 |
 |
 |
|||||||
 |
 |
 |
 |
|
|||||
 |
|
||||||||
 |
 |
 |
 |
|
|||||
 |
 |
|
|||||||
 |
|
||||||||
 |
|
||||||||
 |
 |
 |
|
||||||
 |
|
||||||||
 |
 |
|
|||||||
 |
 |
|
|||||||
The events from today through Sunday, March 14 are listed below. You can find other events that are more distant in the future by clicking the Events link at the top of the site. If you are hosting an event and its not on the list, please feel free to email me. Have a good weekend.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
On Tuesday, the Supreme Court reversed the Second Circuit and found that 17 U.S.C. 411(a) is merely a claim-processing rule, not a restriction on a federal court’s subject matter jurisdiction. I’ve discussed the background on this case a couple of times previously. The opinion was some of what I expected (very short, unanimous judgment, no ruling on whether district courts should or must dismiss an infringement claim brought on an unregistered work sua sponte, no discussion of the role of registration, no statement on the merits of the settlement) and some of what I didn’t expect (Thomas writing for the Court, joined by Roberts, Scalia, Kennedy and Alito, with a Ginsburg concurrence, joined by Stevens and Breyer.) Sotomayor recused herself from the case because she was the presiding district court judge in NY Times v. Tasini, the dispute underlying Reed Elsevier v. Muchnick.
This could have been a landmark copyright case if the Court had delved into a description of copyright registration or tried to answer whether registration was a hard-line requirement or more malleable. The Court avoided these evaluations, wisely in my humble opinion, and constrained its background discussion and analysis. Registration plays such a foundational role on so many issues in copyright that dicta and ancillary findings probably would have been twisted in all types of ways downstream. It seems better to leave play in the joints on many of the ancillary issues and push them to district and appellate courts, even if the outcomes will sometimes be inconsistent.
William & Mary Professor Scott Dodson on the civil procedure aspects of the case at Civ Pro and Federal Courts Law Blog. The majority and concurring opinion agreed that the two integral cases were Arbaugh v. Y & H Corp., 546 U. S. 500 (2006) and Bowles v. Russell, 551 U.S. 205 (2007). Both agreed that a passage from Arbaugh was controlling:
If the Legislature clearly states that a threshold limitation on a statute’s scope shall count as jurisdictional, then courts and litigants will be duly instructed and will not be left to wrestle with the issue. But when Congress does not rank a statutory limitation on coverage as jurisdictional, courts should treat the restriction as nonjurisdictional in character. Applying that readily administrable bright line to this case, we hold that the threshold number of employees for application of Title VII is an element of a plaintiff’s claim for relief, not a jurisdictional issue.” 546 U. S., at 515–516 (citation and footnote omitted). [Italics added.]
The majority opinion and concurring opinion, however, conspicuously differed in their quotations from Arbaugh. Justice Thomas, writing for the majority, did not include the “bright line” language from Arbaugh that I italicized above. Justice Ginsburg, concurring, embraced the phrase “bright line” in four different places. Linguistics aside (but words matter) both the majority and concurring opinion seemed to apply the test from Arbaugh as the first and primary benchmark.
The second case both the majority and concurring opinion used prominently was Bowles v. Russell, 551 U.S. 205 (2007). Justice Thomas characterized Bowles as standing for the proposition that “context, including this Court’s interpretation of similar provisions in many years past, is relevant to whether a requirement as jurisdictional.” Applying Bowles to Reed, the majority found that §411(a)’s historical treatment was “jurisdictional,” and a “factor in the analysis,” but “not dispositive.” Found Justice Thomas, “The other factors discussed above demonstrate that §411(a)’s registration requirement is more analogous to the nonjurisdictional conditions we considered in Zipes and Arbaugh than to the statutory time limit at issue in Bowles.”
