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Summary

Although an author need not register his or her work with the U.S. Copyright Office to obtain copyright protection, registration is a statutory prerequisite to bringing suit for infringement of the copyright, as mandated by 17 U.S.C. §411(a). The question in Reed Elsevier, Inc. v. Muchnick, currently pending before the U.S. Supreme Court, is whether this section of the Copyright Act restricts the subject matter jurisdiction of the federal courts over copyright infringement actions. The plaintiffs in Reed Elsevier, consisting of individual authors and trade groups representing authors, brought a class action lawsuit against several publishers when those publishers licensed the authors' articles for print publication but failed to secure an additional license to reproduce them electronically. The Supreme Court had earlier affirmed the plaintiffs' right to control electronic reproduction of their copyrighted works in its 2001 opinion New York Times, Co. v. Tasini. After this opinion, the district court in Reed Elsevier referred the parties to mediation. Following almost four years of negotiations, the parties reached an agreement that sorted the plaintiffs into three categories based, in part, on whether or not their copyrights had been registered. The settlement assigned a different damages formula to each category, with owners of registered copyrights receiving more than owners whose copyrights were unregistered. Several freelance authors who fell within "Category C" (composed of unregistered copyrights) objected to the settlement agreement, arguing that the settlement was unfair and inadequate because they were paid too little. Proponents of the settlement responded that "Category C" claimants were treated fairly because, as owners of unregistered copyrights, they would normally be barred from bringing infringement suits at all under 17 U.S.C. §411(a). The district court granted final class certification and approved the settlement in September of 2005. The objectors appealed the district court's decision to the U.S. Court of Appeals for the Second Circuit. Before oral argument, the Second Circuit asked the parties to address whether the district court had subject matter jurisdiction over claims concerning the infringement of unregistered copyrights, or whether §411(a) restricted the court's jurisdiction. Both the authors and publishers argued that §411(a) is not jurisdictional in nature. However, a divided panel of the Second Circuit disagreed, holding that the requirement of copyright registration prior to an infringement suit is jurisdictional and therefore, because many of the plaintiff's copyrights were unregistered, the district court lacked the power to certify the class. The publishers appealed the appellate court's decision, and the Supreme Court granted certiorari on March, 2, 2009. Oral argument was heard in Reed Elsevier on October 7, 2009. The outcome of this case will not only affect the particular settlement at issue, but may well have broader implications for authors, publishers, and the general public.

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