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Conferences Copyright

C-IP2 2022 Fall Conference Panel Discusses Copyright Under Pressure

The following post comes from Cala Coffman, a 2L at Scalia Law and Research Assistant at C-IP2.

At the recent C-IP2 conference entitled IP on the Wane: IP on the Wane: Examining the Impacts as IP Rights Are Reduced, one panel discussed the current state of copyright law, the pressures it has come under in recent years, and their differing perspectives on how the digital world is shaping copyright. Topics of discussion included enforcement techniques, trends in fair use, and the impact of evolving technology on copyright.

Panelists were Clark Asay (Professor of Law at Brigham Young University J. Reuben Clark Law School), Orit Fischman-Afori (Professor of Law at The Haim Striks School of Law, College of Management Academic Studies (COLMAN)), Terry Hart (General Counsel, Association of American Publishers (AAP)), and Karyn A. Temple (Senior Executive Vice President & Global General Counsel, (Motion Picture Association)), and the session was moderated by Sandra Aistars (Clinical Professor, George Mason University, Antonin Scalia Law School; Senior Fellow for Copyright Research and Policy; and Senior Scholar at C-IP2).

Professor Fischman opened the panel by proposing a reconsideration of criminal enforcement for copyright claims. After reviewing current avenues for civil copyright enforcement, including the newly established Copyright Claims Board in the Copyright Office, Digital Millennium Copyright Act, and civil enforcement in federal court including the opportunity for statutory damages, Professor Fischman suggested that criminal copyright enforcement actions seem to be on the decline and should not be a focus of enforcement efforts. Rather, greater attention should be devoted to civil enforcement. Recently, the U.S. Sentencing Commission reported that criminal Copyright and Trademark cases have dropped from 475 cases in 2015 to 137 cases in 2021.

Over the past two decades, several enforcement mechanisms have been introduced to address the challenges authors face enforcing their copyrights in the digital world. These include the Digital Millennium Copyright Act in 1998, the Digital Theft Deterrence Act of 1999, and the Copyright Alternatives in Small-Claims Enforcement Act of 2020, which improved access to enforcement for small creators by creating a new administrative forum with simplified proceedings in the Copyright Office. Small copyright claims can be pursued there with or without the assistance of counsel. While these civil enforcement mechanisms are effective, they have not been without criticism.

Ultimately, Professor Fischman argued that the combination of civil and criminal enforcement frameworks creates a powerful enforcement mechanism for author’s rights. As we consider the current state of IP rights, criminal enforcement is becoming less meaningful overall, in her opinion.

Next, Professor Asay presented three recent empirical studies examining trends in copyright litigation.

The first study indexed fair use cases from 1991 to 2017. In this study, Professor Asay examines the scope of fair use analysis in copyright infringement cases and finds a “steady progression of both appellate and district courts adopting the transformative use paradigm, with modern courts relying on it nearly ninety percent of the time.” The study finds that at the Federal Circuit Court level, in cases where transformative use was asserted, 48% were found to be transformative, and 91% of transformative uses were found to be fair use. Professor Asay states that “fair use is copyright law’s most important defense to claims of copyright infringement,” but as courts increasingly apply transformative use doctrine, he finds that “it is, in fact, eating the world of fair use.”

The second study Professor Asay presented analyzed over 1000 court opinions from between 1978 and 2020 that used a substantial similarity analysis. In this study, Professor Asay finds first that courts rely on opinions from the Second and Ninth circuits “more than any other source in interpreting and applying the substantial similarity standard.” The study also breaks down trends within the two-step substantial similarity analysis. On the first step, Professor Asay finds that “courts mostly decide this first prong . . . as a matter of whether defendant’s had access to the plaintiff’s work, and they mostly favor plaintiffs.” On the second step, he finds “significant heterogeneity” in analyzing improper appropriation of a plaintiff’s work. He states that “no dominant means exist for resolving this question” and “the data also suggest that one of the keys to winning, for either defendants or plaintiffs, is the extent to which the court engages with and discusses copyright limitations.”

