SUPREME COURT

OF THE UNITED STATES

IN THE SUPREME COURT OF THE UNITED STATES

- - - - - - - - - - - - - - - - - -

FOURTH ESTATE PUBLIC )

BENEFIT CORPORATION, )

Petitioner, )

v. ) No. 17-571

WALL-STREET.COM, LLC, ET AL., )

Respondents. )

- - - - - - - - - - - - - - - - - -

Pages: 1 through 68

Place: Washington, D.C.

Date: January 8, 2019

HERITAGE REPORTING CORPORATION

Official Reporters
1220 L Street, N.W., Suite 206
Washington, D.C. 20005
(202) 628-4888
www.hrccourtreporters.com
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1 IN THE SUPREME COURT OF THE UNITED STATES

2 - - - - - - - - - - - - - - - - - -

3 FOURTH ESTATE PUBLIC )

4 BENEFIT CORPORATION, )

5 Petitioner, )

6 v. ) No. 17-571

7 WALL-STREET.COM, LLC, ET AL., )

8 Respondents. )

9 - - - - - - - - - - - - - - - - - -

10 Washington, D.C.

11 Tuesday, January 8, 2019

12

13 The above-entitled matter came on for

14 oral argument before the Supreme Court of the

15 United States at 11:15 a.m.

16

17 APPEARANCES:

18 AARON M. PANNER, ESQ., Washington, D.C.; on behalf

19 of the Petitioner.

20 PETER K. STRIS, ESQ., Los Angeles, California; on

21 behalf of the Respondents.

22 JONATHAN Y. ELLIS, Assistant to the Solicitor

23 General, Department of Justice, Washington, D.C.;

24 for the United States, as amicus curiae,

25 supporting the Respondents.

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1 C O N T E N T S

2 ORAL ARGUMENT OF: PAGE:

3 AARON M. PANNER, ESQ.

4 On behalf of the Petitioner 3

5 ORAL ARGUMENT OF:

6 PETER K. STRIS, ESQ.

7 On behalf of the Respondents 30

8 ORAL ARGUMENT OF:

9 JONATHAN Y. ELLIS, ESQ.

10 For the United States, as amicus

11 curiae, supporting the Respondents 51

12 REBUTTAL ARGUMENT OF:

13 AARON M. PANNER, ESQ.

14 On behalf of the Petitioner 63

15

16

17

18

19

20

21

22

23

24

25

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1 P R O C E E D I N G S

2 (11:15 a.m.)

3 CHIEF JUSTICE ROBERTS: We'll hear

4 argument next this morning in Case 17-571,

5 Fourth Estate Public Benefit Corporation versus

6 Wall-Street.com.

7 Mr. Panner.

8 ORAL ARGUMENT OF AARON M. PANNER

9 ON BEHALF OF THE PETITIONER

10 MR. PANNER: Mr. Chief Justice, may it

11 please the Court:

12 The Copyright Act provides strong

13 textual evidence that the phrase "registration

14 has been made" in Section 411(a) refers to the

15 copyright owner's compliance with the

16 registration requirement of Section 408(a).

17 That reading is confirmed by the

18 legislative history, the statute overruled

19 cases that made the Register a gatekeeper to

20 the courthouse, and the policy of the statute,

21 which grants exclusive rights upon fixation of

22 an original work, not by virtue of any

23 administrative action.

24 And as a matter of ordinary language,

25 and in the Copyright Act's lexicon,

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1 registration can refer to the copyright owner's

2 effort to secure recordation of a claim and to

3 the Copyright Office's recordation of the claim

4 after examination.

5 CHIEF JUSTICE ROBERTS: Well, but as

6 to that, it seems to me one reason the case is

7 a little confusing is that I think you're

8 right, registration could mean either. But, in

9 a situation where you've got a registrar, it

10 seems to me that the most likely understanding

11 of "registration" is what that person does.

12 MR. PANNER: But, Your Honor, that's

13 not the way the statute uses the language. And

14 in Section 411(c), the -- Section 411(c)

15 expressly says the copyright owner makes

16 registration. In Section 412(2), there's

17 agreement that when it says "registration is

18 made," it's referring to the action of the

19 copyright owner. In Section 408(c), it refers

20 to registration has been made in the context

21 that -- that necessarily refers to the action

22 of the copyright owner. It says that

23 registration may be made upon the filing of a

24 single application and fee. And Section 405(a)

25 refers to registration for the work has been

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1 made within five years, which again strongly

2 suggests that it's by the copyright owner. In

3 Section 405(b), again, registration for the

4 work has been made under Section 408.

5 So there's no question, I think --

6 CHIEF JUSTICE ROBERTS: Well, but you

7 forgot the second sentence of 411(a), which

8 speaks of registration cannot mean when the

9 applicant applies because it -- it talks about

10 the applicant being able to take action when

11 registration has been refused or, I would say,

12 when registration has not been made.

13 MR. PANNER: Well, Your Honor, I -- I

14 wouldn't say when registration has not been

15 made. It's when registration has been refused.

16 And that -- and that language is important.

17 And I think it's important to stress that our

18 position is that registration refers flexibly

19 to both but that the phrase "registration has

20 been made" consistently refers to the action of

21 the copyright owner, and it makes sense in

22 Section 411(a) itself.

23 And if you look at the parallelism in

24 the structure, it talks about registration

25 having been made in accordance with the title,

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1 and then it says if the required deposit fee

2 and application have been delivered, so, again,

3 the action of the copyright owner, but

4 registration has been refused, i.e., the

5 registrar has taken an action that calls into

6 question whether the registration has been made

7 in accordance with the title, the case can

8 still proceed.

9 And so --

10 CHIEF JUSTICE ROBERTS: So you just

11 dismiss 410(d) as superfluous?

12 MR. PANNER: Not at all.

13 Section 410(d) provides that the effective date

14 of registration is when the -- the application

15 fee and deposit have been received in a form

16 that is acceptable for registration as later

17 determined, and this is key, by the office or

18 by a court.

19 So Section 410(d), I think, strongly

20 supports our position because it makes clear

21 that in a case where there may be a doubt about

22 -- perhaps because the Register has not yet

23 acted, if there's some question about whether

24 registration has been made in accordance with

25 the title, the court can determine that

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1 question. It can also determine that question

2 in a case in which the --

3 CHIEF JUSTICE ROBERTS: But you've

4 already said registration has been made in the

5 terms of the registrar's action when the -- the

6 applicant applies.

7 MR. PANNER: Not -- not in -- to be

8 clear, Your Honor, "registration has been made"

9 in the statute refers to the copyright owner's

10 compliance with Section 408(a), which says that

11 registration may be obtained upon the

12 submission of the required application,

13 deposit, and fee.

14 JUSTICE BREYER: Do you drive without

15 a driver's license when yours has expired

16 because you wrote in to the registry of motor

17 vehicles but they haven't yet licensed you?

18 MR. PANNER: Well, Your Honor --

19 JUSTICE BREYER: Can you change your

20 sewer in the house with a man who has not

21 gotten the approval from the local public

22 health authority under a statute that says you

23 have to have a registered -- you have to have a

24 -- an approved plumber because he wrote in and

25 asked for one?

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1 I mean, I can't think of examples --

2 I'm trying to -- where -- where -- where

3 there's something roughly comparable and the

4 statute is interpreted the way you want. Maybe

5 you've been able to think of some, which you

6 probably have.

7 MR. PANNER: Well, I think that, Your

8 Honor, there's a couple of cases, there's a

9 couple of statutes that were cited in the

10 amicus brief of the music publishers that refer

11 to the fact that registration is upon the --

12 that registration is made when the -- the --

13 JUSTICE BREYER: They say that

14 specifically?

15 MR. PANNER: But, Your Honor, the

16 point here is that the text of the statute

17 likewise makes clear that registration is made

18 upon the submission of the materials. And we

19 gave the -- we gave the analogy to a -- a

20 college student who registers for a class. One

21 would say that he has made his registration,

22 he's registered for the class, but,

23 nevertheless, the registrar might say the class

24 is full, you're not going to be admitted to it,

25 and now the registration has been refused.

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1 And this Court has repeatedly referred

2 to the fact that a copyright owner makes

3 registration in the case --

4 JUSTICE BREYER: Have you registered

5 for the class when you've mailed it in, but the

6 professor hasn't gotten it?

7 MR. PANNER: Well, Your Honor, this --

8 in this statute, it says that registration is

9 made if -- and this is in Section 410(d). It

10 answers the question. It says when they've

11 been received by the Copyright Office. So the

12 question about whether it's the mailbox rule or

13 received by the Copyright Office is actually

14 addressed in the statute. But, again, the --

15 the term "registration" has that flexibility

16 built into it.

17 And I think it's important to

18 understand the context in which Congress was

19 acting when it adopted Section 411(a) in 1976.

20 It was aware of the Vacheron decision, and it

21 was aware of Chief Judge Clark's dissent in

22 which he made this very point, which is that it

23 doesn't make sense to read "registration" as

24 requiring affirmative administrative action

25 when the rights that exist, the exclusive right

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1 does not depend -- it's not like the Patent

2 Office. It's not a situation in which the

3 administrative body has the authority to grant

4 exclusive rights and that the exclusive rights

5 don't exist until there's that action.

6 JUSTICE SOTOMAYOR: Could you tell me

7 as a matter of fact when is the copyright

8 registration published?

9 MR. PANNER: The copyright, under

10 current -- under the current procedure, the

11 copyright application becomes publicly

12 available when it's -- after it's granted.

13 JUSTICE SOTOMAYOR: And so it seems

14 illogical to think that you're going to get

15 rights against the third-party who's not on

16 notice that your copyright has been registered

17 because it's not public.

18 MR. PANNER: Right. I just want to --

19 JUSTICE SOTOMAYOR: There's --

20 MR. PANNER: I want to address that as

21 strongly as I can. It's just not right. The

22 -- the right to exclude exists by virtue of the

23 creation of an original work and its fixation

24 in a medium from which it can be perceived.

25 That gives the author the right, the copyright

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1 owner the right to exclude. There's no

2 question about that. That has nothing to do

3 with notice. Notice is not required under the

4 current statute.

5 JUSTICE SOTOMAYOR: But it is in terms

6 of -- well, that begs the question.

7 MR. PANNER: And on --

8 JUSTICE SOTOMAYOR: But you can't --

9 you -- you --

10 MR. PANNER: If I may.

11 JUSTICE SOTOMAYOR: -- you can't

12 pursue a suit unless the registration is

13 accepted?

14 MR. PANNER: But -- no. No, Your

15 Honor. Section 4 -- in fact, there's no

16 question that you can pursue suit, whether or

17 not the registration is accepted. Under

18 Section 4 --

19 JUSTICE SOTOMAYOR: Yes, you're right.

20 MR. PANNER: Okay. So --

21 JUSTICE SOTOMAYOR: Because the --

22 MR. PANNER: And the other thing

23 that's -- that's important to understand, and

24 this is, I think, critical, the government

25 concedes that the enhanced statutory remedies

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1 that are available for infringement after a

2 work has been registered are available if the

3 registration, the application, deposit, and fee

4 have been submitted. If the applicant has made

5 registration, that is enough to satisfy 412(2).

6 And they say that that's true because

7 the effective date of registration is the date

8 on which those -- Section 408(a) has been

9 complied with.

10 CHIEF JUSTICE ROBERTS: Well, that's

11 enough assuming that the registrar has

12 registered the mark. It's just a question of

13 whether you go back to start counting the

14 damages.

15 MR. PANNER: Again, the registrar does

16 not have to register the mark. The -- the --

17 not the mark, the copyright.

18 CHIEF JUSTICE ROBERTS: Well, you're

19 not entitled to the special benefits under the

20 Act until the registrar has, right?

21 MR. PANNER: No.

22 CHIEF JUSTICE ROBERTS: It just -- it

23 goes back in terms of when you start

24 calculating it, it may go back.

25 MR. PANNER: No, Your Honor. Section

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1 410 --

2 CHIEF JUSTICE ROBERTS: So you could

3 go back, the registrar hasn't even registered

4 the mark, and you can go into court and say,

5 hey, I get the benefits of having registered my

6 mark?

7 MR. PANNER: The copyright claim, yes,

8 Your Honor. That's what Section 410(d) says.

9 Section 410(d) says the effective date of

10 registration is the date on which the required

11 application, deposit, and fee have been

12 received in a form acceptable for registration.

13 CHIEF JUSTICE ROBERTS: Yeah, but

14 maybe I'm just missing the point, or one of us.

15 I mean, you have to at least had it registered,

16 accepted by the registrar. Otherwise, how do

17 you know that you're entitled to those

18 benefits?

19 MR. PANNER: Your Honor, because the

20 question of registrability can be determined by

21 a court in that litigation. That's what

22 Section 410(d) says.

23 And, again, in the vast majority, as a

24 practical matter, in the vast majority of

25 cases, registration is -- is essentially a

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1 ministerial question of submission of the

2 application, deposit, and fee.

3 Think about if you have a magazine

4 article or a book or a piece of music, you

5 know, a piece of sheet music that is being

6 registered. Those things are submitted. They

7 are registered as a matter of course.

8 Under the -- under current procedures,

9 it can take many months, but it's going to be

10 registered as a matter of course. And, again,

11 the right to exclude -- everybody agrees, Your

12 Honor, that when those materials are submitted

13 in a form acceptable for registration, that is

14 the effective date of registration, even if the

15 registrar acts a year later.

16 And so precisely --

17 CHIEF JUSTICE ROBERTS: Well, that's

18 just 410(d) that says that?

19 MR. PANNER: And -- but everybody

20 agrees that that's what 412(2), which refers to

21 -- which preserves certain statutory remedies,

22 if registration is made within three months

23 after publication, that's -- everyone agrees

24 that that's what 412(2) means as well. It's

25 clearly what Section 411(c), which, for what

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1 it's worth, was adopted as Section 411(b)

2 immediately after 411(a), everybody agrees that

3 -- I -- I shouldn't say the Respondent agrees

4 with that.

5 The government agrees that that's what

6 Section 411(c) means. And so I do think that

7 what -- that when you're thinking about what

8 has to happen, the Copyright Office is not the

9 Patent Office. It does not grant exclusive

10 rights that don't exist before the Copyright

11 Office acts.

12 The exclusive rights exist. There is

13 a requirement to register. The copyright owner

14 has to register before suing. But there's no

15 requirement, and the statute doesn't say, that

16 the Copyright Office has to act first.

