Copyright owners will have to wait for the registration process to play out before suing for infringement, the U.S. Supreme Court ruled unanimously Monday.

Owners had asked the Supreme Court to adopt the Ninth and Fifth circuits' practice of considering a work registered once an application was submitted to the Copyright Office and the fees paid. But the Supreme Court agreed with the Eleventh and Tenth circuits that the copyright register must complete the application, a process that typically requires about seven weeks.

“The registration approach, we conclude, reflects the only satisfactory reading of Section 411(a)'s text,” Justice Ruth Bader Ginsburg wrote in Fourth Estate Public Benefit v. Wall-Street.com.

“Today's decision wholeheartedly affirms the original text of the Copyright Act, as well as Congress' desire to promote early and extensive copyright registration,” Stris & Maher's Peter Stris, who had the winning argument for Wall-Street.com, said in a written statement.

Fourth Estate was represented by Aaron Panner of Kellogg, Hansen, Todd, Figel & Frederick.

Reed Smith partner Keyonn Pope, who's not involved in the case, said the decision may prompt content creators to “seek registration earlier and more often,” which could result in additional pressure on the Library of Congress.

Copyright attaches to works when they're fixed in a tangible medium, but registration is a prerequisite to suing for infringement under Section 411(a) of the Copyright Act. Owners will still be able to seek damages back to and even prior to registration, but as a practical matter injunctions won't be available for most works until they're fully registered.

Fourth Estate is an independent news organization that licenses its content to a syndicate which in turn licensed it to Wall-Street.com, a financial news website. Wall-Street terminated the arrangement but allegedly continued distributing some of Fourth Estate's works. Fourth Estate applied for copyright registration and sued, but the Eleventh Circuit ruled that the suit had to be dismissed because registration was incomplete.

Amicus groups such as the National Music Publishers' Association argued to the Supreme Court that having to wait for registration to play out while a work is distributed all over the internet can have “a devastating effect” on copyright holders.

Ginsburg noted that in 1993 Congress considered, but declined to adopt, a proposal to allow suit immediately upon submission of an application. And in 2005 it created a “preregistration” option for works that are especially vulnerable to pre-distribution infringement.

“Time and again, then, Congress has maintained registration as prerequisite to suit, and rejected proposals that would have eliminated registration or tied it to the copyright claimant's application instead of the register's action,” Ginsburg wrote.

She acknowledged that processing time was only one or two weeks when the statutory scheme was originally enacted in 1956. She said the current delays appear to be due largely to “staffing and budgetary shortages that Congress can alleviate, but courts cannot cure.”

“Unfortunate as the current administrative lag may be,” she wrote, “that factor does not allow us to revise Section 411(a)'s congressionally composed text.”

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