The third study, which is forthcoming, examines DMCA Section 1201 litigation. DMCA Section 1201 prohibits attempts to circumvent technological measures used to control access to a copyrighted work.17 U.S.C. § 1201. This study encompasses 205 cases and 209 opinions, and Professor Asay said during the panel that “the most interesting finding in this study is that there’s not much section 1201 litigation.” Although the DMCA has been in force for nearly twenty-five years, less than one appellate decision is made per year on average. The study also finds that “the most litigated subject matter” (over every other subject matter the study coded for) is software.

Ms. Temple discussed how new technologies, techniques, and distribution methods are constantly requiring courts to re-evaluate how authorship rights function in a digital landscape. She likewise commented on the challenges courts seem to face in appropriately drawing distinctions between derivative uses of copyrighted works that should require a license from the author, and transformative uses that are permissible under the affirmative defense of fair use.

Ms. Temple cited the numerous briefs in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith (including the Motion Picture Association’s) that note that the transformative use test is becoming the sole criteria courts use to determine fair use. Indeed, the MPA’s brief cited to Professor Asay’s study on transformative use (Is Transformative Use Eating the World?) to support the petitioner’s assertion that “in practice, the transformativeness inquiry is virtually always dispositive of the fair use question.” In closing, Ms. Temple stated that although we may be “waning” in how courts see fair use, Warhol presents a chance to correct the fair use analysis and steer it away from infringing on the derivative work rights of authors.

Finally, Mr. Hart presented on potential threats to authorship rights and the concomitant harms to consumer interests in the e-book arena. Mr. Hart’s perspective was that as businesses, copyright industries legitimately have profit-motivated goals, but happily, their ability to meet these goals is directly tied to the “ultimate goal” of promoting science and the useful arts and thus is beneficial to society as a whole. Mr. Hart stated that “the good news, if we think copyright [protections are] waxing, is that . . . the legal framework both in the United States and internationally recognizes [the] principles” that allow copyright owners to take advantage of and divide their exclusive rights. However, digitization may pose a threat to the ability to license rights as the copyright owner desires, as digital copying and transmission greatly increases risk of infringement of e-books.

The e-book market is unique, according to Mr. Hart, in that authors may be particularly vulnerable to digital threats when “digital copies are completely indistinguishable from the originals, and so they would be competing directly with the copyright owner’s primary markets.” Furthermore, he stated that “threats to the ability of copyright owners . . . to pursue rational choices in how they market and distribute their works can be just as harmful as straight up piracy.”

Mr. Hart characterized the e-book market as a thriving, sustainable economy. E-books have been popular for over a decade now, and there are a “variety of licensing models [available] . . . that continue to evolve to meet both the needs of publishers and libraries.” Mr. Hart stated, “the evidence shows that this is a well-functioning market.” He said that “Overdrive, which is the largest e-book aggregator, reported that in 2021 there was over half a billion check-outs of library e-books worldwide, and the pricing is, in my view, fair and sustainable.” Additionally, Mr. Hart said, “Overdrive also reported . . .  that the average cost per title for libraries declined in 2021, and libraries have been able to significantly grow their e-book collections . . . with collection budgets that, when you’ve adjusted for inflation, have essentially been flat the entire time.”

One of the major threats to authorship rights in the e-book market, in Mr. Hart’s view, is the rise of Controlled Digital Lending (CDL). While this theory is currently being litigated in Hachette Book Group v. Internet Archive, Mr. Hart posits that we are only a few steps from a full-blown digital first-sale doctrine, which could have widespread harms throughout copyright for many types of authors. Many amicus briefs in the Internet Archive case have identified this potential harm, as well. According to Hart, the Copyright Alliance brief, for example, stated that a ruling in favor of CDL would have extremely widespread economic harms for authors.

The second threat Mr. Hart identified comes from recent propositions at the state level that would introduce compulsory licenses for e-books. These proposed laws would outlaw limitations on e-book licenses offered to libraries and allow states to dictate what states believe are “reasonable” pricing for e-book licenses. A flaw in both the arguments for CDL and for compulsory e-book licensing, as Mr. Hart sees it, is that both approaches treat the mere exercise of a copyright owner’s exclusive right as unfair and, if accepted, would be dangerous encroachments on authorship rights.

