Reed Elsevier v. Muchnick – Oral Argument – October 07, 2009

Media for Reed Elsevier v. Muchnick

Audio Transcription for Opinion Announcement – March 02, 2010 in Reed Elsevier v. Muchnick

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John G. Roberts, Jr.:

We will hear argument next in Case 08-103, Elsevier v. Muchnick.

Mr. Sims.

Charles S. Sims:

Mr. Chief Justice, and may it please the Court:

The Second Circuit’s decision vacating for lack of jurisdiction a settlement agreement that compensated authors for all their arguably infringed works in the face of Congress’s direction that Federal district courts shall have jurisdiction over any civil action arising under copyright is wrong for three reasons.

First, even — first, the decision is incorrect under the unanimous holding three years ago in Arbaugh that where Congress affords unqualified subject matter jurisdiction, other statutory provisions argued to be jurisdictional that do not clearly restrict that jurisdiction won’t be deemed to do so.

John G. Roberts, Jr.:

This is a lot harder case than Arbaugh, though.

Arbaugh involved the definition of an employer and then the scope of the statute.

This one says no suit shall be instituted.

Charles S. Sims:

Well, Arbaugh relied heavily on the Zipes case, and the Zipes involved a statutory threshold condition much like the one here.

You couldn’t bring a Title VII action unless you filed a particular kind of piece of paper with the EEOC.

And Zipes and Arbaugh both held that those statutory conditions or essential ingredients were not jurisdictional, and the Court relied, heavily I think, on the fact that jurisdiction was separately provided for and the provisions at issue weren’t.

The second point I want to make is that, even putting the clear statement rule of Arbaugh to one side, statutory text, structure, purpose and history all point to classifying 411(a) as mandatory but not jurisdictional.

John G. Roberts, Jr.:

I think you are right that Arbaugh at least set forth a clear statement rule, but I think that’s significant only going forward.

I don’t know that Congress, when it passed this provision, could have been aware of the clear statement rule that Arbaugh articulated.

Charles S. Sims:

Well, the Court did apply — reiterate and apply the Arbaugh rule in the Rockwell case with respect to a provision that had predated Arbaugh, and nothing in Arbaugh said that.

But in any event, our second point is that if you look at the traditional indicia of not only text but also structure, history and purpose, this provision should be ranked as mandatory but not jurisdictional.

And the third point I want to get to–

Ruth Bader Ginsburg:

Do you agree with the — with the government that it’s mandatory for the district court but prohibited to the court of appeals?

The government has this hybrid where, because of the public purposes served by registration, not only can but the district court should raise the failure to register on its own, but then the government says once you have a final judgment in district court, it’s no longer open for the court of appeals to raise it on its own.

Do you agree with that or do you say it’s for the defendants to raise, and if they don’t raise it, too bad?

Charles S. Sims:

–Justice Ginsburg, we certainly agree with the government with respect to the court of appeals.

With respect to the district court, on the one hand, my clients don’t — are satisfied with the government’s position.

On the other hand, as Justice Scalia’s decision, I think, in Day v. McDonough pointed out, the traditional default rule really is that defenses are up to defendants to raise.

In this particular kind of situation where there is no reason at all, I think, to suspect that defense counsel will not raise 411 whenever — none of the cases that Ms. Merritt raises for example, involve situations of waiver, where the issues weren’t raised until the court of appeals — I think that the Court can rely, frankly, on defendants and on the ability of district judges to nudge defense counsel when they need nudging.

But if the Court felt that the provision was important enough so that it wanted to impose on district courts the obligation of strict policing, I think it could.

But as I say, I have been practicing copyright law for 25 years; I’ve never seen a defendant who either missed a defense or chose not to raise it.

The third point I want to raise if there is time is simply that, even if 411(a) were deemed jurisdictional at the outset of the case with respect to its language which talks about instituting, nothing in either its text or purpose suggests that Congress meant to deprive district courts of their usual power to settle cases with respect to approving settlement agreements.

In this case, because the plaintiffs complied with 411(a) at the front door by alleging properly that they had complied with the obligation, we think the district court had jurisdiction to send the parties to mediation and then necessarily to approve the agreement they returned with three years later.

Now with respect to–

Antonin Scalia:

Can — can I ask you, one of the points made by the amicus is that, if I recall it correctly, that what — what Congress had in mind in phrasing it this way was to enable — enable the party who had not gone to the Copyright Office to go after dismissal on jurisdictional grounds, and the implication is that if it were not held to be jurisdictional, there would be a merits dismissal because of the failure to have gone to the Copyright Office first.

Antonin Scalia:

And therefore would not — the plaintiff would not be able to come back to the court.

Charles S. Sims:

–I don’t understand the amicus to be making that argument.

If Your Honor is referring to–

Antonin Scalia:

I don’t–

Charles S. Sims:

–the third — the third sentence of 411(a), I think that’s the principal argument she makes as to why this satisfies Arbaugh and we think, quite to the contrary, the third sentence of 411(a)–

Antonin Scalia:

–No, I didn’t — I didn’t think it related to the third sentence.

I — I thought she said the whole purpose of Congress was to make sure that you’d be able to come back, that your failure to go to the Copyright Office initially would not result in a merits dismissal so that you could not later go back and then rebring the suit.

If it was jurisdictional, just a jurisdictional dismissal, the jurisdiction could be cured by going to the Copyright Office and your suit could then proceed.

Charles S. Sims:

–Your Honor, I think that the — because of the way 411(a) is phrased, dismissals under 411(a), whether we are correct that it’s not jurisdictional or whether they are correct that it is, I think ordinarily–

Antonin Scalia:

You would be–

Charles S. Sims:

–without prejudice–

Antonin Scalia:

–You’d be able to come back anyway?

Charles S. Sims:

–Absolutely.

Antonin Scalia:

That’s what I thought.

Charles S. Sims:

That’s the nature of this requirement.

Antonin Scalia:

That’s what I thought you’d say.

Charles S. Sims:

Yeah.

Antonin Scalia:

Yeah.

Charles S. Sims:

With respect to the Arbaugh–

Anthony M. Kennedy:

Would — if the statute of limitations had run, could you still come back?

Charles S. Sims:

–The problem in this case, and really the reason why the settlement agreement has turned out the way it did is there is no effective–

Anthony M. Kennedy:

I mean, not — not necessarily in this case, but in — but in a typical case.

Charles S. Sims:

–There is no effective statute of limitations in these cases, Your Honor.

Anthony M. Kennedy:

I said in a typical case.

