Supreme Court Says Of Course You Need To Register Your Copyright Before You Can Sue; Copyright Trolls & Hollywood Freak Out
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17 USC 411(a) (part of US Copyright law) states the following:...no 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 accordance with this title. This is pretty clear. It also becomes important in a surprising number of situations and cases, including quite a few we've discussed just recently, such as the various copyright lawsuits over dances in Fortnite, where it appears that none of the "dances" were actually registered with the Copyright Office. Copyright trolls, also, are somewhat notorious for threatening lawsuits over works without any copyright registration at all.So it's a bit bizarre that the Supreme Court even needed to weigh in on this, but there was a bit of technical confusion between a bunch of circuits as to whether or not you could sue as soon as you submitted a registration application, or if you had to wait until the Copyright Office issues the actual certificate of registration. While getting a registered copyright is mostly (though not entirely) a rubber stamp process by the Copyright Office, it still takes about six to seven months right now, though the Copyright Office has been upgrading its technology (after some earlier hiccups under the previous regime), and insists that before long the timing will be one of weeks, rather than months.In a unanimous ruling, surprisingly written by Justice Ginsburg, the court ruled that the law is pretty clear and you have to wait until registration is complete and the certificate has been issued by the Copyright Office. It comes down to the Justices just reading what the law actually says and saying "um, that's pretty clear." Indeed, the ruling basically says the wording of the law wouldn't make any sense if it meant you just had to submit the application to be able to sue:If application alone sufficed to ma[ke] registration,§411(a)'s second sentenceallowing suit upon refusal ofregistrationwould be superfluous. What utility wouldthat allowance have if a copyright claimant could sue forinfringement immediately after applying for registrationwithout awaiting the Register's decision on her application? Proponents of the application approach urge that§411(a)'s second sentence serves merely to require a copyright claimant to serve notice [of an infringement suit]. . . on the Register. See Brief for Petitioner 29-32. Thisreading, however, requires the implausible assumptionthat Congress gave registration different meanings inconsecutive, related sentences within a single statutoryprovision. In §411(a)'s first sentence, registration wouldmean the claimant's act of filing an application, while inthe section's second sentence, registration would entailthe Register's review of an application. We resist thisimprobable construction. As for the claims that by requiring a copyright holder to wait infringement can go on for a while, the Court points out that the law still lets them go after all that past infringement after getting the registration:If infringement occurs before a copyright owner applies for registration, that owner may eventually recover damages for the past infringement, as wellas the infringer's profits. §504. She must simply apply forregistration and receive the Copyright Office's decision onher application before instituting suit. Once the Registergrants or refuses registration, the copyright owner mayalso seek an injunction barring the infringer from continued violation of her exclusive rights and an order requiring the infringer to destroy infringing materials. The court also takes a dim view on the idea that it takes too long to get the registration, and this could impact the statute of limitations on suing (three years):Fourth Estate raises the specter that a copyright ownermay lose the ability to enforce her rights if the CopyrightAct's three-year statute of limitations runs out before theCopyright Office acts on her application for registration.Brief for Petitioner 41. Fourth Estate's fear is overstated,as the average processing time for registration applicationsis currently seven months, leaving ample time to sue afterthe Register's decision, even for infringement that beganbefore submission of an application Furthermore, Ginsburg notes that even if it's taking the Copyright Office a long time, that's an issue for Congress to deal with rather than the courts:True, the statutory scheme has not worked as Congresslikely envisioned. Registration processing times haveincreased from one or two weeks in 1956 to many monthstoday. See GAO, Improving Productivity in CopyrightRegistration 3 (GAO-AFMD-83-13 1982); RegistrationProcessing Times. Delays in Copyright Office processingof applications, it appears, are attributable, in largemeasure, to staffing and budgetary shortages that Congress can alleviate, but courts cannot cure. The surprising aspect of this is that Ginsburg wrote the decision. Historically, Justice Ginsburg has never seen a copyright case where she wouldn't support the more Hollywood-friendly interpretation. Whether you agree with Ginsburg on other issues or not, she's generally... awful on copyright with the infamous Eldred ruling being a key example (if you want to read a good half-book long rant about just how badly Ginsburg messed up nearly every aspect of the Eldred ruling, I highly recommend the book No Law, which has some choice words for that particular decision).Still, this decision was a pretty straightforward reading of the statute, and in some ways builds on the basis that Ginsburg set forth in Eldred, in which she more or less says "hey, Congress can do what Congress wants regarding copyright." And here, Congress has said you need to register to sue.What's amusing, though, is that this fairly minor step has Hollwyood and its friends completely flipping out about how much more difficult it's going to be to stop piracy. But this makes no sense. Once a work is out there, it's out there. It's not like being able to sue a few months earlier is going to stop works from leaking or being available. And suing is usually not the most efficient way to stop the spread of something anyway (the DMCA takedown process still works...).Of course, those who should really be worried are the copyright trolls who got kind of complacent about these things over the past few years. As Fight Copyright Trolls first noticed, prolific copyright trolling operation Malibu Media, has already been hit with an Order to Show Cause in response to this case for suing over works where no registration had been made:It is hereby ORDERED that Plaintiff show cause in writing by March 12, 2019, why itscomplaint should not be dismissed for failure to state a claim upon which relief can be granted specifically, for failure to allege that registration or preregistration of the copyright claims at issuehad been made prior to the filing of this action. 17 U.S.C. § 411(a); see Fourth Estate Pub.Benefit Corp. v. Wall-Street.com, LLC, No. 17-571, 2019 WL 1005829 (U.S. Mar. 4, 2019). IfPlaintiff fails to show good cause, or does not file anything by that date, the Court may dismissthis action without further notice to Plaintiff. Anything that causes more problems for copyright trolls has to be a good thing.
