we'll hear argument next this morning in case seventeen five seventy one fourth the state public benefit corporation versus wall street dot com mr pounder mr chief justice may it please the court the copyright act provide strong textual evidence that the phrase registration has been made in section four eleven a refers to the copyright owners compliance with the registration requirement of section four zero eight that reading is confirmed by the legislative history the statute overruled cases that made the register a gate keeper to the court house and the policy of the statute which grants exclusive rights upon fixation of an original work not by virtue of any administrative action and as a matter of ordinary language and in the copyright act lexicon registration can refer to the copyright owner's effort to secure record ation of a claim and to the copyright offices record ation of the claim after examination well but as to that it seems to me one reason the case is a little confusing is that i think you're right registration could mean either but in a situation where you've got a registrar it seems to me that the most likely understanding of registration is what that person does but your honor that's not the way the statute uses the language and in section four eleven see the set for  eleven c expressly says the copyright owner makes registration and section four twelve to there's agreement that when it says registration is made it's referring to the action of a copyright owner in section four zero eight c it refers to registration has been made in a context that  that necessarily refers to the action of the copyright owner it says that registration may be made upon the filing of a single application and fee in section four or five refers to registration for the work has been made within five years which again strongly suggests that it's by the copyright owner in section four or five b again registration for the work has been made under section four away so there is no question i think you forgot the second sentence of four live in a which speaks of registration cannot mean when the applicant applies because if it talks about the applicant being able to take action when the registration has been refused or i would say when registration has not been made well your honor i i wouldn't say one registration has not been made as one registration has been refused and that and that language is important and i think it's important to stress that our position is that registration refers flexibly to both but that the phrase registration has been made consistently refers to the action of the copyright owner and it makes sense in section four eleven a itself and if you look at the parallelism in the structure it talks about registration having been made in accordance with the title and then it says if the required deposit fee and application i have been delivered so again the of the copyright owner but registration has been refused i e the registrar has taken an action that calls into question whether the registration has been made in accordance with the title the case can still proceed and so you just dismiss for ten not at all section four attendee provides that the effective date of registration is when the cop the application fee and deposit have been written received in a form that is acceptable for registration as later determined and this is key by the office or by a court so section four ten d i think strongly supports our position because it makes clear that in a case where there may be a doubt about it perhaps because the register has not yet acted if there's some question about whether registration has been made in accordance with the title the court can determine that question can also determine that question in a case when you've already said registration has been made into the terms of the registrar's action when the applicant applies not not and to be clear your honor registration has been made in the statute refers to the copyright owner's compliance with section four zero eight a which says that the haven't yet licensed you well your honor you change your sewer in the house with a man who has not gotten the approval from the local public health authority under a statute that says you have to have a register specifically but your honor the point here is that the text of the statute likewise makes clear that registration is made upon the submission of the materials and we gave the we gave the analogy to a college student who registers for a class one would say that he has made his registration as registered for the class but nevertheless the registrar might say the class is full you're not going to be admitted to it and now the registration has been refused and this court has repeatedly referred to the fact that a copyright owner makes registration in the case for the class when you mailed it in but the professor hasn't gotten it well your honor this in this statute it says that registration is  made if this is in section four ten d it answers the question it says when they've been received by the copyright office so the question about whether it's the mailbox rule or received by the copyright office is actually addressed in the statute but again the the term registration has that flexibility built into it and i think it's important to understand the context in which congress was acting when it adopted section four eleven in one hundred seventy six it was aware of the vasher on decision and it was aware of judge clark's dissent in which he made this very point which is that it doesn't make sense to read registration as requiring affirmative administrative action when the rights that exist the exclusive right does not depend it's not like the patent office it's not a situation in which the administrative body has the authority to grant exclusive rights and that the exclusive rights don't exist until there's that action could you tell it's a matter of fact when is the copyright registration published copyright under current under the current procedure the copyright application becomes publicly available registered because it's not public i just want to i want to address that as strongly as i can it's just not right the the right to exclude exists by virtue of the creation of an original work in its fixation in a medium f which it can be perceived that gives the author the right the copyright owner the right to exclude there's no question about that that has nothing to do with notice notice is not required under the current steps but it is one t registration is accepted under section getting your right because