Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC

Eleventh Circuit dismisses news organization’s copyright infringement claim for failure to satisfy statutory precondition of registering copyrights, holding that infringement actions may be commenced only after an application for copyright registration is either approved or denied by the Copyright Office.

Fourth Estate Public Benefit Corporation is a news organization that licenses online content while retaining the copyright in its articles. Fourth Estate licensed articles to news website Wall-Street.com. After Wall-Street.com cancelled its account with Fourth Estate, it nevertheless continued to display Fourth Estate’s copyrighted articles on its website. Fourth Estate sued Wall-Street.com for copyright infringement, alleging that it had “filed applications to register [the] articles with the Register of Copyrights.” Fourth Estate did not allege, however, that the Register of Copyrights had approved or otherwise rendered a decision on its applications.

Wall-Street.com moved to dismiss, arguing that under section 411(a) of the Copyright Act, a plaintiff may bring an action for copyright infringement only after the Register of Copyrights has approved or denied an application to register the copyright. The district court agreed and dismissed the complaint.

On appeal, the Eleventh Circuit affirmed. The issue presented was whether registration of a copyright occurs when an application is filed (the “application approach”) or rather when the Copyright Office has approved or denied registration (the “registration approach”). The Eleventh Circuit observed that the issue was not jurisdictional—in accordance with the U.S. Supreme Court’s 2010 ruling in Reed Elsevier, Inc. v. Muchnick—but that the registration requirement remains a precondition to filing a copyright claim. The Eleventh Circuit also noted that the circuits have split on the issue, with the Tenth Circuit taking the registration approach, the Ninth and Fifth Circuits following the application approach, the Eight Circuit endorsing the application approach in dicta, the Seventh Circuit taking different positions in dicta, and the First and Second Circuits thus far declining to adopt an approach.

The Eleventh Circuit held that, under the plain meaning of the text of the Copyright Act, the registration approach is correct, and that merely filing an application with the Register of Copyrights “does not amount to registration.” Examining various sections of the Copyright Act, the Eleventh Circuit concluded that “registration” must occur later in time than the filing of a registration application and after the Register of Copyrights deems an application “to be acceptable.” Fourth Estate argued that the three-year statute of limitations for copyright infringement claims supported the application approach. The Eleventh Circuit disagreed, concluding that although a copyright owner who files an application late in the limitations period risks losing the right to enforce a copyright while the Copyright Office reviews an application, “this potential loss encourages an owner to register his copyright soon after he obtains the copyright and before infringement occurs.” Finally, the Eleventh Circuit declined to examine legislative history or policy arguments, having concluded that the words of the Copyright Act are unambiguous.

Summary prepared by Wook Hwang and Sarah Schacter