`
`No. 17-571
`
`IN THE
`Supreme Court of the United States
`___________
`FOURTH ESTATE PUBLIC BENEFIT CORPORATION,
`Petitioner,
`
`v.
`WALL-STREET.COM, LLC and JERROLD D. BURDEN,
`Respondents.
`_________________
`On Writ of Certiorari to the United States Court of
`Appeals for the Eleventh Circuit
`_________________
`BRIEF FOR THE
`NATIONAL MUSIC PUBLISHERS’
`ASSOCIATION, RECORDING INDUSTRY
`ASSOCIATION OF AMERICA, AMERICAN
`SOCIETY OF COMPOSERS, AUTHORS AND
`PUBLISHERS, BROADCAST MUSIC, INC.,
`NASHVILLE SONGWRITERS ASSOCIATION
`INTERNATIONAL, AND SONGWRITERS OF
`NORTH AMERICA, AS AMICI CURIAE
`IN SUPPORT OF PETITIONER
`_________________
`Jacqueline C. Charlesworth
`Beth S. Brinkmann
`COVINGTON & BURLING LLP
` Counsel of Record
`620 Eighth Avenue
`Kevin F. King
`New York, NY 10018
`Rafael Reyneri
`COVINGTON & BURLING LLP
`(202) 841-1000
`850 Tenth Street, NW
`jcharlesworth@cov.com
`Washington, DC 20001
`(202) 662-6000
`bbrinkmann@cov.com
` Counsel for Amici Curiae
`
`September 4, 2018
`
`
`
`
`
`
`
`i
`
`TABLE OF CONTENTS
`TABLE OF AUTHORITIES ...................................... iii
`INTEREST OF AMICI CURIAE ................................1
`SUMMARY OF ARGUMENT .....................................3
`ARGUMENT ...............................................................6
`I. A
`COPYRIGHT
`OWNER
`THAT
`COMPLIES WITH THE REGISTRATION
`REQUIREMENTS OF THE COPYRIGHT
`ACT IS ENTITLED TO SEEK TIMELY
`INJUNCTIVE AND OTHER RELIEF IN
`COURT ................................................................6
`A. The Ability To Seek Judicial Relief
`Against Infringers Is An Essential
`Feature Of The U.S. Copyright
`System That Congress Did Not Intend
`To
`Diminish
`Based
`On
`Administrative Delay. ..................................6
`B. Surrounding Provisions Of The
`Copyright
`Act
`Confirm
`That
`Registration Is “Made” Under Section
`411(a) When A Copyright Owner
`Delivers The Required Deposit Of The
`Work And Other Registration
`Materials To The Copyright Office. ........... 10
`IN ENACTING
`SECTION
`411(a),
`CONGRESS SOUGHT TO ENSURE
`THAT THE COPYRIGHT OFFICE
`WOULD NOT BE A BARRIER TO A
`COPYRIGHT OWNER’S RIGHT TO
`TIMELY JUDICIAL RELIEF AGAINST
`INFRINGERS .................................................... 15
`
`II.