there's no end to the other thing that's that's important to understand and this is i think critical the government concedes that the enhanced statutory remedies that are available for infringement after a work has been registered are available if the registration the application deposit and fee have been submitted if the applicant has made registration that is enough to satisfy fo twelve two and they say that that's true because the effective date of registration is the date on which those section for oh a day when i want to go that's enough assuming that the registrar has registered the mark it's just a question of whether you go back to start counting the damages and again the registrar does not have to register the mark the not the mark with a copy we are not entitled to the special benefits under the act until the registrar right no it just goes back in terms of when you start calculating you may go back and no your honor section for you could go back to register hasn't even registered the market you can go into court and say hey i get the benefits of having registered my mark if it's the copyright claim yes you that's what section four ten d says section four ten d says the effective date of registration is the date on which the required application deposit and fee have been received in a form acceptable for registration maybe i'm just missing the point one of us if you have to at least had it registered accepted by the register otherwise how do you know that you're entitled to those benefits your honor because the question of register ability can be determined by a court and that litigation that's what section for ten d sats and again in the vast majority as a practical matter in the vast majority of cases registration is and is essentially a ministerial question of submission of the application deposit in fee think  about if you have a magazine article or a book or a piece of music you know a piece of sheet music that is being registered those things are submitted they are registered as a matter of course under the under current procedures it can take many months but it's going to be registered as a matter of course and again the right to exclude everybody agrees your honor that when those materials are submitted in a form acceptable for registration that is the effective date of registration even if the register acts year later and so precise that's just for ten d that says that and but everybody agrees that that's what for twelve to which refers to which preserves certain statutory remedies if registration is made within three months after publication that's everyone agrees that that's what for twelve to means as well it's clearly what section four eleven see which for what it's worth was adopted as section four eleven be immediately after four eleven and everybody agrees that a should say the respondent agrees with that the government agrees that that's what section four eleven c means and  o i do think that what that when you're thinking about what has to happen the copyright office is not the patent office it does not grant exclusive rights that don't exist before the copyright office the exclusive rights exist there is a requirement to register the copyright owner has to register before suing but there is no requirement and the statute doesn't say that the copyright office has to act first and there's no reason that it should it's a again the right to exclude in the statute is built around the fact that an author has fixed an expression in a tangible meeting and once they have submitted the required application deposit and fee under section four a way they have registered they have taken care of that procedural hurdle so that they can then bring their lawsuit and get relief now in many cases the copyright office may grant the registration while that is pending and but in any there is a question about that it can be dealt with as a practical matter that's almost never going to happen and that's very important to recognize is that if the court rules if the court affirms the eleventh circuit it will create major problems for copyright owners that's why the copyright community has unanimously come in to say that this  i understand some of the policy arguments that you have on your side but i mean the question is whether the taxed can can can be looked at that way and i just go back to where the chief justice started which is this passage in four eleven  and you have these two sentences in the first sentences registration has been made and the second sentence is registration has been refused and they're connected by a however so you know to me you have these two sentences there in total proximity they're both framed in the passive voice registration has been refused is clearly read distraction has been refused by the register not by the holder and so it  seems you know the only way to read this is that the registration has been made by the register to well your honor obviously we don't agree with that and let me try to say why i think again getting back to the textual evidence from the statu the issue is not granted or refused and the issue is whether registration is made by the copyright owner and this the text uses the phrase to mean that all the time including in the immediate succeeding well i kind of with you that the word register has some flexibility to it so you've got you've convinced me of that the question is whether it has flexibility to it in four eleven and a and given the juxtaposition between the first sentence and the second sentence the identical grammar the way they're connected with the however it would just seem extremely strange to change the person who's the subject of this action i don't think so your honor and them and bear with me if you look at the structure of the sounds the first sentence says if we're spread astray sion has been made in accordance with this title and as we've shown that phraseology the registration has been made construction is used all the time to refer to what the copyright owner does the next sentence says where the deposit application and the required for registration have been delivered again the action of the copyright owner so that is parallel to the beginning of that first sentence then the second the second piece of it says in accordance with the title and this one then says in the proper form and registration has been refused so this is distinguishing a situation where registration has been made and it it is are going to be granted because the register agreed but this is a situation in which the the registrar not withstanding the compliance with section