Bruce Boyden

A bit overshadowed by all the hubbub over the oral argument in McDonald v. City of Chicago, the Supreme Court yesterday handed down an important copyright opinion in Reed Elsevier v. Muchnick. (But see Howard Wasserman, Marcia Coyle.) The court held that Section 411(a) of the Copyright Act, which requires registration of a copyright as a prerequisite to an infringement suit, is not “jurisdictional” — that is, failure to file a registration does not deprive a court of all power to hear a claim.

This might not initially sound significant; after all, a plaintiff who files an infringement claim on an unregistered copyright is still going to have the case dismissed, whether Section 411(a) is deemed a mere prerequisite to filing or jurisdictional. But the distinction matters in three types of cases: class actions where unnamed members of the class would include owners of unregistered works (the Muchnick situation); plaintiffs who seek an injunction against further infringement encompassing all of their works, registered and unregistered; and would-be defendants who file for a declaratory judgement against a copyright owner who hasn’t registered yet. All three of those seem like worthy candidates for a court’s consideration as a policy matter, but all three were impeded by a slew of lower court opinions holding that a failure to register deprived the court of all power to even hear such disputes. (Congratulations for the win are due to lawyers from my old firm: Chuck Sims, who argued the case before the Supreme Court, and Jon Baumgarten.)Read More »Supreme Court Takes Jurisdiction Over “Jurisdiction”

Like Mike, I noticed Jonathan Galassi’s op-ed in the New York Times on Sunday. Galassi — the president of Farrar, Straus & Giroux — argues that ebook publishers who republish print books are committing at least a moral wrong by appropriating the work of the print publisher, even if they have the permission of the copyright owner. Mike views this argument, I take it, as one more sign of the “IP apocalypse,” but I have a somewhat different take: I see in Galassi’s op-ed a fascinating old copyright chestnut that has basically (and I think correctly) gone against Galassi.

The argument goes like this: the naive view of authorship is that authors sit down at their typewriters and churn out complete copyrighted works. But not only is this view incomplete on the input end — as just about everyone recognizes, artists slurp inspiration from all over the place — it’s also incomplete on the output end. Once an author (or a director, or songwriter) finishes a work, all sorts of things happen to it before it reaches the public as a final product, sometimes altering the content of that work substantially. Artists often chafe under the rule of editors, always forcing them to trim out the good stuff, but you can often tell which authors have gotten powerful enough to throw off their editors’ yoke, and not usually in a good way. “Doorstopper” is the term that comes to mind.

Galassi’s argument focuses on the creative nature of all that post-author authorship. And there’s a hidden suggestion in his op-ed — shouldn’t the publisher have some sort of proprietary rights over all the stuff it adds? The ebook publishers can distribute William Styron’s unedited manuscripts if they like, but not the version Random House put out.Read More »What We Talk About When We Talk About Editing

So, first of all, thanks to Mike et al. for inviting me to join the blog. Alas, my time for blogging right now is limited, but I did want to point out that the district court in UMG v. Veoh granted summary judgement to Veoh on Friday. Decision here, courtesy of Copyrights & Campaigns. UMG is the second decision to come down on the issue of the responsibility of site owners to deal with continual user infringement under Section 512, and like Io v. Veoh, it’s a big win for site owners. The big one remaining, of course, is Viacom v. YouTube, pending in the Southern District of New York.

There’s bound to be some comment on how this is helpful precedent for YouTube, but I think the cases are importantly different. I’ve noted repeatedly that I think Viacom’s best fact — indeed, possibly the decisive factor in bringing the suit — is that YouTube at one point seemed to be selectively offering to filter uploaded content. See my analysis from earlier this year.

It doesn’t appear that UMG had anything like this fact to hang its case on.

Read More »Another Win for Veoh