Charles S. Sims:

Well–

Anthony M. Kennedy:

Or is it just–

Charles S. Sims:

–In — in a case where the infringement is the existence of something on the web, then there is no statute of limitations effectively, because the argument would be that the making available is an infringement.

We don’t think that the last sentence of 411(a) satisfies Arbaugh or indeed is — is any evidence toward this being jurisdictional.

The last sentence was inserted, as the history makes perfectly clear, to solve the problem created by the Vacheron decision that the Second Circuit had decided in 1958.

And in that case, what justice — Judge Hand had done, and other courts have done it, too, is to say it is — district courts cannot review the registrar’s action in denying registration, and that has to be done in a separate mandamus action, at that point in Washington, D.C.–

Charles S. Sims:

So the lesson simply is Congress’s way of saying very clearly: We want to get rid of that rigamarole and we want to allow all this to be done efficiently.

But the statement that this could be done even if the registrant didn’t show up is not at all any statement, much less a clear statement, that this was intended to be jurisdictional.

Now–

Ruth Bader Ginsburg:

Mr. Sims, it has been pointed out that you have taken inconsistent positions.

That is, back in the district court before there was a settlement, you urged before the district court that 411(a) was a jurisdictional bar and that that precluded certifying a class that included the non-registered copyright holders.

You did make that argument in the district court, and now you are saying — you are confessing error, that was wrong?

Charles S. Sims:

–Your Honor, I don’t think it’s fair to say that we made that argument.

We did — we did issue, we did say that sentence in one or two places, and the argument–

Ruth Bader Ginsburg:

The argument–

Charles S. Sims:

–But I think it’s — I think it’s different, because the issue in the district court was the fairness, reasonableness and adequacy of the settlement and there was an attack on the different valuation for unregistered claims.

In that context we relied on 411(a).

The argument would have been exactly the same had we said, as we should have, that 411(a) is mandatory but not jurisdictional.

We were guilty of exactly the loose language that this Court was guilty of in Robinson and Smith, as it pointed out in Eberhart or Kontrick.

Antonin Scalia:

And — and–

Charles S. Sims:

But as — but as the Court decision in that case said, there was no need to overrule Robinson or Smith because really what was going on there was the Court had been saying the rule was mandatory, and the additional language that was jurisdictional was loose language.

Our argument never focused on the ranking of 411(a).

It was always rooted in the existence of the rule which did justify, and on the merits of the appeal back in the Second Circuit we will again argue did justify, a different valuation of the claim.

Antonin Scalia:

–Well, you shouldn’t use loose language, especially when it’s the same loose language, supposedly, that seems to have been used by all the courts of appeals and all the district courts.

Charles S. Sims:

Not all the courts–

Antonin Scalia:

For years and years.

Charles S. Sims:

–Your Honor, the first court of appeals which said that 411(a) said — not held — was jurisdictional was in 1990.

That’s well after the 1976 act, and the original act had been — I mean, the 1909 act, which it was patterned after, had been nearly 100 years earlier.

There was no court of appeals that ever said that the 1909 act was jurisdictional, and when this Court had that case in the Washingtonian case in the 1930s, there was no reference to it being jurisdictional by either the majority or the dissent.

And I think Washingtonian is particularly interesting because there the district court had originally held that it was jurisdictional and then sua sponte recanted a few days later and issued another position.

And that is in the record of this Court in Washingtonian and it was pointed out by Professor Ben Kaplan in the report to the register and to Congress in connection with the 1976 act.

So the issue was raised for people to think about if anybody had.

But Congress did not in 1976 or at any time earlier say that this was intended to be jurisdictional or was jurisdictional.

So if — if passing the Arbaugh argument with respect to text, structure, history and purpose — the structure I think is particularly telling, because in this case the provision of jurisdiction is in Title 28, the provision of registration is in the Copyright Act.

They’ve been separated–

Ruth Bader Ginsburg:

–But still it’s a statute and didn’t this Court say in Bowles that a statutory qualification on the right to sue is generally jurisdictional?

Charles S. Sims:

–I don’t think the Court said that.

I think that the Court said that in Bowles with respect to time limits for appeal.

I think Bowles is quite clearly limited to time limits for appeal, and the Court’s decision rested on — heavily on stare decisis.

With respect to–

Ruth Bader Ginsburg:

But I thought they made a distinction to distinguish the other cases, the one — I forgot — the one involving Criminal Rule 33, on the ground, well, that’s a court rule, but when Congress makes the qualification then it’s jurisdictional.

Charles S. Sims:

–But this doesn’t involve a time limit.

This involves, as Arbaugh and Zipes did, ingredients of the claim, preconditions to the claim, threshold steps with respect to the claim, and I think there is no reason for the Arbaugh approach not to apply.

But in any event the structure is telling here; the language is telling as well.

John G. Roberts, Jr.:

Well, if you are talking about the language, what about John R. Sand & Gravel?

That said we held it was jurisdictional when the statute said: “Suits shall be barred”.

The language here is “No suit shall be instituted”.

That sounds pretty close.

Charles S. Sims:

I think not, Chief Justice Roberts.

The language here has been used in copyright statutes in 1831, as our reply brief points out, and includes the language for statutes of limitation and for copyright notice.

And all of those have always been deemed mandatory.

None of them has been deemed jurisdictional.

Again, Section 507 of the Copyright Act, the statute of limitations provision here, has almost exactly the same language as in 411.

John R. Sand I think the Court treated as in Bowles–

John G. Roberts, Jr.:

No, that was — that was a statute of limitations provision, right?

It shall be barred after six years?

Charles S. Sims:

–Well, John R. Sand involved a special situation of suits against the government and considerations of sovereign immunity.

Ruth Bader Ginsburg:

I thought the Court said it was mandatory.

I don’t remember when they used the word “jurisdictional”.

Charles S. Sims:

Well, I think John R. Sand held that provision was jurisdictional, but I think the decision went off on — on stare decisis, and the fact that the Court had, with respect to the Tucker Act and matters of suits against the government, taken a different position.

Those, I think, are really the only carve-outs, the statutory time limits for appeal and suits against the government, from the general Arbaugh rule.

So here Congress has used this language repeatedly.

This Court’s own forms for copyright infringement, which were first promulgated in the 1930s, have patterned our argument and are contrary to the amicuses’.

They have always treated the registration provision of the model complaint differently from the jurisdictional provisions.

Those are in separate sections, not next to each other even.

