Page:Darden v. Peters - 2007.djvu/8

284 the domain of the courts. See 5 U.S.C. § 706 (requiring that “[t]o the extent necessary to decision and when presented, the reviewing court shall … interpret constitutional and statutory provisions”) (emphasis added). Thus, judicial review of a claim that the agency’s actions violated a claimant’s constitutional rights is conducted de novo. See Western Energy Co. v. United States Dep’t of Interior, 932 F.2d 807, 809 (9th Cir.1991).

Darden cites no authority even remotely suggesting that any court has ever regarded the agency’s routine decision to deny registration as having constitutional ramifications for the claimant. Darden derives the basis for his argument from Article I of the United States Constitution which grants Congress the power to provide copyright protection to the extent Congress sees fit. See U.S. Const. Art. I, § 8, cl. 8 (granting Congress legislative power “[t]o promote the Progress of Science and useful Arts, by securing … to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”). Congress is under no mandate from this clause, however, to provide copyright protection. See Silvers v. Sony Pictures Entertainment, Inc., 402 F.3d 881, 883 (9th Cir.2005) (“As is clear from its text, that clause of the Constitution grants no substantive protections to authors. Rather, Congress is empowered to provide copyright protection.”). Copyright is solely a creature of statute; whatever rights and remedies exist do so only because Congress provided them. See Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 431, 104 S.Ct. 774, 78 L.Ed.2d 574 (1984). Thus, as there is no constitutional right to copyright registration, the Register’s refusal to register Darden’s claim cannot be “contrary to constitutional right” as it must be for section 706(2)(B) to apply.

Darden next contends that because the Register’s decision was based on the agency’s incorrect resolution of a legal question, i.e., whether Darden’s claim lacked sufficient originality to be registrable, the Register’s decision is subject to de novo review. More particularly, Darden argues that the Register’s refusal to find sufficient originality in his submitted works despite the “extremely low” amount of creativity required for a work to be copyrightable, Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345, 111 S.Ct. 1282, 113 L.Ed.2d 3568 (1991), was an erroneous conclusion that must be set aside under the “not in accordance with law” provision of section 706(2)(A) of the APA. Additionally, Darder cites various decisions noting, in the context of copyright infringement litigation, “that copyrightability is always an issue of law” for the court. Gaiman v. McFarlane, 360 F.3d 644, 648 (7th Cir.2004); see Yankee Candle Co. v. Bridgewater Candle Co., 259 F.3d 25, 34 n. 5 (1st Cir.2001); Collezione Europa U.S.A. v. Hillsdale House, 243 F.Supp.2d 444, 452 (M.D.N.C.2003).

We reject Darden’s argument. Essentially, Darden is claiming that the Register simply reached the wrong result, not that the Register applied the wrong legal standard or misapprehended or ignored the controlling legal principles. See Turgeau v. Administrative Review Bd., 446 F.3d 1052, 1057 (10th Cir.2006) (explaining that under § 706(2)(A) “[f]ailure to apply the correct legal standard or to provide this court with a sufficient basis to determine that appropriate legal principles have been followed is grounds for reversal”) (internal quotation marks omitted). Review under section 706(2)(A) is “narrow” and the reviewing court is not permitted to substitute its own judgment for the judgment of the agency. ''Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co.'',