Page:Darden v. Peters - 2007.djvu/7

Rh Procedure Act (“APA”), see 5 U.S.C. §§ 701–706, seeking judicial review of the decision of the Copyright Office refusing to register his copyright claim. Rejecting Darden’s argument that the decision of the Copyright Office is subject to a de novo standard of review, the district court concluded that the Copyright Office did not abuse its discretion in refusing registration, see 5 U.S.C. § 706(2)(A), and granted the Register’s motion for summary judgment.

The Copyright Act provides that “all actions taken by the Register of Copyrights under this title are subject to the provisions of the Administrative Procedure Act.” 17 U.S.C. § 701(e). One routine function of the Register is to examine applications for registration to determine if “the material deposited constitutes copyrightable subject matter and … the other legal and formal requirements of [the Copyright Act] have been met.” 17 U.S.C. § 410(a). If so, then the Register must issue a certificate of registration to the applicant, see 17 U.S.C. § 410(a); if, however, the Register determines that “the material deposited does not constitute copyrightable subject matter or that the claim is invalid for any other reason,” then the Register must refuse registration and notify the applicant of the reasons for refusal, 17 U.S.C. § 410(b). Because the Register’s denial of a copyright registration application is, by the statute’s plain terms, an action taken by the Register under the Copyright Act, the APA governs judicial review. See 17 U.S.C. § 701(e); Atari Games Corp. v. Oman, 888 F.2d 878, 879 & n. 1 (D.C.Cir.1989) (“Atari I”); Nova Stylings, Inc. v Ladd, 695 F.2d 1179, 1182 (9th Cir.1983).

The district court concluded that the proper standard of review under the APA is the familiar “abuse of discretion” standard whereby a reviewing court will “set aside agency action, findings, and conclusions” that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). This is consistent with the few federal decisions—most of which were issued by the same court—addressing the proper review standard under the APA for courts directly reviewing a registration decision. See Atari Games Corp. v. Oman, 979 F.2d 242, 243 (D.C.Cir.1992) (“Atari II”), OddzOn Prods., Inc. v. Oman, 924 F.2d 346, 347–48 (D.C.Cir.1991); Atari I, 888 F.2d at 881; Coach, Inc. v. Peters, 386 F.Supp.2d 495, 497 (S.D.N.Y.2005). See generally 3 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 12.11[B][3], at 12-208 (2005).

Darden does not contest the general applicability of the APA to his claim; indeed, he expressly brought this action under the APA. Darden contends, however, that the district court incorrectly applied the abuse of discretion standard set forth in section 706(2)(A) of the APA. Darden suggests instead that section 706(2)(B) applies to a challenge of the Register’s denial of a copyright registration application and mandates a de novo standard of review. Section 706(2)(B) directs that the reviewing court set aside agency actions the court finds to be “contrary to constitutional right, power, privilege, or immunity” 5 U.S.C. § 706(2)(B). Under the APA, constitutional questions that arise during APA review fall expressly within