Ultimately, while the panelists identified significant concerns in the existing copyright regime, they were hopeful about the future of authorship rights, reflecting that even if the protections for copyright law had “waned” in certain respects in recent years, and certain rights remain in peril, there are opportunities for education as courts confront the significant changes that accompany an increasingly digital landscape.

Categories
Copyright

Paradise Rejected: A Conversation about AI and Authorship with Dr. Ryan Abbott

This post comes from Sandra Aistars, Clinical Professor and Director of the Arts & Entertainment Advocacy Clinic at George Mason University, Antonin Scalia Law School, and Senior Fellow for Copyright Research and Policy & Senior Scholar at C-IP2.

2022 Paradise Rejected event flyer
Click on image for full-size PDF flyer.

On March 17, 2022, I had the pleasure to discuss Artificial Intelligence and Authorship with Dr. Ryan Abbott, the lawyer representing Dr. Stephen Thaler, inventor of the “Creativity Machine.” The Creativity Machine is the AI that generated the artwork A Recent Entrance to Paradise, which was denied copyright registration by the United States Copyright Office. Dr. Abbott, Dr. Thaler, and his AI have exhausted all mandatory administrative appeals to the Office and announced that they would soon sue the Office in order to obtain judicial review of the denial.  You can listen to the conversation here. 

Background:  

Dr. Thaler filed an application for copyright registration of A Recent Entrance to Paradise (the Work) on November 3, 2018. For copyright purposes, the Work is categorized as a work of visual art, autonomously generated by the AI without any human direction or intervention. However, it stems from a larger project involving Dr. Thaler’s experiments to design neural networks simulating the creative activities of the human brain. A Recent Entrance to Paradise is one in a series of images generated and described in text by the Creativity Machine as part of a simulated near-death experience Dr. Thaler undertook in his overall research into and invention of artificial neural networks. Thaler’s work also raises parallel issues of patent law and policy which were beyond the scope of our discussion.  

The registration application identified the author of the Work as the “Creativity Machine,” with Thaler listed as the claimant as a result of a transfer resulting from “ownership of the machine.” In his application, Thaler explained to the Office that the Work “was autonomously created by a computer algorithm running on a machine,” and he sought to “register this computer-generated work as a work-for-hire to the owner of the Creativity Machine.”[i]

The Copyright Office Registration Specialist reviewing the application refused to register the claim, finding that it “lacks the human authorship necessary to support a copyright claim.”[ii]

Thaler requested that the Office reconsider its initial refusal to register the Work, arguing that “the human authorship requirement is unconstitutional and unsupported by either statute or case law.”[iii] 

The Office re-evaluated the claims and held its ground, concluding that the Work “lacked the required human authorship necessary to sustain a claim in copyright” because Thaler had “provided no evidence on sufficient creative input or intervention by a human author in the Work.”[iv] 

37 CFR 202.5 establishes the Reconsideration Procedure for Refusals to Register by the Copyright Office. Pursuant to this procedure Thaler appealed the refusal to the Copyright Office Review Board comprised of The Register of Copyrights, The General Counsel of the Copyright Office and a third individual sitting by designation. The relevant CFR section requires that the applicant “include the reasons the applicant believes registration was improperly refused, including any legal arguments in support of those reasons and any supplementary information, and must address the reasons stated by the Registration Program for refusing registration upon first reconsideration. The Board will base its decision on the applicant’s written submissions.”  

According to the Copyright Office, Thaler renewed arguments from his first two unsuccessful attempts before the Office that failure to register AI created works is unconstitutional, largely continued to advance policy arguments that registering copyrights in AI generated works would further the underlying goals of copyright law, including the constitutional rationale for protection, and failed to address the Office’s request to cite to case law supporting his assertions that the Office should depart from its reliance on existing jurisprudence requiring human authorship. 

The Office largely dismissed Thaler’s second argument, that the work should be registered as a work made for hire as dependent on its resolution of the first—since the Creativity Machine was not a human being, it could not enter into a “work made for hire” agreement with Thaler. Here, the Office rejected the argument that, because corporations could be considered persons under the law, other non-humans such as AIs should likewise enjoy rights that humans do.  The Office noted that corporations are composed of collections of human beings. The Office also explained that “work made for hire” doctrine speaks only to who the owner of a given work is.   