`
`
`
`
`
`
`
`ii
`
`A. This
`Longstanding
`Court’s
`Presumption In Its Washingtonian
`Opinion Forecloses Respondents’
`Interpretation. ............................................ 15
`B. Congress’ Rejection Of A Pre-Suit
`Mandamus Requirement In The 1976
`Act Validates Petitioner’s Reading. ........... 17
`III. RESPONDENTS’ RULE WOULD DENY
`COPYRIGHT OWNERS MEANINGFUL
`PROTECTION OF THEIR STATUTORY
`RIGHTS ............................................................. 19
`A. The Copyright Office Typically Takes
`Months And Sometimes Years To
`Carry Out
`Its Administrative
`Function And Issue A Certificate. ............. 19
`B. To Delay For Months Or Years A
`Copyright Owner’s Right To Seek
`Injunctive Or Other Judicial Relief
`Effectively Abrogates That Right. ............. 24
`CONCLUSION .......................................................... 27
`APPENDIX:
`DESCRIPTIONS
`AND
`INTERESTS OF AMICI CURIAE .................... 1a
`
`
`
`
`
`
`
`
`
`
`iii
`
`TABLE OF AUTHORITIES
`
` Page(s)
`
`CASES
`Am. Broad. Companies, Inc. v. Aereo, Inc.,
`134 S. Ct. 2498 (2014) .......................................... 16
`Cosmetic Ideas, Inc. v. IAC/Interactivecorp,
`606 F.3d 612 (9th Cir. 2010) ................................ 25
`FDA v. Brown & Williamson Tobacco Corp.,
`529 U.S. 120 (2000) ................................................ 8
`Feltner v. Columbia Pictures Television, Inc.,
`523 U.S. 340 (1998) .............................................. 24
`Roberts v. Sea-Land Servs., Inc.,
`566 U.S. 93 (2012) ................................................ 26
`United States v. Hayes,
`555 U.S. 415 (2009) .............................................. 25
`
`Vacheron & Constantin-Le Coultre Watches,
`Inc. v. Benrus Watch Co.,
`260 F.2d 637 (2d Cir. 1958) ................................. 17
`Washingtonian Publishing Co. v. Pearson,
`306 U.S. 30 (1939) ........................................ passim
`
`STATUTES
`2 U.S.C. § 505 ...................................................... 11, 12
`15 U.S.C. § 1173 ........................................................ 12
`
`
`
`
`
`iv
`
`
`17 U.S.C. § 12 (1939) ................................................. 17
`17 U.S.C. § 102 ............................................................ 6
`17 U.S.C. § 405 .......................................................... 11
`17 U.S.C. § 408 .................................................. passim
`17 U.S.C. § 410 ............................................ 8, 9, 10, 18
`17 U.S.C. § 411 .................................................. passim
`17 U.S.C. § 501 ............................................................ 7
`17 U.S.C. § 502 .......................................................... 24
`17 U.S.C. § 507 .......................................................... 22
`17 U.S.C. § 708 .......................................................... 11
`45 U.S.C. § 362 .......................................................... 12
`
`OTHER AUTHORITIES
`37 C.F.R. § 201.3 ....................................................... 11
`47 Fed. Reg. 19,254 (May 4, 1982) ............................ 22
`83 Fed. Reg. 24,054 (May 24, 2018) .......................... 23
`Benjamin Kaplan, Study No. 17—The
`Registration of Copyright (Aug. 1958) ..... 17, 18, 19
`Caruthers Berger, Study No. 18—Authority
`of the Register of Copyrights to Reject
`Applications for Registration (Mar. 1959) ........... 19
`
`
`
`
`
`v
`
`
`Copyright Law Revision, Hearing Before the
`Subcomm. on Patents, Trademarks, and
`Copyrights of the S. Comm. on the
`Judiciary, 89th Cong. (1965) ............................... 16
`H. Comm. on Appropriations, FY 2016
`Appropriations Questions for the Record
`(Mar. 10, 2015) ..................................................... 20
`H.R. Rep. No. 94-1476, 94th Cong., 2d Sess.
`(1976) ................................................ 8, 9, 18, 20, 24
`
`Oversight of the U.S. Copyright Office:
`Hearing Before the Subcomm. on Courts,
`Intellectual Property, and the Internet of
`the H. Comm. on the Judiciary, 113th
`Cong. (2014) ......................................................... 20
`S. Rep. No. 94-473, 94th Cong., 1st Sess.
`(1975) ................................................................ 9, 18
`U.S. Copyright Office, Compendium of U.S.
