CA1: Reconstructions are not copies for purpose of copyright registration – and unnecessary dicta about jurisdiction

Torres-Negron v. J & N Records, Nos. 06-2058, 06-2059 (10/2/07). This is an intellectual property case (and therefore boring to me), which holds that when submitting an application for a copyright, the applicant must submit a “copy” of a song, not a “reconstruction.” In this case, “It is undisputed that the written lyrics and tape that Torres submitted as his deposit copy were not the originals — that is, they were not the exact tape or piece of paper on which he first recorded the music or wrote the lyrics of the song.” Therefore, the application wasn’t complete. Therefore, the District Court lacked jurisdiction over the infringement suit. See 17 U.S.C. § 411(a) ("no action for infringement . . . shall be instituted until . . . registration of the copyright claim has been made in accordance with this title,"). The First explains the policy reasons behind a narrow reading of “copy.” Unfortunately, this case talks about more than it needs to.

Most of this makes sense. Except the part about it being a jurisdictional requirement. There is caselaw which says that if an the copyright office screwed up (and the tapes were received), a plaintiff can still maintain a suit. The First says that the purpose of the jurisdictional prerequisite is to let the copyright office take a first cut as to the validity of the copyright. The problem is that the statute doesn’t say that it is jurisdictional (it says “no action… shall be instituted”) and the Supreme Court has said “But when Congress does not rank a statutory limitation on coverage as jurisdictional, courts should treat the restriction as nonjurisdictional in character.” Arbaugh v. Y & H Corp., 546
U.S. ___ (2006). No mention is made of this, and the court relies on pre-Arbaugh caselaw. The defendant still would have won.

 

Strangely, despite mucking up that issue, the First does a good job of explaining different types of attacks on a court’s subject matter jurisdiction. The problem is, that Arbaugh arguably changed the law on this issue. Essentially the First says that the District Court gets to weigh jurisdictional facts itself in the context of a motion to dismiss. It cites authority from other courts of appeal on this, but I think that this, again, is a perversion of the “jurisdictional facts” doctrine. To me, the “jurisdictional facts” doctrine isn’t for defendants to take certain matters from the jury (even though this is what they want), but rather a way to prevent Congress from allocating fact-finding away from the jury. Whatever the case, this discussion by the First was probably unnecessary.

An attorneys feed award as to the defendant is denied, because the plaintiff didn’t prevail on the infringement claim. Strange.