John G. Roberts, Jr.:

We have forms for copyright infringement actions?

Charles S. Sims:

You do.

The Federal Rule–

[Laughter]

John G. Roberts, Jr.:

Live and learn.

Charles S. Sims:

And because they haven’t changed very much in 70 years, you probably haven’t spent much time with them.

Ruth Bader Ginsburg:

It’s Form 19.

Charles S. Sims:

Yes.

It was originally Form 17.

We have gone through the history.

But I think there is really only one change and in every respect it is identical to what it was in 1938.

And, again, as I say, it separates out the registration provision from the jurisdictional provision.

If Congress had wanted to make registration jurisdictional, it would have been extraordinarily easy to do so.

All they would have had to add at the beginning of 411(a) is

“notwithstanding anything in 1338 and 1331. “

We have — we have included in our brief as an appendix about 60-odd Federal statutes, which carved out jurisdiction otherwise provided by 1331 or other provisions, and 411(a) looks nothing like them.

They all look, roughly, like each other.

John Paul Stevens:

Can I ask a sort of basic question I never understood about this case.

As I understand it, the end-of-the-line concern of the fairness of the settlement, and particularly to people who have copyrights who have never been registered.

Am I right, that that’s what–

Charles S. Sims:

Well, not — not quite.

There were — there were ten authors who objected, I mean, as a group, and they wanted more money for unregistered authors.

There were, needless to say, tens of thousands of other authors who didn’t object, but it is true that the objectors wanted — thought that they had gotten a bad deal.

John Paul Stevens:

–But those were people who owned some registered copyrights, but had other works that were not — had no registered copyrights.

Is that right?

Charles S. Sims:

I–

John Paul Stevens:

Were there any of those people who had no — no copyrights at all?

Charles S. Sims:

–Well, they — I don’t know, Your Honor, whether the objectors had any registered works.

I know that the named plaintiffs had more unregistered works than registered works.

John Paul Stevens:

But they had some registered works?

Charles S. Sims:

Yes.

John Paul Stevens:

You see, one of the — one of the risks involved here is whether people who had no registered works are being adequately protected by this Class C settlement.

Charles S. Sims:

Yes.

This is not a situation–

John Paul Stevens:

And just to get the question on the table — I don’t want to take up much of your time.

I don’t understand how it makes any difference whether you say the rule is mandatory or the rule is jurisdictional, in terms of the fairness of the settlement, at the end of the line.

Charles S. Sims:

–I don’t think that has anything to do with the fairness of the settlement.

I think we are here because the Second Circuit blew up the settlement and said we can’t settle this case, and the only way it was settleable was to give the publishers and the databases complete peace by clearing all off of this off.

And so–

Ruth Bader Ginsburg:

And that — that, certainly, would be open.

If you are correct that the Second Circuit shouldn’t have cut this off at the threshold by saying it’s jurisdictional, the question of the fairness of the settlement is what you were contending.

Charles S. Sims:

–That is correct, Your Honor.

I would like to reserve the balance of my time.

But the — the adequacy and fairness of the settlement is back in the Second Circuit on remand.

John G. Roberts, Jr.:

Thank you, counsel.

Ms. Anders.

Ginger D. Anders:

Mr. Chief Justice, and may it please the Court:

Statutory prerequisites to suit like Section 411(a) often fall into one of two distinct categories.

They are either jurisdictional and therefore unwaivable or they are not jurisdictional and are fully waivable.

Section 411(a)’s registration requirement falls in the middle of those two extremes.

It is not jurisdictional, but it should not be fully waivable.

The provision does not speak to the power of the courts to decide cases and therefore it does not limit the court’s jurisdiction to adjudicate infringement suits.

But, because of this phrase and mandatory language, the requirement should be strictly enforced whenever the defendant asserts it, and because the requirement serves important public interest that are independent of the concerns of the parties to any individual suit–

Ruth Bader Ginsburg:

So your position is that the district court really should have dismissed this case at the outset?

Ginger D. Anders:

–I think that, in the ordinary case, the district court should — when — when the defendant waives the requirement, which would be the rare case, when the defendant doesn’t assert it.

When the defendant waives the requirement, the district court should consider whether accepting that waiver would undermine the public interest behind 411.

Now, in this particular case, it may not have been an abuse of discretion for the district court to consider those interests and decide that here it would have been acceptable to accept the defendant’s waiver and permit the resolution to go forward because, in this case, the periodicals that — that are involved — the works at issue were primarily already in the possession of the Library of Congress, because they had been registered as — the periodicals themselves had been registered.

So the Library’s interest is not as strongly implicated here.

In addition, this is a case in which there was going to be settlement, so the Court wasn’t going to need to adjudicate the copyright claims and therefore the opportunity for the register’s views to be taken into account was less important.

Anthony M. Kennedy:

Maybe this is the same question.

Are you representing the interest of the Library of Congress?

Ginger D. Anders:

Yes, we are representing the interest of the Library of Congress.

So I think in this case it may have been appropriate for the district court to conclude that — that it could let someone go forward, notwithstanding the fact that some unregistered copyrights were involved.

But after adjudication on the merits, the defendant has waived the requirement, and, having come up, Section 411(a), like any other non-jurisdictional rule, should be subject to the general principle that issues that are not raised below should not be considered for the first time on appeal, absent extraordinary circumstances.

Ruth Bader Ginsburg:

You were candid to say that this is in a hybrid category, that the government was taking an intermediate position.

Do you know of any other provision where the district court has an obligation to raise the question on its own motion that is yet not jurisdictional?

Ginger D. Anders:

I believe this Court has recognized that waiver doctrines in general are discretionary, and so, particularly in the area of res judicata, the Court has recognized in the Plaut v. Spendthrift Farm and Arizona v. California that the Court has some discretion to enforce res judicata on its own motion.

Ruth Bader Ginsburg:

Very, very limited.

I think Arizona didn’t say any time there’s — there’s a preclusion plea, the Court can raise it on its own.

Ginger D. Anders:

That’s correct.

I think also the plain error rule presupposes that there are some errors that the district court has a responsibility to correct on its own, even though neither party has brought the error to its attention.

So in other words, the district court has the obligation to issue a legal ruling that neither party has asked for, and I think that kind of regime is appropriate here because the public interest at issue, the Library’s interest and the interest in the public record of copyright, those don’t depend on the defendant’s litigation decisions — they shouldn’t depend on the defendant’s particular strategic decisions within a particular case.

The Library’s interest will always be in having every work registered and the public interest and public record will be the same.