`Copyright Office Practices .............................. 19, 23
`U.S. Copyright Office, Fiscal 2016 Annual
`Report, https://www.copyright.gov/
`reports/annual/2016/ar2016.pdf .......................... 20
`U.S. Copyright Office, Fiscal 2017 Annual
`Report, https://www.copyright.gov/
`reports/annual/2017/ar2017.pdf .......................... 14
`
`
`
`
`
`vi
`
`
`U.S. Copyright Office, Registration
`Processing Times,
`https://www.copyright.gov/registration/
`docs/processing-times-faqs.pdf (accessed
`Aug. 31, 2018) ...................................................... 20
`
`
`
`
`
`
`
`1
`INTEREST OF AMICI CURIAE1
`Amici curiae the National Music Publishers’ Asso-
`ciation, the Recording Industry Association of
`America, the American Society of Composers, Authors
`and Publishers, Broadcast Music, Inc., Nashville
`Songwriters’ Association International, and Songwrit-
`ers of North America are leading music trade
`organizations and performing rights societies repre-
`senting the interests of music publishers, record
`companies, and individual songwriters and compos-
`ers. Amici’s members, who collectively register tens
`of thousands of musical works and sound recordings
`each year with the Copyright Office, have a substan-
`tial interest in this case because their copyrighted
`works are the foundation of their businesses and
`source of livelihood for individuals who create them.
`Amici’s members depend upon the rights conferred by
`the Copyright Act—including the right to seek injunc-
`tive relief and obtain damages for the unauthorized
`use of their musical works and sound recordings—to
`protect the works they create, invest in, license, and
`distribute.2
`The question presented in this case bears directly
`on that interest. The rule advocated by Respondents
`
`1 No party or counsel for any party authored any part of this brief
`or made a monetary contribution intended to fund the prepara-
`tion or submission of this brief. All parties have provided blanket
`consent to the filing of amicus briefs.
`2 Amici work on behalf of music publishers, record labels, song-
`writers, and composers to protect, promote, and advance their
`interests on legislative, litigation, and regulatory matters. The
`Appendix to this brief provides more detailed descriptions of
`Amici.
`
`
`
`
`2
`and adopted by the Eleventh Circuit below would pro-
`hibit a copyright owner from seeking injunctive or
`other relief until the Copyright Office determines
`whether to issue a copyright certificate. Under that
`rule, a copyright owner could not enforce its exclusive
`rights against ongoing infringement even though the
`owner has met its statutory obligation to deliver to the
`Office the work at issue, the application, and the re-
`quired fee, at which time the Copyright Act deems a
`copyright registration to be effective. Moreover, Re-
`spondents’ rule would disable copyright owners’
`enforcement rights in this way even though the Copy-
`right Act allows an owner to sue regardless of whether
`the Copyright Office issues a registration certificate.
`The Copyright Office operates with a limited
`budget, staffing, and resources. The Office acknowl-
`edges that it typically takes seven to nine months, and
`sometimes more than two years, for a copyright owner
`to receive a copyright certificate. In the experience of
`Amici’s members, the delay can be even longer and in
`some instances may consume most or all of the Copy-
`right Act’s three-year limitations period, thereby
`eliminating altogether a copyright owner’s ability to
`bring an infringement action. Moreover, as also rec-
`ognized by the Office, the general trend in recent
`years is that processing times are increasing.
`The regime for which Respondents advocate would
`have a devastating effect on Amici’s members and oth-
`ers in the broader music industry, who at least now
`may be able to bring suit without undue delay in one
`of the jurisdictions that takes the opposite view. Par-
`ticularly in the case of recently released songs at the
`peak of their earning potential, it is critical to be able
`
`
`
`
`
`3
`to seek prompt judicial intervention against unau-
`thorized uses. Accordingly, Amici respectfully submit
`that the Court should reject Respondents’ misguided
`rule and confirm that a copyright owner may file an
`action against an infringer once the owner has made
`registration for the work by depositing the work, along
`with the application and fee, with the Copyright Of-
`fice, as Congress intended—and as the Copyright Act,
`correctly read, provides.
`
`SUMMARY OF ARGUMENT
`I. Copyright protection attaches to original works
`the moment they are fixed in a tangible medium, and
`does not depend on action by the Copyright Office.
