Written By: Shreya Tewari
The Supreme Court heard oral argument on January 8, 2019 for Fourth Estate Public Benefit Corp. v. Wall-Street.com. This case asks The Court to decide when the “registration of [a] copyright claim has been made in accordance with [the United States Copyright Code outlined in Title 17].” Copyright owners are allowed under the statute to bring an infringement claim once their copyright claim has been registered. There has long been a circuit split on whether that registration has occurred when the copyright holder has submitted the application, deposit, and fees to the Copyright Office (as the 5th and 9th Circuits have held), or whether it has occurred once the Copyright Office approves or rejects the copyright holder’s application (as held by the 10th and 11th Circuits).
The petitioner in the case, Fourth Estate, is a membership-based organization that promotes free press and licenses journalistic work that is posted to different online sites. The licensing agreement requires websites that post their materials and articles to remove them upon canceling their subscription with the organization. Wallstreet.com had posted articles from Fourth Estate to their website during the course of their membership and failed to remove the articles upon cancellation. Fourth Estate filed applications to register the copyrights of hundreds of their articles and shortly after, filed a copyright infringement claim against Wallstreet for the articles not taken down. The district court dismissed this claim on the grounds that the copyrights were not registered within the meaning of the statute because they had not been approved before the claim was filed. The 11th Circuit affirmed this decision.
The Supreme Court is now called to settle the conflict in the competing interpretations of the statute. The oral advocate for the petitioners made the case that the purpose of the statute is to encourage the registration of copyrights and should thus be read to protect the rights of those who have gone through the procedure of registration. If Congress’ goal was to promote official registration of copyrights, that goal has been met with the filing of the application. The argument focused on the burdens copyright holders would face if they had to wait for their application to be processed before being able to seek any remedy for infringement, given that the processing can take months. The United States and the advocate for Wallstreet argued that there were statutory exceptions designed to address the issue of a delay in infringement removal so the meaning of the statute itself had to be something that would account for those exceptions.
In anticipation of the Supreme Court’s opinion on this case, it is worth considering the implications of either decisional possibility. If the Supreme Court decides that the copyright application must be processed in order to file an infringement suit, the effect on copyright holders will be massive. There will be either more pressure to try and pay for an expedited application process, disadvantaging copyright owners who cannot pay higher fees, or there will be increased litigation about which copyrights fall within the statutory exceptions designed for infringement enforcement without delay. If the Court decides that the only the application must be filed, the potential for infringement liability will continue to grow as the speed of innovations, inventions, and developments in the technical world continues to grow as well, potentially opening the door to future issues about how infringement liability will interact with the integration of artificial intelligence and other new technologies into more and more aspects of mainstream life. There will always be a potential issue as to whether the increased scope for infringement liability, given the case that a copyright does not have to rejected or approved to file for infringement, is suppressing open development and technological progress and whether that will impede on other rights or aspects of life.
Update (March 11, 2019):
On March 4, 2019, Justice Ginsburg delivered the unanimous opinion of Fourth Estate affirming that a copyright owner cannot file suit until the Copyright Office has registered the application. The Court relied on the reasoning that other sections of the governing statute, § 411, would be unnecessary if the word “register” only meant filing the application and not waiting for the Copyright Office to actually make a decision. The statute, in relevant part, outlines an exception that allows a copyright suit after the registration of a copyright has been refused which would be unnecessary if a copyright owner could sue right after filing. Therefore, copyright owners must now wait for action by the Copyright Office before bringing suit.
 17 U.S.C.A. § 411(a) (Westlaw through through P.L. 115-281. Also includes P.L. 115-283 to 115-333, and 115-335 to 115-338. Title 26 current through P.L. 115-442.
 Jessica Litman, Argument preview: When has registration of a copyright claim “been made”?, SCOTUSblog (Jan. 3, 2019, 10:10 AM), https://www.scotusblog.com/2019/01/argument-preview-when-has-registration-of-a-copyright-claim-been-made/