The Second Circuit’s decision in In re Literary Works substantially limits the use of class actions as a vehicle to settle copyright infringement cases. Survey evidence cited by the parties in the case showed that freelancers register less than one percent of their works, rendering more than 99 percent of potential claims incapable of resolution in a class action settlement. This likely will pose obstacles for both plaintiffs, who will be forced to sue individually if they failed to register their copyright, and alleged infringers, who will be unable to effect a global settlement of potential infringement claims.
Interestingly, the majority conceded that copyright protection “generally begins at the time of a work’s ‘creation,'” regardless of whether the material is registered. It argued, however, that the issue of whether a work is entitled to copyright protection is quite different from whether a copyright holder is permitted to institute an action in federal court. Nevertheless, the Second Circuit’s holding could make the protections offered by copyright law a virtual dead letter for those plaintiffs who did not register and cannot go to court on their own.
It doesn’t matter if everyone in the room, including the judge, wants to adjudicate a case involving the infringement of an unregistered copyright. The courts are not available for that under the statute. No registration, no enforceable rights — even by consent.
Is that really what Congress wanted to do? Should it have wanted to do that?
Here, by the way, is how you register a copyright. You don’t need a lawyer.
Originally posted 2007-12-28 10:31:49. Republished by Blog Post Promoter