`Copyrights are not self-enforcing, however, and copy-
`right owners must turn to the courts to enforce their
`statutory rights. The ability to sue for infringement
`and obtain injunctive relief is the central statutory
`mechanism by which the Copyright Act’s substantive
`protection of exclusivity is enforced. Without that
`ability, a copyright is “of no value.” Washingtonian
`Publishing Co. v. Pearson, 306 U.S. 30, 39-40 (1939).
`Section 411(a) of the Copyright Act is meant to en-
`sure that copyright owners can stop infringement of
`their works without delay. Section 411(a) permits
`owners to file an infringement action as soon as “reg-
`istration … has been made,” and section 408 in turn
`provides that an owner “may obtain registration” by
`delivering the required deposit copies of the work, an
`application, and a fee to the Copyright Office. Sur-
`rounding statutory provisions demonstrate that
`registration is “made” under section 411(a) by the cop-
`yright owner such that the owner may sue for
`
`
`
`
`
`4
`infringement as soon as the owner fulfills section
`408’s registration requirements, rather than needing
`to wait for action by the Copyright Office as Respond-
`ents contend. For example, section 410(d) makes
`registration effective on the date when an acceptable
`deposit of the work, application, and fee are received
`by the Copyright Office, as determined by the Office
`or by a court; section 411(a) authorizes copyright own-
`ers to sue for infringement whether or not the
`Copyright Office issues a certificate; and section
`411(c) provides added protections when “the copyright
`owner … makes registration for the work.” 17 U.S.C.
`§ 411(c) (emphasis added). Congress made other
`rights, such as entitlement to prima facie validity of a
`copyright, expressly contingent on the Copyright Of-
`fice’s issuance of a certificate, but did not do so in
`section 411(a). Respondents’ attempt to rely, instead,
`on the Act’s preregistration and live-broadcast provi-
`sions, see 17 U.S.C. §§ 408(f), 411(c), is without merit
`because that argument fails to account for significant
`limitations on those procedures.
`II. The statutory purpose and legal backdrop
`against which Congress enacted section 411(a) as part
`of the Copyright Act of 1976 confirm that Congress in-
`tended that copyright owners be able to obtain timely
`judicial enforcement, including injunctions against
`ongoing infringers. This Court has long recognized
`the significance of judicial enforcement to protect cop-
`yrights and declared that “forfeiture[]” of a copyright
`owner’s right to sue is “never to be inferred from
`doubtful language.” Washingtonian, 306 U.S. at 42.
`Moreover, Congress designed section 411(a) to over-
`turn, in particular, the rationale of some lower courts
`
`
`
`
`
`5
`that had required a copyright owner to obtain a certif-
`icate from the Register, through mandamus if
`necessary, before suing for infringement.
` III. The Court should reject Respondents’ conten-
`tion
`that a copyright owner cannot
`file an
`infringement suit until the Copyright Office issues a
`certificate or refuses to do so. There is often a signifi-
`cant time lag between when a copyright owner
`deposits the required copies of the work, application,
`and fee to fulfill the registration requirements, and
`when the Copyright Office issues a certificate or de-
`termines that it will not do so. The Office faces human
`and technological constraints, and acknowledges that
`administrative delay is typically seven to nine months
`and can be more than two years in some instances.
`Amici’s members
`experience
`these delays
`firsthand. In the experience of Amici’s members, de-
`lays of a year or more are not uncommon, and the
`processing time for some musical works and sound re-
`cordings is so long that it exceeds the Copyright Act’s
`three-year limitations period for infringement suits.
`As a result, under Respondents’ rule, copyright own-
`ers would be denied their right to enforce their
`copyrights against infringers for extended periods,
`and in some cases would lose the ability to do so alto-
`gether. A nonstatutory “special handling” procedure
`offered by the Copyright Office is no answer because
`its availability is discretionary, costs hundreds of dol-
`lars, and there is no guaranteed turnaround time.
`Congress had no reason to expose copyright own-
`ers to that sort of legal limbo. On the contrary, its goal
`in drafting the 1976 Act was to preserve copyright
`
`
`
`
`
`6
`owners’ ability to enforce their statutory rights in a
`timely manner through judicial intervention against
`infringers.
