Read the full article by Gene Zorkin at

WASHINGTON – In an amicus curiae brief filed Tuesday, the American Bar Association urged the U.S. Supreme Court to settle a split between judicial circuits by endorsing what the ABA called an “application approach” to enforcing copyright claims.

The ABA’s brief was filed in the case Fourth Estate Public Benefit Corp. v., a copyright case which the Supreme Court in June agreed to hear in its upcoming term.

As YNOT previously reported, Fourth Estate is a news organization which produces online news articles. The company licenses its articles to various websites but retains the copyright to the articles. licensed articles from Fourth Estate under a license agreement which required Wall-Street to remove all content produced by Fourth Estate from its website, in the event Wall-Street cancelled its Fourth Estate account.

Wall-Street continued to display the articles after cancelling its Fourth Estate account, however, leading Fourth Estate to file a copyright infringement complaint against Wall-Street and its owner, Jerrold Burden. As noted by the district court, “the complaint did not allege that the Register of Copyrights had yet acted on the application.”

The district court dismissed Fourth Estate’s complaint, holding that the Copyright Act “permits a suit for copyright infringement only after the Register of Copyrights approves or denies an application to register a copyright.”

The 11th Circuit Court of Appeals then upheld the district court’s ruling, holding that “filing an application does not amount to registration.”

In its brief, the ABA argues the “certificate approach” endorsed by the lower courts essentially grants a power to the copyright office which it does not have under the Copyright Act. In the ABA’s analysis, the application approach “better reflects the text of the Copyright Act.”


Gene Zorkin has been covering legal and political issues for various adult publications (and under a variety of different pen names) since 2002.