The Daily Parker

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Changes to US copyright law

On March 4th, the U.S. Supreme Court decided two cases that change how copyright infringement cases work in the U.S. In Fourth Estate Public Benefit Corporation v. Wall-Street.com, the Court held that a copyright owner must wait for the Copyright Office to accept or reject a registration application before the owner can sue for infringement:

Justice Ruth Bader Ginsburg (who had not attended the oral argument because she was home recovering from surgery) delivered the court’s opinion. She analogized the registration requirement to an administrative exhaustion requirement that an owner must satisfy before suing to enforce ownership rights.

The court concluded that the only satisfactory reading of the text of Section 411(a) is that the Copyright Office must have registered the copyright in order for registration to have been made. Fourth Estate had argued that the phrase should be read to refer to the copyright owner’s submission of a completed application.

Note that this does not mean creators need to register every creation. Copyright accrues to the author of a work at the moment of its creation. The registration requirement only applies to lawsuits for infringement. Neither creators nor the Copyright Office want to register every single creation in the United States; that's insane. But if you infringe on a copyright, the creator may register the work and then sue you, even if the work wasn't registered when you infringed on it.

Law firm K&L Gates still recommends registration: "An initial cease and desist letter to an infringer containing proof of copyright registration demonstrates that the claim may be filed in court, providing leverage to the copyright owner. Companies and other creators should consider routine copyright application filing to protect their valuable assets without loss of time and damages waiting for registration to occur after the infringement is discovered."

So calm down: don't send every blog post or Instagram photo you create to the Copyright Office. They don't want them. If you want to sue for infringement, then register the work. But how often does that happen?

The other case, Rimini Street, Inc. v. Oracle USA, Inc., clarified what "full costs" mean in an infringement suit, and won't apply to most creators the way Fourth Estate will.

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