Justice Ginsburg, concurring, viewed Bowles as conflicting with Arbaugh, but found that it was possible to reconcile the case if it’s read as ” relying on a long line of this Court’s decisions left undisturbed by Congress.” Union Pacific R. Co. v. Locomotive Engineers and Trainmen Gen. Comm. of Adjustment, Central Region, 558 U. S. ___, ___ (2009) (slip op., at 13) (citing Bowles, 551 U. S., at 209–211).” Noted Ginsburg, “The same is true of our decision, subsequent to Bowles, in John R. Sand & Gravel Co. v. United States, 552 U. S. 130 (2008).”
Justice Ginsburg found that the judicial history interpreting 411(a) did not satisfy a Bowles analysis. Justice Ginsburg noted that the two hundred opinions on the topic were almost all “‘drive-by jurisdictional rulings’ thatshould be accorded ‘no precedential effect,’” Arbaugh, 546 U. S., at 511 (quoting Steel Co. v. Citizens for Better Envi-ronment, 523 U. S. 83, 91 (1998)); see Arbaugh, 546 U. S., at 511–513; ante, at 5–6.
So, it would appear that the majority and concurring opinions were distinguishable along a couple of fronts:
Earlier posts on Reed Elsevier v. Muchnick:
Here’s the slip opinion. Thomas wrote the majority. Ginsburg concurred in part and concurred with the judgment, joined by Breyer and Stevens. A full discussion of the opinion will come tomorrow morning. (H/t Irv Muchnick.)
Live365, Inc. v. Copyright Royalty Bd., 2010 WL 621718 (D.D.C. 2010)
We previously discussed this case in early September. Live365 filed a facial challenge against the CRB and the Librarian of Congress, arguing that the appointment of the Board transgressed Article 2, Section 2, Clause 2 of the U.S. Constitution. In the motion at bar, Live365 sought a preliminary injunction seeking a stay of In Re Digital Performance Right in Sound Recordings and Ephemeral Recordings, Docket No. 2009-1 (CRB Webcasting III). The Defendant’s responded with a motion to dismiss for lack of subject matter jurisdiction. The D.C. District Court denied both.
Defendants motion to dismiss for lack of subject matter jurisdiction
The Defendants argued that the Court had no jurisdiction to hear the challenge because under 17 U.S.C. § 803(d)(1), “[a]ny determination’ of the Copyright Royalty Judges in the Webcaster III proceeding [is vested exclusively with] the District of Columbia Circuit.” The Defendants also contended that the case didn’t come within the exception that permits a district court to exercise jurisdiction over a facial challenge to the constitutionality of a statute under which the agency was proceeding because the plaintiff’s claim was a direct challenge to the Webcaster III proceeding itself.
In this regard, the defendants argue that this case is distinguishable from Free Enterprise Fund v. Public Co. Accounting Oversight Bd., 537 F.3d 667, 676 (D.C.Cir.2008), cert. granted, — U.S. —-, 129 S.Ct. 2378 (2009), and Time Warner Entertainment Co. v. FCC, 93 F.3d 957 (D.C.Cir.1996), because here the plaintiff’s suit “is not independent of any administrative proceeding.” Id. Specifically, the defendants claim that, “among other things,” the plaintiff is seeking to have an order issued by the CR Board judges in the Webcasting III proceeding altered to extend a filing deadline imposed by that order. Id. Therefore, the defendants contend that jurisdiction rests exclusively with the District of Columbia Circuit. Id.
Live365 argued that the Court had jurisdiction via Section 1331, as a civil action that arises under the Constitution. The Plaintiff further argued that its claims were independent of the Webcaster III proceeding and that the remedy sought (a stay of the Webcaster III proceeding) didn’t change the fact that its challenge was independent of the proceeding.
The Court found that 17 U.S.C. § 803(d)(1) limited judicial review of determinations of the CRB judges to the District of Columbia Circuit, but not an attack on the legislation which established the CRB. The Court found that the action fell “squarely within the exception recognized by Time Warner and Free Enterprise, which authorize[d the] Court to exercise jurisdiction over a facial challenge to the constitutionality of a statute”:
The government’s argument that this case is distinguishable from Free Enterprise and Time Warner because the Complaint targets a specific ongoing proceeding is unpersuasive. In General Electric, the plaintiff’s due process challenge against the Environmental Protection Agency (“EPA”) pursued in this court was sanctioned by the Circuit despite there having been “ongoing interactions over remediation at several locations” between the parties, because “the lawsuit [did] not challenge any particular action or order by the EPA.” Id. at 191. Thus, although the plaintiff’s injunction request could have the effect of extending the September 29, 2009 deadline set by the CR Board judges and could inevitably impact the progression of the Webcasting III proceeding, their request for the injunction is derived from their constitutional facial challenge to the appointment of the CR Board judges, which is wholly independent of any action actually taken or expected to be taken in the future by the CR Board judges.
