The judge debated the consequences of not following the procedures of the Copyright Office
November 9, 2021
Monday’s argument is Unicolors v. H&M Pay more attention to the substantive issues between the two parties than I expected from the briefing. This case involves whether the misstatement in the application for registration of copyright works is serious enough to require the court to hear infringement litigation to submit it to the copyright registry. Article 411(b) of the Copyright Act.
As mine Case preview Explains that Unicolors has made a considerable shift between the petition seeking review and the briefing on the merits; H&M’s briefing criticized this shift and argued that it significantly changed the situation before the judges, so much so that the court should not Dismiss the case if a decision is made. In most cases, judges disagree with this line of attack. Justice Samuel Alito seemed annoyed by the changing situation. Justice Clarence Thomas asked about this, but several justices apparently believed that the case continued to need to be resolved. For example, Justice Elena Kagan is not sure how much the issues raised in the petition are different from the arguments in the abstract in this case, while Justice Brett Kavanaugh has discovered that there is a constant change. Criticism of his argument is “far-fetched”, especially for a case that raised “a very important issue”, the summary of which puts “everything in front of us”. Similarly, Justice Stephen Breyer seems to think that “the case is here” is self-evident, so the justices should rule on this.
As far as the merits of the case are concerned, if the application contains incorrect information (for example, the publication date of the copyrighted work-a technical issue in copyright law), the current stage of the case determines what should be done. Is it sufficient for the defendant to prove that the applicant cannot reasonably believe that the application is accurate, or does the defendant have to prove that the applicant is indeed aware that the application contains incorrect information?
As far as the judge’s view on the merits of the case is concerned, the dominant view is that negligence of the rules will make it too easy for the defendant to avoid responsibility for copyright infringement. The clearest statement comes from Kavanaugh, Justice Neil Gossack and Chief Justice John Roberts. For example, Kavanaugh’s position on the alleged infringer (H&M) is not convincing because it applies to “someone… is really confused, so there is no problem of lying”. According to this view, Kavanaugh explained, “When their copyright is infringed, they lose the ability to recover, simply because they are really confused by the legal requirements and lose hundreds of thousands in this case. Dollar.”
Peter Stris (on behalf of H&M)’s response—that applicants can easily get advice from the Copyright Office—does not fit Gorsuch’s opinion. He commented that many people would argue that “this is a complicated process and there are a lot of important issues… …People who are alive may not be able to understand the entire content of this chapter.” For Gorsuch, “strictly regulated” areas like this should not be harmful just because of negligent misstatements.
Roberts went on to say: “This is a system designed to allow people to do it themselves, right? If you think you have something that…should be copyrighted, you don’t want to hire a large law firm.”
Kavanaugh’s position on the necessary mentality seemed particularly clear, as he asked every lawyer (supporting copyright owner Unicolors) who made an argument on a specific footnote in the briefing submitted by the federal government. Kavanaugh seems to agree with the suggestion in the footnote that the court should not adopt the “independent reasonableness requirement” proposed by H&M, but “the irrationality of the legal opinion claimed by the registrant may support the inference that the opinion is not held in good faith.” Kavanaugh even Asked whether Stris can agree on behalf of H&M that Kavanaugh’s reading will “bridging[e] ……There is a reasonable requirement for knowledge requirements”, so “gives [H&M] At least half a loaf of bread. “
The only opposite voice on the knowledge issue is Justice Sonia Sotomayor. She is worried about the issue of “trolls”-this is a derogatory term for successive plaintiffs. They collect limited copyright works from shops and then file against the defendant. Many (usually thousands) of lawsuits. Resolve even worthless litigation to avoid litigation costs. The briefing in this case—especially friends who support H&M—described Unicolors as a blatant troll. It is undisputed that it is often the plaintiff suing numerous high-volume retailers for infringement of relatively uninteresting designs. Sotomayor-“not accusing” Unicolors of being a troll, but expressing “worries about…the troll”-wondering how she distinguishes “a truly innocent legal error from a sophisticated party capable of negotiating” “Legal Error” The lawyer made a mistake that they could have easily checked. However, her concerns about this topic did not permeate the bench. As the discussion above shows, other judges are more concerned with relatively unprofessional plaintiffs than trolls. The only one even mentioned the issue of trolls. The judge (Breyer) seemed more concerned about “Joe Smith, who spent 40 years in the basement and wrote down the life history of his dog.” “
This argument is very different from what my preview predicted, and I should probably avoid any more predictions. However, if the case was assigned to Kavanaugh and he wrote an opinion to send the case back to consider the standards of knowledge he emphasized throughout the debate, this should not surprise anyone.