In July, we told you about a pending case, Fourth Estate v. WallStreet.com, in which the Supreme Court will decide when an author can bring a copyright infringement lawsuit. The copyright law requires that a registration for copyright must be “made” before a lawsuit can be brought. The question this case raises is whether a registration is “made” after a copyright application has been filed, or only after the Copyright Office has issued a registration certificate. It is a distinction with a huge difference: it can take the Copyright Office a year or two to issue a registration.

On Tuesday, the Authors Guild, along with 12 other artists’ rights organizations, filed a “friend of the court” brief encouraging the Supreme Court to rule that creators can bring suit after they have submitted a copyright application to the Copyright Office, instead of waiting until after the Copyright Office has completed the application process—which the Copyright Office itself admits can take up to 16 months (28 months for paper applications). With digital piracy running rampant, the entire value of an author’s work can be destroyed during that time. As the brief says, “[w]hile creative work comes at a high cost for authors, it can be stolen by copyright infringers at bargain prices.” The author’s only other option is to pay a fee of $800 to expedite the registration process. Neither of these situations is fair to the authors—nor, do we believe, are they fair under the law.

The Fourth Estate case emanated from a dispute between Fourth Estate Public Benefit Corp., which writes and licenses news articles to publications, and Wallstreet.com, a former licensee of Fourth Estate. After Wallstreet.com canceled its license, Fourth Estate asked it to take down all of the articles it had posted under the license—but Wallstreet.com refused to do so, and Fourth Estate sued for copyright infringement. Fourth Estate had filed applications for copyright registrations for the articles at issue before bringing its lawsuit, but it had not yet received registrations back from the Copyright Office. The Eleventh Circuit sided with Wallstreet.com and held that the suit could not go forward as a result.

The federal circuits have been divided about how to interpret the registration requirement ever since the law was enacted. Some favor the “application approach” (meaning submitting an application is all the author must do before filing a lawsuit), while some choose the “registration approach” (meaning the copyright application process must have been completed before a lawsuit can be brought). The Guild’s amicus brief urges the Supreme Court to interpret the copyright law in accordance with its express terms, which are meant to benefit and encourage creators, not make them sit back and watch while their work is stolen. It is unfair to penalize authors for delays in the registration process that are outside their control. We will continue to monitor the case and will let you know what happens.