17 And there's no reason that it should.

18 It's -- again, the right to exclude in the

19 statute is built around the fact that an author

20 has fixed an expression in a tangible medium.

21 And once they have submitted the

22 required application, deposit, and fee under

23 Section 408(a), they have registered. They

24 have taken care of that procedural hurdle so

25 that they can then bring their lawsuit and get

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1 relief.

2 Now, in many cases, the Copyright

3 Office may grant the registration while that is

4 pending, and -- but, in any event, if there's a

5 question about that, it can be dealt with.

6 As a practical matter, that's almost

7 never going to happen, and that's very

8 important to recognize, is that if the Court

9 rules -- if the Court affirms the Eleventh

10 Circuit, it will create major problems for

11 copyright owners. That's why the copyright

12 community has unanimously come in to say that

13 this Court should --

14 JUSTICE KAVANAUGH: Mr. Panner,

15 describe --

16 JUSTICE KAGAN: Mr. Panner, I -- I --

17 I understand some of the policy arguments that

18 you have on your side, but, I mean, the

19 question is whether the text can -- can -- can

20 be looked at that way.

21 And I'll just go back to where the

22 Chief Justice started, which is this passage in

23 411(a). And you have these two sentences, and

24 the first sentence is registration has been

25 made, and the second sentence is registration

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1 has been refused. And they're connected by a

2 "however."

3 So, you know, to me, you have these

4 two sentences, they're in total proximity.

5 They're both framed in the passive voice.

6 "Registration has been refused" is clearly

7 registration has been refused by the Register,

8 not by the holder.

9 And so it seems, you know, the only

10 way to read this is that the "registration has

11 been made" is by the Register too.

12 MR. PANNER: Well, Your Honor,

13 obviously, we don't agree with that. And --

14 and let me try to say why I think, again,

15 getting back to the textual evidence from the

16 statute, the -- the issue is not granted or

17 refused, and -- the issue is whether

18 registration is made by the copyright owner.

19 And the -- the text uses the phrase to

20 mean that all the time, including in the

21 immediate succeeding --

22 JUSTICE KAGAN: Well -- well, I'm kind

23 of with you that the word "register" has some

24 flexibility to it. So you've got -- you've

25 convinced me of that.

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1 The question is whether it has

2 flexibility to it in 411(a). And -- and given

3 the juxtaposition between the first sentence

4 and the second sentence, the identical grammar,

5 the way they're connected with the "however,"

6 it would just seem extremely strange to change

7 the person who's the subject of this action.

8 MR. PANNER: I -- I -- I don't think

9 so, Your Honor. And -- and -- and let me --

10 and bear with me. If you look at the structure

11 of the sentence, the first sentence says if --

12 registration has been made in accordance with

13 this title.

14 And as we've shown, that phraseology,

15 the "registration has been made" construction

16 is used all the time to refer to what the

17 copyright owner does.

18 The next sentence says: "Where the

19 deposit, application, and fee required for

20 registration have been delivered." Again, the

21 action of the copyright owner. So that is

22 parallel to the beginning of that first

23 sentence.

24 Then the second -- the second piece of

25 it says "in accordance with the title." And

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1 this one then says "in the proper form and

2 registration has been refused." So this is

3 distinguishing a situation where registration

4 has been made and it is or going to be granted

5 because the register agreed.

6 But this is a situation in which the

7 -- the registrar, notwithstanding the

8 compliance with Section 408(a), has refused it.

9 And that -- so -- so the -- the

10 reference to the registration has been refused

11 corresponds to the question -- is intended to

12 clarify the question of what happens if there's

13 a dispute because the Register has -- has --

14 has refused the application, refused to

15 register the claim, about whether it's in

16 accordance with this title.

17 And so -- and if you look at the --

18 the -- the language, if you look at the

19 context, and if you think about what Congress

20 was attempting to -- was dealing with in terms

21 of the litigation rights, it makes no sense to

22 read the first sentence as suggesting that

23 Congress wanted to recreate the very result

24 that it sought to overrule in Vacheron.

25 JUSTICE KAVANAUGH: And you -- you

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1 alluded to major problems and then didn't

2 describe them. It seems to me you're trying to

3 create enough doubt about the statutory

4 language to suggest we shouldn't stick with the

5 reading that Justice Kagan asked about, and the

6 doubt you're trying to sow is created because

7 you say it would make no sense and there would

8 be major problems.

9 What -- can you describe what those

10 are?

11 MR. PANNER: Sure. And I think that

12 the amici speak to this, is that the -- the

13 most significant problem is that when there is

14 -- when there is infringement that begins and

15 the claim has not yet been registered, that the

16 copyright owner cannot bring any civil action,

17 including an action for injunctive relief,

18 until the Copyright Office has acted, and under

19 the -- under the view of the Respondent and the

20 government, until the Copyright Office has

21 either granted or refused registration.

22 JUSTICE SOTOMAYOR: All right. What

23 happens in a case where you do bring -- and I'm

24 going to ask the government about the

25 pre-registration intent which permits a --

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1 permits a pre-registration injunction.

2 What does a court do? Let's assume

3 that the registration hasn't been made.

4 There's an injunctive suit before that. Does

5 the court just automatically grant the

6 injunction? Does it wait for the registration?

7 Does it have a hearing on who's right about the

8 copyright? What -- what occurs?

9 MR. PANNER: In a --

10 JUSTICE SOTOMAYOR: And what would

11 happen if the court grants the injunction and

12 the registrar refuses registration?

13 MR. PANNER: Well, Your Honor, are --

14 are you talking about in a -- in a situation in

15 which there --

16 JUSTICE SOTOMAYOR: Your reading is

17 given effect. Your reading is given effect.

18 The copyright owner comes in and says, I want

19 an injunction. The Copyright Office hasn't

20 acted yet.

21 MR. PANNER: Yes. Well --

22 JUSTICE SOTOMAYOR: What does the

23 court do?

24 MR. PANNER: The -- as in any other

25 civil action, the -- the plaintiff would have

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1 the obligation to provide prima facie evidence

2 to carry the burden to show that they --

3 they're entitled to relief. That would include

4 showing at the preliminary -- you know, at the

5 TRO or preliminary injunction stage, that they

6 have complied with Section 408(a) and thus

7 that --

8 JUSTICE SOTOMAYOR: Let's assume they

9 have.

10 MR. PANNER: Well, then --

11 JUSTICE SOTOMAYOR: What do they do

12 about the registrar not acting? Can final

13 judgment be entered before the registrar acts?

14 MR. PANNER: Certainly. Section

15 410(d) provides for that. It says that the --

16 and, you know, it would depend on the context,

17 but, yes, in a circumstance in which there --

18 we're not talking about anymore a preliminary

19 injunction but some final judgment, the court

20 could certainly enter a judgment under

21 Section 410(d).

22 JUSTICE SOTOMAYOR: And what happens

23 if the registrar refuses after the judgment is

24 entered?

25 MR. PANNER: Well, in any case in

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1 which there's a -- in any civil suit, the

2 registrar will receive notice of the suit, and

3 the suit can be -- the -- you know, the -- the

4 registrar could either expedite examination of

5 the application or could potentially --

6 JUSTICE SOTOMAYOR: But, eventually,

7 if -- if --

8 MR. PANNER: But --

9 JUSTICE SOTOMAYOR: -- judgment is

10 entered --

11 MR. PANNER: Yeah.

12 JUSTICE SOTOMAYOR: -- and the

13 registrar refuses, it's sort of a moot question

14 to be told that the suit has already started,

15 isn't it?

16 MR. PANNER: Well --

17 JUSTICE SOTOMAYOR: Because 411 --

18 MR. PANNER: -- again, they have to be

19 notified within 30 days of the filing of the

20 suit. I think it's very unlikely there would

21 be a final judgment before that. But the point

22 is that, under Section 508 of the statute, Your

23 Honor, they -- the -- the Register is entitled

24 to be notified within 30 days.

25 But the point is that I think that

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1 these are really questions that just don't

2 arise as a practical matter. If there were a

3 situation in which there was genuinely a doubt

4 about the registrability of the claim, if the

5 court wanted to do so, the district court can

6 manage the litigation to get the views of the

7 Register.

8 And, you know, there's something

9 similar actually, Your Honor, in Section

10 411(b), which talks about the -- the

11 consequences of false -- incorrect information

12 in a certificate of registration. If there's

13 incorrect information in a certificate of

14 registration, it doesn't matter. The

15 litigation proceeds, unless there's a claim

16 that the registration would not have issued at

17 all. And then -- then the Register may be

18 called upon to give their views.

19 That happens approximately never. It

20 happened in three cases out of 3500 in 2017.

21 The Register never intervened in a case in

22 2017, as far as we were able to determine, in a

23 copyright infringement action.

24 It's important to understand the

25 practicalities of this. This is not patent

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1 litigation. This is not a suit -- this is not

2 a case --

3 JUSTICE KAVANAUGH: What are the

4 practical problems? I think the message of

5 your argument is, if you really understood how

6 this works in the real world, we would agree

7 with your reading. And -- and you're saying

8 practical problems. I want to hear the

9 practical problems.

10 MR. PANNER: And -- and the practical

11 problems are those that are described in our

12 briefs and in the briefs of the amici, which

13 are the major problems --

14 JUSTICE KAVANAUGH: And what are the

15 -- what are the most -- what are the most

16 severe practical problems? Delay, I

17 understand.

18 MR. PANNER: I think the most severe

19 practical problem is the inability to receive

20 prompt injunctive relief --

21 JUSTICE KAVANAUGH: Okay.

22 MR. PANNER: -- in a circumstance

23 where the claim has not yet --

24 JUSTICE KAVANAUGH: That's a problem

25 because? Just spell it out.

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1 MR. PANNER: Sure. Because the value

2 of the copyright depends on the ability to

3 exclude from -- exclude the -- the unauthorized

4 copying, unauthorized reproduction of the work.

5 JUSTICE KAVANAUGH: And in that period

6 of delay, what may happen?

7 MR. PANNER: In -- in that period --

8 thank you, Your Honor. In that period of

9 delay --

10 JUSTICE KAVANAUGH: I mean, just --

11 just spell it out.

12 MR. PANNER: -- it could be -- it

13 could be distributed over the Internet. In the

14 case of a song, for example, you know, it could

15 be very widely distributed over the Internet.

16 In the case of even an article, and this is

17 discussed in -- in some of the -- in some of

18 the amicus briefs, that within days, the -- an

19 article can be so widely disseminated that its

20 value for the author has been lost.

21 CHIEF JUSTICE ROBERTS: Now did you

22 get --

23 JUSTICE KAGAN: And are damages never

24 going to be sufficient to compensate for that?

25 And why would that be?

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1 MR. PANNER: Well, for many -- in many

2 cases, it may be impossible to identify who has

3 -- who has done all of the subsequent --

4 subsequent distribution. I mean, the -- the

5 point is that Congress authorized injunctive

6 remedies precisely because it may often be

7 difficult to determine what the damages are.

8 And it does not -- it does not make

9 sense, once the copyright owner has complied

10 with the registration obligation under

11 Section 408(a), to prevent that -- the

12 copyright owner from pursuing the remedy.

13 Everybody agrees with the --

14 JUSTICE KAGAN: How -- how long -- how

15 long are the delays now? And how does that

16 compare with what the delays were when this Act

17 was passed?

18 MR. PANNER: The -- my understanding

19 is that, for electronic submissions, the

20 average is seven months, and for paper, it's

21 nine.

22 CHIEF JUSTICE ROBERTS: But you can --

23 you can pay extra for first class, right?

24 MR. PANNER: You can -- you can, Your

25 Honor. You can pay extra to have expedited

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1 consideration, but, first of all, the Copyright

2 Office is under no obligation to grant that.

3 Second of all, even in those circumstances, it

4 can take many weeks, even months, to resolve

5 the application. And that's enough time,

6 especially in -- you know, under current

7 circumstances for a work to be essentially

8 rendered valueless because of its broad

9 distribution.

10 JUSTICE GORSUCH: Counsel --

11 JUSTICE KAGAN: And when -- when the

12 Act was passed, what were the delays then?

13 MR. PANNER: They appear to have been

14 significantly shorter, Your Honor. I didn't

15 see -- I couldn't determine exactly what they

16 were in terms of -- of averages, but they were

17 -- they were significantly shorter.

18 JUSTICE KAGAN: Yeah, I mean,

19 significantly shorter but still a matter of

20 weeks and months?

21 MR. PANNER: I think a matter of weeks

22 in -- in any event. But there was -- there was

23 some suggestion that at an earlier time it was

24 -- it was quite fast. The Washingtonian case,

25 which is back in the '30s, but I happened to

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1 notice that in that one, the application -- the

2 case was -- was evidently filed after a

3 certificate had been granted, and that was two

4 weeks after the application was submitted.

5 So it may be that -- you know, but --

6 but what's interesting is, in Chief Judge

7 Clark's dissent in Vacheron, he does talk about

8 the fact that delay could lead to the loss of

9 substantive rights and that that doesn't make

10 any sense.

11 I do think that Congress was

12 influenced by that dissent or I think it's --

13 it makes sense to read Congress's enactment as

14 being consistent with the views expressed in

15 that dissent, which indicate that once the

16 copyright owner has complied with the

17 obligations under Section 408(a), it does not

18 make sense to prevent the copyright owner from

19 pursuing a remedy.

20 May I reserve the remainder of my

21 time?

22 CHIEF JUSTICE ROBERTS: Thank you,

23 counsel.

24 Mr. Stris.

25

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1 ORAL ARGUMENT OF PETER K. STRIS

2 ON BEHALF OF THE RESPONDENTS

3 MR. STRIS: Thank you, Mr. Chief

4 Justice, and may it please the Court:

5 Section 411 of the Copyright Act

6 provides that no civil infringement suit shall

7 be instituted until registration has been made

8 or registration has been refused.

9 The statutory text is plain. The

10 Register of Copyrights must make a registration

11 determination before an applicant can sue for

12 infringement.

13 And I'd like to start with the

14 operative sentence of Section 411(a). This is

15 on page 30a of the petition appendix. And that

16 sentence prohibits suit "until pre-

17 registration or registration of the copyright

18 claim has been made in accordance with this

19 title."

20 So the natural question is, where in

21 this title do we look? The immediately

22 preceding provision in the title happens to be

23 called Registration of Claim. This is

24 Section 410. It's on page 29a of the petition

25 appendix.

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1 The (a) subsection says that after the

2 Register examines the claim, if the criteria is

3 met, "the register shall register the claim."