four away day has refused it and that so so the the reference to the registration has been refused corresponds to the question of is is intended to clarify the question of what happens if there's a dispute because the register has had has refused the application refused to register the claim about whether it's in in cordons with this title and so and if you look at the  the language if you look at the context and if you think about what congress was attempting to was dealing with in terms of the litigation rights it makes no sense to read the first sentence as suggesting th congress wanted to recreate the very result that it sought to overrule invent from and when you alluded to major problems and then didn't describe them seems to me you're trying to create enough doubt about the statutory language  to suggest we shouldn't stick with the reading the justice kagan asked about and the doubt you're trying to so is created because you say make no sense of their b major problems what can you describe what those are sure  and i think that that make you speak to this is that the most significant problem is that when there is on when there is an infringement that begins and the rest of the claim has not yet been registered that we the copyright owner cannot bring any civil action including an action for injunctive relief until the copyright office has acted and under the under the view of the responding in the government until the copyright office has either granted or refused registration all right what happens in a case  where you do bring and i'm going to ask the government about the pre registration intent which permits permits and prevent destruction injunction what is a court to let's assume that the registration hasn't been the there's an injunctive suit before that does the court just automatically grant the injunction does it wait for the registration does it or are you talking about in a sick in a situation in which there you're really his given effect their reading is given effect copyright owner comes in and says i wanted an injunction the copyright office has enacted yet yes what is the court  judgment the court could certainly enter a judgment under section four ten d and what happens if the registrar refuses after the judgement is in well in any case in which there is in any civil suit the registrar will receive notice of the suit and the suit can be the you know the registrar could either expedite examination of the application or could  but judgment to center and the registrar be fuses it's sort of a moot question to be told that the suit has already started it isn't because of five within thirty days of the filing the suit i think it's very unlikely there would be a final judgment before that but the point is that under section five away to the statute your honor they have the register is entitle to be notified within thirty days but  the point is that i think that these are really questions that just going to rise as a practical matter if there were a situation in which there was genuinely a doubt about the register ability of the claim if the court wanted to do so the district court can manage the litigation to get the views of the register and you know there's something similar actually your honor in section four eleven b which talks about the the consequences of incorrect information in a certificate of registration if there is incorrect and information  or registration it doesn't matter if the litigation proceeds unless there is a claim that the registration would not have issued at all and then then the register may be called upon to give their views that happens approximately never happened in three cases out of thirty five hundred twenty seventeen registered never intervene in a case and twenty seventeen as far as we were able to determine in a copyright infringement action it's important to understand the practicalities of this this is not  suit this is not of what are the practical problems i think the message of your argument is if you really understood how this works in the real world we would agree with your reading it and you're saying proctor problems i want to hear the practical problems the practical problems are those that are described in our briefs and in the briefs of the hammock in one which are the most just one of the most severe practical problems the way i understand i think the most severe practical problem is the inability to receive prompt injunctive relief in a circumstance where the claim is not and that's a problem because to spell it out because the value of the copyright depends on the ability to exclude from in exclude the the unauthorized copying an authorized reproduction of the war in that period of delay what may happen in that that you're on i mean i've heard of delays without it could be distributed over the internet in the case of a song for example you know could be very widely distributed over the internet in the case of even an article and this is discussed in in some of the and some of the meekest briefs that within days the an article can be so widely disseminated that its value for the to never going to be sufficient to compensate for that and why it would that be well for many in many cases it may be impossible to identify who is who has done all of the subsequent subsequent distribution i mean  the point is that congress authorized injunctive remedies precisely because it may often be difficult to determine what the damages are and it does not it does not make sense once the copyright owner has complied with the registration obligation under section four a day to prevent that the copyright owner from pursuing the remedy everybody agrees on the how long are the delays now and how does that compare with what the delays were when this act was passed the my understanding is that for electronic submissions the average is seven months and for paper it's nine  can pay extra for first class right you can you can your honor you can pay extra to have some expedited consideration but first of all the copyright office is under no obligation to grant that second of all even in those circumstances it can take many weeks even months to resolve the application and that's enough time especially in you know under current circumstances for a work to be essentially rendered valueless because of its broad distribution rights and when the act was passed what would the delays than they appear to have been significantly shorter your honor i didn't see i couldn't determine exactly what they were in terms of of averages but they were they were significantly shorter i mean