The return of Tasini to the Supreme Court: this time it's personal

The Supreme Court has agreed to hear its first copyright case since Grokster, taking up the question whether federal courts have the power to approve class-action settlements involving unregistered works.

The case involves a long-running dispute between freelance writers, publications, and databases like Lexis-Nexis over whether inclusion of the writers' works in such databases infringed the writers' copyrights. The Supreme Court answered this question in the affirmative back in 2001.  New York Times Co. v. Tasini, 533 U.S. 483 (2001). And it urged the parties to go settle the case, so that the freelance articles could continue to be included in electronic databases:

The parties (Authors and Publishers) may enter into an agreement allowing continued electronic reproduction of the Authors’ works; they, and if necessary the courts and Congress, may draw on numerous models for distributing copyrighted works and remunerating authors for their distribution.

Following the Supreme Court's suggestion, the parties did enter into an $18 million settlement agreement. But because the settlement involved a class action, it wasn't valid unless approved by a federal court. See Fed. R. Civ. P. 23(e). The District court said OK. But the Second Circuit reversed, holding that federal courts do not have jurisdiction to adjudicate claims, even in the class action settlement context, involving unregistered works (which described a large number of the works covered by the agreement). The Second Circuit's decision rested on 17 U.S.C. § 411(a), which provides, "no action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title.” The Second Circuit treated the registration requirement in Section 411(a) as "jurisdictional" (a word, any lawyer soon learns, that is deceptively simple, but actually has multiple meanings), and concluded (over Judge Walker's dissent) that it simply did not have the authority to approve a settlement involving unregistered works.

The Supreme Court's cert. grant in the case, now captioned Reed Elvesier, et al., v. Muchnick, et al., is limted to the following question:

Does 17 USC 411 (a) restrict the subject matter jurisdiction of the federal courts over copyright infringement actions?

Bill Patry -- who had very strong feelings about Section 411(a) -- thought the Second Circuit got it right. (Could this dramatic development cause him to resurrect his blog? Please!) What will the Supreme Court do? My guess is that they will reverse the Second Circuit and uphold the settlement. After all, in the original Tasini decision, the Supreme Court basically told the parties to go settle the case.  They did, only to be thwarted by the Court of Appeals' strict (cramped?) reading of Section 411(a). I suspect the Court may feel some obligation to find a way to approve the settlement that it itself urged.

Cert. petitions and oppositions available at Scotusblog. Additional analysis here.