I previously wrote that I was hoping the United States Supreme Court’s decision in Reed Elsevier Inc. v. Muchnickwould finally answer the question of whether copyright registration is necessary for courts to have subject matter jurisdiction. We now have a ruling – it is not jurisdictional — but the impact of the decision is somewhat unclear. Certainly, some will cheer (can anyone say Google?) the decision, but for the vast majority of copyright cases, will the decision matter? Maybe, but probably not.
The courts have been split as to whether to dismiss copyright cases for the lack of subject matter jurisdiction if the plaintiff has not registered its copyrighted works. The Supreme Court ruled that registration is not jurisdictional because Section411(a) did not “clearly state” that it is jurisdictional.
Instead of jurisdictional, registration is a precondition to filing a lawsuit or similar to a “claim-processing rule.” In other words, a plaintiff needs to comply with the requirements of the statute to proceed, but the failure to do so does not deny the court subject matter jurisdiction.
Presumably, if the plaintiff sues for a work that is not yet registered, a defendant will now bring a motion to dismiss the claim for the failure to state a claim. If you are in a jurisdiction that previously dismissed cases for lack of subject matter jurisdiction, a court may likely still dismiss the case although the reason for dismissal will change to “failure to state a claim.” Only the label or rationale change. Likewise, if you are in a jurisdiction that took a different approach to registration, the court will likely continue to apply that approach.
The instances of where it does matter are probably few and far between. The background of the Reed Elsevier case illustrates at least one category of cases, i.e. settlements of certain class actions, that will feel the impact of this case.
In Reed Elsevier, a group of publishers who wanted to publish certain works digitally reached a settlement with almost all of the members of a class of freelance authors – some of whose works were registered and some whose were not. When the district court approved the settlement, some freelance authors objected and appealed. The Second Circuit held that the district court did not have authority to approve the settlement because some of the works were not registered. The Supreme Court reversed and in effect, allowed the district court to approve the settlement even though some class members never registered their copyrights.
Sounds pretty narrow. Who else would care? The thousand-pound gorilla of copyright – Google. If the Supreme Court had said that a court cannot approve a settlement of copyright claims whose class included unregistered works, how would have changed the proposed Google Books Search Settlement? If the final settlement proposal does not include unregistered works (except foreign works), then perhaps not much. But, does anyone think that the book search is the last expansive project Google will take on? I doubt it.