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T-Mobile Still Pretending That Staying At Trump's DC Hotel Isn't An Obvious Ploy To Gain Merger Approval
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In a letter responding to Congressional inquiry, T-Mobile has confirmed that the company dramatically ramped up its patronage of Trump's hotel in DC as it sought regulatory approval of its $26 billion merger with Sprint. A copy of the letter, obtained by the Washington Post, makes it clear that the company spent upwards of $195,000 at the property since it originally announced the telecom industry's latest megadeal last April. That was a dramatic shift from the period of time before the deal was announced:"T-Mobile's patronage of President Trump's Washington hotel increased sharply after the announcement of its merger with its Sprint last April, with executives spending about $195,000 at the property since then, the company told congressional Democrats in a letter last month. Before news of the megadeal between rival companies broke on April 29, 2018, the company said, only two top officials from T-Mobile had ever stayed at Trump's hotel, with one overnight stay each in August 2017. T-Mobile has also hired former Trump ally Corey Lewandowski and former FCC Commissioners Robert McDowell and Mignon Clyburn to "consult" on the deal and grease the wheels of approval. T-Mobile CEO John Legere has consistently tried to play this obvious attempt at pandering to Trump as just unrelated happenstance:Amusingly, Legere built his entire brand on being a "no bullshit" alternative to AT&T and Verizon. Yet here we are.As Legere has attempted to sell the press, public, and regulators on the deal, he's adopted many of his competitors' worst habits. It's been clearly documented in countries like Canada or Ireland that when you reduce the total number of major wireless competitors from four to three, it results in dramatically higher rates as the incentive to compete on price is proportionally reduced. Such telecom mergers almost always result in significant layoffs as redundant positions are eliminated. Wall Street predicts T-Mobile's merger will be no different, eliminating anywhere between 10,000 and 30,000 jobs.This is not alien territory. In US telecom, these megadeals almost uniformly make the sector worse, as your wallet can attest. Yet both Sprint and T-Mobile execs have engaged in the same old game of Charlie Brown and Lucy football, breathlessly insisting that this deal will somehow be different. At the same time, execs continue to pretend that kissing Trump's ass by staying at his DC hotel isn't an obvious lobbying strategy for the company:"While we understand that staying at Trump properties might be viewed positively by some and negatively by others, we are confident that the relevant agencies address the questions before them on the merits," (T-Mobile) wrote. That makes one of you. The Trump FCC has been a glorified rubber stamp for absolutely every pipe dream telecom lobbyists can cook up, be it killing popular net neutrality rules (something Legere supported) or literally weakening the definition of the word "competitive" to make life easier on the sector's biggest players. While the DOJ is less certain (though still sounding likely from what I've heard), there's zero doubt that the FCC will rubber stamp this merger, likely piggybacking on T-Mobile's (false) tailor-made claims that the deal is essential if the United States doesn't want to "fall behind" in the "race to 5G."Once Legere gets done bullshitting his way to merger approval, he'll have to quickly pivot back again to pretending he's the "no bullshit" alternative to the other major wireless carriers. But of course as just one of three remaining competitors, history has shown us time and time again how T-Mobile will have less incentive than ever to seriously compete on price, and will, sooner or later, come to resemble AT&T and Verizon in all the wrong ways.
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