John G. Roberts, Jr.:

Is your discussion of that, including in your response to Justice Ginsburg and in your brief, do you think that that’s within the question presented, rephrased?

Ginger D. Anders:

I think it is fairly within the question of whether the rule is jurisdictional or not, I think, is — also encompasses the question of how the rule should be enforced, assuming that it is non-jurisdictional, of what should happen in this case.

So I do think that the — the characterization of this rule as a mandatory or a waivable rule is — is within the question presented.

So I think that the regime we’re proposing best gives effect to the mandatory, but non-jurisdictional language that Congress used in Section 411(a).

And it also protects the public interest that the requirement serves, which, again, the compilation of a public record of copyrighted works in the copyright office, which allows a robust licensing system under the Copyright Act.

Antonin Scalia:

But how — how would we get to hold what — what you say is the law?

It seems, to me, once we decide it’s not jurisdictional and once we agree with you, that it doesn’t — at least in this case — didn’t have to be raised sua sponte by the district court.

That’s the end of the case, and so why do we have to engage in the further discussion, well, ordinarily, the district court must raise it on its own and — you know, and, if it doesn’t ordinarily — you know, the appellate court should.

Why do we have to get into that?

Ginger D. Anders:

I don’t think you have to get into it, Justice Scalia.

I think–

Antonin Scalia:

Which means we shouldn’t.

[Laughter]

Ginger D. Anders:

–Well, that may be the case, but I think we are simply trying to — trying to explain to the Court what we think how the rule should be applied in the district court, in the — in the ordinary case, and then, in the rare case, this one, where the defendant has waived, and permitting the settlement to go forward, it wouldn’t adversely affect the public interest that are normally in force here.

John G. Roberts, Jr.:

Do you have an example of the non-ordinary case?

I mean, you seem to say, either — I guess it’s not always after judgment that it shouldn’t be implemented, I guess.

But when wouldn’t it be after judgment?

Ginger D. Anders:

I think that the — that in general, the requirement would be considered waived if it’s not raised before judgment.

Ginger D. Anders:

We can’t think of a case in which the extraordinary circumstance would be fulfilled.

John G. Roberts, Jr.:

So it’s more — so it’s more or less jurisdictional after judgment?

Ginger D. Anders:

No, I’m sorry.

What I meant to say was that I don’t think this rule could ever be enforced, in the first instance, on appeal if it has been waived below.

I think the general civil rule for non-jurisdictional requirements is that if it’s not raised before judgment, it’s lost on appeal — circumstances–

Antonin Scalia:

Well, that’s normal, but not invariable.

Ginger D. Anders:

–Well, I think that’s the rule — that’s the rule that this Court has applied to constitutional rights with the plain error rule, and also, with respect to structural constitutional rights that might implicate other public interests, the general rule is that if the requirement has not been raised during the — during the trial stages of the case, then it can’t be enforced for the first time on appeal.

Antonin Scalia:

Unless it is plain error.

Ginger D. Anders:

Unless it’s plain error, and in this situation, if the plain error standard applied, or something even more — even more heightened in the civil context, we can’t think of a case in which registration requirements–

Antonin Scalia:

It’s pretty plain that the things haven’t been registered.

I mean, right?

And it’s pretty plain that if they hadn’t been registered, the district court should not have proceeded with the case.

So I don’t know why it wouldn’t normally be plain error in — in the court of appeals.

Ginger D. Anders:

–Well, I think those — those circumstances would be true in most cases in which the — for some reason, the requirement hadn’t been reached at the trial stage.

So I don’t think that the extraordinary circumstance is present here that would justify overturning the independent interest in judgment that our legal system has, the finality of judgment, the rights of the parties in relying on that judgment and the judicial resources expended.

You know, I think in some ways we can think of this requirement as sort of like a filing fee, that it’s — it serves interests beyond those of the parties at the district court, and therefore you wouldn’t think of it as waivable at the instance of the defendant.

But–

John G. Roberts, Jr.:

There really are, in our recent decisions, it seems to me, two different lines of authority.

There is the Bowles and the John R. Sand and Gravel, which treats these sorts of things as jurisdictional, and the Arbaugh line that doesn’t.

And it does seem to me that the language here, “No suit shall be instituted”, sounds an awful lot like “suit shall be barred”, or the other language in — in Bowles.

Ginger D. Anders:

–I think it’s similar to a lot of language that’s used in statutes of limitations, which are traditionally considered non-jurisdictional, that no statute — no suit shall be instituted.

I think what’s important is that it speaks in terms of the actions of the parties, because the parties institute a suit, not the Court.

So it doesn’t speak in terms of the power of the Court.

And there’s no evidence, I don’t think, that Congress intended to withdraw the broad grant to jurisdiction in 1331 and 1338.

I think Bowles and John R. Sand are cases in which the Court’s own precedents had previously treated the rules at issue as jurisdictional, had accorded them jurisdictional consequences.

So those are cases in which the Court relied on stare decisis, but I don’t think that we have any similar situation here.

There’s no–

Ruth Bader Ginsburg:

What about the congressional reaction to the Second Circuit’s decision?

It provided that the — there was to be no jurisdictional bar in criminal matters.

Didn’t — it didn’t affect jurisdiction in criminal matters, but it didn’t say anything about civil matters.

Ruth Bader Ginsburg:

So isn’t that some kind of reflected acceptance that in some of the civil — in civil cases, it would be jurisdictional?

Ginger D. Anders:

–I don’t think so.

I think, in enacting that, Congress had recognized that the incentives for registration should stay in place in the civil context, but that making an exception wouldn’t — wouldn’t make a difference in the criminal context.

I think Congress still spoke of it as a — as a non-jurisdictional requirement in the legislative history, so I don’t think that there is any indication that Congress has ratified the Second Circuit’s decision here.

John G. Roberts, Jr.:

Thank you, Ms. Anders.

Ms. Merritt?

Deborah Jones Merritt:

Mr. Chief Justice and may it please the Court: We will start with the statutory language as the Court has been discussing for the last half-hour.

Section 411(a) appears on page 1 of the Petitioner’s brief.

It uses, first, the mandatory word “shall” in commanding that no action shall be instituted.

It does not contain a limitations period, as statutes of limitations do.

It simply says, “No action shall be instituted”.

No waiver–

Antonin Scalia:

“Until”.

That’s a limitation period.

Deborah Jones Merritt:

–Until?

Antonin Scalia:

Until preregistration or registration has been made.

