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3 March 2010

US Supreme Court Releases Opinion on Reed Elsevier, Inc. v. Muchnick

On March 2, 2010, the Supreme Court held that the provision of the Copyright Act which requires authors to register their works before suing for copyright infringement, 17 U.S.C. § 411(a), is not a limitation on the federal courts’ subject-matter jurisdiction, but instead merely a “claim-processing rule” setting forth what a copyright holder must do before he or she may file a claim in court. As a result, the Court reinstated a class-action lawsuit over the rights to electronic reproduction of works that were originally licensed only for print media, even though resolution of the lawsuit may result in a court adjudicating the rights of authors who have not registered their copyrights.

The primary opinion, authored by Justice Thomas, holds that a statutory condition should not be construed as jurisdictional unless Congress “‘clearly states’ that [the] requirement is ‘jurisdictional.’” Slip op. 8. Because the relevant provision of the Copyright Act is not clearly identified as a jurisdictional limit, and because it is located in a different section of the Act than the provisions which grant federal courts subject-matter jurisdiction over copyright claims, the Court concluded that the registration requirement does not pose a jurisdictional bar to the adjudication of claims involving unregistered works. Justice Ginsburg wrote a brief concurrence, joined by Justices Stevens and Breyer, to further explain how the Court’s decision relates to its past rulings construing certain statutory requirements as jurisdictional.

The significance of yesterday’s decision, the latest in a series of decisions holding certain statutory prerequisites to suit to be non-jurisdictional in nature, extends far beyond the copyright arena. Many statutes—including, for example, anti-discrimination statutes—impose certain prerequisites to suit. If the satisfaction of such a prerequisite is not jurisdictional in nature, then defendants may well have to assert the plaintiff’s failure to satisfy the prerequisite as an affirmative defense or else risk forfeiting the defense altogether.

For inquiries related to this decision, please contact the authors, Donald Falk at or Andrew Tauber at

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