significantly short but still a matter of weeks and months i think a matter of weeks and in any event but there was there was some suggestion that at an earlier time it was it was quite  fast the washingtonian case which is back in the thirty's but i happen to notice that in that one application the case was was evidently filed after a certificate had been granted and that was two weeks after the application was submitted so it may be that you know but but what's interesting is in chief judge clark's dissent in vasher he does talk about the fact that delay could lead to the loss of substantive rights and that that doesn't make any sense i do think that congress was influenced by that dissent or i think it's make sense to read congresses and nachman as being consistent with the views expressed in that dissent which indicate that once the copyright owner has complied with the obligations under section four a day it does not make sense to provide the copyright owner from pursuing a remedy mistress thank you mr chief justice and may please the court section four eleven of the copyright act provides that no civil infringement suit shall be instituted into a registration has been made or registration has been refused the statutory text is plain the register of copyrights both make a registration determination before an applicant can sue for infringement and i'd like to start with the operative sentence of section fo eleven essay this is on page thirty eight of the petition appendix and that sentence prohibits suit quote until pre registration or registration of the copyright claim has been made in accordance with this title so the natural question is where in this title do we look the immediately preceding provision in the title happens to be called the registration of claim this is section fo shall register the claim and the be section says that if the register determines the criteria is not met quote the register shall refuse registration so  obvious that is the register who is acting well but i mean your friend on the other side makes the point and i think there's a lot to it that there are a lot of other sections in provisions where it only makes sense to read it register as if you were registering for you know for the draft or something so if a few responses mr chief justice the first is i'm happy to do a close reading of any of the provisions that my friend cites we don't actually think any of them stand for the proposition that an application alone is enough but even if some did section four eleven a is surely not one of them this is kind of the point you made earlier justice kagan we look to how it's used in a for eleven a i don't deny that the word registration make registration in some context could refer to something different but my friend's chorus core proposition in this case is that there is something special about the use of major or the or the just prior let me give a textural response and then a more fundamental one my textual response is that the effective date provision requires a determination by someone this is what the chief justice of mr chief justice i believe you were getting at earlier if you look at the text of four ten d it says after the register or a court of competent jurisdiction has determined that the criteria is satisfied then you get the effective date for eleven a justice prior is a precondition to suit no one disputes that and at the time of filing no one neither the registration but you see if you look at poor kid in the i guess in english if you ever grow to like property law registration you have it is the date on which all those things are received they are subject to later these and if in fact good roads are disapproves that's consistent with the language i think is it i don't think so so i'm going to continue with the text to a point but i do want to get to the more fundamental one the reason why i don't think it's consistent with the language is for eleven and a says that you can't do anything until registration is made now i understand you're trying to have for ten d do the work and i think probably the best phrase in that for my friend is the inclusion of a court of competent jurisdiction but it's clear that a court of competent jurisdiction is in there because the court can act when the register has refused the registration and in fact for those who have of the particular view of legislative history if you look at the house report it specifically says that it says that for ten d quote also recognizes the possibility that a court might later find the register wrong in refusing registrations so i think the tax doesn't it would do great violence to the tax to interpret it that way but just as for i want to make a more fundamental point because this addresses some of the policy issues kind of the elephant in the room the whole point of a registration decision whether it's a grant or refuse all we submit is a belief that there is a value to the registration process itself in some ways it's analogous to administrative exhaustion requirements that we find in a number of statutes so if you look at copyright specific one thirty percent of all copyright registration applications result in correspondence and this is essential because occasionally it's correspondence like in this case where you get a letter saying your check bounced please pay the money but far more often the correspondence is the  agency saying well we looked at your application we need you to change things we need you to limit your claim it's an interactive process and so my friend wants to focus entirely on the fact that most of the applications are ultimately granted i mean not just most ninety seven percent when it is so i think it's be maybe even more than that but i want to press before i get to that i want to press this point many of those applications are granted after changes have been made by the applicants because of the how will happen does that happen i don't know is this as a percentage but i can tell you not to diminish de minimus amount a significant number of times and so you may not like this policy but what i'm trying to do is not argue as a policy matter that i'm right i'm trying to explain why there is no you shouldn't have any heartburn holding that congress meant what it clearly said in the provision because one could certainly believe that it's more efficient or maybe the the bigger heartburn if we have any other policy here is that if i'm persuaded of one thing it's that congress pretty much assume that registration decisions would happen promptly what a statute and that there's at least some