The continuing relevance of registration with the Copyright Office was displayed in the last week or so in two different fora, the 10th Circuit (construing Section 411(a)) and the Copyright Office, which issued proposed rules for preregistration of unpublished works.
1. Section 411(a)
The 10th Circuit opinion, issued on July 26th by Judge Timothy Tymkovich in La Resonalana Architects, PA v. Clay Realtors Angel Fire, is an outstanding effort. Plaintiff had sued for infringement after only submitting (but not receiving) a certificate of registration or a rejection. Defendant, citing the plain language of Section 411(a), filed a motion to dismiss for lack of subject matter jurisdiction. The district court granted the motion and the circuit affirmed. This was the correct result.
As discussed in a June 7th posting, Section 411(a) states, simply and clearly, that no action for infringement shall be instituted until registration of the copyright claim has be made. Like Horton the elephant sitting on the egg, this passage means what it says and says what it means, 100%. Virtually all courts have read it plainly. The Fifth is the sole appellate exception (there are wild hairs in a few district courts like Rhode Island).
The errant courts have all been led astray by Nimmer, for whom, in my opinion, the statute is at best a secondary source to be ignored at will. Nimmer on Copyright reflects an approach of the treatise writer as colossus, striding the legal world and telling courts what the law is regardless of what the law is; a bit like country singer Willie Nelson's lyrics about being caught in flagrante delicto by a wife and saying to her "Who are you going to believe, your eyes or me"? Judge Tymkovich's opinion is thorough and methodical in showing why Nimmer is wrong, why the emperor (like Willie Nelson) has no clothes.
When a complaint is dismissed for failure to comply with Section 411(a), the dismissal is without prejudice, so after receiving the registration (or rejection), the suit may be refiled if still within the statute of limitations. Sometimes, though, dismissal will mean refiling will be outside the limitations period either for the copyright claim or for a pendent state claim. That problem was addressed in a July 22 opinion, Kenny v. Ryan Web Solution, 2005 U.S. Dist. LEXIS 14863 (S.D.N.Y.)(Batts, J.), where the time had run on a state privacy claim appended to the original complaint. Taking pity on the hapless plaintiff, Judge Batts reversed a previous dismissal order and allowed plaintiff to file an amended coomplaint. Others may not be so lucky.
On July 22, the Copyright Office published in the Federal Register a Notice of Proposed Rulemaking. This rule makes seeks to implement the ART Act (effective April 27, 2005), which, in part, amended Sections 408 and 411(a) to allow what is called "preregistration" for unpublished works that are being prepared for commercial distribution. The regulations must be in place by October 24, 2005. Preregistration is available only for the classes of works that the Register determines have had a history of infringement prior to unauthorized distribution. This lamentable imposition of responsibility hearkens back to the DMCA with its problems on identifying classes of exempt works. I wish Congress would do the work and figure out what it wants to exempt or include and not delegate such vague problems to an administrative agency.
Preregistration doesn't mean you don't have to eventually really register, you do, within one month of becoming aware of an infringement, but in no event later than three months from publication. That grace period is copied from the current statute, which permits statutory damages to be awarded even if infringement occurred before registration if in the case of a published work it is registered within three months of publication. And it is statutory damages and attorney's fees that are the motivation behind preregistration.
The House of Representatives tried to do away with the effects Section 412 in 1993 and 1994 passing a bill twice, but after Chairman Hughes became a lame duck, the quacks of cooperation stopped immediately, and given Senator DeConcini's lame duck status too, no bill got through the Senate. It has now been resurrected in a much smaller form, but in an Orwellian twist, it will benefit almost entirely corporations since only they will typically have the ability to comply.
I support corporations benefiting from statutory damages and attorneys fees against pirates, but I continue to think that individual authors must benefit too. And in that respect the ART Act is artless.