The Copyright Registration Requirement and
Federal Court Jurisdiction: A Legal Analysis
of Reed Elsevier, Inc. v. Muchnick
Brian T. Yeh
Legislative Attorney
Lydia Grunstra
Law Clerk
November 30, 2009
Congressional Research Service
7-5700
www.crs.gov
R40944
CRS Report for Congress
P
repared for Members and Committees of Congress
The Copyright Registration Requirement and Federal Court Jurisdiction
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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The Copyright Registration Requirement and Federal Court Jurisdiction
Contents
Background ................................................................................................................................ 1
The District Court’s Opinion ....................................................................................................... 2
The Second Circuit’s Opinion ..................................................................................................... 3
Arguments Before the U.S. Supreme Court ................................................................................. 4
Significance of Supreme Court’s Decision............................................................................. 7
Contacts
Author Contact Information ........................................................................................................ 8
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The Copyright Registration Requirement and Federal Court Jurisdiction
Background
Copyright is the exclusive right to reproduce, distribute, perform, display, and otherwise exploit
an “original work of authorship,” such as certain literary, dramatic, musical, or other artistic
works.1 Copyright protection is secured automatically when the work is created, or “fixed in any
tangible medium of expression.”2 Although an author need not register his or her work with the
U.S. Copyright Office to obtain copyright protection, registration does come with several
advantages. For instance, registration is necessary before a plaintiff may file an infringement
suit,3 and if registration is made within three months after publication of a work, the court may
award the plaintiff statutory damages and attorney’s fees rather than actual damages and profits
alone.4
A copyright owner’s exclusive right to reproduce and distribute his or her work was the subject of
litigation in a 2001 Supreme Court case, New York Times Co. v. Tasini.5 In Tasini, six freelance
authors who had contributed articles to several publications, including The New York Times,
Newsday, and Time, sued when the publishers licensed rights to copy and sell the articles to
electronic databases such as Lexis/Nexis. The publishers argued that, because their magazines
and newspapers were collective works composed of the authors’ individual articles, section
201(c) of the Copyright Act permitted them to reproduce and distribute the articles as part of a
“revision” of those collective works.6 The Supreme Court disagreed. It held that the Copyright
Act does not permit publishers to reproduce freelance works electronically when they lack
specific authorization to do so, effectively requiring publishers to obtain a separate license from
the author if they wish to electronically reproduce written works.7
Shortly after the Court decided Tasini, three preexisting class action infringement suits, which had
been suspended pending the decision, were activated and consolidated in the U.S. District Court
for the Southern District of New York. A fourth, nearly identical action was coordinated with that
consolidated action. Together, these claims comprise the litigation discussed in this report.8
Like Tasini, Reed Elsevier v. Muchnick is a class action lawsuit. Class actions allow one or more
named plaintiffs to sue on behalf of a larger group of people when joining all members of the
group would be impracticable; the members of the group raise similar claims, which present
common issues of law or fact; and the named plaintiffs fairly and adequately protect the interests
of other class members.9 Litigation may proceed only after the court has certified the class,10 and
1 See 17 U.S.C. §106; see also U.S. Copyright Office: Copyright Basics, at http://www.copyright.gov/circs/circ1.pdf,
and CRS Report RS22801, General Overview of U.S. Copyright Law, by Brian T. Yeh.
2 17 U.S.C. §102(a).
3 See 17 U.S.C. §411(a).
4 See 17 U.S.C. §412.
5 533 U.S. 483 (2001). For more information on this decision, see CRS Report RS20964, New York Times Co. v.
Tasini: The U.S. Supreme Court Affirms "Authorial" Rights in Copyright, by Robin Jeweler.
6 Id. at 484.
7 See New York Times Co. v. Tasini, 533 U.S. 483 (2001).
8 See Muchnick v. Thomson Corp. (In re Literary Works in Electronic Databases Copyright Litigation), 509 F.3d 116,
118 (2d Cir. 2007).
