Judicial Deference to Copyright Office

The state of deference given by courts to the Copyright Office has been negatively impacted by the muddied state of the Supreme Court jurisprudence on agency deference as well as by some misconceptions held by a few courts about the statute. Neither situation is likely to be improved upon.

The threshold question is what we mean by "deference." Does it mean merely agreeing with the agency interpretation; does it mean disagreeing with the agency's interpretation but following it anyway; does it mean upholding an agency regulation or act; or does it mean something else like an ambiguous statute where, in light of delegated authority, expertise, etc., the court, picking among a number of possible outcomes picks the agency's interpretation? Each of these situations may call for different levels of review or weight under the Supreme Court's trilogy of United States v. Mead Corporation, 533 U.S. 218 (2001); Chevron v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984); and Skidmore v. Swift & Co., 323 U.S. 134 (1944).

The Copyright Act imposes certain obligations on the Copyright Office, for example, to examine applications for registration and to accept or reject them (Section 410). There are also significant duties involving the administration of compulsory licenses. To fulfill these duties, Section 702 authorizes the Register to establish regulations "not inconsistent with law for the administrative of the functions and duties made the responsibility of the Register" under title 17. There are classic Chevron questions, as when the Office promulgates regulations determining what "gross receipts" is under the Section 111 cable compulsory license. There deference was given, Cablevision Systems Development Co. v. MPAA, 836 F.2d 599 (D.C. Cir. 1988), meaning that the regulation was upheld as a valid exercise of authority and had to be followed by the parties. In a more extreme case, the Eleventh Circuit followed the Office's regulation even though it was promulgated in open contradiction to that court's own intepretation of the Act. SBCAA v. Oman, 17 F.3d 344 (11th Cir. 1994).

Other cases involve the Office's interpretation of the statute. Here the record is mixed. In Bartok v. Boosey & Hawkes, Inc., 523 F.2d 941, 946-947 (2d Cir. 1975), the court of appeals stated it would not defer to the Offfice where interpretation of the statute is a question of first impression. The Sixth Circuit also refused to follow the Office's interpretation of the renewal provisions in BMI v. Roger Miller Music, Inc., 396 F.3d 762, 778 (6th Cir. 2005), although in that case the Office's view was expressed in a letter, which was held not to have the force of law. (The Office's views could still be considered for their persuasive value).

Review of examination decisions have also provided a fertile, though unfortunately confused, context for the deference issue. Since Section 410(c) provides prima facie status to a certificate obtained within 5 years of first publication, when reviewing an issued certifiacte it seems odd to talk of deference to the Office; instead, the court is following a statutory presumption. In the most disturbing opinion, Judge Easterbrook's as a district judge in Pivot Point International, Inc. v. Charlene Products, Inc., 170 F. Supp.2d 828 (N.D. Ill. 2001) (later reversed), the statutory presumption was ignored because the Office didn't explain its decision to register. Under Judge Easterbrook's interpretation of Mead, an explanation was necessary to receive deference. But the statute doesn't require the Office explain its decision to register, and the presumption exists by statute flowing from the agency's action, not it explanation of its action. Where there has been a rejection, some courts have given "some deference." In the end, though, in all cases, it is the courts that make the final decision.