4 And the (b) section says that if the Register

5 determines the criteria is not met, "the

6 register shall refuse registration."

7 So, in either case, it's patently

8 obvious that it is the Register who is acting.

9 CHIEF JUSTICE ROBERTS: Well, but, I

10 mean, your friend on the other side makes the

11 point -- and I think there's a lot to it --

12 that there are a lot of other sections and

13 provisions where it only makes sense to read

14 "register" as if you were registering for, you

15 know, for the draft or something.

16 MR. STRIS: So a few responses, Mr.

17 Chief Justice.

18 The first is I'm happy to do a close

19 reading of any of the provisions that my friend

20 cites. We don't actually think any of them

21 stand for the proposition that an application

22 alone is enough. But even if some did,

23 Section 411(a) is surely not one of them. This

24 is kind of the -- the point you made earlier,

25 Justice Kagan. We -- we look to how it's used

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1 in 411(a).

2 I don't deny that the word

3 "registration," "make registration," in some

4 context could refer to something different, but

5 my friend's core -- core proposition in this

6 case is that there's something special about

7 the use of "made" or the -- or the passive

8 construct. And that's fundamentally what we

9 disagree with.

10 JUSTICE BREYER: What about 410(d)?

11 In 410(d), it says the effective date of a

12 copyright registration is the day on which an

13 application, deposit, and fee, which are later

14 determined to be registered, have all been

15 received by the Copyright Office.

16 So maybe the registration is when it's

17 received, if there's later approval.

18 MR. STRIS: So, Justice Breyer, let me

19 give a textual response and then a more

20 fundamental one.

21 My textual response is that the

22 effective date provision requires a

23 determination by someone. This is what the

24 Chief Justice -- Mr. Chief Justice, I believe

25 you were getting at earlier.

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1 If you look at the text of 410(d), it

2 says after the Register or a court of competent

3 jurisdiction has determined that the criteria

4 is satisfied, then you get the effective date.

5 411(a), Justice Breyer, is a precondition to

6 suit. No one disputes that.

7 And at the time of filing, no one,

8 neither the --

9 JUSTICE BREYER: It says registration.

10 But, you see, if you look at 410(d), I guess in

11 English, if you ever read like property law,

12 there's such a thing as having a piece of

13 property subject to defeasance.

14 And so noting that, and it is a piece

15 of property, you could read 410(d) as saying

16 the effective date of copyright registration,

17 i.e., you have it, is the date on which all

18 those things are received, though they are

19 subject to later defeasance if, in fact, the

20 registrar disapproves.

21 Okay. That's consistent with the

22 language, I think. Is it?

23 MR. STRIS: I don't think so. So I'm

24 going to continue with the textual point, but I

25 -- and I do want to get to the more fundamental

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1 one. The reason why I don't think it's

2 consistent with the language is 411(a) says

3 that you can't do anything until registration

4 is made.

5 Now I understand you're trying to have

6 410(d) do the work, and I think probably the

7 best phrase in that for my friend is the

8 inclusion of a court of competent jurisdiction.

9 But it's clear that a court of competent

10 jurisdiction is in there because the court can

11 act when the Register has refused the

12 registration.

13 And, in fact, for those who have a

14 particular view of legislative history, if you

15 look at the House Report, it specifically says

16 that. It says that 410(d) "also recognizes the

17 possibility that a court might later find the

18 Register wrong in refusing registration."

19 So I think the text doesn't -- it

20 would do great violence to the text to

21 interpret it that way. But, Justice Breyer, I

22 want to make the more fundamental point because

23 this addresses some of the policy issues, kind

24 of the elephant in the room.

25 The whole point of a registration

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1 decision, whether it's a grant or a refusal, we

2 submit, is a belief that there is value to the

3 registration process itself.

4 In some ways, it's analogous to

5 administrative exhaustion requirements that we

6 find in a number of statutes. So, if you look

7 at copyrights specifically, 30 percent of all

8 copyright registration applications result in

9 correspondence.

10 And this is essential because,

11 occasionally, it's correspondence like in this

12 case where you get a letter saying your check

13 bounced, please pay the money. But far more

14 often, the correspondence is the -- the agency

15 saying, well, we looked at your application, we

16 need you to change things. We need you to

17 limit your claim. It's an interactive process.

18 And so my friend wants to focus

19 entirely on the fact that most of the

20 applications are ultimately granted.

21 JUSTICE KAGAN: I mean, not just most.

22 Ninety-seven percent, right?

23 MR. STRIS: Well, so I think it may be

24 even more than that. But I want to press --

25 before I get to that, I want to press this

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1 point. Many of those applications are granted

2 after changes have been made by the applicants

3 because of the interact --

4 JUSTICE KAGAN: How often does that

5 happen?

6 MR. STRIS: I don't know as -- as a

7 percentage, but I can tell you not a de minimis

8 -- de minimis amount, a significant number of

9 times. And so you may not like this policy,

10 but what I'm trying to do is not argue as a

11 policy matter that I'm right.

12 I'm trying to explain why there's no

13 -- you shouldn't have any heartburn holding

14 that Congress meant what it clearly said in the

15 provision because one could certainly believe

16 that it's more efficient.

17 JUSTICE GORSUCH: Well, maybe the

18 bigger heartburn, if we have any, about the

19 policy here is that if I'm persuaded of one

20 thing, it's that Congress pretty much assumed

21 that registration decisions would happen

22 promptly when it enacted the statute and that

23 there's at least some evidence that that --

24 that that hope or expectation has not exactly

25 materialized.

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1 And -- and I take that to be the

2 underlying plea from the other side really.

3 What do you say to that?

4 MR. STRIS: So I would say a few

5 things.

6 First, I would say that, to be

7 perfectly frank, this is largely a solution in

8 search of a problem. And I want to address the

9 injunctive issue first and then -- and then

10 come back to damages.

11 With regard to injunctions, I don't

12 think it's -- I don't think I can overstate the

13 point that this argument has been made to

14 Congress repeatedly, and Congress has added two

15 critical exceptions where the need for an ex

16 parte TRO is most acute. And I'm talking about

17 the live broadcast exception in 411(c), and I'm

18 talking about pre-registration in 408(f).

19 And so, in the mine-run of cases where

20 there's an issue with regard to needing an

21 injunction quickly, those address the problem.

22 It --

23 JUSTICE SOTOMAYOR: But your solution

24 undermines that solution? Your -- your

25 proposed reading means that the people who are

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1 pre-registering are not getting the benefit of

2 it until the registrar acts.

3 MR. STRIS: No, no, that's -- Justice

4 Sotomayor, that's -- Sotomayor, that's a very

5 important point. If you look at 411(a), it

6 says you can't --

7 JUSTICE SOTOMAYOR: All right. I am.

8 MR. STRIS: Yeah. It says you can't

9 bring suit until pre-registration or

10 registration of the claim has been made.

11 JUSTICE SOTOMAYOR: All right. But

12 the pre-registration has to be accepted, no?

13 MR. STRIS: Of course. And the way

14 pre-registration --

15 JUSTICE SOTOMAYOR: And so isn't

16 pre-registration being accepted slowly as well?

17 MR. STRIS: No. No, no, no.

18 Pre-registration is an entirely different

19 process. You -- you can pre-register a work

20 that isn't even finished. You don't have to

21 deposit the work. You just have to describe it

22 and explain to the office why it falls within a

23 category of works that have historically been

24 infringed before first commercialization.

25 So, if you're HBO and you have Games

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1 of Thrones and you're working on it and you

2 know a lot of people, the -- the -- the people

3 on the set, the key grips, they're going to

4 have access to the materials, you have a

5 streamlined application that you file with the

6 office, and all you have to do is explain that

7 it fits within the regulatory definition. You

8 get pre-registration.

9 You can sue immediately. You can get

10 an injunction. And this is critical. If you

11 look at 408(f)(3), Congress said you then must

12 submit an application, deposit, and fee within

13 three months of your first commercialization.

14 So it just goes to show that Congress

15 knew how to make clear that they wanted to peg

16 something to an application.

17 Now, Justice Gorsuch, back to my

18 solution in search of a problem.

19 So the first answer is I think there

20 are these two critical exceptions that deal

21 with the problem quite well.

22 My second answer is that in the rare

23 case -- and I think, frankly, it is rare --

24 where you would have the imminence and

25 irreparable injury that would warrant a TRO,

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1 and you don't fall within one of those

2 exceptions, you can apply for special handling.

3 And I understand that special handling

4 was not required. It's something that the

5 office decided to offer. But, as a practical

6 matter, the reality is it is offered, and the

7 office does everything it can to resolve issues

8 within five days.

9 And, obviously, you can ask my -- my

10 -- my friend from the government about more

11 detail about how it works, but my understanding

12 is that they honor that and that particularly,

13 if you notify the government that there's

14 litigation, there's no reason to believe that

15 you don't get a determination within a certain

16 number of days.

17 So I -- I really think it's not an

18 issue. And then I would conclude by saying to

19 the extent that some hypothetical copyright

20 plaintiff with a pending application can't get

21 a TRO for -- like it doesn't fit within one of

22 those two things -- our core submission is that

23 that's a cost that Congress thought was worth

24 the benefits of the specific rule that they

25 chose.

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1 Now, with regard to damages, just a

2 few words on this. The statute of limitations

3 in Section 507(b), it's a three-year rolling

4 statute that runs from discovery of

5 infringement.

6 Now I think it was Justice Kagan who

7 asked a question about the processing times.

8 As of now, according to the Copyright Office

9 website, the average processing time for all

10 claims is seven months. Ninety-four percent of

11 all applications right now are resolved within

12 two to 15 months.

13 So I think the most telling answer as

14 a practical matter that I would give is that

15 it's not surprising that the Petitioner does

16 not identify a single case where the statute of

17 limitations has somehow expired while an

18 applicant --

19 CHIEF JUSTICE ROBERTS: Well, it

20 doesn't -- well, as you said, it's a rolling

21 statute administered. So the idea of it

22 expiring doesn't really fit.

23 And the argument, I guess, on the

24 other side is that seven months doesn't mean

25 that much if it's the first two weeks where all

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1 the damage is done because somebody puts it

2 online and then everybody, you know, has the

3 benefit of it, and it's very hard to go back

4 and undo that.

5 MR. STRIS: So two responses. So,

6 with regard to irreparable injury, I think

7 that's what injunctions are for, and I feel

8 like I addressed that a bit earlier.

9 With regard to damages and your point

10 which I take that it's rolling, and there are

11 separate accruals, and we're not just talking

12 about whether you lose your entire claim but

13 whether you lose some of the damages, I'm

14 making a much stronger point.

15 I'm saying Petitioner doesn't cite a

16 single case where some chunk of the damages

17 fell outside of the three-year window because

18 the applicant was waiting.

19 The only --

20 CHIEF JUSTICE ROBERTS: Well, I don't

21 know, you know, whether he cites a particular

22 case or not, but as a matter of logic, it makes

23 sense, doesn't it?

24 MR. STRIS: I don't think so. And --

25 and let me -- let me kind of walk through why I

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1 don't think it makes sense.

2 So you have three years from

3 discovery, three years from, oh, okay, I see

4 that there's an infringement, I have three

5 years to wait. If you're not being dilatory,

6 you immediately file your application. Three

7 years, you need.

8 If the average processing time is

9 seven months, and if 94 percent of applications

10 are being resolved within 15 months, then on

11 the -- on the outside, you're talking about a

12 tiny percentage of situations that even come

13 close. If you look at those, they tend to be

14 mail applications, which the office

15 discourages, that involve correspondence.

16 Where the -- if -- if there's any way

17 to get from 15 months to three years, it's

18 overwhelmingly likely that it's because of

19 dilatory behavior on the part of the applicant,

20 and let me give you a warrant for that.

21 The only case that we have ever seen

22 where this has been an issue was found by the

23 American Bar Association, an amici to -- to my

24 friend, who cites a 25-year-old case called

25 Kregos from the Southern District of New York.

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1 Well, the court described the problem as

2 "self-induced" because, in fact, the plaintiff

3 sat on his hands.

4 So I can't come here and tell you that

5 there's never been a situation where this has

6 been an issue, but I think the fact that, you

7 know, my friend and a host of amici haven't

8 been -- been able to unearth one of them is

9 probably strong --

10 JUSTICE KAVANAUGH: What --

11 MR. STRIS: -- indication that this is

12 not that serious a problem.

13 JUSTICE KAVANAUGH: You have a -- a

14 good argument on the text, obviously. But

15 you're also trying to say there's no real

16 problem here, a solution in search of a

17 problem. I'm just questioning that, given the

18 amici say things like the rule adopted here

19 would have a devastating impact and would cause

20 severe hardship. And these are the industry

21 representatives.

22 Again, you could win on the text, but

23 the idea that there's no problem seems a

24 stretch to me.

25 MR. STRIS: Well, so, Justice

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1 Kavanaugh, let me address that head-on. So I

2 -- I will concede that, for decades, there's

3 been vigorous disagreement over whether and to

4 what extent formalities should be removed from

5 the Copyright Act. And many stakeholders,

6 including several of Petitioner's amici, have

7 long been dissatisfied. They prefer --

8 JUSTICE KAVANAUGH: Right. There's a

9 problem.

10 MR. STRIS: But -- but -- so, let me

11 -- let me finish.

12 JUSTICE KAVANAUGH: Okay.

13 MR. STRIS: There are many people who

14 subscribe to that view. Whether you

15 characterize it as a problem is kind of a

16 normative judgment. There are also many people

17 who subscribe to the alternative view. We

18 happen to be among them. Our amici happen to

19 be among them.

20 So I would resist the -- the -- the

21 characterization of your question and say that

22 the -- the -- there's not ambiguity in the

23 statute but, rather, a profound dissatisfaction

24 on the part of some stakeholders. And the way

25 we address that is we look at the text and we

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1 try and determine what it indicates Congress

2 decided.

3 JUSTICE KAVANAUGH: Okay.

4 MR. STRIS: And on this one, I don't

5 think just we have an okay argument on the

6 text; I think that it's overwhelmingly the case

7 that you -- you have to interpret it to mean a

8 registration decision.

9 So, going back to the text just for --

10 for a moment, I've only talked about the first

11 sentence, which I think --

12 JUSTICE GORSUCH: Before we leave that

13 subject, I'm sorry -- I'm sorry to interrupt--

14 MR. STRIS: Please.

15 JUSTICE GORSUCH: -- but what do you

16 say to the objection that it puts American

17 copyright holders at a disadvantage because

18 formalities aren't required under our

19 international obligations?