9 Fed. R. Civ. P. 23(a).
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even settlement or voluntary dismissal of the suit requires the court’s approval.11 Any class
member may object to a settlement proposal, but, once made, the objection may only be
withdrawn with the court’s permission.12
The District Court’s Opinion
The plaintiffs in Reed Elsevier consist of individual authors and trade groups representing authors
who produced written works for certain publishers on a freelance basis.13 The publishers had
licensed the articles from the freelance authors for print publication but later reproduced the
articles in their electronic databases without compensating or otherwise obtaining the consent of
the authors. Based on their copyrights in the freelance works, the plaintiffs brought suit against
the publishers and the electronic database services for copyright infringement.14
After the Tasini decision had affirmed the plaintiffs’ right to control electronic reproduction of
their works, the district court referred the parties to mediation.15 In 2005, after three years of
negotiations, the parties reached an agreement that sorted plaintiffs’ claims into three groups for
compensation purposes.16 Category A claims concerned copyrights that were eligible for statutory
damages and attorney’s fees under the Copyright Act.17 Category B claims concerned copyrights
that qualified for actual damages only.18 Category C claims, by far the most numerous, largely
involved copyrights that were unregistered, and therefore their owners were precluded from
bringing individual suits for damages of any sort.19
The settlement assigned a damages formula to each type of claim. Category A claimants received
a flat fee. Category B claimants received the greater of either a flat fee or a percentage of the
original price of the work. Category C claimants also received the greater of either a flat fee or a
percentage of the original price of the work. However, if the cost of all claims (plus the cost of
notice, administration, and attorney’s fees) exceeded $18 million, then the amount paid to
Category C claimants was reduced—potentially to zero—before the claims of Category A and B
claimants were affected. This feature was called the “C-reduction.”20 In return for financial
compensation, the plaintiffs agreed to release all past, present, and future claims against the
defendants related to their articles’ appearance in electronic databases.21
(...continued)
10 Fed. R. Civ. P. 23(c)(1)(A).
11 Fed. R. Civ. P. 23(e).
12 Fed. R. Civ. P. 23(e)(5).
13 See In re Literary Works in Electronic Databases Copyright Litigation, 509 F.3d at 118-19.
14 Id. at 119.
15 Id.
16 Id. at 120.
17 See id. (citing 17 U.S.C. §412).
18 See id.
19 See id.
20 Id.
21 See Brief for the United States as Amicus Curiae Supporting Vacatur and Remand at 8, Reed Elsevier, Inc. v.
Muchnick, No. 08-103, (U.S. argued Oct. 7, 2009).
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Having reached an agreement, the plaintiffs and defendants moved the district court for class
certification and settlement approval. Objectors opposed the motion on the ground that the
settlement was inadequate and unfair to Category C claimants because they were paid little and
singled out for reduction if the total claims exceeded $18 million. Objectors also maintained that
the disparate treatment of Category C claimants illustrated that the named plaintiffs, who each
possessed at least some registered copyrights, did not adequately represent those absent class
members who possessed only unregistered copyrights. The defendants responded that Category C
claimants were adequately represented and treated fairly because they would otherwise have been
unable to bring actions for infringement at all under 17 U.S.C. §411(a) because their copyrights
were unregistered.22
After prolonged proceedings, the district court granted final class certification and final
settlement approval in September 2005. Objectors appealed, again challenging the settlement’s
fairness and the adequacy of the named plaintiffs’ representation.23
The Second Circuit’s Opinion
Before hearing oral argument, the Second Circuit Court of Appeals “became concerned that the
District Court and the parties had passed over a nettlesome jurisdictional question” and sua
sponte ordered the parties to address “whether the District Court had subject matter jurisdiction
over claims concerning the infringement of unregistered copyrights.”24 Due to their mutual
interest in achieving class certification and settlement approval at this stage, both plaintiffs and
defendants argued that the Copyright Act’s registration requirement is not jurisdictional in
nature.25 They contended that, if a plaintiff brings a single claim based on a registered copyright,
the district court acquires jurisdiction over any and all related copyright claims, even if those
other claims arise from unregistered copyrights. They also argued that jurisdiction in this case
was proper because the named plaintiffs’ works were registered.26
A divided panel of the Second Circuit disagreed. The majority opinion first observed that
Congress provides federal courts with only limited subject matter jurisdiction.27 District courts
derive their jurisdiction in copyright actions from two sections of Title 28 of the U.S. Code,
§1331 and § 1338. The first is a general grant of original jurisdiction over civil actions arising
under federal law, and the second provides courts with a more specific grant of original
jurisdiction over copyright infringement cases. However, the appellate court asserted that
Congress has supplemented these basic jurisdictional grants with a separate statutory section—
§411(a) of the Copyright Act (17 U.S.C.§411(a)), which “limits a district court’s subject matter
jurisdiction to claims arising from registered copyrights only.”28
22 Id.
23 Id.
24 Id.
25 Id. at 122.
26 Id. at 123.
27 Id. at 121.
28 Id. at 122 (emphasis added).
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Relying on its opinions in Well-Made Toy Mfg. Corp. v. Goffa Intl. Corp.29 and Morris v. Bus.