evidence that that that hope or expectation has not exactly materialized and i take that to be the underlying plea from the other side really what would you say to them so i would say a few things first i would say that to be perfectly frank this is largely a solution in search of a problem and i want to address the injunctive issue first and then and then come back to damages with regard to injunctions i don't think it's i don't think i can overstate the point that this argument has been made to congress repeatedly and congress has added two critical exceptions where the need for an ex parte t r o is most acute and i'm talking about the live broadcast exception in four eleven c and i'm talking about pre registration in four zero eight f and so in the minor run of cases where there is an issue with regard to needing an injunction quickly those address the problem solution undermines that solution your proposed reading means that the people who are pretty registry are not going to benefit of that until the registrar you just have to describe it and explain to the office why it falls within a category of works that have historically been infringed before first commercialization so if you're h b o and you have game of thrones and you're working on it and you know a lot people the people on the set the key grips they're going to have access to the materials you have a streamline application that you file with the office and all you have to do is explain that it fits within the regulatory definition you get pre registration you can sue immediately you can get an injunction and this is critical if you look at four o eight f three congress said you then must submit and applique haitian deposit and fee within three months of your first commercialization so it just goes to show that congress knew how to make clear that they wanted to peg something to an application now just to score his back to my solution in search of a problem so the  first answer is i think there are these two critical exceptions that deal with the problem quite well my second answer is that in the rare case and i think frankly it is rare where you would have the him an incentive reparable injury that would warrant a t r o and you don't fall within one of those exceptions you can apply for special handling and i understand that special handling it was not required it's something that the office has decided to offer but as a practical matter the reality is it is offer and the office does everything it can to resolve issues within five days and obviously you can ask my friend from the government about more detail about how it works but my understanding is that that they are under that and that particularly if you notify the government that there's litigation there's no reason to believe that you don't get a determination within a certain number of days so i really think it's not an issue and then i would conclude by saying to the extent that some hypothetical copyright plaintiff with a pending application can't get it for a dozen or so then one of those two things are core submission is that that's a cost t congress thought it was worth the benefits of the specific rule that they chose now with regard to damages just a few words on this the statute of limitations in section five zero seven b it's a three year rolling statute that runs from discovery of inference and i think it was justice kagan who asked a question about the processing times as of now according to the copyright office website the average processing time for all claims is seven  four percent of all applications right now are resolved within two to fifteen months so i think the most telling answer as a practical matter that i would give is that it's not surprising that the petitioner does not an and the argument i guess on the other side is that seven months doesn't mean that much if it's the first two weeks where all the damage is done because somebody puts it online and then everybody's you know has the benefit of it and it's very hard to go back and undo that so to responses so with regard to irreparable injury i think that's what injunctions are for and i feel like i dressed that a bit earlier with regard to damages and your point which i take that it's rolling and there are separate accruals and we're not just talking about whether you lose your entire claim but whether you lose some of the damages i making a much stronger point i'm saying petitioner doesn't cite a single case where some trunk of the damages fell outside of the three year window because the part of the applicant was waiting the well i don't know you know whether he cites a particular case or not but as a matter of logic it makes sense doesn't it i don't think so and it makes me kind of walk through why i don't think it makes sense so you have three years from discovery three years from all ok see that there's an infringement of three years to wait if you're not being dilatory you immediately file your application to three years you need if the average processing time is seven months and if ninety four percent of applications are being resolved within fifteen months on the on the outside you're talking about a tiny percentage of situations that even come close if you look at those they tend to be male applications which the office just discourages that involves correspondence where the if there's any way to get from fifteen months to three years it's overwhelmingly likely that it's because of dilatory behavior on the part of the applicant and let me give you a warrant for that the only case that we have ever seen where this has been an issue was found by the american bar association in the media to my friend who cites a twenty five year old case called create ghosts from the southern district of new york well the court described the problem as quote self induced because in fact the plaintiffs sat on his hands so i can't come here and tell you that there's never been a situation where this has been an issue but i think the fact that you know my friend and a host of miki haven't been been able to under earth one of them is probably strong indication that this is not that serious a problem you have a good argument on the tax to be asleep but you're also trying to say there's no real problem here solution search of a problem i'm just questioning that given the miki say things like the rule that here would have a devastating impact and cause severe hardship in the use of the industry representatives again you could win on the tax the idea that there's no seems a stretch to me and also justice kavanah let me address that head on