Before the turkey and dressing were still getting frequent re-heatings, the Second Circuit had another sitting with the class of authors who’d licensed their works for print publication but not for later digital archive publication. After the final rulings in the Tasini case, suits were consolidated, a class was certified, and a settlement was approved. The Second Circuit, on Nov. 29th, undid all of that, on jurisdictional grounds.
It held that the district court lacked jurisdiction over all claims and all class members, and so, its actions disposing of the case were vacated. The sole basis was 17 U.S.C. 411(a). Hornbooks instruct that to state a copyright claim, two things are needed, a copyright and a copy. Section 411 provides that suit cannot be “instituted” until the author had pursued “registration” of a copyright. Many of the authors and works lacked registration, and so as to those, the court lacked jurisdiction.
Two points seem odd. First, cases often are settled while there is a pending motion to dismiss for lack of jurisdiction. Those undecided motions do not divest the court of power to finalize, even later to enforce, settlements. Maybe if such a motion was decided, there would have been a finding of no jurisdiction, but the case is allowed to settle. To toss a settlement based on a threshold jurisdiction issue doesn’t do much to encourage settlements. Second, the related arguments that having jurisdiction over the registered works was enough to argue for supplemental jurisdiction over the rest of the case sounded pretty good. The Circuit Court rejected that, apparently because the defendants who argued that on appeal had argued there was no supplemental jurisdiction when they were in district court. IMO, the maleability of the supplemental jurisdiction statute provides ample ground to keep all of a case involving related issues and parties.
Last, the statute may plainly preclude the unregistered works from being adjudicated in federal court, but the caselaw that the Second Circuit relied on sounded weak. Two Supreme Court cases were cited, which interpreted a statute on review of Social Security determinations. Those cases held that review only of “final” decisions was jurisdictional. The test of finality regards appellate jurisdiction. That is rather different from original and supplemental jurisdiction. Thus, those Social Security cases and statute sounded unconvincing.
On a sidebar, had the Tasini authors been able to settle, then the terms could have helped inform the striking screenwriters about what fairly they should receive for later versions of their works. Since the Tasini authors now have lost their settlement, then the writers strike will continue longer than it might have.
The case is In re: Literary Works in Electronic Databases Copyright Litigation (2nd Cir. 05-5943).