20 MR. STRIS: So what -- Justice

21 Gorsuch, what you just asked was the core

22 debate, and it was a vigorous one, in 1988 when

23 the House and the Senate split in determining

24 how to deal with Berne. One said, okay, we

25 should get rid of the registration requirement

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1 entirely; the other said no, it's fine, keep it

2 the way it is. They reached a compromise, and

3 they added the words "U.S. works."

4 So, again, I -- I certainly don't want

5 to suggest that the policy arguments for the

6 alternative are terrible. They could be

7 defended. Many people in this room may think

8 that they're right. But they're beside the

9 point when the case is about what Congress

10 meant in enacting this particular statutory

11 language.

12 JUSTICE KAVANAUGH: You -- you made an

13 analogy to exhaustion of administrative

14 remedies. I just want to test that --

15 MR. STRIS: Mm-hmm.

16 JUSTICE KAVANAUGH: -- analogy. Is

17 that really what's going on here? Is this --

18 resolving it going to eliminate the need for a

19 suit --

20 MR. STRIS: So I think it's -- I --

21 JUSTICE KAVANAUGH: -- in many cases?

22 MR. STRIS: I used the word "analogy"

23 on purpose. It's not exactly the same. But

24 there are some --

25 JUSTICE KAVANAUGH: Well, is it -- is

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1 it even within the ZIP Code?

2 MR. STRIS: Oh, definitely.

3 Definitely.

4 JUSTICE KAVANAUGH: Okay, how?

5 MR. STRIS: And I think there are

6 striking similarities. So the first is,

7 although as a percentage most claims,

8 97 percent, 99 percent, ultimately get

9 registered, last year there were 18,000

10 refusals. And that doesn't take into account

11 the tens of thousands of applications that were

12 abandoned or withdrawn in the process.

13 So it may be a small percentage, but

14 there are still tens of thousands of instances

15 where you would have different incentives and

16 different conduct based upon the rule that you

17 pick. That's Number 1.

18 Number 2, even for the claims that are

19 granted, you can't sweep away the fact that

20 there is interaction between the applicant and

21 the Office. And so whether you allow people to

22 sue immediately or whether you require that

23 they go through the examination process

24 irrespective of the result clearly is similar

25 to an exhaustion regime and that you think that

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1 there's something beneficial about the process.

2 And then my final answer is I think

3 perhaps the most important one, which is the

4 reason it's a loose analogue, the reason why

5 it's in the same ballpark, is it may not be

6 like ERISA, for example, where the point of the

7 administrative process is to see if you can

8 resolve this -- the dispute beforehand. But it

9 -- but it is similar in the sense that you

10 believe that a completion of the process has

11 value.

12 And I think the authors and educators

13 amicus brief does a great job of describing

14 that requiring that people go through the

15 process enhances copyright value. It creates a

16 public registry of correspondence -- publicly

17 available information about the correspondence.

18 It ensures that the claims that are being

19 registered are the best claims possible. It

20 has the incentive that people act earlier and

21 register claims or, rather, apply to register

22 claims not just when there's infringement, but

23 get works into the Library of Congress and into

24 the registry because they think, well, I want

25 to get ahead of the game and be in a position

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1 where I can vindicate my rights.

2 That's not exactly the same as an

3 administrative exhaustion requirement before

4 litigation, but there -- it's certainly in the

5 same ZIP Code. There's a number of, I think,

6 very strong parallels.

7 So I guess the final thing that I

8 would say is that I've only talked briefly

9 about the first sentence. But if you turn to

10 the second sentence of Section 411(a), I think

11 it -- it -- it really kind of seals the deal

12 because that sentence is naturally read as an

13 exception to the first.

14 And in order to avoid that reading, my

15 friend is forced to argue that exactly the same

16 phrase, "registration has been," means two

17 completely different things in the first and

18 the second sentence.

19 And kind of in the interest of kind of

20 not burying the lead, what I would say about

21 this is that the -- the problem -- if I could

22 just finish that thought?

23 CHIEF JUSTICE ROBERTS: Sure.

24 MR. STRIS: The problem with what my

25 friend does infects many of his arguments,

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1 which is he interprets the provision in a way

2 that's not literally impossible but renders

3 many provisions insignificant: 410(d), 408(f),

4 the constructive notice provisions. It just

5 doesn't make sense to do that, and so we ask

6 that you affirm.

7 Thank you.

8 CHIEF JUSTICE ROBERTS: Thank you,

9 counsel.

10 Mr. Ellis.

11 ORAL ARGUMENT OF JONATHAN Y. ELLIS

12 FOR THE UNITED STATES, AS AMICUS CURIAE,

13 SUPPORTING THE RESPONDENTS

14 MR. ELLIS: Mr. Chief Justice, and may

15 it please the Court:

16 I'd like to pick up right where my

17 friend left off on the second sentence of

18 Section 411(a) because I do think that that is

19 really the key to this case and I think there

20 are three pretty -- three textual cues in that

21 sentence that show that registration has been

22 made, and the first sentence must be referring

23 to the act of the Register.

24 The first is the one we just talked

25 about, that it uses the word "registration."

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1 And I think it's actually a little bit stronger

2 than what we've said. It says registration has

3 been refused. That obviously is talking about

4 the final act of registration. That's the only

5 -- that's what has been refused in that -- in

6 that scenario.

7 So it's pretty strange to think that

8 the -- the registration, that word in the first

9 sentence, doesn't mean the same thing and the

10 only person who can make registration in that

11 sense is the Register of Copyrights.

12 The second thing to notice is that the

13 second sentence says that when you -- refers to

14 delivering to the Copyright Office your

15 deposit, application, and fee in proper form.

16 You might recognize that sentence. That's what

17 my friend says "registration has been made"

18 means in the first. Again, pretty peculiar for

19 Congress to refer to the exact same conduct in

20 two consecutive sentences and not use a phrase

21 that even resembles each other.

22 And the third thing is what my friend

23 says -- has already raised, that the whole

24 point of the second sentence is to create an

25 exception to the registration requirement in

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1 the first. And you don't need an exception to

2 the registration requirement when the Register

3 has refused registration. If all you had to do

4 was submit your application in proper form,

5 what the Register does, inherently is the

6 assumption in that sentence, doesn't change

7 that you've properly applied.

8 JUSTICE KAGAN: Well, I --

9 CHIEF JUSTICE ROBERTS: Well --

10 JUSTICE KAGAN: -- I believe --

11 CHIEF JUSTICE ROBERTS: Go ahead.

12 JUSTICE KAGAN: I believe Mr. Panner

13 says that the function of the second sentence

14 is to require an additional act, that notice be

15 given to the Register.

16 MR. ELLIS: Right, and I think there

17 are two problems with that reading, aside from

18 the fact it's just not the most natural one.

19 The first is that -- I think what he

20 said this morning is that you can -- the case

21 can still proceed when -- after the Register

22 refuses registration.

23 But that's not what it says. It says

24 you're entitled to institute your suit. So it

25 assumes that nothing happens until the Register

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1 has acted. That makes sense. The other

2 problem with the second sentence is that it

3 undermines the third sentence of 411(a), which

4 gives the Register a right to intervene in

5 suits and where she has refused registration

6 upon notice within 60 days.

7 And if a suit can be filed before the

8 register gets a chance to evaluate the

9 application and come to a decision and then get

10 notice of -- of this suit, then the suit can

11 get pretty far down the road before the

12 register can intervene. And I think that

13 undermines the scheme and is clearly not what

14 Congress intended.

15 The -- the Petitioner talks about --

16 points to obviously a bunch of different

17 provisions in the Act and he says, well,

18 registration has been made or some variant of

19 that, and these other provisions must mean the

20 copyright owner's actions.

21 We disagree but we don't think the

22 Court has to go that far.

23 I think it's clear, and he agrees,

24 that it doesn't always mean that in the Act.

25 Section 708(a) refers to -- says that the fees

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1 you pay for an application have to cover the

2 cost of the application, including the issuance

3 of a certificate if registration is made.

4 Well, the issue of a certificate is

5 only issued if registration is made by the

6 register.

7 In the constructive notice provisions

8 in Section 60- -- or, excuse me, 205 and in

9 406, I think those are also places where he

10 disagrees, but I don't think there is any

11 reasonable reading of those provisions that --

12 that -- where -- that can come to the

13 conclusion that registration has been made

14 there or a variant thereof.

15 It doesn't refer to the register of

16 Copyrights Act. And if I could maybe walk

17 through why that is, I think it's important.

18 205, Section 205 is about recording

19 documents that relate to a copyrighted work.

20 So think about a transfer of ownership. And it

21 says you can record the document and, once you

22 do, the world is on notice of the facts stated

23 therein, with two conditions:

24 The first is that that document

25 contain enough information such that a search

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1 in the Copyright Office's records by

2 registration number or by title reveals the

3 document. The second is that registration has

4 been made.

5 And I think the -- the obvious

6 implication there is that that, too, is going

7 to create a public record of when -- of the

8 work and of the registration of the work. And

9 that's not true of an application.

10 And so it's true that -- that the

11 right attaches right away, but as you were

12 talking about before, Justice Sotomayor, there

13 are circumstances where notice is critically

14 important. This is one of them.

15 And Petitioner -- and Petitioner's

16 reading would -- would make a hash of that

17 provision.

18 Section 406 is a similar one. And

19 what it says, if there's an error in the notice

20 on a copyrighted work, so, you know, it says

21 your circle (C) and then it says John. Well,

22 John's not the owner. It turns out that Jack

23 is. That says -- that doesn't invalidate your

24 copyright.

25 But what it does do is preside --

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1 excuse me, provide an infringer, an innocent

2 infringer with a complete defense to

3 infringement if -- if -- if he went out and got

4 a license from John, the person who is named in

5 that notice.

6 But, critically, you can't rely on

7 that defense. The innocent infringer defense

8 doesn't work if registration had been made in

9 the correct owner's name at the time of

10 infringement.

11 Again, that makes no sense unless

12 registration having been made creates a public

13 record of the work and the proper owner.

14 So I think what that establishes is

15 that it cannot mean everywhere it shows up to

16 refer to the act of the copyright owner. And

17 so it just points us right back to

18 Section 411(a) and the first two sentences,

19 which we think cannot be read any other way.

20 JUSTICE KAVANAUGH: The textual

21 argument you make is, of course, weighty. I

22 think they're trying to say that there are --

23 it doesn't make sense in terms of, A, what

24 Congress would have been thinking or, B -- and

25 B, how things operate in the real world and the

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1 problems that would be created.

2 So can you respond to those?

3 MR. ELLIS: I'd love to address both.

4 On -- on the first, I think, as to what

5 Congress could have thought, it may be hard --

6 harder to say, but, as we discussed, the relays

7 -- the delays at the time of the -- the time

8 the suit was passed or the act was passed

9 weren't so great, so I think that sort of cuts

10 against thinking that Congress couldn't have

11 wanted this.

12 As to the problems, I -- I think

13 they're overstated. Let me start by saying

14 first, though, that the Copyright Office also

15 desires efficient and quick registration. In

16 the last three years, the Copyright Office has

17 sought and received appropriations to increase

18 their examination staff by about 60 percent.

19 As those people are trained and get

20 into the -- into the work force, I think we're

21 going to see, and we've already seen --

22 JUSTICE KAVANAUGH: You're not denying

23 there are delays and the delays are a problem?

24 MR. ELLIS: Not -- I'm not denying --

25 I'm not denying there are delays. And I'm not

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1 denying that there is dissatisfaction with

2 delays.

3 JUSTICE KAVANAUGH: Yes. And the word

4 problem I won't use.

5 MR. ELLIS: I think the second thing

6 you might look at is what Congress has done in

7 response to those concerns. We've already

8 talked about two of those things, the

9 pre-registration regime, which the delay is not

10 the same for that.

11 All you're submitting is an

12 abbreviated description of the work. You don't

13 have to do the examination of the deposit, et

14 cetera.

15 The second is the live broadcast. The

16 third hasn't been mentioned this morning, and

17 it's actually not mentioned in the brief, so I

18 think it's worth pointing out.

19 There are a lot of hypotheticals about

20 what about this on-line proliferation of my

21 work and what do I do? Well, Section 512 of

22 the Copyright Act discusses secondary liability

23 for on-line service providers and it provides

24 immunity in certain circumstances.

25 One of those requirements is that you

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1 have a take-down regime such that if -- think

2 about YouTube or something like this -- if a

3 copyright owner comes to you and says there is

4 a work on your site that's infringing my

5 copyrights, you have to take it down.

6 And that's not -- does not turn on

7 whether the work is registered or not. Excuse

8 me. So I think what that shows is that

9 Congress is receptive to these -- to these

10 dissatisfaction.

11 It has weighed in multiple times, at

12 the same time trying to balance these concerns

13 against the real benefits of registration, and

14 the real benefits of having the Copyright

15 Office participate in this -- in this

16 examination, and then have the right to

17 participate and provide their views to the

18 court.

19 CHIEF JUSTICE ROBERTS: I understand

20 your textual argument about the incongruity of

21 the same phrase having two different meanings

22 in 411. But it's -- it's not that much more

23 compelling than your friend's argument listing

24 all the other sections where it has -- your

25 reading would require it to mean different

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1 things as well.

2 MR. ELLIS: So -- so, again, I -- we

3 don't think that's actually true. But I don't

4 want to get into a debate about -- unless you'd

5 like to -- about ten other provisions of the

6 Act.

7 I think it's enough to say that he

8 admits that 708 uses it in that way, uses

9 registration has been made to refer to the act

10 of the copyright owner -- excuse me, the act of

11 the register. And now he says you shouldn't

12 put any weight on that because it wasn't in the

13 '76 Act, that this Court tries to make sense of

14 a statutory scheme as a whole.

15 And then there's the constructive

16 notice provisions that I tried to walk the

17 Court through where it just can't make sense

18 there to refer to it.

19 And so we're back to saying, well,

20 what makes sense for this provision? And I

21 think because what makes sense for this

22 provision for a host of reasons is that -- is

23 that registration has been made in the first

24 sentence, is using the word register in the

25 same way that everybody agrees register --

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1 registration is being used in the second

2 sentence.

3 Just to say a word about these --

4 these cases that the other side points to,

5 Vacheron, and I think in the brief they cited a

6 couple others that they didn't do this morning.

7 You know, you can look at those decisions for

8 yourselves and decide what the debate was.

