Page:Thaler v. Perlmutter, Response to Motion for Summary Judgment.pdf/16

 The Board’s decision rested on several grounds. First, it found that the Supreme Court had repeatedly interpreted the copyright term “author” as a human whose mind originated a work. See id. at US_0000034 (discussing Sarony, Mazer v. Stein, and Goldstein v. California). Second, the Board noted that federal appellate courts have refused to extend copyright protection to non-human authors, including animals and divine spirits. Id. at US_0000034–35. Third, the Board pointed to the final report by the National Commission on New Technological Uses of Copyrighted Works, which Congress tasked with considering copyright questions raised by computer technology. Id. at US_0000035. That report agreed with the Office’s past and present view that copyright requires “at least minimal human creative effort.” Id. Fourth, the Board noted that for almost 40 years the Office’s registration practices required human authorship. Id. Fifth, the Board found the work made for hire doctrine inapplicable because: (1) it does not affect whether a work is within the scope of copyright; and (2) the Work did not meet the statutory requirements that the work be prepared either by an “employee” or pursuant to “a written instrument.” Id. at US_0000036.

The Board’s decision to affirm refusal of registration constituted a “final agency action” by the Office with respect to the issues addressed therein, 37 C.F.R. § 202.5(g), and is subject to review by a federal district court under the APA. See 17 U.S.C. § 701(e) (“[A]ctions taken by the Register of Copyrights under this title are subject to the provisions of the Administrative Procedure Act … .”); see also 5 U.S.C. § 704 (“Agency action made reviewable by statute … [is] subject to judicial review.”).