*Cross-posted at Forbes’ On the Docket
Clarity and predictability in the law are essential elements for any economic system built on free enterprise.
Decisions to create new companies, invent new products and services, and invest time and money are all contingent on knowing which of the thousands of federal, state, and local laws and regulations apply, and how they apply. Justice Stephen Breyer made this point in a February 23, 2010 opinion on what constitutes a company’s “principal place of business,” Hertz v. Friend. Writing for a unanimous Supreme Court, Breyer noted, “Predictability is valuable to corporations making business and investment decisions.”
Individuals and businesses that choose to formally register their copyrights, regretfully, don’t benefit from such valued predictability. With its May 25 decision in Cosmetic Ideas Inc. v. IAC/Interactive Corp. (described at law.com), the U.S. Court of Appeals for the Ninth Circuit exacerbated an already deep split in the federal circuits over the fundamental issue of when a copyright is deemed “registered.” The matter at stake: when can a plaintiff assert copyright infringement claims in court: the date they submit the application, or the date the U.S. Copyright Office formally grants registration? Two circuits, the Tenth and Eleventh, consider a copyright registered when the Copyright Office acts; the Fifth, Seventh, and now the Ninth with Cosmetic Ideas, say it’s when the application is submitted. Continue reading