ArtsWatch: Supreme Court Clarifies Federal Copyright Jurisdiction

Presence of unregistered works in dispute does not deprive federal courts of jurisdiction
March 08, 2010 -- 7:46 am PST
By Philip Merrill /

The Recording Academy actively represents the music community on such issues as intellectual property rights, music piracy, archiving and preservation, and censorship concerns. In pursuing its commitment to addressing these and other issues, The Recording Academy undertakes a variety of national initiatives. ArtsWatch is a key part of an agenda aimed at raising public awareness of and support for the rights of artists. To become more involved, visit Advocacy Action @ and sign up for Advocacy Action E-lerts.

On March 2 U.S. Supreme Court Justice Clarence Thomas wrote on behalf of a unanimous court that the presence of unregistered works in a copyright dispute does not deprive federal courts of subject-matter jurisdiction over infringement claims. (link) The underlying dispute relates to the court's 2001 decision that print publishers needed to have an agreement with freelance writers to be entitled to publish electronic versions of their work. In 2005, the writers and publishers reached a settlement agreement that was approved at the U.S. District Court level but struck down by the U.S. Court of Appeals — a ruling this Supreme Court decision now reverses. Although the parties to the class-action settlement all argued that the federal courts had subject-matter jurisdiction, the appeals court denied that a class could include the authors of unregistered works. (link) Both Justice Thomas' opinion and Justice Ruth Bader Ginsburg's concurring opinion pointed to a pattern in lower court rulings that used the term "jurisdictional" too broadly so that it also covered elements of a claim or claim-processing rules.

RealNetworks announced March 3 that it has settled with the DVD Copy Control Association and the MPAA and withdrawn from its much-litigated efforts to sell products that would allow consumers to rip DVDs while preventing redistribution by using digital security on the ripped copies. (link) Under the terms of the settlement, the trial court is to grant a permanent injunction against Real selling products such as RealDVD, Real will reimburse $4.5 million in plaintiffs' legal fees, and it will refund RealDVD's $30 purchase price to the 2,700 customers who bought copies before Real was enjoined from selling it. MPAA General Counsel/Chief Content Protection Officer Daniel Mandil said, "It is illegal to bypass the copyright protections built into DVDs designed to protect movies against theft. We will continue to vigorously pursue companies that attempt to bring these illegal circumvention products and devices to market." (link)

On Feb. 23 the U.S. Intellectual Property Enforcement Coordinator Victoria Angelica Espinel invited comments on the government's development of a "joint strategic plan" to fight piracy. (link) The request's publication in the Federal Register said, "the public is encouraged to submit any detailed concrete recommendation for significantly improving intellectual property rights enforcement." (link) The deadline for comments is March 24. Consumer advocates Public Knowledge expressed concern that the detailed request posed "loaded questions" but praised its emphasis on developing empirical and substantiated data regarding both the costs of piracy and enforcement. (link)

Following up on written comments for the Special 301 trade review, covered in last week's column, (link) the U.S. Trade Representative hosted a public hearing on March 3 attended by an impressive range of speakers. (link) Consumer advocates documented the hearing's progress live on Twitter, and the USTR posted audio of the hearing the next day. (link)

Reuters' Feb. 26 reporting on revenues from online non-interactive streams (link) sparked swift response from some observers that the numbers were too low. (link) A follow-up from digital royalties collection organization SoundExchange said that more than 1,000 artists receive thousands of dollars from these relatively low-revenue streams. (link)

The Senate Judiciary Committee's Subcommittee on Human Rights and the Law held a second hearing on "Global Internet Freedom and the Rule of Law" on March 2. (link) Subcommittee Chairman Sen. Dick Durbin (D-Ill.) criticized Internet companies for failing to protect Net-related human rights and said, "Today I am announcing that I will introduce legislation that would require Internet companies to take reasonable steps to protect human rights or face civil or criminal liability." (link)

In Europe, Microsoft began rolling out a browser-choice screen last week in new versions of Windows, in compliance with its 2009 antitrust settlement with European Commission regulators. (link) Opera Software reported downloads of its browser tripled in many countries and the makers of many obscure Web browsers were grateful for the change and the uptick in demand.

In Britain, non-profit tourism booster announced March 1 that WeGotTickets is the first ticketing agency to sign up for its live music study, which aims to collect event data and make summaries publicly available for free. (link) WeGotTickets Business Development Director Dave Newton said, "When you consider how other industries rely so heavily on customer data, it's incredible that the live music industry, which has so much readily available, has never undertaken a study of this kind before."


Email Newsletter