Thursday, March 04, 2010Last Update: 6:56 PM PT

     (CN) - Failure to register a copyright doesn't bar authors from filing copyright infringement claims in federal court, the Supreme Court ruled Tuesday, reviving an $18 million class-action settlement between freelance authors and publishers.
     The Copyright Act generally requires copyright holders to register their works before suing for infringement.
     In the underlying class action, freelance authors accused print publishers and publishers of electronic databases of reproducing their work without permission. The consolidated class included authors who had never registered copyrights to their articles.
     After three years of negotiations, the authors and publishers agreed to settle the dispute "to achieve a global peace in the publishing industry," the ruling states.
     They asked the district court to certify a class for settlement and approve their agreement. The district court complied, overruling the objections of 10 freelance authors.
     On appeal, the 2nd Circuit in Manhattan raised the issue of whether the federal court had jurisdiction to approve the settlement, because the deal included unregistered works.
     The circuit overturned the lower court's rulings, and the Supreme Court again reversed.
     The registration requirement of the Copyright Act is not jurisdictional, Justice Clarence Thomas ruled, rejecting arguments advanced by amicus curiae appointed to defend the 2nd Circuit's position.
     "In concluding that the district court had jurisdiction to approve the settlement, we express no opinion on the settlement's merits," Thomas wrote.
     "We also decline to address whether (the) registration requirement is a mandatory precondition to suit that ... district courts may or should enforce sua sponte by dismissing copyright infringement claims involving unregistered works."
     In a concurring opinion, Justice Ruth Bader Ginsburg explained how she reconciled the high court's rulings in Arbaugh v. Y&H Corp. and Bowles v. Russell, which addressed statutory requirements that were potentially jurisdictional.
     Justice Sonia Sotomayor did not participate in the unanimous decision.

     (CN) - Same-sex marriage is now legal in the District of Columbia, after the Supreme Court on Tuesday refused to stall the city's first gay marriage law from going into effect.
     Opponents of same-sex marriage had asked Chief Justice John Roberts to stop the city from issuing marriage licenses to gay couples pending their appeal. They say voters should have been allowed to vote on the issue, a claim that D.C. courts have rejected.
     "It has been the practice of the court to defer to the decisions of the courts of the District of Columbia on matters of exclusively local concern," Roberts wrote, quoting the high court's opinion in Whalen v. U.S.
     He also noted that Congress had a 30-day window to stop the law from going into effect, but chose not to act.
     "I conclude that a stay is not warranted," he wrote.
     Same-sex couples in D.C. began applying for marriage licenses Wednesday, but must wait three full business days to exchange vows.

     WASHINGTON (CN) - In a case closely watched by foreign officials, the immunity of a former Somali prime minister involved in widespread killing, torture, and rape was put to question in the Supreme Court Wednesday. The ousted official had fled to the United States and was then sued in Virginia by his victims.
     Defendant Mohamed Ali Samantar held several prominent positions in the oppressive Somalian government during the 1980s, serving as the vice president, as the minister of defense and as the prime minister. When the government was overthrown in 1991, Samantar fled to Kenya, then Italy, and finally settled in the United States, where he was sued by torture victims.
     They claimed rape, murder and torture that involved electrocution, withholding of food and water, and extended solitary confinement.
     The court must now decide whether the Federal Sovereign Immunities Act of 1976 includes foreign officials when it immunizes "agencies and instrumentalities" of a foreign country from being sued. And if foreign officials are immune under that act, the question would still turn on whether the Torture Victim Protection Act passed later would undo those immunities.
     Lord Nicholas Phillips, president of the recently forged Supreme Court in the United Kingdom, attended the arguments.
     Shay Dvoretzky, a partner at Jones Day, represented Samantar. He argued that the immunity of "agencies and instrumentalities" of a foreign country includes foreign officials because they act on the state's behalf. He said this means the laws applied to the country and its officials are indistinguishable.
"U.S. courts are not the ultimate arbiters of foreign law," he said.
     Patricia Millett, a partner at Akin Gump Strauss Hauer & Feld, represented the victims, and was supported by the Obama administration. She said that foreign officials are not immune from being sued because the immunities act is only meant to protect the foreign country, not individuals. And she said that the vulnerable Samantar is liable under the torture victim act.
Justice Stephen Breyer challenged the victims' arguments, saying that if the victims could simply make their claims against government officials, the law would undo the protection set up for foreign governments.
Chief Justice John Roberts followed up.
"The only way a state can act is through people," he said to Millett. "And you are saying, 'Well, the state is insulated, but the people who do the acts for the state are not.' I don't see how that can work."
     Justice Antonin Scalia pointed to a torture case that Spanish courts heard last year against six Bush administration officials, including former Secretary of Defense Donald Rumsfeld. "And what you say is that that's perfectly okay?" he asked the victims' lawyer.
"I think it's a pretty empty statute to interpret the Foreign Sovereign Immunities Act to immunize the Department Of Defense, but not the secretary of defense," he told the victims' lawyer.
But Scalia did not clearly favor one side. He joined other justices in suggesting that Samantar can be tried in an American court.
"It defines agency or instrumentality in a way which, it seems to me, does not include private individuals," Scalia said of the immunity act.
Justice Sonia Sotomayor referenced other laws granting specific foreign immunity to make her point.
"That doesn't make any sense to me," she said in criticizing the argument that officials fall under the immunity of foreign nations. "Why would we have had the creation of all of these common law immunities attached to foreign individuals like consular and diplomatic and heads of state if state sovereign immunity was going to cover them naturally?"
Justice Ruth Bader Ginsburg also drew a distinction between a government and one of its officials. "This is a case seeking money out of the pocket of Samantar and no money from the treasury of Somalia, she said, "so why is the suit against the officer here equivalent to a suit against the state?"
Justice Anthony Kennedy addressed a clash between the immunity act and the torture victims act allowing the courts to judge people who assisted in torture in a foreign country. "Let's assume there is immunity," he said. "Why isn't it just overridden by the later enactment of the Torture Victims Protection Act?"
     Dvoretzky replied that the torture act creates a cause of action, but is silent on immunity, meaning the immunity act should be consulted.
     The district court granted Samantar's motion to dismiss the case, holding that claims against a foreign official equate to claims against the country, but the 4th Circuit reversed. It held that holding that individuals are not immune and if they were, Samantar is not because he is no longer a member of the Somali government.