Page:Fourth Estate Public Benefit Corporation v. Wall-street.com, LLC, et al..pdf/2

2 :(b) In limited circumstances, copyright owners may file an infringement suit before undertaking registration. For example, a copyright owner who is preparing to distribute a work of a type vulnerable to predistribution infringement–e. g., a movie or musical composition–may apply to the Copyright Office for preregistration. §408(f)(2). A copyright owner may also sue for infringement of a live broadcast before “registration… has been made.” §411(c). Outside of statutory exceptions not applicable here, however, §411(a) bars a copyright owner from suing for infringement until “registration… has been made.” Fourth Estate advances the “application approach” to this provision, arguing that registration occurs when a copyright owner submits a proper application for registration. Wall-Street advocates the “registration approach,” urging that registration occurs only when the Copyright Office grants registration of a copyright. The registration approach reflects the only satisfactory reading of §411(a)’s text. Pp. 3–12.
 * (1) Read together, §411(a)’s first two sentences focus on action by the Copyright Office–namely, its registration or refusal to register a copyright claim. If application alone sufficed to “ma[ke]” registration, §411(a)’s second sentence–which permits a copyright claimant to file suit when the Register has refused her application–would be superfluous. Similarly, §411(a)’s third sentence–which allows the Register to “become a party to the action with respect to the issue of registrability of the copyright claim”–would be negated if an infringement suit could be filed and resolved before the Register acted on an application. The registration approach reading of §411(a) is supported by other provisions of the Copyright Act. In particular, §410 confirms that application is discrete from, and precedes, registration, while §408(f)’s preregistration option would have little utility if a completed application sufficed to make registration. Pp. 4–7.
 * (2) Fourth Estate primarily contends that the Copyright Act uses the phrases “make registration” and “registration has been made” to describe submissions by the copyright owner. Fourth Estate therefore insists that §411(a)’s requirement that “registration… has been made in accordance with this title” most likely refers to a copyright owner’s compliance with statutory requirements for registration applications. Fourth Estate points to other Copyright Act provisions that appear to use the phrase “make registration” or one of its variants to describe what a copyright claimant does. Fourth Estate acknowledges, however, that determining how the Copyright Act uses the word “registration” in a particular provision requires examining the “specific context” in which the term is used. The “specific context” of §411(a) permits only one sensible reading: The phrase “registration… has been made” refers to the Copyright Office’s act