Of course, both Dr. Abbott and the Copyright Office were bound in this administrative exercise by their respective roles:  the Copyright Office must take the law as it finds it—although Dr. Abbott criticized the Office for applying caselaw from “the Gilded Age” as the Office noted in its rejection “[I]t is generally for Congress,” not the Board, “to decide how best to pursue the Copyright Clause’s objectives.” Eldred v. Ashcroft, 537 U.S. 186, 212 (2003). The Board must apply the statute enacted by Congress; it cannot second-guess whether a different statutory scheme would better promote the progress of science and useful arts.”[v] Likewise, Dr. Abbott, acting on behalf of Dr. Thaler was required to exhaust all administrative avenues of appeal before pursuing judicial review of the correctness of the Office’s interpretation of constitutional and statutory directives, and case law. 

Our lively discussion begins with level setting to ensure that the listeners understand the goals of Dr. Thaler’s project, goals which encompass scientific innovation, artistic creation, and apparently—legal and policy clarification of the IP space.   

Dr. Abbott and I additionally investigate the constitutional rationales for copyright and how registering or not registering a copyright to an AI-created work is or is not in line with those goals. In particular, we debated utilitarian/incentive-based justifications, property rights theories, and how the rights of artists whose works might be used to train an AI might (or might not) be accounted for in different scenarios.  

Turning to Dr. Thaler’s second argument, that the work should be registered to him as a work made for hire, we discussed the difficulties of maintaining the argument separately from the copyrightability question. It seems to me that the Copyright Office is correct that the argument must rise or fall with the resolution of the baseline question of whether a copyrightable work can be authored by an AI to begin with. The other challenging question that Dr. Abbott will face is how to overcome the statutory “work made for hire” doctrine requirements in the context of an AI-created work without corrupting what is intended to be a very narrow exception to the normal operation of copyright law and authorship. This is already a controversial area, and one thought by many to be unfavorable to individual authors because it deems a corporation to be the author of the work, sometimes in circumstances where the human author is not in a bargaining position to adequately understand the copyright implications or to bargain for them differently. In the case of an AI, the ability to bargain for rights or later challenge the rights granted, particularly if they are granted on the basis of property ownership, seems to be dubious. 

In closing the discussion, Dr. Abbott confirmed that his client intends to seek judicial review of the refusal to register. 

 

[i] Opinion Letter of Review Board Refusing Registration to Ryan Abbot (Feb. 14, 2022).

[ii] Id. (Citing Initial Letter Refusing Registration from U.S. Copyright Office to Ryan Abbott (Aug. 12, 2019).)

[iii] Id. (Citing Letter from Ryan Abbott to U.S. Copyright Office at 1 (Sept. 23, 2019) (“First Request”).)

[iv] Id. (Citing Refusal of First Request for Reconsideration from U.S. Copyright Office to Ryan Abbott at 1 (March 30, 2020).)

[v] Id at 4.

In Opposition to Copyright Protection for AI Works

This response to Dr. Ryan Abbott comes from David Newhoff.

On February 14, the U.S. Copyright Office confirmed its rejection of an application for a claim of copyright in a 2D artwork called “A Recent Entrance to Paradise.” The image, created by an AI designed by Dr. Stephen Thaler, was rejected by the Office on the longstanding doctrine which holds that in order for copyright to attach, a work must be the product of human authorship. Among the examples cited in the Copyright Office Compendium as ineligible for copyright protection is “a piece of driftwood shaped by the ocean,” a potentially instructive analog as the debate about copyright and AI gets louder in the near future.

What follows assumes that we are talking about autonomous AI machines producing creative works that no human envisions at the start of the process, other than perhaps the medium. So, the human programmers might know they are building a machine to produce music or visual works, but they do not engage in co-authorship with the AI to produce the expressive elements of the works themselves. Code and data go in, and something unpredictable comes out, much like nature forming the aesthetic piece of driftwood.

As a cultural question, I have argued many times that AI art is a contradiction in terms—not because an AI cannot produce something humans might enjoy, but because the purpose of art, at least in the human experience so far, would be obliterated in a world of machine-made works. It seems that what the AI would produce would be literally and metaphorically bloodless, and after some initial astonishment with the engineering, we may quickly become uninterested in most AI works that attempt to produce more than purely decorative accidents.

