02 March 2010

Breaking News: Muchnick Decided

I'm running out to remora duty, so there's not much that I can say about the Muchnick opinion issued a few minutes ago at the moment. The Reporter of Decisions summarizes the holding as:

Section 411(a)’s registration requirement is a precondition to filing a copyright infringement claim. A copyright holder’s failure to comply with that requirement does not restrict a federal court’s sub ject-matter jurisdiction over infringement claims involving unregistered works.

In short, the class definitions in GBS are now, to use the technical term, f*cked... because they always distinguished between registered and unregistered copyrights as if those are substantive measures of the court's jurisdiction.

*  *  *

Update, 1415 n.b. This is going to be even snarkier than usual, as it's mostly being written in a waiting room and posted later.

I've been looking forward to being able to legitimately make this citation for a while now:

See Morris v. Business Concepts, Inc., 259 F.3d 65 (2d Cir. 2001), abrogated by Reed Elsevier, Inc. v. Muchnick, 559 U.S. ___ (02 Mar 2010).

Sometimes it's a pain in the butt to be right. This is not one of those times. I can take more than a little bit of schadenfreude on this one, as I watch the esteemed members of the NYC BigLaw bar get their heads handed to them for their cultural reliance on their predecessors in NYC BigLaw instead of reading the damned statute.

As a quick reminder, Muchnick is the post-Tasini consolidated class action concerning online databases of periodicals. A class settlement (grievously flawed) was reached, and approved by the trial judge (restricted, as he was, by some really inapposite Second Circuit precedent) as In re Electronic Database Ligitation. Objectors, including Irv Muchnick, appealed to the Second Circuit, which reversed... but not on the merits. Instead, the Second Circuit — relying on its own precedent in Morris and Well-Made Toys — held that the settlement was flawed because it was beyond the subject-matter jurisdiction of the federal courts; that is, that federal courts had no power to enforce large parts of the settlement, because the settlement included both properly registered and not properly registered works. See 17 U.S.C. § 411(a) ("no 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").

Nobody was happy with this, so the database-exploiters filed an appeal to the Supreme Court... which was in substance, albeit not in form, joined by the objectors and the plaintiffs. The Supreme Court appointed counsel to defend the Second Circuit's decision; she did what she could, but she failed.

The Court this morning did not go as far as I would have liked; I wish that Justice Thomas's decision had said "if you don't clearly say it's 'jurisdictional,' it isn't jurisdictional, but is instead an element of the claim (or, at most, a procedural claim-processing rule)." However, what he did say is close enough for government work in the general sense, and certainly in copyright actions, as it firmly rejects treating § 411(a) as jurisdictional.

The registration requirement in 17 U.S.C. § 411(a) fits in this mold. Section 411(a) imposes a precondition to filing a claim that is not clearly labeled jurisdictional, is not located in a jurisdiction-granting provision, and admits of congressionally authorized exceptions. See §§ 411(a)–(c). Section 411(a) thus imposes a type of precondition to suit that supports nonjurisdictional treatment under our precedents.

(slip op. at 13; citations altered for form only). More importantly, Justice Ginsburg's concurrance rejects the Second Circuit's reliance on "tradition" as sufficient to justify treating § 411(a) as jurisdiction-limiting, remarking that

[Court-appointed counsel defending the decision below], reading Bowles as I do, urges on its authority that we hold § 411(a) jurisdictional lest we disregard "'a century's worth of precedent.'" But in Bowles and John R. Sand & Gravel Co., as just explained, we relied on longstanding decisions of this Court typing the relevant prescriptions "jurisdictional." [Counsel] cites well over 200 opinions that characterize § 411(a) as jurisdictional, but not one is from this Court, and most are "'drive-by jurisdictional rulings' that should be accorded 'no precedential effect.'"

(slip op. at 21–22 (Ginsburg, J., concurring); citations omitted; emphasis in original). Thus my snark above about relying on "predecessors in NYC BigLaw."

OK, so the horse is now thoroughly dead, and occupying the bottle of glue being used to bind this volume of the United States Reports. What does this mean for authors? A multitude of things... but three that are of immediate importance.

  1. The Muchnick matter will go back to the Second Circuit for decision, which must now decide the objections to the class settlement on their merits. This will necessarily inform the process in...
  2. The GBS settlement, which IMNSHO is now legally untenable. The GBS settlement explicitly excludes unregistered works. The overly pedantic may recall my musings on whether a decision in Muchnick denying jurisdictional rank to § 411(a) just might create vastly more intraclass conflict, as some class members would then have legitimate causes of action against publishers for failure to register. Then, too, Google might wisely back away from the settlement as written because it doesn't eliminate all exposure for Google.

    I certainly hope that the counsel who have already appeared in this matter advocating the settlement fulfill their ethical duties and file a Notice of New Authority with Judge Chin. Hint, hint.

  3. Project Gutenberg's current advocacy of the position that failure to renew pulp-era copyrights registered in the entire issues of pulp magazines drops each and every story in the issues into the public domain, no matter how those stories were later registered/renewed independently by the author, is now officially dead, instead of just mostly dead.

In summary, this opinion is essentially unassailable, for a very simple reason: It clarifies that subject-matter jurisdiction is a matter of statute and constitutional authority, and requires comparison of purported jurisdiction-limiting case law to the actual language of the relevant statutory or constitutional provision that allows the lawsuit in the first place. When the statute (or, much more rarely, constitutional provision) changes, courts cannot rely on "a century of precedent" to avoid actually reading the damned statute when they are presented with a question of subject-matter jurisdiction.

Next up: I slay the Colorado River doctrine. OK, I'd really have to be a superhero to pull off that one. So maybe my next foray will be into whether the distinctions made in the Copyright Act between "US works" and "non-US works" are even properly considered "claim-processing rules," or whether any such distinction is limited to determining available remedies. Or maybe I'll mount my "charger" and tilt at the dubious constitutionality of the work for hire doctrine. (I'd have to find Sancho first, though, because I can't get up on the bloody beast unaided.)

More in the future...