`
`ARGUMENT
`
`I.
`
`A COPYRIGHT OWNER THAT COMPLIES
`WITH THE REGISTRATION REQUIRE-
`MENTS OF THE COPYRIGHT ACT IS
`ENTITLED TO SEEK TIMELY INJUNC-
`TIVE AND OTHER RELIEF IN COURT
`A.
`
`The Ability To Seek Judicial Relief
`Against Infringers Is An Essential
`Feature Of The U.S. Copyright Sys-
`tem That Congress Did Not Intend
`To Diminish Based On Administra-
`tive Delay.
`Copyright attaches to original works the moment
`they are fixed in a tangible medium, 17 U.S.C.
`§ 102(a), and not as a consequence of any certificate
`issued by the Copyright Office, see id. § 408(a) (“[R]eg-
`istration is not a condition of copyright protection”).
`But copyrights are not self-enforcing. Because copy-
`right owners must sue for infringement to enforce
`their exclusive statutory rights, the ability to take le-
`gal action is the central statutory mechanism by
`which the Act’s substantive protections are enforced.
`Indeed, as this Court observed nearly 80 years ago in
`Washingtonian Publishing Co. v. Pearson, 306 U.S.
`30, 39-40 (1939), a copyright is of “no value” to its
`owner if it cannot be effectively enforced in the courts.
`That principle is particularly true where a work is
`subject to significant ongoing infringement, as is often
`the case with newly released recordings in the online
`
`
`
`
`7
`environment. Without the ability to obtain prompt in-
`junctive
`relief against
`infringers
`in such a
`circumstance, a copyright owner cannot meaningfully
`enforce its property rights. See Part III.B, infra.
`Section 501(b) of the Copyright Act provides that a
`copyright owner “is entitled, subject to the require-
`ments of section 411, to institute an action for any
`infringement of” the owner’s rights. 17 U.S.C.
`§ 501(b). Section 411(a), in turn, provides that an in-
`fringement suit may be instituted by the owner of a
`United States work3 after “preregistration or registra-
`tion of the copyright claim has been made in
`accordance with [title 17].” Id. § 411(a).4
`Respondents maintain that a copyright owner’s
`ability to obtain judicial relief, including an injunction
`to halt ongoing infringement, must await definitive
`action by the Copyright Office even when the copy-
`right owner has satisfied the requirements for
`registration. But the text, structure, and purpose of
`the Copyright Act do not support that interpretation.
`The Copyright Act provides that the effective date
`of a copyright registration is the date on which “an ap-
`plication, deposit [of copy or copies], and fee, which are
`
`3 The copyright owner of a non-U.S. work is not required to reg-
`ister before commencing a legal action. See 17 U.S.C. § 411(a)
`(limiting restriction to “action[s] for infringement of the copy-
`right in any United States work”). As a result, under
`Respondents’ rule, the owners of U.S. works would face signifi-
`cant delays as compared to owners of foreign works in enforcing
`their rights.
`4 The preregistration procedure, which applies only to incom-
`plete, unpublished works still being “prepared for commercial
`distribution,” 17 U.S.C. § 408(f), is not at issue in this case.
`
`
`
`
`8
`later determined by the Register of Copyrights or by a
`court of competent jurisdiction to be acceptable for
`registration,” are received by the Copyright Office.
`17 U.S.C. § 410(d). Under this statutory framework,
`then, either the Copyright Office or a court may make
`a determination concerning the acceptability of the
`materials submitted to the Office for registration,
`with the effective date of the registration being the
`date as of which compliant materials were received by
`the Copyright Office.
`As this structure and provision for the effective
`date of registration demonstrate, Congress designed
`section 410(d) to account for the possibility of refusal
`as well as “the inevitable timelag” between the copy-
`right owner’s fulfillment of registration requirements
`and the Copyright Office’s issuance of a certificate.
