The American Intellectual Property Law Association filed an amicus brief in Reed Elsevier on June 8. The AIPLA’s brief appears to act, to a certain extent, as the opposition brief to the Department of Justice’s filing that we discussed on Wednesday. Both the AIPLA and the Solicitor General argued that 411(a) is a claim processing rule and not a jurisdictional requirement. But the central reach of the AIPLA’s brief is that the 411(a) shouldn’t be read rigidly as to bar claims from proceeding before the Copyright Office grants or rejects a registration application. Indeed, the AIPLA’s brief takes an additional step and forwards that a plaintiff shouldn’t even need to mail a registration before filing suit:
What is less clear is from the text and legislative history of the statute is whether Section 411(a) permits a copyright owner to file an infringement action before the Copyright Office has acted to either issue or deny a certificate of registration, or even before the copyright owner has filed an application.
Although courts are divided on the question, the correct view is that the registration requirement is akin to a procedural condition precedent to prosecuting a lawsuit that may be satisfied “along the way.” This broader view of the requirement conforms to general proposition argued by Judge Walker in his dissenting opinion below that the registration requirement is more of a “claims processing rule.” The narrow view of the requirement improperly introduces a subject matter jurisdiction character into the statute by measuring compliance with the requirement only at the moment the action is commenced.
Documents
Brief of American Intellectual Property Law Association as Amicus Curiae in Support of Petitioners
Prior writings on Reed Elsevier v. Muchnick
- Solicitor General files amicus in Reed Elsevier arguing that 17 U.S.C. 411(a) is a rigid claim processing rule
- Merit briefs posted for Reed Elsevier v. Muchnick
- Judge Posner weighs in on Reed Elsevier v. Muchnick
- Supreme Court grants cert in Reed Elsevier, et al., v. Muchnick, et al. [contains a complete list of filings]
Recent scholarship from the 