i'm so i will concede that for decades there's been vigorous disagreement over whether and to what extent formalities should be removed from the copyright act and many stakeholders including several of petitioners a miki have long been dissatisfied they prefer right there's a problem so let me finish there are many people who subscribe to that view whether you characterize it as a problem is kind of a normative judgment there are also many people who subscribe to the alternative view we happen to be among them our i meet you happen to be among so i would resist the the characterization of your question and say that the there is not ambiguity in the statute but rather a profound dissatisfaction on the part of some stakeholders in the way we address that as we look at the text and we try and determine what it indicates congress decided and on this one i don't think just we have an ok argument on the text i think that it's overwhelmingly the case that you have to interpret it to mean a registration decision so going back to the text just for  moment i've only talked about the first sentence which i think only leave the subject them sort of sort at least but what do you say to the objection that it puts american copyright holders at a disadvantage because for international obligations so what justice courses what you just asked was that the core debate and it was a vigorous one in one thousand nine hundred eight when the house and the senate split in determining how to deal with burma one said ok we should get rid of the registration requirement entirely the other said no it's fine keep it the way it is they reached a compromise and they added the words us work so again i certainly don't want to suggest that the policy arguments for the alternative are terrible they could be defended many people in this room may think they're right but they're beside the point when the case is about what congress meant in enacting this particular statutory like you made an analogy to exhaustion of the ministry of remedies  just want to test the analogy is that really what's going on here is this resolving it going to eliminate the need for a suit so i think it's i use the word analogy on purpose it's not exactly the same but there are some code definitely definitely how i think there are striking similarities so the first is although as a percentage most claims ninety seven percent nine hundred ninety nine percent ultimately get registered last year there were eighteen thousand re and that doesn't take into account the tens of thousands of applications that were abandoned or withdrawn in the process so it may be a small percentage but there are still tens of thousands of instances where you would have different incentives in different conduct based upon the rule that you pick that's number one number two even for the claims that are granted you can sweep away the fact that there is interaction between the applicant and the office and so either you allow people to sue immediately or whether you require that they go through the examination process irrespective of the result clearly it's similar to an exhaustion regime and that you think that there's something beneficial about the process and then my final answer is i think perhaps the most important one which is the reason it's a loose analog for the reason why it's in the same ballpark is it may not be like for example where the point of the administrative process is to see if you can resolve this through the dispute before hand but it but it is similar in the sense that you believe that a completion of the process has value and i think the authors and educators because free does a great job of describing that requiring that people go through the process enhanced his copyright value it creates a public registry of correspond publicly available information about the correspondence it ensures that the claims that are being registered are the best claims possible it has the incentive that people act earlier and register claims or rather apply to register claims not just when there's an infringement but get works into the library of congress and into the registry because they think well i want to get ahead of the game and be in a position where i can vindicate my rights that's not exactly the same as and administrative exhaustion requirement before litigation but there it's certainly in the same zip code there's a number of i think very strong parallels so i guess the final thing that i would say is that i've only talked briefly about the first step but if you turn to the second sentence of section four eleven and i think it it really kind of seals the deal because that sentence is naturally read as an exception to the first and in order to avoid that reading my friend is forced to argue that exactly the same phrase registration has been means two completely different things in the first and the second set and kind of in the interest of of kind not burying the lead what i would say about this is that the problem if i could just finish your thought the problem with what my friend does infects many of his arguments which is he interprets the provision in a way that's not chief justice and may it please the court i'd like to pick up right where my friend left off on the second sentence of section four eleven a because i do think that that is really the key to this case and i think there are three pretty three textual cues in that sentence that show the registration has been made in the first sentence must be referring to the act of the register the first is the one we just talked about that uses the word registration i think it's actually a little bit stronger than what we've said it says registration has been refused and that obviously i talking about the final act of registration that's the only that's what has been refused in that scenario so it's pretty strange just think that the registration that word in the first sentence doesn't mean the same thing and the only person who can make registration in that sense is the register of copyrights the second thing to notice is that the second sentence says that when you refers to delivering to the copyright office your deposit application in fee and proper form you might recognize that's in it that's what my friend says registration has been made means in the first again pretty peculiar for congress to refer to the exact same conduct in two consecutive sentences and not use a phrase that even resembles each other and the third thing is what my friend says has already raised that the whole point of the second sen is to create an exception to the