`H.R. Rep. No. 94-1476, 94th Cong., 2d Sess., at 157
`(1976). Because Congress acknowledged the delay
`and took steps in section 410(d) to alleviate any ad-
`verse impact that delay could have on a copyright
`owner, it would contravene Congress’s intent to read
`in a requirement that would restrict a copyright
`owner’s enforcement rights based on the very admin-
`istrative delay Congress sought to overcome. See
`FDA v. Brown & Williamson Tobacco Corp., 529 U.S.
`120, 133 (2000) (“all parts” of a statute should be read
`together as a “harmonious whole”).
`Within this framework, the provision of section
`411(a) that an infringement action may be instituted
`once “registration … has been made” is best under-
`stood as referring to action by the copyright owner—
`i.e., the owner’s having fulfilled the requirements for
`
`
`
`
`
`9
`making registration by depositing the work, and sub-
`mitting an application and appropriate fee to the
`Copyright Office. See 17 U.S.C. § 408 (owner may ob-
`tain registration by delivering such materials to
`Copyright Office). The House and Senate Judiciary
`Committee reports accompanying the 1976 Copyright
`Act both confirm that under section 411(a), a copy-
`right owner “cannot enforce his rights in the courts
`until he has made registration.” H.R. Rep. No.
`94-1476, 94th Cong., 2d Sess., at 157 (1976); S. Rep.
`No. 94-473, 94th Cong., 1st Sess., at 139 (1975) (em-
`phasis added). The reports thus plainly indicate that
`the registration requirement of 411(a) is a responsi-
`bility imposed on the copyright owner—not the
`Copyright Office.
`Section 411(a)’s text reflects that approach by af-
`firming a copyright owner’s right to sue
`for
`infringement notwithstanding the Copyright Office’s
`refusal of registration. Section 411(a) requires that a
`copyright owner that chooses to proceed in this man-
`ner provide notice of the suit to the Register of
`Copyrights. Section 411(a) does not, however, specify
`that action by the Copyright Office one way or another
`is a prerequisite to suit. Nor does it mandate—as
`Congress could easily have done—that absent a re-
`fusal, a certificate of registration is required to sue.
`Instead, Congress empowered “court[s] of competent
`jurisdiction” overseeing infringement actions to deter-
`mine the acceptability of the “application, deposit, and
`fee” and to confirm a copyright owner’s ability to sue
`as necessary. 17 U.S.C. § 410(d).
`In marked contrast to section 411(a), section 410(c)
`provides that, in certain circumstances, “a certificate
`
`
`
`
`
`10
`of registration” from the Copyright Office “shall con-
`stitute prima facie evidence of the validity of the
`copyright and of the facts stated in the certificate” in
`an infringement action. 17 U.S.C. § 410(c). While a
`certificate can thus provide a copyright owner some
`benefit in litigation, there is no requirement that the
`copyright owner obtain and submit a certificate, or be
`denied a certificate, before the owner can file the suit.
`Indeed, section 410(c) is compelling proof that, if Con-
`gress had intended to require a plaintiff to produce a
`certificate of registration to sue under section 411(a),
`it knew how to draft a statute containing such a re-
`quirement.
`B.
`
`Surrounding Provisions Of The
`Copyright Act Confirm That Regis-
`tration Is “Made” Under Section
`411(a) When A Copyright Owner De-
`livers The Required Deposit Of The
`Work And Other Registration Mate-
`rials To The Copyright Office.
`1. Copyright registration is governed as a general
`matter by section 408 of the Copyright Act, which pro-
`vides that “the owner of copyright or of any exclusive
`right in the work may obtain registration of the copy-
`right claim by delivering to the Copyright Office the
`deposit specified by this section, together with the ap-
`plication and fee specified by sections 409 and 708.”
`17 U.S.C. § 408(a) (emphasis added). This language
`indicates that a copyright owner makes registration of
`a work by satisfying three criteria. First, the owner
`must deposit the required copies of the subject work
`with the Copyright Office, as determined by section
`408(b) and regulations thereunder. See id. § 408(b).
`
`
`
`
`
`11
`Second, the owner must file a registration application
`that provides basic information about the work, such
`as the name and address of the claimant, the title of
`the work, and year in which the work was completed.
