Plain Meaning and Section 411(a)

My recent post on the Fourth Circuit and architectural works drew two commentators who challenge my plain meaning interpretation of the statute as requiring physical movement in order for the distribution right to be implicated. My interpretation is based on the fact that the statute limits the right to distribution of copies and copies is defined as a physical object; I don't know how you can distribute a physical object without moving it, but readers are pointed to that post to see the debate.

Another area in which I think the plain reading of the statute is crystal clear is Section 411(a) which requires that there be an actual issued registration or denial thereof before an infringement action may be instituted (not "maintained" as in the 1909 Act). A very very few courts, misled by Nimmer's mangling of the statute, have disagreed. The overwhelming majority of courts follow the plain meaning. Here is a new one, from the Court of Federal Claims, Jennette v. United States, 2007 WL 1771998 (Fed. Cl. June 19, 2007):

Lacking any binding authority, this court must look to the statute itself to determine its meaning. The cardinal rule in interpreting a statute is that “courts must presume that a legislature says in a statute what it means and means in a statute what is says there.” Conn. Nat'l Bank v. Germain, 503 U.S. 249, 253-54, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992). A court begins its inquiry by examining the text of the statute. Lamie v. United States Trustee, 540 U.S. 526, 534, 124 S.Ct. 1023, 157 L.Ed.2d 1024 (2004). “Unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning” at the time Congress enacted the statute. Perrin v. United States, 444 U.S. 37, 42, 100 S.Ct. 311, 62 L.Ed.2d 199 (1979). When the statutory language is clear, a court's inquiry is complete. Conn. Nat'l Bank, 503 U.S. at 254, 112 S.Ct. 1146.The relevant portion of 17 U.S.C. § 411(a) provides:[N]o action for infringement of the copyright in any United States work shall be instituted until registration of the copyright claim has been made in accordance with this title. In any case, however, where the deposit, application, and fee required for registration have been delivered to the Copyright Office in proper form and registration has been refused, the applicant is entitled to institute an action for infringement if notice thereof, with a copy of the complaint, is served on the Register of Copyrights.As a condition to bringing suit, the plain language of the statute requires either the registration of the copyright or the Copyright Office's refusal to register the copyright. See La Resolana Architects, PA, 416 F.3d at 1200-01. Accordingly, the court holds that actual copyright registration, or the denial of copyright registration, is required prior to bringing suit for copyright infringement.