1709 Blog: for all the copyright community

Wednesday, 3 March 2010

Reed Elsevier – the Supreme Court sticks to the question

The United States Supreme Court has delivered its opinion in Reed Elsevier v Muchnick. This is an all-American case – not only does it follow the now-familiar formula of ‘digital rights grab—class action—failed settlement’ but it centres on US copyright registration requirements.

Back in the 1980s some publishers set about digitizing newspaper and magazine articles without permission. Journalists sued in a class action. The claimants had registered copyrights but some of the members of the class had not. The district court (after the comparable Tasini case had been decided) encouraged the parties to settle. A few years later the publishers agreed $18 million compensation and the district court approved the settlement. However, some journalists were not happy and appealed. The appeals court then said something that none of the parties wanted to hear: the district court did not have the jurisdiction to approve the settlement because of §411(a) of the Copyright Act. This states that (generally) copyright infringement proceedings cannot be instituted unless the copyright has been registered. So the parties turned to the Supreme Court, submitting a petition for a writ of certiorari, to clarify the question of whether §411(a) restricts a court’s jurisdiction.

The Supreme Court has now reversed the appeals court’s decision, saying that §411(a) does not restrict the jurisdiction of the district court to approve the settlement – ‘jurisdictional’ being a very narrowly construed concept that needs to be clear in the Act. The Court was keen to put an end to ‘drive-by jurisdictional rulings’.

However, the Supreme Court specifically said that it was not addressing the question of whether district courts may or should dismiss copyright claims involving unregistered works. It would appear that the Supreme Court has answered a narrow question, leaving aside the bigger one. If the appeals court had vacated the district court’s judgment on the grounds that §411(a) required claims involving unregistered works to be dismissed (irrespective of jurisdiction), perhaps the Supreme Court would have affirmed the appeals court decision. There would seem, therefore, no evidence that this opinion will lead to a spate of US class-action claims with unregistered copyright owners piggy-backing on registered copyright owners.

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