The American Bar Association (ABA) [official website] filed an amicus brief [text, PDF] on Tuesday in a US Supreme Court [official website] copyright infringement case, arguing the the right to sue attaches at the time the US Copyright Office accepts the application, not when the office acts on the application.

The case addresses the divide among federal courts concerning whether to apply the “application approach” or the “certificate approach.” The ABA argues in favor of the application approach, saying the certificate approach denies access to the courts for relief permitted under Section 411 [text] of the Copyright Act and is inconsistent with the Act’s purpose.

In support of its claims, the ABA offered four reasons the federal courts should adopt the application approach: (1) it “better reflects the text of the Copyright Act;” (2) “the application approach is particularly important to copyright practitioners who submit copyright registrations and counsel clients on the meaning of the Copyright Office’s review;” (3) it “avoids the draconian impact that the certificate approach has on litigants as it permits the prompt filing of lawsuits to obtain urgent injunctive relief, while still ensuring that copyright holders register their works with the Copyright Office;” and (4) it reduces inequity that US copyright authors face compared to foreign authors “who are entirely exempt from Subsection 411(a)’s registration requirement to gain access to United States courts.”

Whether “registration of [a] copyright claim has been made” within the meaning of § 411(a) when the copyright holder delivers the required application, deposit, and fee to the Copyright Office, as the Fifth and Ninth Circuits have held, or only once the Copyright Office acts on that application, as the Tenth and, in the decision below, the Eleventh Circuit have held.

The US Courts of Appeals for the Fifth and Ninth Circuits have previously applied the application approach, whereas the courts below in the case, the Tenth and Eleventh Circuits, applied the certificate approach. Additional amicus briefs were filed on behalf of the International Trademark Association, the Copyright Alliance, Authors Guild, and other artists’ rights organizations.