H. Comm. on the Judiciary, 89th Cong., Supple-
`mentary Register’s Report on the General Re-
`vision of the U.S. Copyright Law (Comm. Print
`1965) ........................................................................ 20
`H.R. 897, 103rd Cong. (1993) ..................................... 22
`H.R. Rep. No. 94-1476 (1976) ............................... 19, 20
`H.R. Rep. No. 100-609 (1988) ............................... 21, 22
`
`
`
`vii
`
`TABLE OF AUTHORITIES – Continued
`
`Page
`
`Library of Cong., Rep. on the Advisory Comm. on
`Registration & Deposit (1993) (Robert Wedge-
`worth & Barbara Ringer, Co-Chairs) ............... 22, 23
`
`
`OTHER AUTHORITIES
`Brief for Petitioner, Fourth Estate Public Benefit
`Corp. v. Wall-Street.com (No. 17-571), 2018 WL
`4091715 ................................................................... 19
`Freedom of Information Act (FOIA) Records, U.S.
`Copyright Office, https://www.copyright.gov/
`foia/ (last visited Oct. 9, 2018) .................................. 7
`John Y. Cole, Ainsworth Spofford & Copyright
`Law of 1870, 6 J. Libr. Hist. 34 (1971) ................ 9, 10
`Judith Nierman, Certificate from 1897 Has An-
`tique Charm, Copyright Lore (Nov. 2007), https://
`www.copyright.gov/history/lore/pdfs/200711%
`20CLore_November2007.pdf .................................. 10
`Matthew Sag, Copyright Trolling, An Empirical
`Study, 100 Iowa L. Rev. 1105 (2015) ....................... 29
`2 Melville B. Nimmer & David Nimmer, Nimmer
`on Copyright (2018) ................................................. 24
`Register, Black’s Law Dictionary (10th ed. 2010) ....... 15
`Register, Merriam-Webster Dictionary, https://www.
`merriam-webster.com/dictionary/register (last
`visited Oct. 13, 2018) ............................................... 15
`
`
`
`
`
`
`viii
`
`TABLE OF AUTHORITIES – Continued
`
`Page
`
`Registration Processing Times, U.S. Copyright
`Office, https://www.copyright.gov/registration/
`docs/processing-times-faqs.pdf (last visited
`Oct. 5, 2018) ............................................................... 6
`Review Board Letters Online, U.S. Copyright Of-
`fice, https://www.copyright.gov/rulings-filings/
`review-board/ (last visited Oct. 12, 2018) ................. 7
`Rules of the Cal. St. Bar § 4.16(a)-(b) (West
`2018) ........................................................................ 15
`U.S. Copyright Office, Compendium of U.S. Copy-
`right Office Practices (2d ed. 1998) ......................... 13
`U.S. Copyright Office, Compendium of U.S. Copy-
`right Office Practices (3d ed. 2017) .................... 5, 14
`William F. Patry, Copyright Law and Practice
`(1994) ....................................................................... 11
`5 William F. Patry, Patry on Copyright (2018) ..... 9, 20, 21
`
`
`
`
`1
`
`INTEREST OF AMICI CURIAE1
`The undersigned authors, educators, and other
`
`creators respectfully submit this brief as amici curiae
`in support of Respondents Wallstreet.com, et al. pursu-
`ant to Rule 37 of the Rules of this Court. Amici urge
`this Court to affirm the judgment of the U.S. Court of
`Appeals for the Eleventh Circuit and its definition of
`“registration” in Section 411(a) of the Copyright Act as
`meaning a final decision on an application for registra-
`tion filed with the Copyright Office, after an expert re-
`view to determine the copyrightability of the work,
`rather than the mere filing of the application.
`
`The amici are: Steve Anderson, Professor of Digi-
`
`tal Media at UCLA; Patricia Aufderheide, Professor at
`the School of Communication at American University;
`Nancy Breslin, a fine art photographer and teacher in
`Washington, D.C.; Peter Decherney, Professor of Cin-
`ema & Media Studies and English at the University of
`Pennsylvania; Melissa Dunphy, an award-winning
`composer specializing in political and theatrical music;
`Bob Hercules, a Peabody Award-winning filmmaker
`whose work has been seen widely on PBS, BBC, the
`Discovery Channel, and elsewhere; Senna Hubbs, a
`playwright and fanfiction author; Lewis Hyde, an au-
`thor and Professor Emeritus of Creative Writing at
`
`
`1 Pursuant to Supreme Court Rule 37.6, amici curiae certify
`
`that no counsel for a party authored this brief in whole or in part
`and that no person or entity, other than amici curiae or its coun-
`sel, has made a monetary contribution to its preparation or sub-
`mission. The parties have granted blanket consent for the filing
`of amici curiae briefs.
