Content Groups Fear Supreme Court Decision Will Make It More Difficult to Curb Piracy

A police officer stands guard on the plaza outside the US Supreme Court of the first day on the bench for Associate Justice Brett Kavanaugh in Washington, DC, USA, 09 October 2018. Kavanaugh was confirmed by the US Senate 06 October 2018.Supreme Court Associate Justice Brett Kavanaugh first workday, Washington, USA - 09 Oct 2018

WASHINGTON — A unanimous Supreme Court ruling Monday could make it more difficult to fight online copyright infringement, according to groups representing record labels and other content creators.

The justices rules in the case of Fourth Estate Public Benefit Corp. v. Wall Street.com LLC that copyright holders can only file a lawsuit when the U.S. Copyright Office registers a copyright. The copyright owner can still recover damages for infringement before or after the registration, but the high court ruled that the mere act of applying for a registration was insufficient before pursuing a claim.

Content groups have complained about the long processing times at the Copyright Office, and fear that the court ruling will make it only more difficult to curb massive online infringement.

“This ruling allows administrative backlog to prejudice the timely enforcement of constitutionally based rights and prevents necessary and immediate action against infringement that happens at internet speed,” said Mitch Glazier, the chairman and CEO of the Recording Industry Association of America. “Given this ruling, the Copyright Office must also work at internet speed to ensure adequate enforcement protects essential rights.”

Terry Hart, the VP of legal policy and copyright counsel for the Copyright Alliance, wrote on the organization’s blog that “on average, it takes the Copyright Office six months to process a claim. That average goes up to nine months if a Copyright Office Examiner needs to correspond with a copyright owner. In a world of viral, online infringement, a lot of damage can be done to a copyrighted work while an owner is powerless to stop it.”

Justice Ruth Bader Ginsburg wrote in the opinion that “delays in Copyright Office processing of applications, it appears, are attributable, in large measure, to staffing and budgetary shortages that Congress can alleviate, but courts cannot cure. … Unfortunate as the current administrative lag may be, that factor does not allow us to revise [the Copyright Act provision’s] congressionally composed text.”

In some circumstances, a copyright owner can apply for a “preregistration” and still meet the threshold to filing a lawsuit, but those are limited to works the are deemed vulnerable to infringement before release, like music compositions or movies. Exceptions also are made for live TV broadcasts.

“Even in these exceptional scenarios, then, the copyright owner must eventually pursue registration in order to maintain a suit for infringement,” Ginsburg wrote.

The lawsuit had to do with Fourth Estate, a news organization, which licensed content to Wall-Street.com and then sued when the site failed to remove articles after the expiration of their agreement. Fourth Estate had filed applications to register the articles with the Copyright Office, but the office had yet to issue a decision.