In this regard, I would argue that the question presented is not addressed by the “creative destruction” principle, which demands that we not stand in the way of machines doing things better than humans. “Better” is a meaningful concept if the job is microsurgery but meaningless in the creation or appreciation of art. Regardless, the copyrightability question does not need to delve too deeply into the nature or purpose of art because the human element in copyright is not just a paragraph about registration in the USCO Compendium but, in fact, runs throughout application of the law.

Doctrinal Oppositions to Copyright in AI Works

In the United States and elsewhere, copyright attaches automatically to the “mental conception” of a work the moment the conception is fixed in a tangible medium such that it can be perceived by an observer. So, even at this fundamental stage, separate from the Copyright Office approving an application, the AI is ineligible because it does not engage in “mental conception” by any reasonable definition of that term. We do not protect works made by animals, who possess consciousness that far exceeds anything that can be said to exist in the most sophisticated AI. (And if an AI attains true consciousness, we humans may have nothing to say about laws and policies on the other side of that event horizon.)

Next, the primary reason to register a claim of copyright with the USCO is to provide the author with the opportunity, if necessary, to file a claim of infringement in federal court. But to establish a basis for copying, a plaintiff must prove that the alleged infringer had access to the original work and that the secondary work is substantially or strikingly similar to the work allegedly copied. The inverse ratio rule applied by the courts holds that the more that access can be proven, the less similarity weighs in the consideration and vice-versa. But in all claims of copying, independent creation (i.e., the principle that two authors might independently create nearly identical works) nullifies any complaint. These are considerations not just about two works, but about human conduct.

If AIs do not interact with the world, listen to music, read books, etc. in the sense that humans do these things, then, presumably, all AI works are works of independent creation. If multiple AIs are fed the same corpus of works (whether in or out of copyright works) for the purpose of machine learning, and any two AIs produce two works that are substantially, or even strikingly, similar to one another, the assumption should still be independent creation. Not just independent, but literally mindless, unless again, the copyright question must first be answered by establishing AI consciousness.

In principle, AI Bob is not inspired by, or even aware of, the work of AI Betty. So, if AI Bob produces a work strikingly similar to a work made by AI Betty, any court would have to toss out BettyBot v. BobBot on a finding of independent creation. Alternatively, do we want human juries considering facts presented by human attorneys describing the alleged conduct of two machines?

If, on the other hand, an AI produces a work too similar to one of the in-copyright works fed into its database, this begs the question as to whether the AI designer has simply failed to achieve anything more than an elaborate Xerox machine. And hypothetical facts notwithstanding, it seems that there is little need to ask new copyright questions in such a circumstance.

The factual copying complication raises two issues. One is that if there cannot be a basis for litigation between two AI creators, then there is perhaps little or no reason to register the works with the Copyright Office. But more profoundly, in a world of mixed human and AI works, we could create a bizarre imbalance whereby a human could infringe the rights of a machine while the machine could potentially never infringe the rights of either humans or other machines. And this is because the arguments for copyright in AI works unavoidably dissociate copyright from the underlying meaning of authorship.

Authorship, Not Market Value, is the Foundation of Copyright

Proponents of copyright in AI works will argue that the creativity applied in programming (which is separately protected by copyright) is coextensive to the works produced by the AIs they have programmed. But this would be like saying that I have claim of co-authorship in a novel written by one of my children just because I taught them things when they were young. This does not negate the possibility of joint authorship between human and AI, but as stated above, the human must plausibly argue his own “mental conception” in the process as a foundation for his contribution.

Commercial interests vying for copyright in AI works will assert that the work-made-for-hire (WMFH) doctrine already implicates protection of machine-made works. When a human employee creates a protectable work in the course of his employment, the corporate entity, by operation of law, is automatically the author of that work. Thus, the argument will be made that if non-human entities called corporations may be legal authors of copyrightable works, then corporate entities may be the authors of works produced by the AIs they own. This analogizes copyrightable works to other salable property, like wines from a vineyard, but elides the fact that copyright attaches to certain products of labor, and not to others, because it is a fiction itself whose medium is the “personality of the author,” as Justice Holmes articulated in Bleistein.

