As Justice Breyer retires from the Supreme Court of the United States (SCOTUS), copyright enthusiasts reflect on his opinions over the years (and his teaching lessons at Harvard!). One of this author’s favorite sayings appears in his opinion in MGM v Grokster (2005), which established liability for infringement where an actor seeks to advance infringement (also known as the inducement rule for infringement). In his concurring opinion, Justice Breyer reflects upon the seminal copyright case, Sony Corp. of America v. Universal City Studios, Inc. (1984), appealing to the careful balance struck by the rule in Sony. In his eloquent way, Justice Breyer opined on striving to weigh the values of supporting creative pursuits through copyright protection for rights holders, while simultaneously promoting innovation in new communication technologies by limiting the incidence of liability for copyright infringement by secondary parties, or service providers. In his last decision, Unicolors, Inc. v. H&M Hennes & Mauritz, L.P., Justice Breyer essentially gives a pass to a rights holder who, it was determined, made an “innocent error” in their application for copyright registration, which defendant tried to invalidate to escape infringement proceedings. To read a copy of the decision, visit SCOTUS’s online copy, published here.
The benefits of federal copyright registration include statutory damages and access to courts to enforce those rights granted under U.S. copyright law. However, it is important to note that copyrights attach from the moment an author fixes an original work (e.g. a writing, a drawing, song or sound recording) into a tangible medium of expression (e.g. in computer code, 3-dimensional sculpture, or a recording). When that happens, a common law copyright exists from the moment of creation and in default to the author unless a writing says to the contrary at the moment or in advance of such works’ creation the rights are to someone else. It is these common law rights asserted in another case recently brought by claimants House of CB and Mis