`
`
`
`2
`
`Kenyon College; Kelly Richmond Pope, a documentary
`filmmaker; Gordon Quinn, the Artistic Director of
`Kartemquin Films, whose award-winning documen-
`tary filmmaking career spans over 50 years; Aram
`Sinnreich, Associate Professor at the School of Com-
`munication at American University; and Rebecca
`Tushnet, the Frank Stanton Professor of First Amend-
`ment Law at Harvard Law School.
`
`Amici are individuals whose livelihood and means
`
`of self-expression are dependent on consistent and fair
`copyright protection. As creators covering a diverse
`swath of artistic and educational disciplines, amici in-
`teract with potentially protected material routinely. To
`reach their audience of viewers, readers, students, and
`others, the amici depend on clarity and transparency
`in the law. Amici require protection for the new copy-
`rightable works they produce, but they also depend in
`their daily practice on the reasonable availability of
`pre-existing works as source material. Thus, they de-
`pend on the maintenance of what might be called
`“copyright quality,” elements of which include a fair,
`clear, and consistent boundary between copyrightable
`and non-copyrightable material and the regular appli-
`cation of that demarcation in particular cases, as well
`as the availability of public records relating to copy-
`right ownership. In this case, amici’s main concern is
`to ensure that the Copyright Office will continue, as
`Congress intended, to serve as an objective and timely
`source of expertise on questions of ownership and
`copyrightability, as this benefits courts, rights holders,
`users, and the general public.
`
`
`
`3
`
`The “registration approach,” requiring domestic
`
`copyright claimants to participate in a thorough re-
`view by the Copyright Office before commencing in-
`fringement litigation in federal court, will help
`maintain robust and expert oversight of copyright
`quality, which in turn helps fulfill the constitutional
`mandate “[t]o promote the Progress of Science and use-
`ful Arts.” U.S. Const. art. I, § 8, cl. 8. Methodical copy-
`right examination in advance of litigation benefits
`amici by providing useful guidance to courts grappling
`with difficult copyright questions and serves as an im-
`portant check (or “speed bump”) to discourage un-
`founded or spurious claims – both functions on which
`amici rely in their capacity as potential copyright de-
`fendants. In addition, amici also rely on the registra-
`tion process and the institutional expertise that has
`developed for guidance about the true nature and ex-
`tent of their own rights as creators. Moreover, as mem-
`bers of the general public, amici depend on the
`guidance provided by the registration process to dis-
`tinguish protected content from material in the public
`domain. By relegating the examination process to a
`subsidiary position, the so-called “application ap-
`proach” favored by the Petitioner would put all these
`interests at risk.
`
`--------------------------------- ---------------------------------
`
`SUMMARY OF THE ARGUMENT
`The plain meaning of Section 411(a) of the Copy-
`
`right Act, its legislative history, and the history of the
`registration process, as well as both contemporary
`
`
`
`4
`
`Copyright Office registration practices and fundamen-
`tal underlying policies, necessitate the registration
`approach. This approach not only enables the Copy-
`right Office to provide timely institutional expertise
`through consistent and rigorous review of all individ-
`ual applications for registration, but also through
`the publication of comprehensive guidance documents.
`The registration approach promotes effective and
`efficient judicial decision making by assuring pre-
`litigation review of whether individual works conform
`to standards of copyrightability; likewise, it supports
`creators in meeting those standards. It also provides
`actual or potential defendants with a means for under-
`standing the credibility of claims made against them
`and functions as a screening mechanism that safe-
`guards against the proliferation of unfounded asser-
`tions of copyright.
`
`--------------------------------- ---------------------------------
`
`INTRODUCTION
` Many factors in the U.S. copyright regime con-
`tribute to copyright quality, including the thorough
`examination of applications as part of the copyright
`registration process. The registration process helps
`assure that the standards of originality and subject-
`matter eligibility are met with respect to specific
`works, and that those standards are well articulated
`and widely understood. After a creator submits an
`application, an examiner (or “registration specialist”)
`with relevant subject-matter expertise is assigned to
`the application who then performs a rigorous review of
`
`
`
`5
`
`that application. See U.S. Copyright Office, Compen-
`dium of U.S. Copyright Office Practices § 206 (3d ed.
