ARGUMENT ANALYSIS

Justices debate consequences of failure to comply with Copyright Office formalities

Monday’s argument in Unicolors v. H&M was much more focused on the substantive issues between the parties than I would have expected from the briefing. The case involves the standards for deciding whether a misstatement in an application for registering a copyrighted work is sufficiently serious to require a court hearing an infringement lawsuit to refer the matter to the Register of Copyrights under Section 411(b) of the Copyright Act.

As my case preview explains, Unicolors shifted its argument considerably between its petition seeking review and its brief on the merits; H&M’s briefing criticized that shift and contended that it changed the terrain before the justices so markedly that the court should dismiss the case without deciding it. For the most part, the justices were unimpressed by that line of attack. Justice Samuel Alito seemed irritated by the shifting ground, and Justice Clarence Thomas asked about it, but several justices plainly believe the case continues to warrant resolution. Justice Elena Kagan, for example, wasn’t “sure how much of a difference there really is in this context” between the question pressed in the petition and the arguments in the brief, and Justice Brett Kavanaugh found the criticism of the shifting arguments “farfetched,” especially for a case presenting “a really important question” with briefs that put “everything in front of us.” Similarly, Justice Stephen Breyer seemed to think it self-evident that “the case is here” and that the justices therefore should decide it.

On the merits, the disagreement at this stage of the case governs what should happen if the application includes information that is incorrect (in this case, for example, the date on which the copyrighted works were published – a technical matter in copyright law). Is it enough for the defendant to show that the applicant couldn’t reasonably believe that the application was accurate, or does the defendant have to show that the applicant actually knew that the application included incorrect information?

To the extent the justices revealed their views on the merits, the dominant perspective was that a negligence rule would make it too easy for defendants to avoid responsibility for copyright infringement. The clearest statements came from Kavanaugh, Justice Neil Gorsuch, and Chief Justice John Roberts. Kavanaugh, for example, was unpersuaded by the position of the alleged infringer (H&M), as applied to “someone … truly confused, so there’s no issue of lying.” Under that view, Kavanaugh explained, “when their copyright’s infringed, they lose their ability to recover simply because they were honestly confused about a legal requirement and lose, in this case, you know, some hundreds of thousands of dollars.”

The response of Peter Stris (representing H&M) – that applicants easily could get advice from the Copyright Office – did not sit well with Gorsuch, who commented that many would argue that “this is a complicated process, there are volumes of important questions here that … no human alive can probably understand the whole of this chapter.” For Gorsuch, an area of “intense regulation” like this one was not one in which merely negligent misstatements should be prejudicial.

Piling on, Roberts commented that “this is a system that is meant for people to be able to do it themselves, right? You don’t want to have to hire some large law firm if you think you’ve got … something that should be copyrighted.”

Kavanaugh’s position on the necessary state of mind seemed especially clear, as he asked each of the lawyers that presented argument about a specific footnote in the brief filed by the federal government (in support of Unicolors, the copyright holder). Kavanaugh seemed to favor the suggestion in that footnote that the court should not adopt the “freestanding reasonableness requirement” that H&M proposes, but that “the unreasonableness of a registrant’s purported view of the law may support an inference that the view was not sincerely held.” Kavanaugh even went so far as to ask Stris if he could agree on behalf of H&M that Kavanaugh’s reading would “bridg[e] … the reasonableness requirement with the knowledge requirement” and so “give [H&M] half a loaf at least.”

The lone contrasting voice on the knowledge question was Justice Sonia Sotomayor, concerned about the problem of the “troll” – a pejorative term for serial plaintiffs, who collect stores of marginally copyrightable works and then file many, often thousands, of suits against defendants that settle even meritless suits to avoid the costs of litigation. The briefing in this case – especially by the amici that support H&M – characterizes Unicolors as a flagrant troll, and it is undisputed that it is a frequent plaintiff suing numerous high-volume retailers for alleged infringements of relatively uninteresting designs. Sotomayor – “not making the allegation” that Unicolors is a troll, but expressing “concern about … trolls” – wanted to know how she could distinguish “a truly innocent mistake of law from one in which a sophisticated party with the capacity to confer with lawyers makes a mistake that they could have easily checked.” Her concerns on that topic, though, did not pervade the bench; as the discussion above suggests, the other justices were much more concerned about relatively unprofessional plaintiffs than they were about trolls. The only other justice to even mention the troll problem (Breyer) seemed more concerned about “Joe Smith, who’s been down in the basement for 40 years writing the history of his dog’s life.”

The argument was so unlike what my preview predicted that I probably should refrain from any more prognostication. But it shouldn’t surprise anybody if the case gets assigned to Kavanaugh and he writes an opinion sending the case back for consideration of the knowledge standard he pressed throughout the argument.