9 But if you want to sort of get behind

10 the text and figure out what Congress was

11 getting after, I don't think you can do a lot

12 better than looking at the legislative record

13 itself.

14 And I would point you first to the

15 1961 report by the Copyright Office to Congress

16 that addresses this very question in Vacheron

17 and what should be done about it.

18 And what the Copyright Office said is

19 that registration is important. You should

20 maintain that requirement with one

21 modification. You should address this

22 situation in Vacheron where, after the

23 Copyright Office, the register has refused

24 registration, the copyright owner has to file

25 two suits: A mandamus suit against the

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1 register to get -- issue -- issue a

2 certification and, second, your infringement

3 action.

4 What you should do in that case is to

5 combine those suits. That's what the second

6 and third sentence of 411(a) does.

7 Then when you look at the first act

8 introduced into the House, 1964, written by the

9 Copyright Office, unsurprisingly it adopts the

10 recommendation. When you look at the 1976 Act,

11 it doesn't change, by the way, between 1964 and

12 enactment in 1976. Then you look at the House

13 report at page 157 and it confirms.

14 CHIEF JUSTICE ROBERTS: Thank you,

15 counsel.

16 Mr. Panner, you have five minutes

17 remaining.

18 REBUTTAL ARGUMENT OF AARON M. PANNER

19 ON BEHALF OF THE PETITIONER

20 MR. PANNER: Thank you, Mr. Chief

21 Justice.

22 I want to emphasize that our argument

23 relies primarily on the text of Section 411(a)

24 and the fact that it uses the phrase

25 "registration has been made." And that in the

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1 Act, that phrase and that construction

2 consistently refers to the action of the

3 copyright owner.

4 It's revealing that in the legislative

5 history, which is included in the -- in the

6 codification of the Act, it says that a

7 copyright owner who has not -- who has not

8 registered his claim can have a valid cause of

9 action against someone who has infringed his

10 copyright, but he cannot enforce his rights in

11 the courts until he has made registration.

12 That is -- and, again, in

13 Section 411(b) of the 1976 Act, now 411(c), the

14 copyright owner makes registration.

15 It is a really consistent usage in the

16 statute that when Congress was referring to the

17 action of the copyright owner, it used that

18 phraseology. And I want to, you know,

19 Section 708(a), as the government has

20 acknowledged, was adopted in 1982. It has

21 nothing to do with litigation rights and

22 remedies and, therefore, really says nothing

23 about how the provision should be properly

24 construed in Section 411(a).

25 And the constructive notice provisions

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1 -- there is actually a constructive notice

2 provision that talks about actual notice, but

3 the other constructive notice provisions quite

4 sensibly protect the copyright owner, if the

5 copyright owner has done what the copyright

6 owner is required to do to register the claim;

7 namely, submit the required application --

8 application, deposit and fee.

9 And recall that as -- if the time of

10 examination was quite short at the time of the

11 adoption of the Act, that was unlikely to

12 prejudice anyone because registration would --

13 would come through quickly.

14 And, you know, so it makes perfect

15 sense that the -- in the same way that that is

16 sufficient to protect the rights, to protect

17 the remedies available to the copyright owner,

18 that it is also appropriate to open the court

19 -- the gates of the courthouse.

20 It's surprising to me that the

21 government relies so heavily, by the way, on

22 those constructive notice provisions, because

23 copyright -- publication with notice is no

24 longer required under the Act.

25 So this is all -- this is all an issue

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1 that would have gone away in 1988 with regard

2 to the notice, but the key point is that it

3 makes sense to protect copyright owners and to

4 give them their rights and remedies. And

5 that's what the -- upon compliance with

6 Section 408(a), the submission of the required

7 application, deposit, and fee, and that's what

8 the statute says. That is what the text says.

9 And I think it's also important to

10 read that in light of the history. And the key

11 issue that was debated between the majority

12 opinion and the dissent in Vacheron is whether

13 the copyright owner should be prevented from

14 gaining access to judicial remedies because the

15 Copyright Office had not yet acted or granted

16 the registration.

17 Now, it is true that in that case

18 there had been a refusal, and the question was

19 whether mandamus was required, but the same

20 consequences occur in the case of Copyright

21 Office inaction.

22 If there's a circumstance where the

23 Copyright Office does not act, the question is:

24 Can you go to court? And it's inconceivable

25 that Congress would have said in the case of

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1 refusal, you can go to court, you don't need to

2 seek a judicial remedy; but in the case of

3 inaction, you can't go to court, and you have

4 to somehow seek a mandamus to get a decision

5 before going to court.

6 It makes all the sense in the world to

7 understand that language to say what it clearly

8 says within the phraseology of the Act, that if

9 the copyright owner has made registration under

10 Section 408(a), that the copyright owner is

11 then entitled to sue.

12 And the -- the concede that Congress

13 intended to require administrative exhaustion

14 or was concerned about copyright quality, that

15 is -- there is no basis for that in the text of

16 the statute. There is no basis for it in the

17 history of the -- of what Congress said, what

18 the committee report said about the Act, for

19 what that's worth.

20 The key point is that the registration

21 requirement has its purpose, and that purpose

22 is vindicated if the copyright owner has

23 submitted the required application, deposit,

24 and fee, as Section 408 requires.

25 CHIEF JUSTICE ROBERTS: Thank you,

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1 counsel. The case is submitted.

2 (Whereupon, at 12:16 p.m., the case

3 was submitted.)

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

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708 [1] 61:8 agency [1] 35:14 assume [2] 21:2 22:8
1 708(a [2] 54:25 64:19 agree [2] 17:13 25:6 assumed [1] 36:20
1 [1] 48:17 76 [1] 61:13 agreed [1] 19:5 assumes [1] 53:25
11:15 [2] 1:15 3:2 agreement [1] 4:17 assuming [1] 12:11
12:16 [1] 68:2 8 agrees [9] 14:11,20,23 15:2,3,5 27: assumption [1] 53:6
15 [3] 41:12 43:10,17 8 [1] 1:11
13 54:23 61:25 attaches [1] 56:11
157 [1] 63:13
17-571 [1] 3:4
9 ahead [2] 49:25 53:11 attempting [1] 19:20
94 [1] 43:9 AL [1] 1:7 author [3] 10:25 15:19 26:20
18,000 [1] 48:9 allow [1] 48:21 authority [2] 7:22 10:3
1961 [1] 62:15 97 [1] 48:8
99 [1] 48:8 alluded [1] 20:1 authorized [1] 27:5
1964 [2] 63:8,11 almost [1] 16:6 authors [1] 49:12
1976 [4] 9:19 63:10,12 64:13 A alone [1] 31:22 automatically [1] 21:5
1982 [1] 64:20 a.m [2] 1:15 3:2 already [5] 7:4 23:14 52:23 58:21 available [5] 10:12 12:1,2 49:17
1988 [2] 46:22 66:1 AARON [5] 1:18 2:3,13 3:8 63:18 59:7 65:17
2 abandoned [1] 48:12 alternative [2] 45:17 47:6 average [3] 27:20 41:9 43:8
2 [1] 48:18 abbreviated [1] 59:12 although [1] 48:7 averages [1] 28:16
2017 [2] 24:20,22 ability [1] 26:2 ambiguity [1] 45:22 avoid [1] 50:14
2019 [1] 1:11 able [4] 5:10 8:5 24:22 44:8 American [2] 43:23 46:16 aware [2] 9:20,21
205 [3] 55:8,18,18 above-entitled [1] 1:13 amici [7] 20:12 25:12 43:23 44:7, away [3] 48:19 56:11 66:1
acceptable [3] 6:16 13:12 14:13 18 45:6,18
25-year-old [1] 43:24
amicus [6] 1:24 2:10 8:10 26:18
B
29a [1] 30:24 accepted [5] 11:13,17 13:16 38:
12,16 49:13 51:12 back [13] 12:13,23,24 13:3 16:21
3 access [2] 39:4 66:14 among [2] 45:18,19 17:15 28:25 37:10 39:17 42:3 46:
9 57:17 61:19
3 [1] 2:4 accordance [7] 5:25 6:7,24 18:12, amount [1] 36:8
30 [4] 2:7 23:19,24 35:7 25 19:16 30:18 analogous [1] 35:4 balance [1] 60:12
30a 30:15
[1] according 41:8[1] analogue [1] 49:4 ballpark [1] 49:5
30s [1] 28:25 account [1] 48:10 analogy [4] 8:19 47:13,16,22 Bar [1] 43:23
3500 [1] 24:20 accruals [1] 42:11 Angeles [1] 1:20 based [1] 48:16
acknowledged [1] 64:20 answer [4] 39:19,22 41:13 49:2 basis [2] 67:15,16
4 Act [32] 3:12 12:20 15:16 27:16 28: answers [1] 9:10 bear [1] 18:10
4 [2] 11:15,18 12 30:5 34:11 45:5 49:20 51:23 appear [1] 28:13 becomes [1] 10:11
405(a [1] 4:24 52:4 53:14 54:17,24 55:16 57:16 APPEARANCES [1] 1:17 beforehand [1] 49:8
405(b [1] 5:3 58:8 59:22 61:6,9,10,13 63:7,10 appendix [2] 30:15,25 beginning [1] 18:22
406 [2] 55:9 56:18 64:1,6,13 65:11,24 66:23 67:8,18 applicant [9] 5:9,10 7:6 12:4 30:
begins [1] 20:14
408 [2] 5:4 67:24 Act's [1] 3:25 11 41:18 42:18 43:19 48:20 begs [1] 11:6
408(a [10] 3:16 7:10 12:8 15:23 19: acted [5] 6:23 20:18 21:20 54:1 66: applicants [1] 36:2 behalf [8] 1:18,21 2:4,7,14 3:9 30:
8 22:6 27:11 29:17 66:6 67:10 application [33] 4:24 6:2,14 7:12 2 63:19
15
408(c [1] 4:19 acting [3] 9:19 22:12 31:8 10:11 12:3 13:11 14:2 15:22 18: behavior [1] 43:19
408(f [2] 37:18 51:3 action [20] 3:23 4:18,21 5:10,20 6: 19 19:14 23:5 28:5 29:1,4 31:21 behind [1] 62:9
408(f)(3 [1] 39:11 3,5 7:5 9:24 10:5 18:7,21 20:16, 32:13 35:15 39:5,12,16 40:20 43: belief [1] 35:2
410 [2] 13:1 30:24 17 21:25 24:23 63:3 64:2,9,17 6 52:15 53:4 54:9 55:1,2 56:9 65: believe [6] 32:24 36:15 40:14 49:
410(d [18] 6:11,13,19 9:9 13:8,9,22 actions [1] 54:20 7,8 66:7 67:23 10 53:10,12
14:18 22:15,21 32:10,11 33:1,10, acts [4] 14:15 15:11 22:13 38:2 applications [7] 35:8,20 36:1 41: beneficial [1] 49:1
15 34:6,16 51:3 actual [1] 65:2 11 43:9,14 48:11 BENEFIT [4] 1:4 3:5 38:1 42:3
411 [3] 23:17 30:5 60:22 actually [7] 9:13 24:9 31:20 52:1 applied [1] 53:7 benefits [6] 12:19 13:5,18 40:24
411(a [20] 3:14 5:7,22 9:19 15:2 16: 59:17 61:3 65:1 applies [2] 5:9 7:6 60:13,14
23 18:2 30:14 31:23 32:1 33:5 34: acute [1] 37:16 apply [2] 40:2 49:21 Berne [1] 46:24
2 38:5 50:10 51:18 54:3 57:18 63: added [2] 37:14 47:3 appropriate [1] 65:18 beside [1] 47:8
6,23 64:24 additional [1] 53:14 appropriations [1] 58:17 best [2] 34:7 49:19
411(b [3] 15:1 24:10 64:13 address [7] 10:20 37:8,21 45:1,25 approval [2] 7:21 32:17 better [1] 62:12
411(c [6] 4:14,14 14:25 15:6 37:17 58:3 62:21 approved [1] 7:24 between [4] 18:3 48:20 63:11 66:
64:13 approximately [1] 24:19 11
addressed [2] 9:14 42:8
412(2 [4] 4:16 12:5 14:20,24 addresses [2] 34:23 62:16 aren't [1] 46:18 bigger [1] 36:18
argue [2] 36:10 50:15 bit [2] 42:8 52:1
5 administered [1] 41:21
body [1] 10:3
administrative [8] 3:23 9:24 10:3 argument [19] 1:14 2:2,5,8,12 3:4,
507(b [1] 41:3 book [1] 14:4
35:5 47:13 49:7 50:3 67:13 8 25:5 30:1 37:13 41:23 44:14 46:
508 23:22
[1]
both [3] 5:19 17:5 58:3
admits [1] 61:8 5 51:11 57:21 60:20,23 63:18,22
51 [1] 2:11 bounced [1] 35:13
admitted [1] 8:24 arguments [3] 16:17 47:5 50:25
512 [1] 59:21 BREYER [9] 7:14,19 8:13 9:4 32:
adopted [4] 9:19 15:1 44:18 64:20 arise [1] 24:2
6 adoption [1] 65:11 around [1] 15:19 10,18 33:5,9 34:21
adopts [1] 63:9 article [3] 14:4 26:16,19 brief [4] 8:10 49:13 59:17 62:5
60 [3] 54:6 55:8 58:18
affirm 51:6 aside [1] 53:17 briefly [1] 50:8
63 2:14
[1] [1]
affirmative [1] 9:24 Assistant [1] 1:22 briefs [3] 25:12,12 26:18
7 affirms [1] 16:9 Association [1] 43:23 bring [4] 15:25 20:16,23 38:9