Concepts, Inc.30 and distinguishing the Supreme Court’s ruling in Eberhart v. United States,31 the
appellate court held that the requirement of copyright registration prior to an infringement suit is
jurisdictional32 and that the phrase “copyright claim” referred to each claim within a purported
class.33 Thus, because many of the plaintiffs’ copyrights were unregistered, the Second Circuit
held that the district court lacked the authority to certify the class. It also held that this
“jurisdictional defect” precluded supplemental jurisdiction34 under 28 U.S.C. §1367(a) as well.35
Judge Walker dissented, arguing that, although the Second Circuit had labeled §411(a) as
jurisdictional in the past, the Supreme Court’s ruling in Eberhart, which encouraged lower courts
to “more carefully distinguish between true jurisdictional bars and claim-processing rules that
may be waived,” merited a re-evaluation of the copyright registration requirement.36 Categorizing
§411(a) as an “enforcement mechanism” rather than a “rights-creating statute”37 and relying on
Second Circuit precedent that “not all members of a settlement-only class need to possess a valid
cause of action under the applicable law,”38 he concluded that “the fact that some of the otherwise
presumably valid copyrights have not been registered is an insufficient basis for undoing this
class-action settlement.”39
Arguments Before the U.S. Supreme Court
The U.S. Supreme Court granted certiorari to review the case on the following question: “Does
17 U.S.C. §411(a) restrict the subject matter jurisdiction of the federal courts over copyright
infringement actions?”40
17 U.S.C. §411(a) reads as follows:
[N]o civil action for infringement of the copyright in any United States work shall be
instituted until preregistration or registration of the copyright claim has been made in
accordance with this title. In any case, however, where the deposit, application, and fee
required for registration have been delivered to the Copyright Office in proper form and
29 354 F. 3d 112 (2d Cir. 2003).
30 259 F.3d 65 (2d Cir. 2001).
31 546 U.S. 12 (2005).
32 In re Literary Works in Electronic Databases Copyright Litigation, 509 F.3d at 121.
33 Id. at 125.
34 Supplemental jurisdiction is “a court’s jurisdiction to hear and determine a claim over which it would not otherwise
have jurisdiction, because the claim arises from the same transaction or occurrence as another claim that is properly
before the court.” BLACK’S LAW DICTIONARY (8th ed. 2004).
35 In re Literary Works in Electronic Databases Copyright Litigation, 509 F.3d at 127.
36 Id. at 128 (Walker, J., dissenting).
37 Id. at 130.
38 Id. at 128 (referencing Lerner v. Fleet Bank, 318 F.3d 113, 125-26 (2d Cir.2003) (holding that, in a RICO class
action suit, the district court could exercise supplemental jurisdiction over plaintiffs’ state-law claims despite the fact
that certain members of the plaintiff class lacked RICO standing)).
39 Id.
40 Reed Elsevier, Inc. v. Muchnick, 129 S.Ct. 1523 (2009).
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registration has been refused, the applicant is entitled to institute a civil action for
infringement if notice thereof, with a copy of the complaint, is served on the Register of
Copyrights. The Register may, at his or her option, become a party to the action with respect
to the issue of registrability of the copyright claim by entering an appearance within sixty
days after such service, but the Register’s failure to become a party shall not deprive the
court of jurisdiction to determine that issue.
Petitioners in the case (Reed Elsevier et al.) argued that the §411(a) registration requirement is a
mandatory prerequisite to suit, not a restriction on the court’s jurisdiction.41 Drawing on the text,
structure, legislative history, and purpose of the statute,42 they argued that Congress never
intended the registration requirement to be jurisdictional and that circuit courts interpreting it thus
had failed to implement the “bright line” test articulated in Arbaugh v. Y&H Corp.43 Even if
§411(a) is jurisdictional, petitioners argued that the restriction applies only to instituting actions,
not settling them, because jurisdiction over an action generally extends to approving settlements
that release claims the court lacked authority to try.44 They warned that, if the Second Circuit’s
“drive-by”45 jurisdictional characterization of 411(a) were allowed to stand, it would thwart “the
ability of parties to reach negotiated resolutions of their disputes involving unregistered works”
and leave “the nation’s electronic databases and archives ... permanently depleted.”46
Respondents (Pogrebin et al. and Irvin Muchnick et al.) advanced similar arguments, stating that
§411(a) is not a bar to jurisdiction but rather a claim-processing rule, a prerequisite to suit that
could be enforced or waived by the defendants.47 As support, respondents cited several circuit
court opinions in which the jurisdiction requirement was waived or relaxed and therefore treated
“in a manner fundamentally inconsistent with its being subject matter jurisdictional.”48 They also
argued that, even if the district court had lacked original subject matter jurisdiction over the case,
it had supplemental jurisdiction because the claims of the Category-C authors with unregistered
copyrights arose out of the same case or controversy as the claims of the Category-A and B
authors whose copyrights were registered.49
The United States, as amicus curiae, also supported vacatur of the Second Circuit’s judgment.