registration requirement in the first and you don't need an exception to the registration requirement when the register has refused registration if all you had to do was submit your application in proper form what the register does in errantly is the assumption in that sentence doesn't change that you've properly applied leave but i believe mr panners says that the function of the second sentence is to require an additional at that no to speak given to the register right and i think there are two problems with that reading aside from the fact it's just not the most natural one that the first is that i think what he said this morning is that you can the case can still proceed when after the register refuses registration but that's not what it says it says you're entitled to institute your suit so it is assumed that nothing happens until the register has acted that makes sense the other problem with the second sentence is that it undermines the third sentence of four eleven a which gives the register a right to intervene suit and where she has refused registration upon notice within sixty days and if a suit can be filed before the register it gets a chance to evaluate the application and come to a decision and then get notice of of this suit in the suit can get pretty far down the road before the register can intervene i think that undermines the scheme and is clearly not what congress intended the petitioner talks about points to obviously a bunch of different provisions in the act of the he says well registration has been made or some variant of that and these other provisions must mean the copyright owners actions we disagree but we don't think the court has to go that far i think it's clear and he agrees that it doesn't always mean that in the act section seven zero eight  refers to says that the fees you pay for an application have to cover the cost of the application including the issuance of a certificate if registration is made while the issue of a certificate is only issued if registration is made by the register in the constructor of notice provisions in section six or two of five and in four zero six i think those are also places where he disagrees but i don't think there's any reasonable reading of those provisions that where they can come to the conclusion that registration has been made there or a variant there of doesn't refer to the register of copyrights act and if i could maybe walk through why that is i think it's important to a five section to a five is about recording documents that relate to a copyrighted work so think about a transfer of ownership and it says you can record the document and once you do the world is on notice of the facts stated there in with two conditions the first is that document contain enough information such that a search in the copyright office records by registration number or by title reveals the document the second is that registration has been made and i think the the obvious implication there is that that too is going to create a public record of when of the working of the registration of the work and that's not true of an application and so it's true that the right attaches right away but as you were talking about before just the sort of thing or there are circumstances where notice is critically important this is one of them and petitioners reading would would make a has provision section four zero six is a similar one and what it says if there's an error in the notice on a copyrighted work so you know it says your circle c and then it says john well john's not the owner it turns out the jack is that says that doesn't invalidate your copyright but what it does do is provide you provide an infringer and this infringer with a complete defense to infringement if i thought if he went out and got a license from john the person who was named in that notice but critically you can't rely on that defense the innocent person injured defense doesn't work if registration had been made in the correct owner's name at the time of infringement again that makes no sense unless registration having been made creates a public record of the work and the proper owner so i think what that establishes that they didn't they cannot mean everywhere it shows up to refer to the act of the copyright owner and so it just points us right back to section four eleven  and the first two sentences which we think cannot be read any other way so use the term sure you make use of course weighty i think they're trying to say that there are it doesn't make sense in terms of a what congress would have been thinking or but as we discussed the relays the delays at the time of the time the suit was passed or the act was passed weren't so great so i think that sort of cuts against thinking that congress could have one of this as to the problems i think they're overstated let me start by saying that the copyright office also desires efficient and quick registration in the last three years covered office has sought and received appropriations to increase their examinations staff by about sixty percent as those people are trained and get into the into the what congress has done in response to those concerns that we've already talked about two of those things the pre registration registration regime which the delay is not the same for that all you're submitting is a preview description of the work you don't have to do the examination of the deposit cetera the second is the live broadcast the third hasn't been mentioned this morning and it's actually not mentioned the briefs so i think it's worth pointing out there are a lot of hypotheticals about what about this online proliferation of my work and what do i do well section five twelve of the copyright act discusses secondary liability for all my service providers and it provides immunity in certain circumstances one of those requirements is that you have a takedown regime such that if you think about you tube or something like this if comes to you and says there's an work on your site it's infringing my copyrights you have to take it down and that's not does not turn on whether the work is registered to god susan and so i think what we see what that shows is that congress is receptive to these to these dissatisfaction it weighed in multiple times at the same time trying to balance these concerns against the real benefits of registration and the real benefits of having the copyright office participate in this in this examination and then have the right to participate and provide their views to the court i understand your textual argument about the income group