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broad [1] 28:8 clarify [1] 19:12 convinced [1] 17:25 dealt [1] 16:5
broadcast [2] 37:17 59:15 Clark's [2] 9:21 29:7 copying [1] 26:4 debate [3] 46:22 61:4 62:8
built [2] 9:16 15:19 class [5] 8:20,22,23 9:5 27:23 Copyright [91] 3:12,15,25 4:1,3,15, debated [1] 66:11
bunch [1] 54:16 clear [6] 6:20 7:8 8:17 34:9 39:15 19,22 5:2,21 6:3 7:9 9:2,11,13 10: decades [1] 45:2
burden [1] 22:2 54:23 7,9,11,16,25 12:17 13:7 15:8,10, decide [1] 62:8
burying [1] 50:20 clearly [6] 14:25 17:6 36:14 48:24 13,16 16:2,11,11 17:18 18:17,21 decided [2] 40:5 46:2
54:13 67:7 20:16,18,20 21:8,18,19 24:23 26: decision [5] 9:20 35:1 46:8 54:9
C close [2] 31:18 43:13 2 27:9,12 28:1 29:16,18 30:5,17 67:4
calculating [1] 12:24 Code [2] 48:1 50:5 32:12,15 33:16 35:8 40:19 41:8 decisions [2] 36:21 62:7
California [1] 1:20 codification [1] 64:6 45:5 46:17 49:15 52:14 54:20 56: defeasance [2] 33:13,19
called [3] 24:18 30:23 43:24 college [1] 8:20 1,24 57:16 58:14,16 59:22 60:3, defended [1] 47:7
calls [1] 6:5 combine [1] 63:5 14 61:10 62:15,18,23,24 63:9 64: defense [3] 57:2,7,7
came [1] 1:13 come [7] 16:12 37:10 43:12 44:4 3,7,10,14,17 65:4,5,5,17,23 66:3, definitely [2] 48:2,3
cannot [5] 5:8 20:16 57:15,19 64: 54:9 55:12 65:13 13,15,20,23 67:9,10,14,22 definition [1] 39:7
10 comes [2] 21:18 60:3 copyrighted [2] 55:19 56:20 Delay [5] 25:16 26:6,9 29:8 59:9
care [1] 15:24 commercialization [2] 38:24 39: Copyrights [5] 30:10 35:7 52:11 delays [8] 27:15,16 28:12 58:7,23,
carry [1] 22:2 13 55:16 60:5 23,25 59:2
Case [34] 3:4 4:6 6:7,21 7:2 9:3 20: committee [1] 67:18 core [4] 32:5,5 40:22 46:21 delivered [2] 6:2 18:20
23 22:25 24:21 25:2 26:14,16 28: community [1] 16:12 CORPORATION [2] 1:4 3:5 delivering [1] 52:14
24 29:2 31:7 32:6 35:12 39:23 41: comparable [1] 8:3 correct [1] 57:9 deny [1] 32:2
16 42:16,22 43:21,24 46:6 47:9 compare [1] 27:16 correspondence [6] 35:9,11,14 denying [4] 58:22,24,25 59:1
51:19 53:20 63:4 66:17,20,25 67: compelling [1] 60:23 43:15 49:16,17 Department [1] 1:23
2 68:1,2 compensate [1] 26:24 corresponds [1] 19:11 depend [2] 10:1 22:16
cases [9] 3:19 8:8 13:25 16:2 24: competent [3] 33:2 34:8,9 cost [2] 40:23 55:2 depends [1] 26:2
20 27:2 37:19 47:21 62:4 complete [1] 57:2 couldn't [2] 28:15 58:10 deposit [16] 6:1,15 7:13 12:3 13:
category [1] 38:23 completely [1] 50:17 Counsel [5] 28:10 29:23 51:9 63: 11 14:2 15:22 18:19 32:13 38:21
cause [2] 44:19 64:8 completion [1] 49:10 15 68:1 39:12 52:15 59:13 65:8 66:7 67:
certain [3] 14:21 40:15 59:24 compliance [4] 3:15 7:10 19:8 66: counting [1] 12:13 23
Certainly [5] 22:14,20 36:15 47:4 5 couple [3] 8:8,9 62:6 describe [4] 16:15 20:2,9 38:21
50:4 complied [4] 12:9 22:6 27:9 29:16 course [4] 14:7,10 38:13 57:21 described [2] 25:11 44:1
certificate [5] 24:12,13 29:3 55:3, compromise [1] 47:2 COURT [35] 1:1,14 3:11 6:18,25 9: describing [1] 49:13
4 concede [2] 45:2 67:12 1 13:4,21 16:8,9,13 21:2,5,11,23 description [1] 59:12
certification [1] 63:2 concedes [1] 11:25 22:19 24:5,5 30:4 33:2 34:8,9,10, desires [1] 58:15
cetera [1] 59:14 concerned [1] 67:14 17 44:1 51:15 54:22 60:18 61:13, detail [1] 40:11
chance [1] 54:8 concerns [2] 59:7 60:12 17 65:18 66:24 67:1,3,5 determination [3] 30:11 32:23 40:
change [5] 7:19 18:6 35:16 53:6 conclude [1] 40:18 courthouse [2] 3:20 65:19 15
63:11 conclusion [1] 55:13 courts [1] 64:11 determine [6] 6:25 7:1 24:22 27:7
changes [1] 36:2 conditions [1] 55:23 cover [1] 55:1 28:15 46:1
characterization [1] 45:21 conduct [2] 48:16 52:19 create [4] 16:10 20:3 52:24 56:7 determined [4] 6:17 13:20 32:14
characterize [1] 45:15 confirmed [1] 3:17 created [2] 20:6 58:1 33:3
check [1] 35:12 confirms [1] 63:13 creates [2] 49:15 57:12 determines [1] 31:5
CHIEF [34] 3:3,10 4:5 5:6 6:10 7:3 confusing [1] 4:7 creation [1] 10:23 determining [1] 46:23
9:21 12:10,18,22 13:2,13 14:17 Congress [28] 9:18 19:19,23 27:5 criteria [3] 31:2,5 33:3 devastating [1] 44:19
16:22 26:21 27:22 29:6,22 30:3 29:11 36:14,20 37:14,14 39:11,14 critical [4] 11:24 37:15 39:10,20 different [8] 32:4 38:18 48:15,16
31:9,17 32:24,24 41:19 42:20 50: 40:23 46:1 47:9 49:23 52:19 54: critically [2] 56:13 57:6 50:17 54:16 60:21,25
23 51:8,14 53:9,11 60:19 63:14, 14 57:24 58:5,10 59:6 60:9 62:10, cues [1] 51:20 difficult [1] 27:7
20 67:25 15 64:16 66:25 67:12,17 curiae [3] 1:24 2:11 51:12 dilatory [2] 43:5,19
chose [1] 40:25 Congress's [1] 29:13 current [5] 10:10,10 11:4 14:8 28: disadvantage [1] 46:17
chunk [1] 42:16 connected [2] 17:1 18:5 6 disagree [2] 32:9 54:21
circle [1] 56:21 consecutive [1] 52:20 cuts [1] 58:9 disagreement [1] 45:3
Circuit [1] 16:10 consequences [2] 24:11 66:20 disagrees [1] 55:10
circumstance [3] 22:17 25:22 66: consideration [1] 28:1 D disapproves [1] 33:20
22 consistent 29:14 33:21 34:2
[4] D.C [3] 1:10,18,23
discourages [1] 43:15
circumstances [4] 28:3,7 56:13 64:15 damage [1] 42:1 discovery [2] 41:4 43:3
59:24 consistently [2] 5:20 64:2 damages [8] 12:14 26:23 27:7 37: discussed [2] 26:17 58:6
cite [1] 42:15 construct 32:8
[1] 10 41:1 42:9,13,16 discusses [1] 59:22
cited [2] 8:9 62:5 construction [2] 18:15 64:1 date [11] 6:13 12:7,7 13:9,10 14:14 dismiss [1] 6:11
cites [3] 31:20 42:21 43:24 constructive [7] 51:4 55:7 61:15 32:11,22 33:4,16,17 dispute [2] 19:13 49:8
civil [4] 20:16 21:25 23:1 30:6 64:25 65:1,3,22 day [1] 32:12 disputes [1] 33:6
claim [17] 4:2,3 13:7 19:15 20:15 construed [1] 64:24 days [6] 23:19,24 26:18 40:8,16 54: dissatisfaction [3] 45:23 59:1 60:
24:4,15 25:23 30:18,23 31:2,3 35: contain [1] 55:25 6 10
17 38:10 42:12 64:8 65:6 context [5] 4:20 9:18 19:19 22:16 de 36:7,8
[2]
dissatisfied [1] 45:7
claims [7] 41:10 48:7,18 49:18,19, 32:4 deal [3] 39:20 46:24 50:11 disseminated [1] 26:19
21,22 continue [1] 33:24 dealing [1] 19:20 dissent [5] 9:21 29:7,12,15 66:12
Heritage Reporting Corporation
Sheet 2 broad - dissent
 71
Official - Subject to Final Review
distinguishing [1] 19:3 everyone [1] 14:23 find [2] 34:17 35:6 granted [9] 10:12 17:16 19:4 20:
distributed [2] 26:13,15 everything [1] 40:7 fine [1] 47:1 21 29:3 35:20 36:1 48:19 66:15
distribution [2] 27:4 28:9 everywhere [1] 57:15 finish [2] 45:11 50:22 grants [2] 3:21 21:11
district [2] 24:5 43:25 evidence [4] 3:13 17:15 22:1 36: finished [1] 38:20 great [3] 34:20 49:13 58:9
document [3] 55:21,24 56:3 23 first [33] 15:16 16:24 18:3,11,22 19: grips [1] 39:3
documents [1] 55:19 evidently [1] 29:2 22 27:23 28:1 31:18 37:6,9 38:24 guess [3] 33:10 41:23 50:7
done [5] 27:3 42:1 59:6 62:17 65:5 ex [1] 37:15 39:13,19 41:25 46:10 48:6 50:9,
doubt [4] 6:21 20:3,6 24:3 exact [1] 52:19 13,17 51:22,24 52:8,18 53:1,19
H
down [2] 54:11 60:5 exactly [5] 28:15 36:24 47:23 50:2, 55:24 57:18 58:4,14 61:23 62:14 handling [2] 40:2,3

draft [1] 31:15 15 63:7 hands [1] 44:3

drive [1] 7:14 examination [7] 4:4 23:4 48:23 fit [2] 40:21 41:22 happen [8] 15:8 16:7 21:11 26:6
driver's [1] 7:15 58:18 59:13 60:16 65:10 fits [1] 39:7 36:5,21 45:18,18
examines [1] 31:2 five [3] 5:1 40:8 63:16 happened [2] 24:20 28:25
E example [2] 26:14 49:6 fixation [2] 3:21 10:23 happens [6] 19:12 20:23 22:22 24:
each [1] 52:21 examples [1] 8:1 fixed [1] 15:20 19 30:22 53:25
earlier [5] 28:23 31:24 32:25 42:8 exception [4] 37:17 50:13 52:25 flexibility [3] 9:15 17:24 18:2 happy [1] 31:18
49:20 53:1 flexibly [1] 5:18 hard [2] 42:3 58:5
educators [1] 49:12 exceptions [3] 37:15 39:20 40:2 focus [1] 35:18 harder [1] 58:6
effect [2] 21:17,17 exclude [6] 10:22 11:1 14:11 15: force [1] 58:20 hardship [1] 44:20
effective [8] 6:13 12:7 13:9 14:14 18 26:3,3 forced [1] 50:15 hash [1] 56:16
32:11,22 33:4,16 exclusive [6] 3:21 9:25 10:4,4 15: forgot [1] 5:7 HBO [1] 38:25
efficient [2] 36:16 58:15 9,12 form [6] 6:15 13:12 14:13 19:1 52: head-on [1] 45:1
effort [1] 4:2 excuse [4] 55:8 57:1 60:7 61:10 15 53:4 health [1] 7:22
either [4] 4:8 20:21 23:4 31:7 exhaustion [5] 35:5 47:13 48:25 formalities [2] 45:4 46:18 hear [2] 3:3 25:8
electronic [1] 27:19 50:3 67:13 found [1] 43:22 hearing [1] 21:7
elephant [1] 34:24 exist [4] 9:25 10:5 15:10,12 FOURTH [2] 1:3 3:5 heartburn [2] 36:13,18
Eleventh [1] 16:9 exists [1] 10:22 framed [1] 17:5 heavily [1] 65:21
eliminate [1] 47:18 expectation [1] 36:24 frank [1] 37:7 historically [1] 38:23
ELLIS [10] 1:22 2:9 51:10,11,14 53: expedite [1] 23:4 frankly [1] 39:23 history [5] 3:18 34:14 64:5 66:10
16 58:3,24 59:5 61:2 expedited [1] 27:25 friend [12] 31:10,19 34:7 35:18 40: 67:17
emphasize [1] 63:22 expired [2] 7:15 41:17 10 43:24 44:7 50:15,25 51:17 52: holder [1] 17:8
enacted [1] 36:22 expiring [1] 41:22 17,22 holders [1] 46:17
enacting [1] 47:10 explain [3] 36:12 38:22 39:6 friend's [2] 32:5 60:23 holding [1] 36:13
enactment [2] 29:13 63:12 expressed [1] 29:14 full [1] 8:24 Honor [21] 4:12 5:13 7:8,18 8:8,15
enforce [1] 64:10 expression [1] 15:20 function [1] 53:13 9:7 11:15 12:25 13:8,19 14:12 17:
English [1] 33:11 expressly [1] 4:15 fundamental [3] 32:20 33:25 34: 12 18:9 21:13 23:23 24:9 26:8 27:
enhanced [1] 11:25 extent [2] 40:19 45:4 22 25 28:14 40:12
enhances [1] 49:15 extra [2] 27:23,25 fundamentally [1] 32:8 hope [1] 36:24
enough [7] 12:5,11 20:3 28:5 31: extremely [1] 18:6 host [2] 44:7 61:22
22 55:25 61:7 G house [5] 7:20 34:15 46:23 63:8,
ensures [1] 49:18 F gaining [1] 66:14 12
enter [1] 22:20 facie [1] 22:1 game [1] 49:25 however [2] 17:2 18:5
entered [3] 22:13,24 23:10 fact [14] 8:11 9:2 10:7 11:15 15:19 Games [1] 38:25 hurdle [1] 15:24
entire [1] 42:12 29:8 33:19 34:13 35:19 44:2,6 48: gatekeeper [1] 3:19 hypothetical [1] 40:19
entirely [3] 35:19 38:18 47:1 19 53:18 63:24 gates [1] 65:19 hypotheticals [1] 59:19
entitled [6] 12:19 13:17 22:3 23: facts [1] 55:22 gave [2] 8:19,19
23 53:24 67:11 fall [1] 40:1 General [1] 1:23
I
ERISA [1] 49:6 falls [1] 38:22 genuinely [1] 24:3 i.e [2] 6:4 33:17
error [1] 56:19 false [1] 24:11 gets [1] 54:8 idea [2] 41:21 44:23
especially [1] 28:6 far [4] 24:22 35:13 54:11,22 getting [4] 17:15 32:25 38:1 62:11 identical [1] 18:4
ESQ [6] 1:18,20 2:3,6,9,13 fast [1] 28:24 give [5] 24:18 32:19 41:14 43:20 identify [2] 27:2 41:16
essential [1] 35:10 fee [15] 4:24 6:1,15 7:13 12:3 13: 66:4 illogical [1] 10:14
essentially [2] 13:25 28:7 11 14:2 15:22 18:19 32:13 39:12 given [5] 18:2 21:17,17 44:17 53: immediate [1] 17:21
establishes [1] 57:14 52:15 65:8 66:7 67:24 15 immediately [5] 15:2 30:21 39:9
ESTATE [2] 1:3 3:5 feel [1] 42:7 gives [2] 10:25 54:4 43:6 48:22
ET [2] 1:7 59:13 fees [1] 54:25 GORSUCH [6] 28:10 36:17 39:17 imminence [1] 39:24
evaluate [1] 54:8 fell [1] 42:17 46:12,15,21 immunity [1] 59:24
even [12] 13:3 14:14 26:16 28:3,4 few [3] 31:16 37:4 41:2 got [3] 4:9 17:24 57:3 impact [1] 44:19
31:22 35:24 38:20 43:12 48:1,18 figure [1] 62:10 gotten 7:21 9:6
[2] implication [1] 56:6
government [8] 11:24 15:5 20:20, important
[12] 5:16,17 9:17 11:23
52:21 file [3] 39:5 43:6 62:24
event [2] 16:4 28:22 filed [2] 29:2 54:7 24 40:10,13 64:19 65:21 16:8 24:24 38:5 49:3 55:17 56:14
eventually [1] 23:6 filing [3] 4:23 23:19 33:7 grammar [1] 18:4 62:19 66:9
everybody [6] 14:11,19 15:2 27: final [6] 22:12,19 23:21 49:2 50:7 grant [6] 10:3 15:9 16:3 21:5 28:2 impossible [2] 27:2 51:2
13 42:2 61:25 52:4 35:1 inability [1] 25:19