`See id. § 409. Third, the owner must pay the Copy-
`right Office the appropriate registration fee. See id.
`§ 708(a)(1); 37 C.F.R. § 201.3.
`Section 408(a) speaks in terms of a copyright
`owner’s “obtain[ing]” registration of a work by ful-
`filling the three requirements, and the interaction of
`section 408 with section 405(b) shows that registra-
`tion is “made” in that manner. Section 405(b)
`immunizes a narrowly defined class of “innocent” in-
`fringers from liability for actual or statutory damages.
`17 U.S.C. § 405(b). That immunity is limited, how-
`ever, to “infringing acts committed before receiving
`actual notice that registration for the work has been
`made under section 408.” Id. Section 405(b) thus uses
`the same syntax as section 411(a)—registration “has
`been made”—and links that process to section 408,
`which, as noted, permits copyright owners to obtain
`registration by depositing copies of the work, filing an
`application, and paying a fee. That linkage is strong
`evidence that registration is “made” in the same way
`for purposes of section 411(a)—i.e., by the copyright
`owner rather than the Copyright Office.5
`
`
`5 Petitioner’s reading of the Copyright Act is consistent with Con-
`gress’s use of similar language in other statutes to indicate that
`registration is “made” by filing a document with a government
`agency or official. For example, 2 U.S.C. § 505 requires United
`States Senators to “register quarterly with the Secretary of the
`
`
`
`
`
`12
`Section 408(c)(3) provides additional support for
`this reading. Section 408(c)(3) explains that “a single
`renewal registration” for a pre-1978 work “may be
`made for a group of works by the same individual au-
`thor … upon the filing of a single application and fee.”
`17 U.S.C. § 408(c)(3) (emphases added). A copyright
`owner files an application and pays the fee, such that
`registration under this provision is “made” by the cop-
`yright owner—just as the owner makes registration
`under section 411(a) by delivering to the Copyright
`Office the work at issue, an application, and the ap-
`propriate fee.
`Another subsection of section 411 regarding regis-
`tration and civil
`infringement actions
`further
`confirms Petitioner’s reading of subsection (a). Sec-
`tion 411(c) permits a copyright owner to file suit
`against an infringer for a work “consisting of sounds,
`images, or both” that is fixed simultaneously with
`transmission if, among other things, “the copyright
`owner … makes registration for the work, if required
`by subsection (a), within three months after its first
`transmission.” 17 U.S.C. § 411(c) (emphasis added).
`This provision expressly designates the copyright
`owner as the party that “makes registration,” without
`
`Senate” their dissemination of “mass mailings” using the frank-
`ing privilege. “Such registration shall be made by filing with the
`Secretary a copy of the matter mailed and” additional infor-
`mation regarding the mailing. Id. In other words, the Senator,
`not the Secretary, “makes” registration. Other statutes likewise
`speak of “registration” being “made” by the submitting party ra-
`ther than the recipient. See, e.g., 15 U.S.C. § 1173(a)(4)
`(“[R]egistration is made” by persons engaged in manufacturing,
`buying, repairing, and selling “gambling device[s].”); 45 U.S.C.
`§ 362(i) (“[R]egistration is made” by unemployed railroad em-
`ployees.)
`
`
`
`
`13
`referring to action by the Copyright Office. Moreover,
`section 411(c) cross-references section 411(a) immedi-
`ately after, indicating that “the copyright owner …
`makes registration for the work,” thus offering addi-
`tional clear proof that Congress intended that the
`copyright owner, and not the Copyright Office, “makes
`registration” under section 411(a).
`Section 412, as well, employs the phrase “registra-
`tion is made” to identify action taken by the copyright
`owner. Section 412 limits the remedies available in
`infringement suits in some circumstances; it man-
`dates that a court may not award statutory damages
`or attorney’s fees for any infringement that “com-
`menced after first publication of the work and before
`the effective date of its registration, unless such regis-
`tration is made within three months after the first
`publication of the work.” Id. § 412(2) (emphasis
`added). Apart from negating the right to bring timely
`action to address infringement, to say that “registra-
`tion is made” only after the Copyright Office issues a
`certificate would undermine the ability of a copyright
`owner to seek statutory damages and attorneys’ fees
`even when the owner has promptly submitted its reg-
`istration materials upon
`publication—directly
`contrary to Congress’ design.