Deborah Jones Merritt:

That’s correct, Justice Scalia, and that makes–

Antonin Scalia:

That’s our limitation period.

Deborah Jones Merritt:

–That makes — it’s a — it’s a requirement that registration be made.

It is quite analogous, although stronger than the statute in the Hallstrom case.

The hybrid argument that the Solicitor General was referring to is the Court’s decision in the Hallstrom case, which was a provision of the environmental statutes that is common in several of those statutes providing: No action may be commenced until a notice is filed.

Our provision here is stronger.

It says: “No action shall be instituted”, instead of “No action may be commenced”.

Even if this case is not — even if this statute does not impose a jurisdictional limit, which I will strongly argue that it does, it at the very least imposes a mandatory command like the statute in Hallstrom.

And there is no reason in this case to reverse the Second Circuit, even if this is a mandatory provision.

As you will recall, in Hallstrom, the parties had gone through four years of complicated environmental litigation.

Went up through the court of appeals.

The court of appeals reversed, saying, you did not comply with this notice provision.

This Court held that it did not need to decide whether that provision was jurisdictional in the strictest sense of the term, because it was at least mandatory.

And the Court reversed despite that time, sent the case back.

Deborah Jones Merritt:

In fact, I believe, Mr. Chief Justice, you asked about whether the mandatory issue would be within the Court’s grant of certiorari.

The grant of certiorari in Hallstrom referred to the jurisdictional issue and the Court decided that rather than get to the strict issue of jurisdiction, it would decide on a mandatory forum.

But there is no reason, if we are — if the Court wants to avoid the jurisdictional issue and to endorse the mandatory hybrid one, the Second Circuit should still be affirmed in this case.

The parties raised Section 411(a) quite clearly to the district court.

They used this provision as their major defense of both the substance of the settlement’s fairness and the representation.

The representation was the major issue that the objectors raised in the district court.

And so both parties, the Plaintiffs and the defendants, argued in their briefs — and it’s simply not a few sentences; we’ve provided the parts of the record in the appendix to our brief — that the reason that this settlement should be upheld was because of this mandatory, they called it then, jurisdictional provision.

That was an essential argument that they made to the district court and that they then repeated to the Second Circuit in the merits briefs long before the circuit said, then: Wait a minute; you are making a curious argument here that this is a jurisdictional provision that upholds your settlement, but that we still have the ability to look at this settlement if it’s jurisdictional.

I would like to return to the language of Section 411(a).

As I have argued, it begins with this mandatory language, “No action shall be maintained”.

Ruth Bader Ginsburg:

In — aren’t there statutes that have exhaustion requirements, or like the EEOC filing requirement, that say, you can’t sue until you have gone to X administrative agency?

And those are not considered jurisdictional.

Deborah Jones Merritt:

That’s correct.

That’s correct, Justice Ginsburg.

Many of those statutes refer specifically to exhaustion.

The Prison Litigation Reform Act, for example, that some of the parties cite, refers specifically to exhaustion of remedies after the “no action” sort of language.

Every jurisdictional statute has its own language and its own story.

We could say they are like Tolstoy’s unhappy families; they are all different.

And in this case, the story of the Copyright Act and its language is very distinctive, both in the public purposes that it furthers and in the language that it uses.

Again, on the statutory language, we have the very mandatory language, “no action shall be instituted”.

No modifiers; there’s no provision for waiver.

The Solicitor General’s assistant mentioned that this statute is like fee waivers.

It’s not at all like a fee waiver, because the statute for fee waivers explicitly gives the district judge authority to waive the fee in the case of an in forma pauperis plaintiff.

This statute contains no waiver for the parties.

It contains no discretion for the district judge.

And in the last word of — the last sentence of this very short three-sentence provision, Congress referred explicitly to jurisdiction.

And I would like to look very closely at that word, because any plain reading of this section will show — shows that Congress intended the entire provision to refer to the jurisdiction of the court.

Ruth Bader Ginsburg:

I thought that — that last sentence is just relating to the court can — has authority to decide this particular issue, copyrightability, even though the registrant has chosen not to enter the suit.

The sentence simply says, court, you have authority to decide this question.

Deborah Jones Merritt:

That’s the most immediate reference, Justice Ginsburg, but the three sentences work together.

Deborah Jones Merritt:

And if we look at the three sentences, they appear on the first page of the Petitioner’s brief.

The first sentence creates two categories of cases: Those that the Court may decide and those it may not.

Let us say for now we are not meaning what that power is.

We are simply saying two categories of cases, one the court may decide, the other one it may not.

The second sentence then adds a small group of cases to this first category, the one that the court may decide.

As opposing counsel mentioned, Congress did that in response to a particular case, the Vacheron case.

Vacheron itself was built on a line of cases holding that the previous section like 411(a) was a jurisdictional limit.

The reason that courts could not consider a copy — an application for — a petition for infringement complaint, I’m sorry, from a person who had not yet gotten registration was because they construed that predecessor as jurisdictional and therefore, they had no jurisdiction to hear an infringement claim until this person instituted a mandamus suit and got the certificate from the registrant.

John G. Roberts, Jr.:

I would have thought that cut against you in the sense that the same paragraph Congress used the word “jurisdiction”, but they didn’t use that in the provision that you are arguing, does deprive the court of jurisdiction.

Deborah Jones Merritt:

No, Mr. Chief Justice, because when Congress revised this statute in 1976, it had before it 60 years already of courts construing its language, no action shall be maintained, which was the previous 1909 language as a jurisdictional limit.

There had not been any resistance to that notion.

Even courts as early as the 1920s in the Lumiere case, the Second Circuit did not hold there was “jurisdiction”, but it held that this provision was unwaiverable.

What the parties want to do here, of course, is to waive the provision.

So the language was working quite nicely for Congress.

No action shall be maintained, they switched it to instituted to make clear that they meant at the beginning of the action.

There had been a few parties who had argued during the early 20th century that if they snuck in the door, they could remain inside — or I’m sorry, once they got inside, they could file the — certificate, and the courts rejected that, but Congress cleared up that particular problem.

So Congress knows that its first sentence is working quite well.

Congress then adds this second sentence to — these, of course, are people working with the Copyright Office, experts in the area of copyright law.

Congress adds the second sentence which adds the small category of cases to the ones that may come before the court.

And then in the final sentence, Congress gives a clarification about that final group of cases.

As Justice Ginsburg said, the — Congress made clear that when the registrar decides not to appear in these cases, the Court may still go on and has the power to decide these cases.