Heritage Reporting Corporation

Sheet 3 distinguishing - inability
 72
Official - Subject to Final Review
inaction [2] 66:21 67:3 issues [2] 34:23 40:7 license [2] 7:15 57:4 means [5] 14:24 15:6 37:25 50:16
incentive [1] 49:20 itself [3] 5:22 35:3 62:13 licensed [1] 7:17 52:18
incentives [1] 48:15 light [1] 66:10 meant [2] 36:14 47:10
include [1] 22:3
J likely [2] 4:10 43:18 medium [2] 10:24 15:20
included [1] 64:5 Jack [1] 56:22 likewise [1] 8:17 mentioned [2] 59:16,17
including [4] 17:20 20:17 45:6 55: January [1] 1:11 limit [1] 35:17 message [1] 25:4
2 job [1] 49:13 limitations [2] 41:2,17 met [2] 31:3,5
inclusion [1] 34:8 John [2] 56:21 57:4 listing [1] 60:23 might [4] 8:23 34:17 52:16 59:6
inconceivable [1] 66:24 John's [1] 56:22 literally [1] 51:2 mine-run [1] 37:19
incongruity [1] 60:20 JONATHAN [3] 1:22 2:9 51:11 litigation [8] 13:21 19:21 24:6,15 minimis [2] 36:7,8
incorrect 24:11,13
[2] Judge [2] 9:21 29:6 25:1 40:14 50:4 64:21 ministerial [1] 14:1
increase [1] 58:17 judgment [7] 22:13,19,20,23 23:9, little [2] 4:7 52:1 minutes [1] 63:16
indicate [1] 29:15 21 45:16 live [2] 37:17 59:15 missing [1] 13:14
indicates 46:1
[1] judicial [2] 66:14 67:2
LLC [1] 1:7 Mm-hmm [1] 47:15
indication [1] 44:11 jurisdiction [3] 33:3 34:8,10 local [1] 7:21 modification [1] 62:21
industry [1] 44:20 Justice [109] 1:23 3:3,10 4:5 5:6 6: logic [1] 42:22 moment [1] 46:10
infects [1] 50:25 10 7:3,14,19 8:13 9:4 10:6,13,19 long [3] 27:14,15 45:7 money [1] 35:13
influenced [1] 29:12 11:5,8,11,19,21 12:10,18,22 13:2, longer [1] 65:24 months [12] 14:9,22 27:20 28:4,20
information [4] 24:11,13 49:17 55: 13 14:17 16:14,16,22 17:22 19:25 look [19] 5:23 18:10 19:17,18 30: 39:13 41:10,12,24 43:9,10,17
25 20:5,22 21:10,16,22 22:8,11,22 21 31:25 33:1,10 34:15 35:6 38:5 moot [1] 23:13
infringed [2] 38:24 64:9 23:6,9,12,17 25:3,14,21,24 26:5, 39:11 43:13 45:25 59:6 62:7 63:7, morning [4] 3:4 53:20 59:16 62:6
infringement [11] 12:1 20:14 24: 10,21,23 27:14,22 28:10,11,18 29: 10,12 most [12] 4:10 20:13 25:15,15,18
23 30:6,12 41:5 43:4 49:22 57:3, 22 30:4 31:9,17,25 32:10,18,24,24 looked [2] 16:20 35:15 35:19,21 37:16 41:13 48:7 49:3
10 63:2 33:5,9 34:21 35:21 36:4,17 37:23 looking [1] 62:12 53:18
infringer [3] 57:1,2,7 38:3,7,11,15 39:17 41:6,19 42:20 loose [1] 49:4 motor [1] 7:16
infringing [1] 60:4 44:10,13,25 45:8,12 46:3,12,15,20 Los [1] 1:20 much [4] 36:20 41:25 42:14 60:22
inherently [1] 53:5 47:12,16,21,25 48:4 50:23 51:8, lose [2] 42:12,13 multiple [1] 60:11
injunction [8] 21:1,6,11,19 22:5, 14 53:8,9,10,11,12 56:12 57:20 loss [1] 29:8 music [3] 8:10 14:4,5
19 37:21 39:10 58:22 59:3 60:19 63:14,21 67:25 lost [1] 26:20 must [4] 30:10 39:11 51:22 54:19
injunctions [2] 37:11 42:7 juxtaposition [1] 18:3 lot [5] 31:11,12 39:2 59:19 62:11
N
injunctive [5] 20:17 21:4 25:20 27: K love [1] 58:3
name [1] 57:9
5 37:9
injury [2] 39:25 42:6
KAGAN [14] 16:16 17:22 20:5 26: M named [1] 57:4
23 27:14 28:11,18 31:25 35:21 36: made [52] 3:14,19 4:18,20,23 5:1,4, namely [1] 65:7
innocent [2] 57:1,7 4 41:6 53:8,10,12
insignificant [1] 51:3 12,15,20,25 6:6,24 7:4,8 8:12,17, natural [2] 30:20 53:18
KAVANAUGH [22] 16:14 19:25 25: 21 9:9,22 12:4 14:22 16:25 17:11, naturally [1] 50:12
instances [1] 48:14 3,14,21,24 26:5,10 44:10,13 45:1,
institute [1] 53:24 18 18:12,15 19:4 21:3 30:7,18 31: necessarily [1] 4:21
8,12 46:3 47:12,16,21,25 48:4 57:24 32:7 34:4 36:2 37:13 38:10 47: need [7] 35:16,16 37:15 43:7 47:
instituted [1] 30:7 20 58:22 59:3
intended [3] 19:11 54:14 67:13 12 51:22 52:17 54:18 55:3,5,13 18 53:1 67:1
keep [1] 47:1 56:4 57:8,12 61:9,23 63:25 64:11 needing [1] 37:20
intent [1] 20:25 key [6] 6:17 39:3 51:19 66:2,10 67:
interact [1] 36:3 67:9 neither [1] 33:8
20 magazine [1] 14:3 never [5] 16:7 24:19,21 26:23 44:5
interaction [1] 48:20 kind [8] 17:22 31:24 34:23 42:25
interactive [1] 35:17 mail [1] 43:14 nevertheless [1] 8:23
45:15 50:11,19,19 mailbox [1] 9:12 New [1] 43:25
interest [1] 50:19 Kregos [1] 43:25
interesting [1] 29:6 mailed [1] 9:5 next [2] 3:4 18:18
international [1] 46:19 L maintain [1] 62:20 nine [1] 27:21
language [9] 3:24 4:13 5:16 19:18 major 16:10 20:1,8 25:13 Ninety-four [1] 41:10
[4]
Internet [2] 26:13,15
interpret [2] 34:21 46:7 20:4 33:22 34:2 47:11 67:7
majority [3] 13:23,24 66:11 Ninety-seven [1] 35:22
interpreted [1] 8:4 largely [1] 37:7 man [1] 7:20 normative [1] 45:16
interprets [1] 51:1 last [2] 48:9 58:16 manage [1] 24:6 nothing [4] 11:2 53:25 64:21,22
later 6:16 14:15 32:13,17 33:19 mandamus 62:25 66:19 67:4 notice [23] 10:16 11:3,3 23:2 29:1
[3]
interrupt [1] 46:13 [6]
intervene [2] 54:4,12 34:17
many [13] 14:9 16:2 27:1,1 28:4 36: 51:4 52:12 53:14 54:6,10 55:7,22
intervened [1] 24:21 1 45:5,13,16 47:7,21 50:25 51:3 56:13,19 57:5 61:16 64:25 65:1,2,
law [1] 33:11
introduced [1] 63:8 lawsuit [1] 15:25 mark [5] 12:12,16,17 13:4,6 3,22,23 66:2
invalidate [1] 56:23 lead [2] 29:8 50:20 materialized [1] 36:25 notified [2] 23:19,24
involve [1] 43:15 least 13:15 36:23
[2] materials [3] 8:18 14:12 39:4 notify [1] 40:13
irreparable [2] 39:25 42:6 leave [1] 46:12 matter [15] 1:13 3:24 10:7 13:24 noting [1] 33:14
irrespective [1] 48:24 left [1] 51:17 14:7,10 16:6 24:2,14 28:19,21 36: notwithstanding [1] 19:7
isn't [3] 23:15 38:15,20 legislative 3:18 34:14 62:12
[4] 11 40:6 41:14 42:22 number [7] 35:6 36:8 40:16 48:17,
issuance [1] 55:2 64:4
mean [18] 4:8 5:8 8:1 13:15 16:18 18 50:5 56:2
17:20 26:10 27:4 28:18 31:10 35:
issue [12] 17:16,17 37:9,20 40:18 letter [1] 35:12
21 41:24 46:7 52:9 54:19,24 57:
O
43:22 44:6 55:4 63:1,1 65:25 66: lexicon 3:25[1]
15 60:25 objection [1] 46:16
11 liability [1] 59:22
meanings [1] 60:21 obligation [3] 22:1 27:10 28:2
issued [2] 24:16 55:5 Library [1] 49:23
Heritage Reporting Corporation
Sheet 4 inaction - obligation
 73
Official - Subject to Final Review
obligations [2] 29:17 46:19 PAGE [4] 2:2 30:15,24 63:13 policy [7] 3:20 16:17 34:23 36:9, proximity [1] 17:4
obtained [1] 7:11 PANNER [59] 1:18 2:3,13 3:7,8,10 11,19 47:5 PUBLIC [7] 1:3 3:5 7:21 10:17 49:
obvious [2] 31:8 56:5 4:12 5:13 6:12 7:7,18 8:7,15 9:7 position [3] 5:18 6:20 49:25 16 56:7 57:12
obviously [5] 17:13 40:9 44:14 52: 10:9,18,20 11:7,10,14,20,22 12:15, possibility [1] 34:17 publication [2] 14:23 65:23
3 54:16 21,25 13:7,19 14:19 16:14,16 17: possible [1] 49:19 publicly [2] 10:11 49:16
occasionally [1] 35:11 12 18:8 20:11 21:9,13,21,24 22: potentially [1] 23:5 published [1] 10:8
occur [1] 66:20 10,14,25 23:8,11,16,18 25:10,18, practical [11] 13:24 16:6 24:2 25:4, publishers [1] 8:10
occurs [1] 21:8 22 26:1,7,12 27:1,18,24 28:13,21 8,9,10,16,19 40:5 41:14 purpose [3] 47:23 67:21,21
offer [1] 40:5 53:12 63:16,18,20 practicalities [1] 24:25 pursue [2] 11:12,16
offered [1] 40:6 paper [1] 27:20 pre [1] 30:16 pursuing [2] 27:12 29:19
office [32] 6:17 9:11,13 10:2 15:8, parallel [1] 18:22 pre-register [1] 38:19 put [1] 61:12
9,11,16 16:3 20:18,20 21:19 28:2 parallelism [1] 5:23 pre-registering [1] 38:1 puts [2] 42:1 46:16
32:15 38:22 39:6 40:5,7 41:8 43: parallels [1] 50:6 pre-registration [10] 20:25 21:1
14 48:21 52:14 58:14,16 60:15 62: part [2] 43:19 45:24 37:18 38:9,12,14,16,18 39:8 59:9
Q
15,18,23 63:9 66:15,21,23 parte [1] 37:16 preceding [1] 30:22 quality [1] 67:14

