Fourth Estate Public Benefit Corp. v.

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Fourth Estate Public Benefit Corp. v.
Argued January 8, 2019
Decided March 4, 2019
Full case nameFourth Estate Public Benefit Corporation, Petitioner v., LLC, et al.
Docket no.17-571
Citations586 U.S. ___ (more)
139 S. Ct. 881; 203 L. Ed. 2d 147; 129 U.S.P.Q.2d 1453
Case history
PriorMotion to dismiss granted, No. 0:16-cv-60497 (S.D. Fla. Mar. 23, 2016); affirmed, 856 F.3d 1338, 122 U.S.P.Q.2d 1586 (11th Cir. 2017); cert. granted, 138 S. Ct. 2707 (2018).
A registration certificate must be provided before a lawsuit can be filed.
Court membership
Chief Justice
John Roberts
Associate Justices
Clarence Thomas · Ruth Bader Ginsburg
Stephen Breyer · Samuel Alito
Sonia Sotomayor · Elena Kagan
Neil Gorsuch · Brett Kavanaugh
Case opinion
MajorityGinsburg, joined by unanimous

Fourth Estate Public Benefit Corp. v., 586 U.S. ___ (2019), is a Supreme Court of the United States case in which the Court unanimously ruled that a copyright infringement suit must wait until the copyright is successfully registered by the United States Copyright Office.[1]


While the Copyright Act of 1976 grants automatic copyright privileges to an author when it is published to the public, the Act also requires "registration" of that copyright with the Copyright Office before bringing an infringement suit if the author is American.[2] There had been a Circuit split about whether this "registration" required the Copyright Office to grant or deny the certificate of registration, or whether applying for the certificate could qualify as registration. Some circuit courts, such as the Eleventh and Tenth, held that is considered registered upon the copyright's approval by the Copyright Office, known as the "registration approach." Others, including the Ninth and Fifth Circuits, held that registration occurs upon the application for registration, with the associated deposit and fee; this was known as the "application approach."[1][3]

Fourth Estate wrote articles and licensed them for publication by other entities. One of their clients,, cancelled their licensing arrangement, and the license required to remove the content from their site, which they refused to do. Fourth Estate sued for copyright infringement, after having submitted their application for registration but without having waited for the registration to be approved. The United States Court of Appeals for the Eleventh Circuit[4] ruled that the infringement suit could not be brought because of that lack of approval.[5][6]

Supreme Court[edit]

The case was granted certiorari by the Supreme Court, with oral arguments heard on January 9, 2019.[7] Fourth Estate was represented at oral arguments by Aaron M. Panner.[8] Peter K. Stris[9] represented Wall-Street and Jerrold Burden.

Fourth Estate contended that the Eleventh Circuit misread the statute, and believed that the requirement of "registration" refers to the action of the copyright holder, and not an action of the Copyright Office. Further, they contended normatively that a copyright holder's rights should not depend upon affirmative government action.[1]

The court ruled on March 4, 2019 that a registration certificate must be provided before a lawsuit can be filed.[10][11]

Comments on the decision[edit]

It has been observed by one commentator that a decision in Fourth Estate's favor would essentially remove the Copyright Office's role in the process of moving copyright infringement cases to litigation,[1] and concerns about the practical implications of litigating prior to the Register's grant or denial of registration were a prominent theme at the oral arguments.[12]

Others have observed that the practical effect is minimal, since although the turnaround time for a registration with the Copyright Office can be months at a time, the Office offers an $800 expedited review process for cases with "compelling needs" like upcoming lawsuits,[3] and offers preregistration for categories of works more likely to be infringed.[11] Moreover, plaintiffs can recover for any losses accrued from infringement, even while waiting for the examination to be complete.[11]

The decision applies only to filing copyright litigation, and does not apply to other forms of enforcement, such as sending demand letters or issuing DMCA Section 512 takedown notices.


  1. ^ a b c d Pottinger, Nicole E. (2018-07-20). "A (Brief) Overview of Fourth Estate Public Benefit Corporation v., LLC". Kentucky Law Journal. Retrieved 2018-07-27.
  2. ^ 17 U.S.C. § 412
  3. ^ a b Wharton, Jake (2018-06-28). "Supreme Court to Resolve Copyright Registration Circuit Split". Retrieved 2018-07-27.
  4. ^ Wall-Street.Com and Burden were represented by attorney David A. Geller at the Trial Court and 11th Circuit Court of Appeals.
  5. ^ Fourth Estate Public Benefit Corp. v., 856 F.3d 1338 (11th Cir. 2017).
  6. ^ McCall, Angélique (2018-07-22). "US Supreme Court Tackles Copyright Registration Circuit Split". Retrieved 2018-07-24.
  7. ^ Fourth Estate Public Benefit Corp. v., 138 S. Ct. 2707 (2018).
  8. ^ "US Supreme Court Grants Review for Certiorari in Fourth Estate v Wall-Street". Fourth Estate. June 28, 2018. Retrieved 2018-07-30.
  9. ^ "U.S. Supreme Court Grants Review in Fourth Estate v., Peter Stris to Argue". Stris & Maher LLP. June 28, 2018. Retrieved 2018-07-27.
  10. ^ Ernesto (2019-03-05). "Rightsholders Can't Sue Without a Copyright Certificate, Supreme Court Rules". TorrentFreak. Archived from the original on 2019-03-05. Retrieved 2019-03-05.
  11. ^ a b c Fourth Estate Public Benefit Corp. v., No. 17-571, 586 U.S. ___ (2019).
  12. ^ Jessica Litman, "Argument analysis: Justices wade deep into the copyright weeds", SCOTUSBlog, Jan. 9, 2019.

External links[edit]