John G. Roberts, Jr.:

It’s not — it’s not a very big deal to register your copyright, right?

Deborah Jones Merritt:

It is not at all a big deal, Your Honor.

In fact, for freelance writers one may register an entire year’s worth of work on a single form for $65.

John G. Roberts, Jr.:

And — but — but doesn’t that mean that it would be odd to make jurisdiction over an action for infringement hinge on whether you’ve, you know, dotted an “I” and crossed a “T”?

Deborah Jones Merritt:

Not at all, Your Honor, because again, the copyright statute has a different history than other jurisdictional statutes.

Before 1909, owners of copyright had to dot every “I” and cross every “T” within a limited period of time.

If they didn’t, they lost their entire ownership in the copyright.

What Congress wanted to do in 1909 was to give copyright owners a longer period of time to comply with some of these formalities.

But, it still wanted to preserve the public interest that registration serves.

Deborah Jones Merritt:

We haven’t talked yet about the major public interest that Congress had in mind here.

It is ironically the very problem that gave rise to this lawsuit, trying to find the owner’s of copyrighted works.

Before using a copyrighted work, any person needs to find the owner to ask permission.

The electronic databases in this case have argued that they are somehow special, that because they need to obtain many permissions, they shouldn’t have to do it.

Universities, libraries, archives obtain as many or more permissions as electronic databases in every year.

For large universities like Harvard University or the Ohio State University, we have to obtain permissions for every article that is distributed in course packs to our students.

If one of those articles is a freelance work, written by Mr. Muchnick, for example, we have to track him down and get his permission to use that article.

So the registration system was Congress’s response to this problem of finding the owners of copyright.

In this–

Ruth Bader Ginsburg:

Isn’t it true, though, that — that most copyright holders, most people who write articles, freelance articles, even if it’s only $65, it’s not — it’s not worth it because they really don’t expect to get — they don’t think anybody is going to infringe, in the first place, and if they did what establishes to be, just wouldn’t be economically worthwhile?

So I think it’s a fact that most copyrights are not registered, isn’t it?

Deborah Jones Merritt:

–The beauty, Your Honor, though, of the solution that Congress adopted with the registration, moving the registration to a jurisdictional element rather than to an element of the claim, as it was in the 19th century, is that the copyright owner may do this any time.

Copyright lasts, of course, for the lifetime of the owner plus another 70 years after death.

Sixty-nine years after my death, my heirs could register my copyright if they are finding that somebody is now making a lot of money off of my works.

And they could then bring an infringement suit against that person.

It’s odd to think of a jurisdictional restriction as being a looser element than a claim element, but in this particular story of copyright, it is.

What Congress did was to say, we want people to own copyrights immediately without complying with formality.

And in 1976, Congress even extended that to unpublished works, so I already have a copyright of the notes I have in front of me and in the e-mails I print last night and so forth.

What Congress said, with this huge sea of copyrighted works, before somebody can bring an infringement action in the Federal court, we want them to confer a public benefit.

We want them to register the copyright so that other people can find the owner and request permission.

What will happen in this case under the terms of this settlement is that the defendant who did not take time to find the owners of these works, even though the owners of these works were easier to find than many of the very elusive of works that archives and historical societies search for, they did not find — look for the owners because they thought it would be too difficult.

This settlement now gives the defendants a perpetual right to use all of those works without ever identifying the owners, and without the owners ever being identified on the national copyright register, which is what Congress wanted.

If I want to create a competing database for any of the defendants, I have to undertake the arduous work of tracking down all the owners.

Stephen G. Breyer:

Well, there’s some that can’t be found.

So if we take your position, there’s some that can’t be found, we just can’t create our database.

Deborah Jones Merritt:

Justice Breyer–

Stephen G. Breyer:

I mean, that’s the problem that’s underlying the fairness of this thing.

Deborah Jones Merritt:

–I’m–

Stephen G. Breyer:

In terms of if we take your approach, no matter how hard it is to find owners, you are just out of luck.

That is to say, there will not be databases collected, because they cannot be complete because we cannot find the owner.

Stephen G. Breyer:

If we take the position that it is sometimes waiverable, that obstacle disappears and now it’s a question of the fairness of the situation.

Deborah Jones Merritt:

–Justice Breyer, that concern exists for everybody, not just for electronic databases.

In fact, there is — the copyright–

Stephen G. Breyer:

That’s right.

I just wonder why Congress would have ever wanted this kind of provision to serve as that kind of obstacle in any area.

Deborah Jones Merritt:

–Because Congress wants to protect the rights of copyright owners.

Congress has more than 200 years’ experience balancing these two interests.

And, in fact, as we speak, Congress is considering orphan works legislation to address that specific issue.

What Congress has — and that legislation would apply to all types of works, electronic databases, national archives, historical documentaries.

And what Congress is proposing in that legislation is quite illustrative.

Congress says that if somebody makes a diligent search and cannot find the owner, then the person may use the work–

Stephen G. Breyer:

That’s the underlying fairness.

There might be — maybe they will win on that.

I don’t know what the merits of that are.

But certainly an absolute bar might sometimes help some copyright owners, but many times it will hurt them, because since they can’t be found they can’t be compensated.

And if we set up a system and put some money in it, so if they are ever found they will be compensated, that will help them.

So that’s why I ask the question, why would a Congress, that wants to help copyright owners create this kind of system?

When all the things you are talking about can be brought into play when we consider the fairness of the system.

Deborah Jones Merritt:

–This is a — the system that Congress put in play is, Your Honor, one in which copyright owners have an absolute right to control the disposition of their works.

That is the current system, even without getting to the jurisdictional issue.

Congress may change that disposition, and that is within Congress’s control.

What they have been trying to do is to balance the interest of the copyright owner with the interest of the public in using works.

And that is the perennial challenge in copyright law, how to balance those two interests.

Section 411(a) is actually a vital cog as part of that balance, because what Section 411(a) does is it says to the copyright owner don’t worry about all this business of registering or anything else, you have your copyright, and you will have it for your life plus 70 years.

If it ever becomes important to you to bring a lawsuit, then you can register at that time, come into court.

It’s a deal that Congress has offered to copyright owners in order to strike this particular balance between the public interest and the private interest.

Ruth Bader Ginsburg:

Do they — if they are just suing, not for money but for an injunction, do they have to register before bringing an injunction suit?

Deborah Jones Merritt:

Yes, Your Honor, they do.

In order to bring any action — if the injunction is based on infringement.

