Timothy B. McCormack, attorney at law, discusses some one of the most cutting edge copyright actions in the United States – a copyright case handled by Timothy B. McCormack: subject to certain exceptions, 17 U.S.C. § 411 requires copyright holders to register their works in accordance with the requirements of the Copyright Act before bringing a claim for copyright infringement. See id. § 411(a).1 Thus, a party ordinarily must have a valid copyright registration in order to bring a claim for copyright infringement. See Reed Elsevier, Inc. v. Muchnick, — U.S. —-, —-, 130 S.Ct. 1237, 1242, 176 L.Ed.2d 17 (2010).2 Parties accused of copyright infringement often argue that inaccurate information submitted in an application for registration invalidates the copyright registration. In 2008, as part of the Prioritizing Resources and Organization for Intellectual Property Act of 2008 (PRO IP Act), however, Congress amended § 411 to provide that a certificate of registration satisfies the section’s requirements, “regardless of whether the certificate contains any inaccurate information, unless” the following two requirements are met:
Timothy B. McCormack, attorney at law, discusses some one of the most cutting edge copyright actions in the United States – a copyright case handled by Timothy B. McCormack: The Register notes the court’s concern regarding the structure of 17 U.S.C. § 41l(b)(2) and the potential that the provision might be abused by litigants. See, Footnote 4 of the Order on Motion for Issuance of Request to Register of Copyrights. Since the Office played an instrumental role in the amendment of 17 U.S.C. § 411(b)(2) as part of the Prioritizing Resources and Organization for Intellectual Property Act of 2008, the Register takes this opportunity to relay its insight regarding the provision. The amendment to 17 U.S.C. § 41l(b)(2) was adopted in order to address situations in which courts of appeals have misunderstood Copyright Office registration practices and came to erroneous conclusions about alleged misstatements on applications for registration. See Raquel v. Education Management. Corp., 196 F.3d 171, 177 (3d Cir. Pa. 1999), vacated and remanded, 531 U.S. 952 (2000)(1). See also Greenberg V. National Geographic Society, 244 F.3d 1267. 1273 (11th Cir. Fla. 2001)(2). As a result of these decisions, 17 U.S.C. §411(b)(2) was amended to ensure that no court holds that a certificate is invalid due to what it considers to be a misstatement on an application without first obtaining the input of the Register as to whether the application was properly filed or, in the words of § 411(b)(2), “whether the inaccurate information, if known, would have caused the Register of Copyrights to refuse registration.” The Register readily admits that in many, and perhaps even most, cases in which it is alleged that there is a misstatement on an application that might lead a court to conclude that the registration cannot be relied upon as satisfying the statutory prerequisite for an infringement suit, there may be little need for the assistance of the Register because the answer will be apparent. However, 17 U.S.C. § 411(b)(2) was enacted because a court will not always know what information would or would not make a difference in the Register’s determination whether to register a copyright.