`2017) (hereinafter Compendium III). The same exam-
`iner handles all claims relevant to the application, en-
`suring familiarity with the needs of that creator. See
`Copyright Office Operations, Accomplishments, and
`Challenges: Hearing Before the Subcomm. on Courts,
`and Intellectual Property of the H. Comm. on the Judi-
`ciary, 105th Cong. (1998) (Statement of Marybeth Pe-
`ters, The Register of Copyrights). The registration
`screening process involves expert scrutiny of applica-
`tions to assure they meet prevailing standards relating
`to copyrightable subject-matter and originality, as well
`as information regarding ownership. See Compendium
`III §§ 206, 602.2. To that end, the Copyright Office has
`developed a 1,200-plus page manual, the Compendium
`III, that guides expert examiners. The Compendium III
`details specific standards to determine what is copy-
`rightable and provides an outline of the examination
`process. The Compendium III is the result of the effort
`to maintain and refine standards of copyright quality
`that has been ongoing since the first edition was pub-
`lished in 1967.
`
`The Copyright Office has recently emphasized the
`
`importance of examination, as reflected in its fiscal
`year 2019 budget request for additional funding to hire
`examiners, “much-needed registration specialists,” and
`to “train[ ] [them] in complex copyright claim[ ] exami-
`nation.” Fiscal 2019 Budget Request of the United
`States Copyright Office: Hearing Before the Subcomm.
`on Leg. Branch Appropriations of the H. Comm. on
`
`
`
`6
`
`Appropriations, 115th Cong. 5 (2018) (Statement of
`Karyn Temple, Acting Register, United States Copy-
`right Office); see also Energy and Water, Legislative
`Branch, and Military Construction and Veterans Af-
`fairs Appropriations Act of 2019, Pub. L. No. 115-244,
`§ 135 (2018). Expert trained examiners are essential
`because copyright examination is not a mechanical or
`ministerial process. When issues arise, copyright ex-
`aminers correspond with applicants by phone, mail, or
`e-mail, sometimes for several rounds, in an attempt to
`resolve deficient aspects of applications, which may in-
`clude limiting claims relating to a work’s copyrightable
`elements. Approximately 30 percent of all applications
`lead to such correspondence. See Registration Processing
`Times, U.S. Copyright Office, https://www.copyright.gov/
`registration/docs/processing-times-faqs.pdf (last vis-
`ited Oct. 5, 2018). Since many applications are non-
`controversial, the effective rate of correspondence in
`difficult cases is necessarily higher. For instance, in the
`digital age, examiners frequently work with creators to
`revise applications to comply with the law of copyright-
`ability in areas such as online databases, websites, and
`sample-based art and music.
`
`After the review process, when an application is
`
`granted registration, a certificate of registration is
`then issued to the applicant and added to the Copy-
`right Office’s online database, which is easily accessi-
`ble to the public via its website. The public can look to
`the online database to confirm validity and ownership
`of a copyright. The end result of the registration re-
`view, as confirmed in the certificate, can then be used
`
`
`
`7
`
`as prima facie evidence of copyrightability during liti-
`gation. See 17 U.S.C. § 410(c) (2018).
`
`If after review an application has been denied reg-
`
`istration, written notice with an explanation as to why
`the application was rejected and how to appeal the de-
`cision is sent to the applicant. Since 2016, all of the fi-
`nal determinations on second appeal by the Copyright
`Office’s Review Board regarding decisions to refuse
`copyright registrations are publicly available online.
`See Review Board Letters Online, U.S. Copyright Office,
`https://www.copyright.gov/rulings-filings/review-board/
`(last visited Oct. 12, 2018). Though there is currently
`no database of every communication between appli-
`cants and the Copyright Office, “the vast quantity” of
`“official correspondence” with applicants, as well as
`other registration records, are generally available for
`public inspection on request and discoverable in litiga-
`tion as part of the public record. See 37 C.F.R. § 201.2
`(2018); see also Freedom of Information Act (FOIA) Rec-
`ords, U.S. Copyright Office, https://www.copyright.gov/
`foia/ (last visited Oct. 9, 2018).
`
`Documentation relating to registration provides
`
`an obvious general public benefit. The value of such in-
`formation in connection with contemplated or actual
`legal proceedings, however, depends entirely on when
`the Copyright Office’s expert review is available. By
`ensuring that the examination process is completed
`before any lawsuit is commenced, the registration ap-
`proach promotes both sound jurisprudence and equity
`among litigants.
`
`
`
`8
`
`The usefulness of a pre-litigation examination
`
`process to promote copyright quality is exemplified in
`the present case, where the Petitioner had attempted
`to register a collection of materials. Although its appli-
`cation ultimately was rejected because the database
`was found to lack original selection, coordination, or
`arrangement, a lawsuit was already underway, pro-
`ceeding without the benefit of the Copyright Office’s
`expertise. In this case, the lawsuit now has continued
`for years; whereas, it might have been resolved more
`quickly under the registration approach.
