I have followed this case with some interest.
WSJ links to the key exchange:
Judge Rakoff: Well, I mean the place obviously to start is with 17 U.S.C. Section 411(a); “No civil 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.” By definition, the sub class that’s at issue here today have not complied with that. So how can they bring a civil action?
Mr. Blue: Your Honor, obviously in our papers the position we’ve taken is that Mr. Elan, who is not registered, as well as the class that he represents, are entitled to two forms of relief even without registration. And that would be an injunction and the declaratory judgment.
Judge Rakoff: Yes. Now these, of course, are remedies. They are not, themselves, a form of action. But even assuming they were, the statute is unequivocal; that compliance with registration or preregistration is a precondition of filing a claim.
But the suit still remains against one lawyer who has actually copyrighted his briefs.
This comment from Westlaw is rich:
We’re pleased that Judge Rakoff agreed with our position on this matter. These documents are an important part of the public record, and making them available helps ensure transparency, and gives legal professionals a richer view of the issues being heard by the courts.
So we charge an arm and a leg for these documents in the public record!
More from (conflict of interest watch) Thomson Reuters (parent company of Westlaw):
Lexis and West have all kinds of defenses to those claims, but, as an initial matter, they’re arguing that unless lawyers have actually taken the trouble to register their briefs at the Copyright Office, they can’t sue to enforce their rights. Here’s a brief for Lexis on the issue, filed by Morrison & Foerster, and here’s West‘s, by Weil, Gotshal & Manges.
Lexis and West argue it’s a well-established principle of copyright law that you have to register with the Copyright Office to enforce your rights. They’ve moved to toss the claims of any lawyers who didn’t register their briefs, which, of course, is the vast majority of the purported class since most lawyers are too busy to bother and, until now, there was little need.