Office's [2] 4:3 56:1 participate [2] 60:15,17 precisely [2] 14:16 27:6 question [25] 5:5 6:6,23 7:1,1 9:
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on-line [2] 59:20,23 passed [4] 27:17 28:12 58:8,8 preliminary [3] 22:4,5,18 questioning [1] 44:17
once [4] 15:21 27:9 29:15 55:21 passive [2] 17:5 32:7 preserves [1] 14:21 questions [1] 24:1
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29:1 31:23 32:20 33:6,7 34:1 36: patently [1] 31:7 press [2] 35:24,25 quickly [2] 37:21 65:13
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3 51:24 53:18 56:14,18 59:25 62: peculiar [1] 52:18 11 R
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10 50:8 52:4,10 55:5 47:7 48:21 49:14,20 58:19 primarily [1] 63:23 reached [1] 47:2
open [1] 65:18 perceived [1] 10:24 probably [3] 8:6 34:6 44:9 read [10] 9:23 17:10 19:22 29:13
operate [1] 57:25 percent [7] 35:7,22 41:10 43:9 48: problem [19] 20:13 25:19,24 37:8, 31:13 33:11,15 50:12 57:19 66:10
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opinion [1] 66:12 percentage [4] 36:7 43:12 48:7, 15 50:21,24 54:2 58:23 59:4
7 31:19 37:25 50:14 53:17 55:11
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order [1] 50:14 perfect [1] 65:14 9,11,13,16 53:17 58:1,12
real [5] 25:6 44:15 57:25 60:13,14
ordinary [1] 3:24 perfectly [1] 37:7 procedural [1] 15:24 reality [1] 40:6
original [2] 3:22 10:23 perhaps [2] 6:22 49:3 procedure [1] 10:10 really [10] 24:1 25:5 37:2 40:17 41:
other [15] 11:22 21:24 31:10,12 37: period [3] 26:5,7,8 procedures [1] 14:8 22 47:17 50:11 51:19 64:15,22
2 41:24 47:1 52:21 54:1,19 57:19 permits [2] 20:25 21:1 proceed [2] 6:8 53:21 reason [6] 4:6 15:17 34:1 40:14
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out [7] 24:20 25:25 26:11 56:22 57: petition [2] 30:15,24 processing [3] 41:7,9 43:8 REBUTTAL [2] 2:12 63:18
3 59:18 62:10 Petitioner [10] 1:5,19 2:4,14 3:9 professor [1] 9:6 recall [1] 65:9
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owner [36] 4:15,19,22 5:2,21 6:3 9: places [1] 55:9 property [3] 33:11,13,15 record [4] 55:21 56:7 57:13 62:12
2 11:1 15:13 17:18 18:17,21 20: plain [1] 30:9 proposed [1] 37:25 recordation [2] 4:2,3
16 21:18 27:9,12 29:16,18 56:22 plaintiff [3] 21:25 40:20 44:2 proposition [2] 31:21 32:5 recording [1] 55:18
57:13,16 60:3 61:10 62:24 64:3,7, plea [1] 37:2 protect [4] 65:4,16,16 66:3 records [1] 56:1
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points [3] 54:16 57:17 62:4 65:3,22

Heritage Reporting Corporation

Sheet 5 obligations - refers
 74
Official - Subject to Final Review
refusal [3] 35:1 66:18 67:1 require [4] 48:22 53:14 60:25 67: 13,24 53:13 54:2 56:3 59:5,15 62: small [1] 48:13
refusals [1] 48:10 13 1 63:2,5 Solicitor [1] 1:22
refuse [1] 31:6 required [14] 6:1 7:12 11:3 13:10 secondary [1] 59:22 solution [5] 37:7,23,24 39:18 44:
refused [21] 5:11,15 6:4 8:25 17:1, 15:22 18:19 40:4 46:18 65:6,7,24 Section [55] 3:14,16 4:14,14,16,19, 16
6,7,17 19:2,8,10,14,14 20:21 30:8 66:6,19 67:23 24 5:3,4,22 6:13,19 7:10 9:9,19 somebody [1] 42:1
34:11 52:3,5 53:3 54:5 62:23 requirement [9] 3:16 15:13,15 46: 11:15,18 12:8,25 13:8,9,22 14:25 somehow [2] 41:17 67:4
refuses [4] 21:12 22:23 23:13 53: 25 50:3 52:25 53:2 62:20 67:21 15:1,6,23 19:8 22:6,14,21 23:22 someone [2] 32:23 64:9
22 requirements [2] 35:5 59:25 24:9 27:11 29:17 30:5,14,24 31:4, song [1] 26:14
refusing [1] 34:18 requires [2] 32:22 67:24 23 41:3 50:10 51:18 54:25 55:8, sorry [2] 46:13,13
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1 resembles [1] 52:21 19,24 66:6 67:10,24 SOTOMAYOR [26] 10:6,13,19 11:
regime [3] 48:25 59:9 60:1 reserve [1] 29:20 sections [2] 31:12 60:24 5,8,11,19,21 20:22 21:10,16,22 22:
Register [46] 3:19 6:22 12:16 15: resist [1] 45:20 secure [1] 4:2 8,11,22 23:6,9,12,17 37:23 38:4,4,
13,14 17:7,11,23 19:5,13,15 23:23 resolve [3] 28:4 40:7 49:8 see [5] 28:15 33:10 43:3 49:7 58: 7,11,15 56:12
24:7,17,21 30:10 31:2,3,3,4,6,8,14 resolved [2] 41:11 43:10 21 sought [2] 19:24 58:17
33:2 34:11,18 49:21,21 51:23 52: resolving [1] 47:18 seek [2] 67:2,4 Southern [1] 43:25
11 53:2,5,15,21,25 54:4,8,12 55:6, respond [1] 58:2 seem [1] 18:6 sow [1] 20:6
15 61:11,24,25 62:23 63:1 65:6 Respondent [2] 15:3 20:19 seems [6] 4:6,10 10:13 17:9 20:2 speaks [1] 5:8
registered [19] 7:23 8:22 9:4 10: Respondents [7] 1:8,21,25 2:7,11 44:23 special [4] 12:19 32:6 40:2,3
16 12:2,12 13:3,5,15 14:6,7,10 15: 30:2 51:13 seen [2] 43:21 58:21 specific [1] 40:24
23 20:15 32:14 48:9 49:19 60:7 response [3] 32:19,21 59:7 self-induced [1] 44:2 specifically [3] 8:14 34:15 35:7
64:8 responses [2] 31:16 42:5 Senate [1] 46:23 spell [2] 25:25 26:11
registering [1] 31:14 result [3] 19:23 35:8 48:24 sense [24] 5:21 9:23 19:21 20:7 27: split [1] 46:23
registers [1] 8:20 revealing [1] 64:4 9 29:10,13,18 31:13 42:23 43:1 staff [1] 58:18
registrability [2] 13:20 24:4 reveals [1] 56:2 49:9 51:5 52:11 54:1 57:11,23 61: stage [1] 22:5
registrar [19] 4:9 6:5 8:23 12:11, rid [1] 46:25 13,17,20,21 65:15 66:3 67:6 stakeholders [2] 45:5,24
15,20 13:3,16 14:15 19:7 21:12 rights [14] 3:21 9:25 10:4,4,15 15: sensibly [1] 65:4 stand [1] 31:21
22:12,13,23 23:2,4,13 33:20 38:2 10,12 19:21 29:9 50:1 64:10,21 sentence [31] 5:7 16:24,25 18:3,4, start [4] 12:13,23 30:13 58:13
registrar's [1] 7:5 65:16 66:4 11,11,18,23 19:22 30:14,16 46:11 started [2] 16:22 23:14
registration [128] 3:13,16 4:1,8,11, road [1] 54:11 50:9,10,12,18 51:17,21,22 52:9,13, stated [1] 55:22
16,17,20,23,25 5:3,8,11,12,14,15, ROBERTS [24] 3:3 4:5 5:6 6:10 7: 16,24 53:6,13 54:2,3 61:24 62:2 STATES [5] 1:1,15,24 2:10 51:12
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6,12 24:12,14,16 27:10 30:7,8,10, room [2] 34:24 47:7 service [1] 59:23 statutory [6] 11:25 14:21 20:3 30:
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14 65:12 66:16 67:9,20 same [13] 47:23 49:5 50:2,5,15 52: sheet [1] 14:5 stretch [1] 44:24
registry [3] 7:16 49:16,24 9,19 59:10 60:12,21 61:25 65:15 short [1] 65:10 striking [1] 48:6
regulatory [1] 39:7 66:19 shorter [3] 28:14,17,19 STRIS [30] 1:20 2:6 29:24 30:1,3
relate [1] 55:19 sat [1] 44:3 shouldn't [4] 15:3 20:4 36:13 61: 31:16 32:18 33:23 35:23 36:6 37:
relays [1] 58:6 satisfied [1] 33:4 11 4 38:3,8,13,17 42:5,24 44:11,25
relief [4] 16:1 20:17 22:3 25:20 satisfy [1] 12:5 show [3] 22:2 39:14 51:21 45:10,13 46:4,14,20 47:15,20,22
relies [2] 63:23 65:21 saying [8] 25:7 33:15 35:12,15 40: showing [1] 22:4 48:2,5 50:24
rely [1] 57:6 18 42:15 58:13 61:19 shown [1] 18:14 strong [3] 3:12 44:9 50:6
remainder [1] 29:20 says [49] 4:15,17,22 6:1 7:10,22 9: shows [2] 57:15 60:8 stronger [2] 42:14 52:1
remaining [1] 63:17 8,10 13:8,9,22 14:18 18:11,18,25 side [5] 16:18 31:10 37:2 41:24 62: strongly [3] 5:1 6:19 10:21
remedies [8] 11:25 14:21 27:6 47: 19:1 21:18 22:15 31:1,4 32:11 33: 4 structure [2] 5:24 18:10
14 64:22 65:17 66:4,14 2,9 34:2,15,16 38:6,8 52:2,13,17, significant [2] 20:13 36:8 student [1] 8:20
remedy [3] 27:12 29:19 67:2 23 53:13,23,23 54:17,25 55:21 56: significantly [3] 28:14,17,19 subject [4] 18:7 33:13,19 46:13
removed [1] 45:4 19,20,21,23 60:3 61:11 64:6,22 similar [4] 24:9 48:24 49:9 56:18 submission [5] 7:12 8:18 14:1 40:
rendered [1] 28:8 66:8,8 67:8 similarities [1] 48:6 22 66:6
renders [1] 51:2 scenario [1] 52:6 single [3] 4:24 41:16 42:16 submissions [1] 27:19
repeatedly [2] 9:1 37:14 scheme [2] 54:13 61:14 site [1] 60:4 submit [4] 35:2 39:12 53:4 65:7
Report [4] 34:15 62:15 63:13 67: seals [1] 50:11 situation [8] 4:9 10:2 19:3,6 21:14 submitted [8] 12:4 14:6,12 15:21
18 search [4] 37:8 39:18 44:16 55:25 24:3 44:5 62:22 29:4 67:23 68:1,3
representatives [1] 44:21 second [21] 5:7 16:25 18:4,24,24 situations [1] 43:12 submitting [1] 59:11
reproduction [1] 26:4 28:3 39:22 50:10,18 51:17 52:12, slowly [1] 38:16 subscribe [2] 45:14,17
Heritage Reporting Corporation
Sheet 6 refusal - subscribe
 75
Official - Subject to Final Review
subsection [1] 31:1 trained [1] 58:19 voice [1] 17:5
subsequent [2] 27:3,4 transfer [1] 55:20
substantive [1] 29:9 tried [1] 61:16
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succeeding [1] 17:21 tries [1] 61:13 wait [2] 21:6 43:5
sue [4] 30:11 39:9 48:22 67:11 TRO [4] 22:5 37:16 39:25 40:21 waiting [1] 42:18
sufficient [2] 26:24 65:16 true [5] 12:6 56:9,10 61:3 66:17 walk [3] 42:25 55:16 61:16
suggest [2] 20:4 47:5 try [2] 17:14 46:1 WALL-STREET.COM [2] 1:7 3:6
suggesting [1] 19:22 trying [9] 8:2 20:2,6 34:5 36:10,12 wanted [4] 19:23 24:5 39:15 58:11
suggestion [1] 28:23 44:15 57:22 60:12 wants [1] 35:18
suggests [1] 5:2 Tuesday [1] 1:11 warrant [2] 39:25 43:20
suing [1] 15:14 turn [2] 50:9 60:6 Washington [3] 1:10,18,23
suit [20] 11:12,16 21:4 23:1,2,3,14, turns [1] 56:22 Washingtonian [1] 28:24
20 25:1 30:6,16 33:6 38:9 47:19 two [17] 16:23 17:4 29:3 37:14 39: way [17] 4:13 8:4 16:20 17:10 18:5
53:24 54:7,10,10 58:8 62:25 20 40:22 41:12,25 42:5 50:16 52: 34:21 38:13 43:16 45:24 47:2 51:
suits [3] 54:5 62:25 63:5 20 53:17 55:23 57:18 59:8 60:21 1 57:19 61:8,25 63:11 65:15,21
superfluous [1] 6:11 62:25 ways [1] 35:4
supporting [3] 1:25 2:11 51:13 website [1] 41:9
supports [1] 6:20
U weeks [5] 28:4,20,21 29:4 41:25
SUPREME [2] 1:1,14 U.S [1] 47:3 weighed [1] 60:11
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surprising [2] 41:15 65:20 unanimously [1] 16:12 weighty [1] 57:21
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talked [4] 46:10 50:8 51:24 59:8 46:18 65:24 67:9 7 66:12,19
talks [5] 5:9,24 24:10 54:15 65:2 underlying [1] 37:2 who's [3] 10:15 18:7 21:7
tangible [1] 15:20 undermines [3] 37:24 54:3,13 whole [3] 34:25 52:23 61:14
ten [1] 61:5 understand [9] 9:18 11:23 16:17 widely [2] 26:15,19
tend [1] 43:13 24:24 25:17 34:5 40:3 60:19 67:7 will [3] 16:10 23:2 45:2
tens [2] 48:11,14 understanding [3] 4:10 27:18 40: win [1] 44:22
term [1] 9:15 11 window [1] 42:17
terms [6] 7:5 11:5 12:23 19:20 28: understood [1] 25:5 withdrawn [1] 48:12
16 57:23 undo [1] 42:4 within [17] 5:1 14:22 23:19,24 26:
terrible [1] 47:6 unearth [1] 44:8 18 38:22 39:7,12 40:1,8,15,21 41:
test [1] 47:14 UNITED [5] 1:1,15,24 2:10 51:12 11 43:10 48:1 54:6 67:8
text [16] 8:16 16:19 17:19 30:9 33: unless [4] 11:12 24:15 57:11 61:4 without [1] 7:14
1 34:19,20 44:14,22 45:25 46:6,9 unlikely [2] 23:20 65:11 word [8] 17:23 32:2 47:22 51:25
62:10 63:23 66:8 67:15 unsurprisingly [1] 63:9 52:8 59:3 61:24 62:3
textual [8] 3:13 17:15 32:19,21 33: until [11] 10:5 12:20 20:18,20 30:7, words [2] 41:2 47:3
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14 43:4,16 44:5,15,23 45:2,8,22 using [1] 61:24 works [5] 25:6 38:23 40:11 47:3
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they've 9:10 [1] valid [1] 64:8
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3,4,6,17 51:20,20 58:16 view [4] 20:19 34:14 45:14,17 YouTube [1] 60:2
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three-year 41:3 42:17
[2]
vigorous [2] 45:3 46:22
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title [10] 5:25 6:7,25 18:13,25 19: vindicated [1] 67:22
16 30:19,21,22 56:2 violence [1] 34:20
total [1] 17:4 virtue [2] 3:22 10:22

Heritage Reporting Corporation

Sheet 7 subsection - ZIP