So we’re — if the plaintiff brings an action for infringement and the remedy they seek is an injunction, then the copyright must be registered first.

Deborah Jones Merritt:

There are some cases in the lower courts in which we have a plaintiff who has a longstanding pattern of infringements that a particular defendant has been engaged in against that plaintiff.

The Owen Mills case is an example.

A local photography studio was upset because a photo duplicating shop kept copying their copyrighted photographs.

They entered an action for infringement, had registered several of the photographs.

The Court issued an injunction that covered future works as well, but those were all works within the same judicial controversy.

So an injunction could reach further than a single registered work as long as we are talking about one single controversy.

In this case we don’t have an injunction, we have damages, and we have thousands of different controversies.

As the Court knows the class action rules do not change the substantive law or the rules of — of jurisdiction.

We have here thousands of different controversies that have been aggregated for convenience under rule 23(b)(3), but the court must have jurisdiction over each of those controversies.

Or if we take the alternative route of Hallstrom, the hybrid approach, and we say that this is a mandatory requirement.

Congress has been quite clear about this mandatory requirement, and that mandate must be satisfied with respect to every controversy in this class action.

John Paul Stevens:

May I ask — I just hate to reveal my ignorance on something like this, but I had the same problem with your opponent.

I really don’t understand why it makes any difference whether you call a requirement mandatory or you call it jurisdictional in terms of the fairness of settlement, all the considerations you are discussing.

It seems to me as a practical matter it doesn’t seem to make any difference.

Deborah Jones Merritt:

It depends on the brand of mandatory, Your Honor.

There are in this case three different proposals before the Court.

I, as appointed amicus I have argued that Section 411(a) is jurisdictional which I think the clear history and language of the statute, which I will still come back to–

John Paul Stevens:

But would you not make all the arguments directed at the fairness of the settlements and so forth if it were merely mandatory?

Deborah Jones Merritt:

–Yes, because then the two versions of mandatory are — the flavor of mandatory that the Solicitor General urges is that the district — this is very mandatory, as in Hallstrom — even if a party doesn’t raise the issue, the district court sua sponte should raise the issue on its own.

Ruth Bader Ginsburg:

The — so mingle — rule.

I think Ms. Anders answered that question.

In this situation it would be appropriate for the judge to accept the waiver.

Deborah Jones Merritt:

That was — that was what Ms. Anders argued.

I disagree with that, because the public interest that Congress has put forth here would not be satisfied.

The parties in this case argue the same public interests that parties argue in every copyright case.

The plaintiffs in a copyright case always argue that their interest should be protected even if they haven’t complied with Congress’s mandates.

The defendants in a copyright case always argue that allowing them to copy the plaintiffs’ works would give the public greater access to those works.

There are no special public interests here.

In fact, the electronic databases in this case have been superseded technologically.

Ruth Bader Ginsburg:

If we — if we are talking about the ordinary case, and someone sued for infringement apart from this settlement in the context that we are in, certainly it’s not going to raise that question whether it’s mandatory, optional or whatever.

Ruth Bader Ginsburg:

What defendant who is sued for infringement wouldn’t say, judge, I’m relying on 411(a); they haven’t registered their copyright; they can’t sue me?

I can’t imagine a defendant in an ordinary copyright case who wouldn’t raise it.

Deborah Jones Merritt:

Actually there are quite a number, Your Honor, just as there are defendants who will waive statutes of limitations.

There are times when a defendant would rather have the resolution on the merits, because that then would not allow the plaintiff to come back into court and sue again.

Or the defendant — the plaintiff in this case might have sued — that you are referring to — might have sued for infringement, and the defendant wants to make clear that it has the right to use this work.

That would then establish that principle with this plaintiff with related works or with other works.

Ruth Bader Ginsburg:

Then let’s switch to the plaintiff.

If the plaintiff is in it for money, for real money, for damages, the plaintiff’s going to register because then the stakes are such that $65 is well worth it, if the plaintiff thinks it can get a large infringement award.

Deborah Jones Merritt:

The problem, Your Honor, is that there are many naive people who believe that famous movies and novels have infringed their freshman college essays.

There are cases exactly like that in the courts.

And in fact the case I cite in the brief is one in which the author sued the university, claiming that the department of English obviously had released his freshman essay to Hollywood, because this movie built upon his fresh man essay.

In those cases, and this is another distinction, Justice Stevens, between mandatory and jurisdictional, the defendant doesn’t even have to appear.

The district court can sua sponte dismiss the complaint for lack of jurisdiction.

We cite I believe seven or eight cases in the brief where exactly that happened, including two different cases–

Stephen G. Breyer:

They wouldn’t waive it then.

I mean, the problem, I take it, realistically is this: let’s take a group of people who want to make databases; now they want to use copyrighted material.

There is a subset of people who have written it they can’t find, so they say here’s what we will do.

We will take $100 billion, and we will put it in a fund, and like ASCAP, that fund can administer this money for the benefit of anyone who turns up.

Now, maybe that’s illegal under some law.

Maybe the class isn’t right.

Maybe they can’t get proper representation.

Maybe it’s inadequate, et cetera.

But what I don’t fail to see — what I fail to see, is how — whether you could do that or not do it has anything to do with registration, because we are talking about the people who aren’t here, all of whom, if you ever bring suit when he’s found, will register the copyright.

The only reason they haven’t registered, we don’t know who they are, that’s why.

Maybe they have registered, for all we know.

Deborah Jones Merritt:

–All of the people who haven’t registered yet, Your Honor, will not be able to bring suit, because the class action will extinguish their claims.

That’s the important–

Stephen G. Breyer:

Maybe they can’t do that because it would be an unfair result.

But where is it in this provision of law that’s designed to stop that ever from happening?

Deborah Jones Merritt:

–This provision, if we go back to section–

Stephen G. Breyer:

Maybe it won’t, by the way.

Deborah Jones Merritt:

–Right.

Stephen G. Breyer:

It depends on what the terms of the settlement are.

We could have a subclass that allows a subset of those people to come into court.

No reason you couldn’t.

So I don’t know whether or not it’s true that they won’t register when they are found.

Deborah Jones Merritt:

Justice Breyer, once again the Copyright Act itself already makes that choice that no person may — and I’m not talking yet even about the jurisdictional provision — no person may use another’s copyrighted work without their permission.

Stephen G. Breyer:

In 1909 Congress thought all this through with the databases and so forth?

[Laughter]

Deborah Jones Merritt:

Oh, yes.

