WASHINGTON – On Tuesday, the U.S. Supreme Court heard oral argument in Fourth Estate Public Benefit Corporation v.  Wall-Street.com, a case which hinges on the meaning of the phrase “registration of the copyright claim has been made” in the context of 17 U.S.C.§ 411(a).

As I noted in previous coverage of the case, the key question is whether “registration of the copyright claim has been made” within the meaning of the 411(a) when the copyright applicant delivers the required application, application, deposit, and fee to the Copyright Office, as some courts have held, or only once the Copyright Office acts on that application, as other judicial circuits have ruled.

In the case, the trial court dismissed Fourth Estate’s claims against Wall-Street.com and Jerrold Burden because Fourth Estate had “failed to plead compliance with the registration requirement.” The Eleventh Circuit Court of Appeals upheld the trial court’s dismissal of the case, leading Fourth Estate to petition the Supreme Court to hear the case.

At Tuesday’s hearing, the justices appeared to find the arguments offered counsel for Wall-Street.com and the government (which has sided with the defendant’s interpretation of the statute) more persuasive, according to an account of the hearing written for SCOTUSblog by Jessica Litman, a professor from the University of Michigan Law School.

Representing Fourth Estate, attorney Aaron Panner argued that textual evidence from the copyright statute demonstrates that registration of a work has been made once the party claiming the copyright has submitted an application, along with a copy of the work at issue and payment of the required registration fee.

Panner noted the statute uses “registration” in a variety of places, sometimes in reference to the Copyright Register accepting a claim and issuing a certificate of registration and other times referring to the copyright claimant’s filing of an application. Panner asserted that in case instance where the phrase “registration has been made” within the statute, it is in reference to acts of the copyright claimant, not actions of the Copyright Office.

According to Litman, while Justice Elena Kagan indicated she was persuaded that the Panner was in correct in asserting the statute uses the word “registration” to mean different things in various sections of the law, it was difficult to accept the notion the word is used to mean different things in the context of two neighboring sentences within the same subsection of the law.

Kagan reportedly noted that the first sentence in question used “registration has been made,” and the second sentence used the language “registration has been refused.” Kagan said that because the two sentences are linked by the word “however,” it was difficult to conclude anything other than the sentences used “registration” to refer to action by the Copyright Register in both instances.

Panner later noted to the court that copyright rights exist whether or not a claim is registered and asserted his reading of the law was necessary so plaintiffs in copyright cases could receive timely injunctive relief.

Justice Brett Kavanaugh reportedly asked Panner to explain more about the issues copyright holders will face under the 11^th Circuits interpretation. Panner responded by saying delays caused by waiting for the Copyright Office to act on applications would allow infringing copies of works to be distributed far and wide over the internet before the rightsholder could seek relief in court.

Representing Wall-Street.com, attorney Peter Stris asserted that if the court were to adopt the interpretation of the statute favored by Fourth Estate, it would “would make several other provisions of the statute meaningless or superfluous, and it would undercut the ability of the registration process to clarify and limit the scope of copyright claims,” as Litman put it in her analysis.

“Stris contended that opponents of registration had urged Congress repeatedly to eliminate the registration prerequisite, and that Congress had included a number of exceptions in the statute to ameliorate the problem,” Litman continued. “Because of those exceptions, the likelihood of a copyright owner’s actually facing a situation in which its copyright was unenforceable because of delay is vanishingly small.”

Justice Neil Gorsuch reportedly brought up the question of problems that could be caused by Copyright Office delays, noting that when Congress wrote the statute, it had assumed registration decisions would be made quickly – which, due to the volume of applications the Copyright Office receives, simply isn’t the case.

Kavanaugh echoed Gorsuch to an extent, showing concern over claims made by amici who had submitted briefs in support of Fourth Estate, which claimed that delaying lawsuits until after the Register rules on applications would be harmful to rightsholders.

Arguing for the government, attorney Jonathan Ellis responded by noting Congress crafted statutory exceptions which allow copyright owners to avoid or mitigate the delays about which Kavanaugh and Gorsuch are concerned. In addition to exceptions which allow lawsuits to be filed over unregistered works, Ellis pointed to the notice-and-takedown provisions of the Digital Millennium Copyright Act as a tool rightsholders can use to effect removal of infringing files from the internet.

Litman reported that throughout the hearing, “the justices appeared to be persuaded that Stris and Ellis have the better textual argument.”

“Some of them suggested that they found Panner’s interpretation colorable, and that he had raised important policy concerns,” Litman wrote. “Although this particular case is relatively minor, the court’s ruling could be determinative for other recently filed high-profile cases. None of the briefs devoted much ink to the legislative history of the provision, and Ellis only diffidently suggested that the justices might find persuasive evidence if they were to consult it. It will be interesting to see whether the court’s opinion(s) make any reference to it.”