The response to the WMFH argument should be that corporate-authored works are only protected because they are made by human employees who have agreed, under the terms of their employment, to provide authorship for the corporation. Authorship by the fictious entity does not exist without human authorship, and I maintain that it would be folly to remove the human creator entirely from the equation. We already struggle with corporate personhood in other areas of law, and we should ask ourselves why we believe that any social benefit would outweigh the risk of allowing copyright law to potentially exacerbate those tensions.

Alternatively, proponents of copyright for AI works may lobby for a sui generis revision to the Copyright Act with, perhaps, unique limitations for AI works. I will not speculate about the details of such a proposal, but it is hard to imagine one that would be worth the trouble, no matter how limited or narrow. If the purpose of copyright is to proscribe unlicensed copying (with certain limitations), we still run into the independent creation problem and the possible result that humans can infringe the rights of machines while machines cannot infringe the rights of humans. How does this produce a desirable outcome which does not expand the outsize role giant tech companies already play in society?

Moreover, copyright skeptics and critics, many with deep relationships with Big Tech, already advocate a rigidly utilitarian view of copyright law, which is then argued to propose new limits on exclusive rights and protections. The utilitarian view generally rejects the notion that copyright protects any natural rights of the author beyond the right to be “paid something” for the exploitation of her works, and this cynical, mercenary view of authors would likely gain traction if we were to establish a new framework for machine authorship.

Registration Workaround (i.e., lying)

In the meantime, as Stephen Carlisle predicts in his post on this matter, we may see a lot of lying by humans registering works that were autonomously created by their machines. This is plausible, but if the primary purpose of registration is to establish a foundation for defending copyrights in federal court, the prospect of a discovery process could militate against rampant falsification of copyright applications. Knowing misrepresentation on an application is grounds for invalidating the registration, subject to a fine of up to $2,500, and further implies perjury if asserted in court.

Of course, that’s only if the respondent can defend himself. A registration and threat of litigation can be enough to intimidate a party, especially if it is claimed by a big corporate tech company. So, instead of asking whether AI works should be protected, perhaps we should be asking exactly the opposite question: How do we protect human authorship against a technology experiment, which may have value in the world of data science, but which has nothing to do with the aim of copyright law?

 About the IP Clause

And with that statement, I have just implicated a constitutional argument because the purpose of copyright law, as stated in Article I Clause 8, is to “promote science.” Moreover, the first three subjects of protection in 1790—maps, charts, and books—suggest a view at the founding period that copyright’s purpose, twinned with the foundation for patent law, was more pragmatic than artistic.

Of course, nobody could reasonably argue that the American framers imagined authors as anything other than human or that copyright law has not evolved to encompass a great deal of art which does not promote the endeavor we ordinarily call “science.” So, we may see AI copyright proponents take this semantic argument out for a spin, but I do not believe it should withstand scrutiny for very long.

Perhaps, the more compelling question presented by the IP clause, with respect to this conversation, is what it means to “promote progress.” Both our imaginations and our experiences reveal technological results that fail to promote progress for humans. And if progress for people is not the goal of all law and policy, then what is? Surely, against the present backdrop in which algorithms are seducing humans to engage in rampant, self-destructive behavior, it does seem like a mistake to call these machines artists.

Categories
Copyright

How the Supreme Court Made it Harder for Copyright Owners to Protect Their Rights—And Why Congress Should Fix It

U.S. Supreme Court buildingEarlier this week, the Supreme Court handed down its decision in Fourth Estate v. Wall-Street.com, a case examining the registration precondition to filing a suit for copyright infringement in the federal district courts. While I agree with the Court’s exegesis of the statute at issue, it’s worth noting how the Court’s construction leaves many, if not most, copyright owners in the lurch. Under the Court’s holding, in fact, this very blog post could be infringed today, and there’s very little that could be done to stop it for many months to come. As the Court noted in Harper & Row v. Nation, “copyright supplies the economic incentive to create and disseminate ideas.” The Court’s holding in Fourth Estate, by contrast, disincentivizes dissemination since it undermines effective copyright protection and prejudices the public interest in the production of, and access to, creative works. Again, I don’t blame the Court for this outcome—in fact, I think it’s correct. The problem, as I’ll explain, lies in the unfortunate fact that nowadays it takes too long to register a copyright claim. And that’s something that Congress needs to fix.