`
`Registration has been improved, refined, and
`
`streamlined over the modern history of U.S. copyright
`law; as a result, both the application of registration
`standards to specific works, and general knowledge
`about those standards, have been enhanced. Only the
`registration approach supports the mission of the
`Copyright Office to promote copyright quality by ap-
`plying clear and consistent standards to disputable
`questions of ownership and copyrightability in ad-
`vance of litigation.
`
`--------------------------------- ---------------------------------
`
`ARGUMENT
`I. Historically, the Copyright Office Register
`and the Registration Process Has Upheld
`Copyright Quality.
`Over almost 125 years, the Copyright Office has
`
`played an important role in promoting copyright qual-
`ity by establishing a registration process based on a
`
`
`
`9
`
`comprehensive examination of all claims. In fact, since
`its very inception, some form of registration in service
`of copyright quality has been a feature of copyright ju-
`risprudence. In Great Britain, the 1710 Statute of
`Anne established registration as a prerequisite for the
`special remedies afforded to copyright owners. See 8
`Anne, c. 2 (1710). The goal was to assure a public record
`of copyright ownership. See 5 William F. Patry, Patry on
`Copyright § 17:64:10 (2018).
`
`Likewise, the Copyright Act of 1790 required
`
`would-be beneficiaries of protection to register “a
`printed copy of the title of the work, prior to publica-
`tion, in the clerk’s office of the [author’s local federal]
`district court,” pay a fee, publish a public notice in a
`newspaper, and deposit “a copy of the work, within 6
`months of publication, [directly] to the Secretary of
`State,” in Washington, D.C. See Act of May 31, 1790,
`ch. 15, § 3, 1 Stat. 124 (1790 Act); see also Benjamin
`Kaplan, The Registration of Copyright, in S. Comm.
`on the Judiciary Subcomm. on Patents, Trademarks,
`and Copyrights, 86th Cong., Copyright Law Revision
`9 (Study No. 17) (Comm. Print 1960) (hereinafter
`Kaplan) (“Section 3 stated that ‘no person shall be en-
`titled to the benefit of this act’ unless he registered.”).
`While the Copyright Act itself continued to evolve from
`1831 to 1867, some form of a registration process re-
`mained consistent. See Kaplan at 11.
`
`By 1870, the need for a centralized federal copy-
`
`right registration system had become apparent to
`Ainsworth Spofford, the Librarian of Congress at
`the time. See John Y. Cole, Ainsworth Spofford &
`
`
`
`10
`
`Copyright Law of 1870, 6 J. Libr. Hist. 34, 34 (1971)
`(hereinafter Cole). Registration was established as a
`condition precedent (along with notice placed on
`printed copies) to the enjoyment of federal copyright
`protection. See Kaplan at 13-14. In an effort to improve
`the registration process, Spofford lobbied Congress to
`centralize federal copyright registration under the
`Library of Congress. See Cole at 34 (quoting a letter
`Spofford sent to Representative Thomas A. Jenkins,
`“Permit me to bring your attention to some leading
`reasons why transfer of the entire copyright business
`to the Library of Congress would promote public in-
`terest.”). Spofford ultimately succeeded and became
`the first de facto Register responsible for upholding
`copyright quality and administering copyright regis-
`trations. See id.
`
`Although Spofford is perhaps most known for his
`
`interest in expanding the Library’s collection through
`registration-related deposits, he also introduced the
`qualitative dimension of copyright examination. Un-
`der Spofford, the newly centralized copyright ex-
`amination and registration system was informal, but
`Spofford signed each certificate of registration by
`hand, and there are records of rejected and cured
`applications during Spofford’s tenure. See Judith Nier-
`man, Certificate from 1897 Has Antique Charm, Copy-
`right Lore 16 (Nov. 2007), https://www.copyright.gov/
`history/lore/pdfs/200711%20CLore_November2007.pdf.
`Spofford, who felt that issuing copyright registrations
`required his review and that this time commitment
`
`
`
`
`11
`
`pulled him away from his duties as the Librarian,
`asked Congress to establish the Copyright Office as a
`separate entity within the Library of Congress. See
`William F. Patry, Copyright Law and Practice 51, n.
`166, 52 (1994). When the new Copyright Office was es-
`tablished to handle registration, Spofford passed the
`torch, nominating Thorvald Solberg as the first official
`Register of Copyrights. See id. at 52.
