The U.S. Supreme Court recently decided two cases that have major implications in the copyright area. Here's what you need to know.
Takeaway One: File Quickly
Yesterday, the U.S. Supreme Court unanimously decided that
Advocates for the "application approach" argued that registration occurred when a proper application had been submitted to the Copyright Office for processing. The "registration approach" faction contended that registration occurred only when the Copyright Office issued the actual registration certificate.
Justice Ruth Bader Ginsburg authored the decision for the Court, holding that "If application alone sufficed to "ma[ke]" registration, §411(a)'s second sentence - allowing suit upon
The Court noted that the "application approach" would, of necessity, require two different meanings for that one critical word -
The takeaway from this clarifying decision is that copyright applications should be filed as soon as the work is published, and no later than three months from that date, to preserve the ability to recover statutory damages and attorneys' fees in
Takeaway Two: Watch Your Budget
In another decision issued yesterday, the U.S. Supreme Court decided the meaning of the words "full costs" in Section 505 of the Copyright Act. The Ninth Circuit Court of Appeals had granted Oracle $12.8 million in fees and costs for Rimini Streets' copyright infringement, including expert witness fees, e-discovery costs and jury consulting expenses. The question was whether "full costs" should be interpreted in light of the general federal statute (28 USC Sections 1821 and 1920) or not. The latter specifies six categories of permitted costs that can be recovered in litigation. The Court refused to expand "full costs" beyond the statutory limitations, which means that expert witness fees, e-discovery costs and jury consulting expenses are not recoverable even in
Accordingly, the fact that these costs (which are often substantial) are not recoverable will no doubt be considered in pre-litigation strategy, and litigation budgets will now list two categories of costs: those that are recoverable and those that aren't.
|Goldsmith, Amy B. Partner and Co-Chair of Intellectual Property Group||Partner and Co-Chair of Intellectual Property Group||212.216.1135|