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Federal Government Urges Delay on Copyright Litigation

Josh Conley \ November 13, 2018

The solicitor general for the United States has urged the Supreme Court to resolve a split between circuits on when a copyright infringement case can be filed in federal court.  Copyright registration is a pre-requisite to filing a claim for copyright infringement. 

Some circuits have deemed that this requirement is met simply by filing for registration.  Other circuits have found that the owner of the copyright must wait until the Copyright Office actually registers the works. In its recent brief, the solicitor argues that alleged copyright owners should have to wait until the Copyright Office has reviewed the application for registration.

Those in support of the delay, including the government, argue that waiting is “congressional design” intended to “encourage prompt registration for the public benefit.”  In contrast, those opposed assert that the delay inhibits the ability of copyright owners to seek quick relief from the courts.

Although the split has been ongoing for some time, the heightened attention to the matter is the result of the Supreme Court’s recent decision to hear a case involving what is meant by the term “registered.”  The case comes from a dispute between Fourth Estate Public Benefit Corp and Wall-Street.com, with the latter being accused of reposting unauthorized articles. The case was initially resolved when the district court found that Fourth Estate had not met the registration requirement by simply filing.  A finding that was affirmed by the Eleventh Circuit.

Without paying for expedited examination, a typical application is processed in about 6 months.  Depending on the route the application takes through the Copyright Office, a decision can be made in as little as 2 months and as many as 37 months.  

The Copyright Office offers the option to expedite examination, including when the applicant is actually or potentially involved in a lawsuit.  These requests for special handling require the payment of a fee that exceeds $1300 currently. If accepted, the Copyright Office will attempt to review the application within five working days.

Regardless of the outcome, it is important for all copyright owners to be aware that they may find themselves in a situation where they have to sit outside the courthouse until they receive formal registration at the Copyright Office.  To avoid this from happening, copyright applications should be filed as soon as possible or copyright owners must come to terms with paying a substantial fee to have their application reviewed quickly.

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