of the same phrase having two different meanings and for living but it's not that much more compelling than your friend's argument listing all the time all the other sections where  you're reading would require to mean different things as well so so again i know that we don't think that's actually true but i don't want to be in about what it looks like to about ten other provisions of the act i think it's enough to say that he admits that seven o eight uses it in that way  uses registration has been made to refer to the act of the copyright owner using the act of the register and now he says you shouldn't put any weight on that because it wasn't in the seventy six act but this court tries to make sense of a statutory scheme as a whole and then there's the constructive notice provisions that i tried to walk the court through where it just can't make sense there to refer to it and so we're back to saying well what makes sense for this provision and i think the because what makes sense for this provision for a host of reasons is that is that registration has been made in the first sentence didn't do this morning you know you can look at those decisions for yourselves and decide what the debate was but if you want to sort of get behind the text and figure out what congress was getting after i don't think you do a lot better than looking at the legislative record itself and i would point you first to the one nine hundred sixty one report by the copyright office to congress that addresses this very question and vacherie on and what should be done about it and what the copyright office said is that registration is important you should maintain that requirement with one modification you should address the situation in ba where after the copyright office the register has refused registration the corporate owner has to file two suits and damn a suit against they're registered to get to a service station and second your infringement action what you should do in that case is to combine those suits that's what the second and third sentence of four eleven a does then when you look at the first act introduced into the house one nine hundred sixty four written by the copyright office unsurprisingly adopts the recommendation when you look at the one nine hundred seventy six act it doesn't change by the way which we you mr chief justice i want to emphasize that our argument relies primarily on the text of section four eleven and the fact that it uses the phrase registration has been made and that in the act that phrase and that construction consistently refers to the action the copyright owner is revealing that in the legislative history which is included in the in the codification the act it says that a copyright owner who has not who has not registered his claim can have a valid cause of action against someone who has infringes copyright but he cannot enforce his rights in the courts until he has made registration that is and again in section four eleven b of the one hundred seventy six act now for eleven c the copyright owner makes registration it is a really consistent usage in the statute that when congress was referring to the action of the copyright owner it used that phrase the ology and i to you know section seven zero eight it as the government has acknowledged was adopted in one thousand nine hundred two has nothing to do with litigation rights and remedies and therefore really says nothing about how the provision should be properly construed  in section four eleven and the constructive notice provisions there is actually a constructive notice provision that talks about actual notice but the other constructive notice provisions quite sensibly protect the copyright owner if the copyright owner has done what the copyright owner is required to do to register the claim namely submit the required application application deposit and fee and recall that as  if the time of examination was quite short at the time of the adoption the act was unlikely to prejudice anyone because registration would would come through quickly and you know so it makes perfect sense that this in the same way that that is sufficient to protect the rights to protect the remedies available to the copyright owner that it is also appropriate to open the court the gates of the court house it's surprising to me that the government relies so heavily by the way on those constructive notice provisions because copyright publication with notice is no longer required under the act so this is all this is all an issue that would have gone away in one thousand nine hundred eight with regard to the notice but the key point is that it makes sense to protect copyright owners and to give them their rights and remedies and that's with the upon compliance with section four zero four zero a day the submission of the required application deposit and the and that's what the statute says that is what the text says and i think it's also important to read that in light of the history and the key issue that was debated between the majority opinion in the dissent in vash  on is whether the copyright owner should be prevented from gaining access to dish all remedies because the copyright office had not yet acted or granted the registration now it's true that in that case there had been a refusal and the question was whether or mandamus was required but the same consequences occur in the case of of copyright office in action if there is a circumstance where the copyright office does not act the question is can you go to court and it's inconceivable that congress would have said in the case of refuse all you can go to court you don't need to seek a judicial remedy but in the case of inaction you can't go to court and you have to somehow  to get a decision before going to court it makes all the sense in the world to understand that language to say what it clearly says within the phraseology of the act that if the copyright owner has made registration under section four a day that the copyright owner is then entitled to sue and the the conceit that congress intended to require administrative exhaustion or was concerned about copyright quality that is there's no basis for that in the text of the statute there's no basis for it in the history of the of of of what congress said what the committee report said about the act for what that's worth the key point is that the registration requirement has its purpose and that purpose is vindicated if the copyright owner has submitted the required application deposit and fee a section for a way that requires thank you counseled the case is submitted