Merits briefs urge reversal of Second Circuit in Tasini follow-on; say Section 411(a) is 'mandatory but not jurisdictional'

Many thanks to Shourin Sen of Exclusive Rights, who has posted the petitioners' and respondents' merits briefs in Reed Elsevier, Inc. v. Muchnick, which is set for oral argument in the Supreme Court this fall. This is second time this case has been to the High Court. In the first, as New York Times v. Tasini, the Court held that newspapers and electronic databases were not entitled to reproduce freelancers' works under 17 U.S.C. § 201(c). The parties entered into a class action settlement, but the settlement was rejected by the Second Circuit, on the grounds that Article III courts lack jurisdiction to adjudicate claims involving unregistered works. 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.

This is the odd case where the petitioners' and respondents' brief both argue for the same result (because both want the settlement to be approved). To keep things sporting, the Court appointed Ohio State University law professor Deborah Jones Merritt to argue the other side, i.e., that Section 411(a) is jurisdictional and the Second Circuit should be affirmed.

My prediction? I think the Supreme Court will accept the petitioners' argument that Section 411(a) is not jurisdictional, and will reverse the Second Circuit, thus paving the way for approval of the settlement. After all, in her Tasini opinion, Justice Ginsburg all but ordered the parties to go settle:

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.

Having urged settlement, I suspect the Court now feels obligated to find a way to make it happen.