The database issue — sometime — sometimes — in 1976, by the way, Congress did because LEXIS and Westlaw existed before 1976.

The — but the databases are a red herring here.

Sometimes, technology is different, and, sometimes, it’s not.

The Library of Congress recently did a project in which they sought 7,000 permissions for a single project because they were digitizing the letters of Hannah Arendt.

They sought those permissions.

They — if they could not get permission, if they couldn’t find the author or if they didn’t get an okay from the author, they had to leave the work off of the web site because they are following copyright law.

They have a copy of the original work that was given to them or that they purchased, and they may display that, but, if they are going to make a copy of the work, then they have to comply by copyright law.

I mentioned a moment ago that the databases here have been superseded by technology, and that is another way in which technology is not — is not different in this case.

It is now possible for works to be scanned in photographic form or PDF form and put in to electronic databases that are fully searchable, and that does not violate copyright law.

If you compare, for example, law review articles on–

Stephen G. Breyer:

But why doesn’t it?

Just out of curiosity.

You are making a–

Deborah Jones Merritt:

–Because it is — it is part of the original collection — I’m sorry.

If the — if the publisher of the collected work consents to that.

I am thinking of this case in The New York Times–

Stephen G. Breyer:

–Well, you say if somebody who owns the copyright.

Deborah Jones Merritt:

–Yes.

But who owns–

Stephen G. Breyer:

Yes.

Stephen G. Breyer:

No.

But what we want to do is we want to have, in our database, all of the material written about slavery, and, lo and behold, there are 4,000 books that we can’t trace.

Who, now, owns the copyright 100 years later?

And there is no way to get those into our database.

Whether–

Deborah Jones Merritt:

–That’s correct.

That is correct.

Stephen G. Breyer:

–All right.

Now, that’s a sort of loss, and my same point, that maybe that’s as it should be, but it’s rather surprising that this law is the law that will answer that question.

Deborah Jones Merritt:

This law relates to the question, Your Honor, because this law relates to the access to the Court.

The way it relates to the question is that what Congress was trying to do was to give people like you and me information about those copyright owners, so that we could find the owner of the book on slavery.

And, as a way to maintain that register, which Congress started in 1790, it said, to the authors of copyrighted works, if you want to use our courts, the judicial powers of the United States, you need to confer this benefit, so that Justice Breyer could find you, if he wants to include your work in the database.

And that was the story that Congress did.

I would like to say just one more word about the word 411(a) because we were interrupted there.

The parties have offered no convincing explanation for that word, other than to show that Congress understood this whole provision was jurisdictional.

It refers, most immediately, to registrability, but that was not a new issue in 1976.

Courts have always decided registrability.

And, as the rules of civil procedure make clear to us, a party’s absence never deprives a court of subject matter jurisdiction.

Ruth Bader Ginsburg:

So the rulemakers got it wrong in Form 19, when they did not write 411(a) as jurisdictional.

They say copy the 1331, 1338, that is jurisdictional, and then they put the certificate requirement below the line — below the jurisdictional line.

So that was — well, that was wrong, in your judgment.

Deborah Jones Merritt:

As the — as the Congress made — I’m sorry, as the Court made clear, in issuing those forms, they are advisory only, and they are not — they are not intended to give legal advice to counsel about what the issues in the case are.

Ruth Bader Ginsburg:

I suppose, if you picked up any copyright complaint, you will see the jurisdictional allegation will say 1331, 1338, and nothing about 411.

Deborah Jones Merritt:

And that is quite common, Your Honor, because, in many situations, what Congress has done is given a general grant of jurisdiction in 1331 or 1338 and then pulled it back for a subcategory of cases, which is what 411(a) does.

In those circumstances, not just in copyright, but in all sorts of areas, the complaint will plead jurisdiction under the general grant and then may show that it satisfies the condition later.

This is — we are not arguing that — and the Second Circuit has not argued that 411(a) is a jurisdictional grant.

It is a section that takes back part of the jurisdictional grant in 1331 and 1338.

Congress has more than 200 years’ experience working with copyright law, as the questions today have revealed — I’m sorry.

John G. Roberts, Jr.:

Finish your sentence.

Deborah Jones Merritt:

And the questions today have revealed striking the balance between the public and the private interest is a difficult one.

John G. Roberts, Jr.:

Thank you, counsel.

Deborah Jones Merritt:

Thank you very much.

John G. Roberts, Jr.:

Mr. Sims, you have two minutes remaining.

Charles S. Sims:

Thank you, Your Honor.

I, first, want to correct the misimpression given that the databases think they are special.

The databases haven’t thought they don’t need to get permission.

They thought they had permission under Section 201(c), and this Court had the case and decided — two of you believed we were right, and more of you believed we were wrong, but the databases took no position that they had no obligation.

They got the rights by contract from the publishers, with representations and warranties, and that’s why, when this case was instituted, they went to mediation.

They resolved this in a way.

They got money from the publishers, who were exposed under representations and warranties.

The authors were represented by the three major national freelance author groups in the country, and this was a way, we thought, to address this problem responsibly and without taking the Court’s time.

Now, Mr. Chief Justice Roberts, you said a couple of times that you wonder whether the language here, v. Bock, which, I think — if I am remembering, you authored, but, in any event, it was within a year or two, said that was boilerplate language used all the time for statutes of limitations that are not jurisdictional.

And, indeed, that is correct.

In the footnote of our reply brief, we list three times in the 19th century when that very language was used for statutes of limitations.

And, if you put it into LEXIS or Westlaw, you will get a zillion statutes with respect to — exhaust nonjurisdictional statutes.

So I think, quite to the contrary, that — that is the language Congress uses when it wants something to be not jurisdictional.

Now, Ms. Merritt began with the word 411(a).

I want to be clear.

This case was instituted in compliance with 411(a).

The named plaintiffs registered their works and came into court.

It went to mediation, and the next thing the court knew, it had a settlement agreement to review, and it did review under Rule 23.

She relies on the Hallstrom case, but, of course, the Hallstrom case, which did avoid saying whether it was mandatory or jurisdictional, involved the enforcement of a mandatory — at least mandatory rule, on the application of a party, and that’s what the Court does, and that’s why, to some extent, other than with respect to settlement agreements, this case doesn’t matter a lot because the defendants will always be raising this defense.

John G. Roberts, Jr.:

Thank you, counsel.

Ms. Merritt, you were appointed by this Court as an amicus to defend the judgment below, and you have ably discharged that responsibility.

On behalf of the Court, thank you for doing so.

The case is submitted.