`2. Respondents’ suggestion that section 408(f)’s
`preregistration provision and section 411(c)’s live
`broadcast provision mitigate the severe consequences
`of their statutory interpretation is misleading and not
`borne out by experience.
`
`
`
`
`
`14
`Section 408(f) permits preregistration of certain
`categories of unpublished works in the Register’s dis-
`cretion while the works are “being prepared for
`commercial distribution.” Section 411(c) authorizes
`injunctive relief in the case of live broadcasts that are
`fixed simultaneously with transmission. These provi-
`sions exclude finished and published works, which
`account for the vast majority of works that copyright
`owners seek to register, from their specialized proce-
`dures. Notably, only a tiny fraction—0.17 percent—of
`all registrations processed by the Copyright Office in
`2017 were preregistrations. See U.S. Copyright Of-
`fice,
`Fiscal
`2017
`Annual
`Report,
`https://www.copyright.gov/reports/annual/2017/
`ar2017.pdf. Moreover, both provisions are condi-
`tioned upon follow-up registration by the copyright
`owner. Indeed, section 411(c) requires that the owner
`“mak[e] registration for the work, if required by sub-
`section (a), within three months after its first
`transmission.” 17 U.S.C. § 411(c). Under Respond-
`ents’ reading of the statute, it is unlikely that an
`owner could successfully “make registration” within
`the three-month window given the current lag time at
`the Copyright Office. See Part III.A, infra.
`
`
`
`
`
`II.
`
`15
`IN ENACTING SECTION 411(a), CON-
`GRESS SOUGHT TO ENSURE THAT THE
`COPYRIGHT OFFICE WOULD NOT BE A
`BARRIER TO A COPYRIGHT OWNER’S
`RIGHT TO TIMELY JUDICIAL RELIEF
`AGAINST INFRINGERS
`A.
`
`This Court’s Longstanding Pre-
`sumption In Its Washingtonian
`Opinion Forecloses Respondents’
`Interpretation.
`Congress enacted the Copyright Act of 1976
`against the backdrop of this Court’s decision in Wash-
`ingtonian Publishing Co. v. Pearson, 306 U.S. 30
`(1939), which established a strong presumption in fa-
`vor of interpreting the Copyright Act to preserve a
`copyright owner’s exclusive rights.
`In Washingtonian, the Court addressed the re-
`quirements for filing an infringement suit under an
`earlier statutory framework, the Copyright Act of
`1909. See 306 U.S. at 36-42. The defendant in Wash-
`ingtonian, an alleged infringer of magazine articles,
`argued that the plaintiff’s suit could not proceed be-
`cause the plaintiff had not deposited copies of the
`articles “promptly” with the Copyright Office, as re-
`quired under that earlier statute, but instead had
`waited until 14 months after publication. See id.
`at 35-36. Although the plaintiff deposited the re-
`quired copies before filing suit, the defendant
`maintained that plaintiff’s delay foreclosed the action.
`See id. at 39.
`The Court rejected that argument. Observing that
`“promptly” was not defined in the 1909 Act, the Court
`
`
`
`
`16
`declared that “forfeiture[]” of a copyright owner’s right
`to sue is “never to be inferred from doubtful language.”
`Id. at 42. Although there were “[p]lausible argu-
`ments” for the defendant’s reading of the statute,
`mere plausibility was not enough to preclude copy-
`right owners from enforcing their exclusive rights, the
`value of which “depended upon the possibility of en-
`forcement.” Id. at 39.
`Congress was aware of the Washingtonian decision
`in crafting the 1976 Act,6 and legislated against the
`backdrop of Washingtonian’s clear-statement rule in
`enacting secti