`
`Solberg, as Register, was at the head of the move-
`
`ment to make a general revision of U.S. copyright law
`and his efforts led to the passage of the Copyright Act
`of 1909. See Abe Goldman, The History of U.S.A. Copy-
`right Law Revision From 1901 to 1954, in S. Comm. on
`the Judiciary Subcomm. on Patents, Trademarks, and
`Copyrights, 86th Cong., Copyright Law Revision 1
`(Study No. 1) (Comm. Print 1960). The 1909 Copyright
`Act statutorily put in place the existing registration re-
`quirements necessary before bringing suit, recognizing
`the importance of a pre-litigation copyright review. See
`Kaplan at 15-21. Moreover, the 1909 Act codified the
`Register of Copyright’s authority to “make rules and
`regulations for the registration of claims to copyright,”
`allowing the Register to further improve the registra-
`tion process and establish a rigorous examination re-
`view. See 17 U.S.C. § 53 (1909).
`
`As part of the groundwork for another projected
`
`general revision of U.S. copyright law, in 1958 Profes-
`sor Benjamin Kaplan was commissioned to conduct a
`study detailing the registration review process. His
`findings reflect the evolution of that process and its
`function under the 1909 Act: “When applications are
`
`
`
`12
`
`received in the Copyright Office, the Examining Divi-
`sion scrutinizes them . . . check[ing] for adequacy of the
`notice of copy-right; agreement in dates, names, etc.,
`between the application and the deposited copies; pro-
`priety of the ‘class’ in which copyright is claimed; evi-
`dent copyrightability of the work, and some other
`matters.” Kaplan at 35-36. Further, he emphasized its
`importance stating, “The check carried out by the Ex-
`amining Division is a means of enforcing both formal
`and substantive requirements including . . . copyright-
`ability. . . . As a practical matter this check is perhaps
`the chief official instrument of law enforcement.”
`Kaplan at 41.
`
`Additionally, Kaplan noted that the registration
`
`process is a means of utilizing the expertise of the
`Copyright Office because “the examination of submit-
`ted papers and deposits carried on in the Copyright Of-
`fice helps to secure a trustworthy body of information,”
`which benefits courts and parties to litigation. See
`Kaplan at 42. The value attached to the registration
`process was further documented in a 1959 commis-
`sioned study by Caruthers Berger, who noted the det-
`rimental effects of not having a thorough registration
`process: “Further consequences also seem evident: the
`registration records would be cluttered with un-
`founded claims; registration records and certificates
`would be unreliable and would lose much of their pro-
`bative value for copyright claimants, for other persons
`dealing with them, and for the courts; and many un-
`founded claims would probably become the source of
`litigation.” Caruthers Berger, Authority of the Register
`
`
`
`13
`
`of Copyrights to Reject Applications for Registration,
`in S. Comm. on the Judiciary Subcomm. on Patents,
`Trademarks, and Copyrights, 86th Cong., Copyright
`Law Revision 95 (Study No. 18) (Comm. Print 1960)
`(hereinafter Berger). Further, Berger affirmed that re-
`fusals of registration have a variety of useful functions.
`See id. (noting that courts give weight to the Copyright
`Office’s interpretation of the law, and that a refusal can
`benefit the public and parties by “serv[ing] to inform
`applicants and the public of the scope of the copyright
`law.”).
`
`Against this backdrop, the 1976 Copyright Act
`
`provided that “registration must be made before a suit
`for copyright infringement is instituted.” 17 U.S.C.
`§ 411(a) (2018). As will be discussed below, this provi-
`sion clearly recognizes that a pre-screening allows the
`Copyright Office to exercise its expertise on issues of
`registrability before litigation commences. And in
`1984, with the new Copyright Act in place, the Copy-
`right Office published a refined and improved Com-
`pendium setting forth in greater detail the standards
`and procedures designed to ensure a comprehensive
`copyright quality review process. See U.S. Copyright
`Office, Compendium of U.S. Copyright Office Practices
`§ 108 (2d ed. 1998).
`
`As displayed in the institutional history above,
`
`copyright registration has long played an essential role
`in promoting and upholding copyright quality. It
`evolved from a system for title recordation into one
`that also served to promote the central goals of the
`copyright system. The registration approach respects
`
`
`
`14
`
`this historical development by ensuring that review oc-
`curs before litigation, when it is of greatest utility to
`courts, parties, and the general public. In fact, the Cop-
`yright Office itself defines “registration” as an expert
`review process, not a mere unilateral action, which in-
`volves “examining the claim, and if the claim is ap-
`proved, . . . numbering the cl
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