This is big week for copyright at the Supreme Court. The Court will hear oral arguments in the twenty-year legal saga Reed Elsevier v. Muchnick on Wednesday. On that note, Emily M. Bass, the attorney who represented one of the two plaintiff groups in Tasini, has passed along word about an article she has posted at SSRN. The abstract:
‘Catch 411:’ Does Section 411 of the Copyright Act Restrict the Subject Matter Jurisdiction of Federal Courts Over Copyright Actions?
This commentary examines an issue that will soon be argued before the United States Supreme Court: whether 17 U.S.C. §411′s registration requirement restricts the subject matter jurisdiction of the federal courts over copyright infringement actions. The Second Circuit found that courts lack jurisdiction to adjudicate claims alleging the infringement of unregistered works. The issue of whether courts have jurisdiction over such claims is of tremendous importance: The U.S.’s collective intellectual product is perhaps its greatest asset. Since unregistered works are as susceptible to mass electronic infringement as registered works, and arguably much more numerous, a decision affirming the Second Circuit would deny the country effective means of defending key IP. This commentary examines the statutes involved, arguments that have been made and the Second Circuit Opinion. It poses four solutions to §411′s supposed jurisdictional conundrum and concludes that federal courts unquestionably possess jurisdiction over unregistered claims.
I will post a longer writeup tomorrow that I have been sitting on for the last couple of months. The post will look at how complete preemption should color our view on whether registration is a jurisdictional requirement. I know what all of you (or at least six of you) are thinking: the only way to kick a discussion of obscure jurisdictional issues up to eleven is to talk about complete preemption. It’s like adding bacon.
Today may be the day we hear whether the Supreme Court will grant cert in Omega SA et al v. Costco Wholesale Corporation. The Supreme Court has in the past released cert decisions for cases they consider during their fall long conference on the following Monday. The appeal was scheduled for conference on September 29, so that would put today as the date we would be likely to hear.
Costco filed a supplemental brief on September 28 (that addressed the S.D.N.Y.’s September 25 decision in Pearson Education, Inc. v. Ganghua) so the cert decision could be delayed.