Tuesday, March 2, 2010
Below, Professor Scott Dodson (William & Mary) comments on today's SCOTUS decision in Reed Elsevier v. Muchnick:
Today, the Supreme Court decided Reed Elsevier v. Muchnick and held that § 411(a) of the Copyright Act is not jurisdictional. At issue were the rights of freelance authors in their unregistered works. The authors had granted licenses to publish their works in print copies. Without the authors’ specific permission, the publishers also published the works electronically. In a previous case, New York Times Co. v. Tasini, the Supreme Court had held that the Copyright Act requires specific permission from authors to print works electronically. Because the authors never gave such permission, they sued the publishers in a class action for violations of the Copyright Act.
The parties reached a settlement. The settlement allowed payment to all authors, including those whose works were never registered with the Copyright Office, though authors with registered works received priority in payment and a relatively higher amount. In return, the authors granted permission to publish the works electronically.
Ten individual authors objected on the ground that the settlement’s priority was unfair to authors with unregistered works. The parties responded that authors of unregistered works had nearly worthless claims under § 411(a) of the Copyright Act, which states: “[N]o 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.”
The district court certified the class and approved the settlement. The objectors appealed, and the Second Circuit, on its own, vacated the certification and settlement approval on the ground that § 411(a) deprived the district court of subject-matter jurisdiction over claims based on the unregistered works and therefore could not enter a settlement of those claims in a class action context. More on the background, opinions, and arguments of the parties is available in the ABA’s Preview, accessible with subscription here.
The Supreme Court reversed. It held, properly in my view, that § 411(a) makes registration a “precondition” to instituting a Copyright Act infringement claim but that § 411(a) does not restrict a federal court’s subject-matter jurisdiction over infringement claims involving unregistered works.
The way the Court got there was more interesting. From about 1998 until 2006, the Court decided a series of cases that tended to scale back the use of the term “jurisdictional” and clarify that many limits were nonjurisdictional “claim processing rules.” One of those was a case called Arbaugh v. Y&H Corp., which held that the employer-numerosity requirement of Title VII was a nonjurisdictional element of the claim. Arbaugh imposed a clear statement rule as a starting point for analyzing the jurisdictional character of statutory limits: if a statutory limit “clearly states” its jurisdictional character, then it is jurisdictional; if not, then it is (maybe) not.
Despite this relatively bright-line rule, the Court decided two cases in 2007 and 2008 that backtracked from this principle. In Bowles v. Russell, the Court held the deadline to file a notice of appeal in a civil case to be jurisdictional, and in John R. Sand & Gravel Co. v. United States, the Court held the statute of limitations for cases filed in the Court of Federal Claims to be “more absolute,” even though no clear statement appeared in either statute. Instead, the Court in each case reasoned that longstanding precedent on the question controlled.
Today, the Court reaffirmed its primary commitment to the Arbaugh line of cases and conformed the Bowles line to a more secondary role. The Court explained that a statutory limit lacking a clear statement of jurisdictionality can still be jurisdictional if the type of limit is one that historically has been treated as such; in other words, context still matters (and Bowles lives on). But, the kind of requirement in § 411(a) had never had the same kind of historical treatment as the limit in Bowles, and thus the lack of a clear statement of jurisdictionality controlled. The Court thus reversed the Second Circuit’s holding to the contrary and remanded. Interestingly, the Court declined to address whether § 411(a)’s registration requirement, though nonjurisdictional, might nevertheless be “mandatory” and thus subject to sua sponte policing by district courts. Presumably, the lower courts will consider that on remand.
Couple of quick observations about this opinion. First, the result is right, and in more ways than one. Section 411(a) is best characterized as a nonjurisdictional rule under the Arbaugh line of cases, though I would argue that even more nuance is appropriate in certain instances. And, the Court was right to leave open the possibility that, though nonjurisdictional, the registration requirement might still be “mandatory” and thus have certain jurisdictional effects. Those interested in what that might look like might find my article “Mandatory Rules” informative. Finally, the Court was right to limit Bowles, which, as I have written previously, was wrong on many grounds.
But, second, the Court’s reinterpretation and reconciliation of Bowles is not persuasive. Justice Ginsburg, in her concurrence today, more accurately recounts the divergence of Bowles and a more persuasive way to reconcile them—by limiting Bowles and its progeny to those rare circumstances in which the Supreme Court itself had long typed the limit in question as jurisdictional.
It is not entirely clear why those in the majority could not agree with Justice Ginsburg’s approach. Perhaps that is in part because those in the majority were the same who signed on to Bowles itself. Or, perhaps the majority wishes not to commit itself to such a narrow interpretation of Bowles for other reasons.
Whatever the reason, the disagreement between the majority and concurrence is small; the broader agreement—that Arbaugh’s clear statement rule generally controls—is an important one, one that will help clarify jurisdictional characterization issues in a wide range of cases. And, in this case in particular, it means that the parties are one big step closer to settlement.