Appointments Clause challenge
To briefly review Appointments Clause structures at an oversimplified level, courts have interpreted the Appointments Clause as creating a four-pronged structure for evaluating members of the executive branch: Head of Departments, principal officers, inferior officers and employees. Head of Department and principal officers must be appointed by the President with the advice and consent of the Senate. Inferior Officers must be appointed by either the President or a Head of Departments. Lesser employees do not transgress the Appointments Clause regardless of their appointment method.
Live365 argued that the CRB judges were principal officers who may only be appointed by the President; or in the alternative, that they were inferior officers whose appointment was unconstitutional because the Librarian of Congress was not a Head of Department in the Executive Branch.
Whether the Librarian of Congress is a principal officer
The most interesting issue in App0ointments Clause challenges, for me at least, is how courts struggle with the majority opinion’s finding from Freytag v. Comm’r of Internal Revenue, 501 U.S. 868 (1991) that a Head of Department is confined to heads of “Cabinet-level departments,” which are “limited in number and easily identified.” The Court in Live365 sidestepped Freytag and instead looked to Eltra Corp. v. Ringer, 579 F.2d 294, 300 (4th Cir. 1978), which was issued thirteen years before Freytag, for the presumably intentionally circular proposition that if an officer is appointed by the President and invested with the power to appoint other officers, she is a principal officer:
The Register is appointed by the Librarian of Congress, who in turn is appointed by the president with the advice and consent of the Senate. By the nature of his appointment the Librarian is a[ ] [principal] [o]fficer of the United States, with the usual power of such officer to appoint ‘such inferior [o]fficers (i.e., the Register [and the CR Board judges] ), as (he) think(s) proper. 579 F.2d at 300 (internal citation and quotation marks omitted).
Accordingly, the Librarian is seemingly a principal officer that heads an Executive Department, and therefore, has the power to appoint inferior officers. Thus, given the manner in which the Librarian is appointed and considering many of the functions assigned to him, the plaintiff has not met its burden of showing that there is a substantial likelihood that it will succeed on the merits of its alternative Appointments Clause challenge.
Whether the Librarian is a member of the executive branch
The Court also looked to Eltra for precedence on the issue of whether the Librarian was a member of the executive branch. As the Court noted, the Librarian is appointed by the President with the advice and consent of the Senate; the President, not Congress, has the power to remove the Librarian at will; and while the Library is codified under Title 2 of the United States Code, which addresses specifically the Legislative Branch, “such code-grouping cannot determine whether a given function is executive or legislative.” Eltra at 579 F.2d at 301.
Whether the CRB judges are principal or inferior officers
Live365 argued that the CRB judges were principal officers and must be appointed by the President. The Court found that CRB Judges were “sufficiently subordinate to both the Librarian of Congress and the Register of Copyrights to qualify as inferior officers, and thus, their appointments by the Librarian do not offend the Appointments Clause.”
In both Edmond and Freytag, the judges were held to be inferior officers despite the fact that their duties included taking testimony, ruling on the admissibility of evidence, issuing protective orders, and issuing subpoenas, and the CR Board judges exercise many of those same responsibilities. Thus, the guiding precedent of the Supreme Court seemingly requires the conclusion that despite the level of autonomy the CR Board judges exercise, the degree of direction and supervision exercised over them by the Librarian and the Register renders them inferior rather than principal officers.
Previous posts on an Appointments Clause challenge to the Copyright Royalty Board:
Society of the Holy Transfiguration Monastery, Inc. v. Archbishop Gregory, 2010 WL 548114 (D. Mass. 2010)
A Greek Orthodox Monastery brought a copyright suit alleging that an archbishop had infringed a series of its translations of religious texts and that the Archbishop had breached a Settlement Agreement reached in a prior lawsuit involving one of the disputed works.