Like petitioners, the U.S. argued that §411(a) does not limit a federal courts’ subject matter
jurisdiction, but rather serves as a mandatory prerequisite to suit that should be strictly enforced
when raised by a party.50 The U.S. argued that, while district courts should ordinarily enforce
41 See Brief for Petitioners at 15, Reed Elsevier, Inc. v. Muchnick, No. 08-103, (U.S. argued Oct. 7, 2009).
42 See id. at 23-37.
43 Id. at 40-45 (citing Arbaugh v. Y & H Corp., 546 U.S. 500, 516 (2006) (“If the Legislature clearly states that a
threshold limitation on a statute’s scope shall count as jurisdictional, then courts and litigants will be duly instructed
and will not be left to wrestle with the issue. ... But when Congress does not rank a statutory limitation on coverage as
jurisdictional, courts should treat the restriction as nonjurisdictional in character.”)).
44 See id. at 45-48.
45 Id. at 40 (citing Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 91 (1998)).
46 Id. at 3.
47 See Brief for Respondents Pogrebin et al. in Support of Petitioners at 5, Reed Elsevier, Inc. v. Muchnick, No. 08-
103, (U.S. argued Oct. 7, 2009); see also Brief for the Muchnick Respondents at 18-32, Reed Elsevier, Inc. v.
Muchnick, No. 08-103, (U.S. argued Oct. 7, 2009).
48 Brief for Respondents Pogrebin et al. at 5.
49 See id. at 18-23; see also Brief for the Muchnick Respondents at 36-44.
50 See Brief for the United States as Amicus Curiae Supporting Vacatur and Remand at 20-25, Reed Elsevier, Inc. v.
(continued...)
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§411(a) sua sponte even if the defendant did not move to dismiss on those grounds, once the case
has reached the court of appeals, the district court has already expended significant resources, so
insisting on a rigid application of §411(a) would waste judicial resources.51 Therefore, according
to the U.S., non-compliance with the registration requirement in this case provided no basis for
vacating the district court’s judgment.52
With both petitioners and respondents advocating the same outcome—that the Supreme Court
overturn the Second Circuit’s ruling—an unusual situation arose in which no party argued for the
Court to affirm the judgment below. As a result, the Court appointed Professor Deborah Jones
Merritt to serve as amicus curiae in support of the Second Circuit’s judgment. According to
Professor Merritt, not only does the plain language of §411(a) clearly restrict the subject-matter
jurisdiction of federal courts,53 but courts, legislators, and scholars have traditionally interpreted
§411(a) as being jurisdictional.54 Furthermore, she argued that §411(a) serves such vital public
purposes as supporting a public record of copyright claims, shielding federal courts from
burdensome litigation, protecting defendants from frivolous lawsuits, and supplying the Library
of Congress collections.55 Next, she argued that the integrity of the judicial process precludes the
parties from waiving §411(a) because both parties invoked the jurisdictional bar before the
district court to defend the fairness of their settlement, which rewarded the owners of registered
copyrights at the expense of unregistered copyright owners.56 Finally, Professor Merritt argued
that neither a special rule for settlement nor the supplemental jurisdiction act cured this
jurisdictional defect because (1) courts must have jurisdiction over class actions in order to
terminate the claims of absent class members and (2) the many authors and databases involved in
this lawsuit did not constitute a single case or controversy.57
The Computer and Communications Industry Association (CCIA) also provided an amicus brief
in support of the Second Circuit’s judgment. Echoing Professor Merritt’s arguments, the CCIA
cast the registration requirement as a necessary protection for Internet service providers, noting
that, “[w]hen every blog and tweet might be protectable under copyright, the registration
requirement dramatically reduces technology companies’ potential exposure to copyright
infringement claims.”58 CCIA argued that the Second Circuit’s opinion was correctly decided59
and that the petitioners’ writ of certoriari should be dismissed on two grounds. First, there was no
case or controversy before the court because petitioners themselves argued in the lower courts
(...continued)
Muchnick, No. 08-103, (U.S. argued Oct. 7, 2009).
51 See id. at 25-31.
52 See id. at 30.
53 See Brief of Court-Appointed Amicus Curiae in Support of the Judgment Below at 17-26, Reed Elsevier, Inc. v.
Muchnick, No. 08-103, (U.S. argued Oct. 7, 2009).