The issue in Fourth Estate is straightforward. Under the first sentence of Section 411(a) of the Copyright Act, “no 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.” Some courts, like the Ninth Circuit, have applied the so-called “application approach,” finding that “registration . . . has been made” when the copyright owner delivers a complete application to the Copyright Office. Other courts, like the Tenth Circuit, have applied the so-called “registration approach,” where “registration” is not “made” until the Register of Copyrights has acted upon the application (by either approving or rejecting it). Confounding the analysis is the fact that other sections of the Copyright Act alternatively delineate registration as something done by the applicant or by the Copyright Office.

In the decision below, the Eleventh Circuit applied the registration approach, affirming the district court’s dismissal of Fourth Estate’s complaint since the Register of Copyrights had not yet approved or denied its application to register. The Supreme Court, in a unanimous decision by Justice Ginsburg, affirmed: “We hold . . . that registration occurs, and a copyright claimant may commence an infringement suit, when the Copyright Office registers a copyright.” The issue for the Court was one of pure statutory construction, and the problem for proponents of the application approach is that the second sentence of Section 411(a) clearly indicates that registration is something done by the Copyright Office. It provides, as an exception to the first sentence, that a copyright owner can nevertheless sue for infringement once the application materials “have been delivered to the Copyright Office in proper form and registration has been refused.”

Justice Ginsburg reasoned: “If application alone sufficed to ‘ma[ke]’ registration, § 411(a)’s second sentence—allowing suit upon refusal of registration—would be superfluous.” I’ve always found this to be the better argument, and I’m not surprised to see it front-and-center in the Court’s analysis. Why would applicants need an exception that turns on the subsequent action of the Copyright Office if merely delivering a completed application sufficed? As Justice Ginsburg noted, the application approach “requires the implausible assumption that Congress gave ‘registration’ different meanings in consecutive, related sentences within a single statutory provision.” I think the Court got this one exactly right, and I don’t find arguments to the contrary to be particularly persuasive.

That said, let me now explain why it’s wrong—well, at least why it’s bad for millions of copyright owners and why Congress should fix it ASAP.

The purpose of the registration approach and other similar provisions in the Copyright Act (such as the availability of statutory damages or attorney’s fees) is to incentivize timely registration, which is no longer a prerequisite to copyright protection as it was under the Copyright Act of 1909. Under the current Copyright Act, copyright protection nominally exists once a work is fixed in a tangible medium of expression, and registration is no longer mandatory. (I say “nominally” because the Court’s holding in Fourth Estate ensures that, as a practical matter, countless works with respect to which copyright owners have exclusive rights on paper in fact have no immediate rights in the real world since they can’t actually file suit to quickly stop any ongoing infringement.) However, the incentive-to-register theory makes little sense in the context of the debate over the proper interpretation of Section 411(a) itself as the works being sued upon must be registered under both the application and registration approaches.

With due respect to the Copyright Office, processing a registration application is primarily a ministerial act. The vast majority of applications are granted—97% in 2017 according to the latest available data from the Copyright Office (though 29% of those applications required correspondence with the applicant). Are we really withholding remedies for all copyright owners because of the remaining 3%? And even for the 3% of applications that are denied, the copyright owner can still sue for infringement, asking the district court to reassess the agency’s refusal. No matter what the Copyright Office does with the application, whether it grants or denies, the copyright owner ultimately can sue. And, under the third sentence of Section 411(a), the Register of Copyrights can even “become a party to the action with respect to the issue of registrability of the copyright claim.” So it’s not like the Register can’t have a say should the application be in that slim minority of questionable ones that may merit intervention.

