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Greetings, Court Fans!

The big news today (setting aside the early rumblings of World War III) is of course President Biden’s nomination of D.C. Circuit Judge Ketanji Brown-Jackson to succeed Justice Breyer on that other federal appeals court in the District. You’ll have to look elsewhere (and you won’t have to look far) for hot takes on the nomination and whether and how, if confirmed, Justice Brown-Jackson would impact the Court. But if it’s takes on the Copyright Act’s safe-harbor provision you’re after, well then you’ve opened the right email. That was the subject of the Court’s first decision since returning from a few weeks’ recess.

In Unicolors, Inc. v. H&M Hennes & Mauritz, L.P. (No. 20-915), a 6-3 majority held that, when it comes to the Copyright Act’s safe harbor, ignorance of the law is a defense for would-be copyright registrants who make innocent mistakes on their registrations. 

A valid copyright registration gives a copyright holder several legal advantages, among them the ability to bring an action for copyright infringement. To obtain registration, the author of the work must submit a copy of it and an application to the Registrar of Copyrights. If the Registrar deems it copyrightable, a certificate of registration is issued, which reflects the information the holder provided on the application. Hopefully, the information provided on the application will be accurate. But when it’s not, the Copyright Act provides a safe harbor, providing that the registration is still valid unless the registrant had “knowledge” the information was inaccurate and the inaccuracy would have been material to the Registrar’s decision.

Unicolors owns copyrights in various fabric designs. It sued the well-known clothing company H&M for infringement of one of its designs and won a jury verdict. But H&M then asked the trial court to set aside the judgment, arguing that Unicolors’ copyright registration was invalid (prohibiting Unicolors from suing for infringement) because it contained an inaccuracy. Specifically, H&M pointed out that Unicolors had filed a single application for 31 separate works, in violation of Copyright Office regulation, which allows multiple works to be copyrighted with a single registration only if they were in the “same unit of publication.” (For reasons we won’t explain, the 31 fabric designs don’t count as a single unit.) The district court denied H&M’s motion, concluding that, notwithstanding the error, the safe harbor applied because Unicolors did not know that its designs failed the single unit of publication requirement. But the Ninth Circuit disagreed, reading the safe harbor as protecting only good-faith mistakes of fact, not law, and Unicolors knew all the facts necessary to determine that it couldn’t register these works with a single application.

The Supreme Court reversed, in an opinion authored by Justice Breyer and joined by the Chief and Justices Sotomayor, Kagan, Kavanaugh, and Barrett. Justice Breyer began his analysis in the Breyerest way possible: with a lengthy analogy to bird-watching. You see, a person might spot a scarlet tanager in a tree and mistakenly identify it as a cardinal. That mistake could be due to an error of fact (not seeing the black wings that mark it as a tanager) or an error of labeling (seeing the black wings but not understanding that they confirm the bird’s non-cardinalness). In either case, however, nobody would say the budding birder had “knowledge” that her identification “was inaccurate” (the language the safe harbor uses). Nothing in the ordinary language of this phrase distinguishes between people who make mistakes of facts and those who make mistakes about how the law applies to those facts. And Justice Breyer found further support for this interpretation both in related statutory provisions and the long history of the statute, all of which showed that “knowledge” meant actual, subjective knowledge of both the facts and the law.

Justice Breyer then addressed some counterarguments. First, won’t this let scummy copyright registrants escape penalties simply by claiming to not know the law? No, because courts need not (and often will not) accept the copyright holder’s claim of ignorance of copyright law’s requirements. Second, ignorance of the law is no excuse! But that just means one charged with a crime cannot defend himself by claiming he did not know the law prohibited his conduct. It doesn’t apply to civil cases where a statutory safe harbor protects people who don’t know what they’re doing. Finally (and more on this in a moment), H&M argued that Unicolors was playing fast and loose with the issues the parties had litigated below and on which the Court had granted cert. Unicolors’s petition had asked the Court whether “knowledge of inaccuracy” required some indication of fraud. But on the merits, it pivoted to the question of whether the safe harbor applied to mistakes of law as well as fact. That sort of bait-and-switch really annoys some Justices (like the dissenters here), but Breyer quickly brushed it aside, reasoning that whether the safe harbor protects legal mistakes is logically prior (and hence fairly encompassed in) whether knowledge of an inaccuracy required intent to mislead.

Justice Thomas, joined by Justice Alito in full and Justice Gorsuch in part, dissented as to this last point. In their view, Unicolors had sought and the Court granted cert only on the indicia of fraud question, an issue that was cert-worthy because it divided the lower federal courts. And the parties had focused on this same fraudulent intent issue in the courts below. In rejecting Unicolors’s argument, the Ninth Circuit had observed only in passing that knowledge of an inaccuracy was limited to factual errors, not legal ones. Since that was little more than dicta on an issue no federal court had ever squarely addressed, the dissenters would have dismissed the writ of cert as improvidently granted. Finally, Justice Thomas (here joined by Alito but not Gorsuch) thought the Court’s interpretation of knowledge was likely wrong, as it had the result of applying a standard of “knowledge” that rarely found outside of criminal tax statutes. Because the majority’s outcome was not obviously correct, they thought it was better to let the issue brew in the lower courts a bit before they stepped in.

That’s all on the opinion front this week. There were also a few new cert grants, including another case seeking to balance the free-speech of (typically) religious artisans who oppose gay marriage against the rights of gay couples seeking equal treatment under state public-accommodation laws. As true fans know, the Court punted on those difficult questions the last time it took up a case in this vein; but that was three years and two Justices ago (including a Kennedy); when the Court revisits the issue in 303 Creative LLC v. Elenis (No. 21-476), its 6-3 conservative majority may not be as reticent.   

With that, we bid you good week. The Court has not yet indicated when it will next issue decisions, but we’re expecting the pace to pick up in the coming weeks as the Court marches toward the end of its term.

Dave and Tadhg