54 See id. at 26-44.
55 See id. at 44-57. 17 U.S.C. §407 requires copyright owners, within three months of publication, to deposit two copies
of their work with the U.S. Copyright Office for inclusion in the Library of Congress. This requirement ensures that the
nation’s public library contains copies of every work published in the United States. 17 U.S.C. §407(a).
56 See Brief of Court-Appointed Amicus Curiae at 57-65.
57 See id. at 65-69.
58 Brief for Amici Curiae Computer & Communications Industry Association and Netcoalition in Support of the
Judgment Below at 3, Reed Elsevier, Inc. v. Muchnick, No. 08-103, (U.S. argued Oct. 7, 2009).
59 See id. at 23-35.
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that §411(a) was jurisdictional in nature.60 Second, circuit courts were in agreement that §411(a)
limits federal courts’ subject matter jurisdiction; therefore, there was no circuit split, the
traditional grounds on which the Supreme Court grants certiorari.61 For these reasons, CCIA
urged that the Supreme Court dismiss the petitioners’ writ.
Significance of Supreme Court’s Decision
The Supreme Court heard oral argument in Reed Elsevier on October 7, 2009,62 although it has
not yet issued its opinion as of the writing of this report. The outcome of this case will not only
affect the particular settlement at issue,63 but may well have broader implications for authors,
publishers, and the general public.
If the Supreme Court finds that §411(a) is jurisdictional, and therefore that the district court did
not have the power to approve the authors’ and publishers’ settlement, detractors might argue that
the lengthy settlement negotiations will have been for naught, judicial resources will have been
wasted, and plaintiffs’ articles will be removed from the defendants’ databases and out of the
public’s reach.64 Establishing §411(a) as a jurisdictional requirement may also impede parties’
ability to settle out of court in future copyright infringement cases. Moreover, as the American
Intellectual Property Law Association argued in an amicus brief, “requiring registration to protect
previously published, yet unregistered works prior to reaching a private settlement of
infringement claims creates a disincentive to both creation of new works and to their disclosure to
the public, contrary to the primary purpose of U.S. copyright laws.”65
Proponents of construing the registration requirement as jurisdictional might counter that it would
serve the public interest and promote the purpose of federal copyright law by sustaining the
collections of the Library of Congress, establishing a public record of copyrighted works,
documenting the Register’s views on the issue of copyrightability, and fostering a robust licensing
system under the Copyright Act. A jurisdictional registration requirement, by serving “as the
gatekeeper to the courthouse,” might also limit frivolous lawsuits against Internet service
providers and other technology companies and “ensure that only works worthy of a government-
created limited monopoly can be the subject of federal litigation.”66
60 See id. at 7-18.
61 See id. at 18-23.
62 Associate Justice Sonia Sotomayor recused herself from the case, leaving only eight of the nine justices to rule on the
issue. This creates the potential for a 4-4 split, in which case the Second Circuit’s holding would stand. Some observers
have speculated that Justice Sotomayor’s recusal stems from either her 1997 ruling in the Tasini case as a federal judge
in the Southern District of New York, or her position on the Second Circuit when the court, in 2008, refused to grant an
en banc rehearing of In re Literary Works in Electronic Databases Copyright Litigation. See Eight Justice Court for
Copyright Case, SCOTUSBLOG, Sept. 4, 2009, at http://www.scotusblog.com/wp/eight-judge-court-for-copyright-case.
63 However, if the Supreme Court upholds the Second Circuit’s judgment (and thus nullifying the settlement), certain
members of the class who had registered their copyrights prior to infringement or prior to the legal action may still be
entitled to bring suit under the Copyright Act or to negotiate another settlement with the defendants.
64 This would apply only to the articles at issue in the case, which were published between 1980 and 1995. Since 1995,
publishers have required that freelance writers grant them electronic reproduction rights in their works up front.
65 Brief of American Intellectual Property Law Association as Amicus Curiae in Support of Petitioners/Reversal at 32,
Reed Elsevier, Inc. v. Muchnick, No. 08-103, (U.S. argued Oct. 7, 2009).
66 Brief for Amici Curiae Computer & Communications Industry Association at 3-4.
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The Supreme Court is expected to issue its decision in Reed Elsevier before the end of the Court’s
October 2009 term in late June or early July 2010.
Author Contact Information
Brian T. Yeh
Lydia Grunstra
Legislative Attorney
Law Clerk
byeh@crs.loc.gov, 7-5182
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