To its credit, the Supreme Court acknowledged that its holding would cause problems for copyright owners—but it also overplayed the exceptions to the registration approach that Congress put in place to alleviate some of these issues. For example, Justice Ginsburg pointed out that Section 408(f) empowers the Register of Copyrights to establish regulations for the preregistration of certain categories of works. Under this regime, as Justice Ginsburg noted, “Congress provided that owners of works especially susceptible to prepublication infringement should be allowed to institute suit before the Register has granted or refused registration.” That’s great for that particular subset of copyright owners, but what about everyone else? And what about authors who publish their works just as soon as they create them? Moreover, Justice Ginsburg’s blithe comment that copyright owners “may eventually recover damages for the past infringement” ignores the fact that injunctive relief to stop the actual, ongoing infringement is unavailable until the registration is processed by the Copyright Office.

The Court laments such policy ramifications: “True, the statutory scheme has not worked as Congress likely envisioned. Registration processing times have increased from one or two weeks in 1956 to many months today.” And this gets to the heart of the problem: The time it takes the Copyright Office to process an application has significantly increased over the years. Just four years after the Copyright Act of 1976 went into effect, the delay was “5 to 6 weeks.” And, as of October 2018, the delay has grown to an “average processing time for all claims” of “7 months.” Indeed, the fastest the Copyright Office processes an application now is one month, and the longest it takes is an incredible 37 months. The following illustration from the Copyright Office breaks this down with more particularity:

To be clear, I don’t think these delays are the Copyright Office’s fault. In fact, I think it’s Congress’s fault for not giving the agency more resources to do the very things that Congress requires it to do. Regardless, the fact remains that even copyright owners who do everything that the Copyright Act expects them to do in order to obtain the greatest protection for their works at the earliest that they can reasonably do so are still left without remedies should—or, perhaps more likely, when—infringement occur once they release their works to the world. The aforementioned constitutional goal of dissemination is thus undercut by the subservient goal of registration, for rational copyright owners would be less motivated to disseminate their works by the right to exclude when that right is in fact illusory. If Congress really wants authors to promote progress via dissemination of new works, it should adjust Section 411(a) to provide for immediate protection to all works, whether registered or not. It can still incentivize registration by limiting the remedies available, but it shouldn’t make it so that there are none.

To see the injustice, one need look no further than this very blog post. According to the Copyright Act, this post was protected the moment it was fixed in a tangible medium of expression (i.e., yesterday evening). Should the copyright owner—presumably the university where I work as this is a work made for hire—have filed for registration as quickly as possible (i.e., this morning), there still would be no way to obtain any injunctive relief while the Copyright Office processes the application. Preregistration was never an option as this post is not a literary work that is protected by the exception for certain works prone to prepublication infringement under Section 202.16 of the CFR. Even if the university had done everything that it was supposed to do as early as it could reasonably have done so to ensure the utmost copyright protection for this post, it could do nothing in the courts to stop an infringer who willfully exploits this post for profit until the Copyright Office acts upon the application—a lifetime for infringement in the digital age. (There is an option to expedite review for $800, but that amount of money is not reasonable for most people.)

Perhaps a takedown notice could be issued under Section 512 of the DMCA, but if there’s a counternotice, the university could not bring suit in the designated 10-14 day window to prevent the service provider from restoring the infringing material since there’s been no registration and thus it cannot sue for infringement. Despite having done everything Congress expected, the university would be powerless to stop the ongoing infringement of its exclusive rights in this post for perhaps several months into the future. And any argument that damages will compensate for infringements occurring before the Copyright Office got around to acting on the application is undercut by the fact that courts routinely grant preliminary injunctive relief precisely because the harm from infringement is irreparable—money damages cannot make the copyright owner whole.

The absurd result of all this is that the promise of exclusive rights in one’s original work of authorship is practically meaningless given the registration approach under Section 411(a). No doubt, Congress intended this disability to act as a stick in order to encourage the carrot of remedies should those rights be infringed. But the reality is that numerous copyright owners who do everything right get the stick and not the carrot—at least until the Copyright Office happens to process their applications. In the meantime, these copyright owners cannot be faulted for thinking twice before disseminating their works. Since enforcement of their rights is precluded through no fault of their own, what else does Congress expect them to do? A right without a remedy is senseless, and given the millions of original works that are created each day, Congress’s promise of copyright protection for new works may be one of the most illusory rights in modern times. Now that the Supreme Court has clarified Section 411(a), it’s time for Congress to fix it.