Ownership
The Archbishop argued that the copyright to one of the works should as a matter of church law be transferred to the Rusian Orthodox Church Outside Russia. The argument was derived from an ongoing dispute that arose when the Greek Orthodox Monastery elected to leave the ROCOR. In 1994, the Massachusetts Supreme Judicial Court found that the Greek Orthodox Monastary was congregational in terms of property ownership and was the sole owner of all of its assets, not the ROCOR. See, e.g., Primate and Bishops’ Synod of the Russian Orthodox Church Outside Russia v. Russian Orthodox Church of the Holy Resurrection, Inc., 418 Mass. 1001, 636 N.E.2d 211 (1994). The Court found that it didn’t need to re-open the dispute because there was no written transfer:
The court need not, however, accept the Archbishop’s invitation to delve into the intricacies of the doctrine of neutral principles as it applies to ecclesiastical disputes. The Copyright Act provides a simpler statutory answer. After 1978, a transfer of copyright, other than by operation of law, “is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner’s duly authorized agent.” 17 U.S.C. § 204(a).
As a side note, you can’t say for certain from the factual record, but this case may raise similar issues to those discussed in Schrock v. Learning Curve International, Inc., No. 08-1296 (7th Cir. 2009). The exclusive rights granted to a work employing preexisting material covered by copyright, such as many translations, do not extend to any part of the work in which the material was used without permission. 17 U.S.C. 103(a).
If the greek text of the disputed work contains copyrightable subject matter added by the ROCOR, such as annotations or editing choices made recent enough so that they are not in the public domain, the Monastary may, or may not, possess exclusive rights in its translation of the text. The outcome would depend on whether the Court adopted the Seventh Circuit’s finding from Schrock that when a rightsholder grants permission to a second author to make a derivative work, barring an agreement between the parties otherwise, the second author retains a copyright in the derivative work, even if the rightsholder later attempts to revoke permission.
Fair Use
The Archbishop’s copying of one of the works at issue omitted footnotes and three words, added some question marks, changed the spelling of six words, and added some headlines. The Court found that the work was substantially similar to the Monastery’s.
The Court then looked to whether the copying was a non-infringing fair use. The Court cited Campbell v. Acuff Rose for the proposition that not only is fair use an affirmative defense, but that a defendant has a “burden of proof” to show that the copying was non-infringing. The Court found that the use of the work was infringing.
Purpose and character
The Archbishop argued that his use was non-commercial (purely for devotional purposes), which was not disputed, and that his use was transformative because he placed a portion on the internet. The Court rejected the argument finding that a “simple repackaging” of a work in a new media context is “not transformative when the result is simply a mirror image reflected on a new mirror,” and found that the factor weighed in favor of the Monastery.
Nature of the copyrighted work
The Archbishop argued that the work at issue was factual as part of his religion, and as such, the factor weighed in favor of a finding of fair use. The Court found that the work was more closely akin to a creative work:
As a theological precept, this may ring true to a believer, but from an objective legal perspective, a religious contemplation in the form of a Homily (an admonitory sermon or discourse) falls more appropriately within the category of a work of imagination and creativity. While a translation is by definition derivative, some translations-the King James Version of the Bible comes to mind-are nonetheless thought to be “original in their own right.” This factor, on the whole, weighs in favor of the Monastery.
The amount and substantiality
The Court found that the Archbishop incorporated the entirety of one of the works on his website for “no apparent purpose other than avoiding the trouble and expense of creating a version of his own.”
Market harm
The Monastery did not allege any specific lost sales or profits as a result of the infringement. The Monastary instead noted that it has had to expend time and resources to enforce its rights in the work. The Court found that, “given Campbell’s emphasis on the deterrence of injurious conduct by others as a consideration separate and apart from a showing of actual market harm, this factor too weighs in favor of the Monastery.”
Recent scholarship from the Stanford Copyright and Fair Use Center:
Error: Feed has a error or is not valid
