OSG is in misalignment with the court on copyright issues.

Four of the Court’s copyright cases addressed procedural issues. 28 The Court agreed with OSG’s recommended outcome and generally agreed with OSG’s analysis in all four. Most understandable was the Court’s deference to the government’s views in three cases calling for close interpretations of registration-related provisions of the 1976 Act. 29 The Copyright Office has substantial expertise on these issues because registering copyright claims is the Office’s principal responsibility.30 In a fourth copyright procedure case, OSG persuaded the Court that the equitable doctrine of laches should not be a complete defense to infringement claims, as this would undermine the ability of rightholders to recover some compensation for infringements that happened during the statutory limitations period. 31

OSG also persuaded the Court to defer to Congressional judgments about granting a twenty- year extension to the terms of existing copyrights and “restorations” of copyrights in foreign- authored works that had previously been in the public domain in the U.S. for failure to comply with U.S. formalities.32 OSG’s briefs emphasized the historical precedents for extending copyright terms and granting rights in intellectual creations previously thought to be in the public domain and argued that Congress had acted rationally in amending copyright law to achieve its legitimate objectives.33

OSG’s views prevailed in one of the Court’s three copyright remedies cases. It persuaded the Court that copyright owners can recover from infringers only those costs that are generally recoverable in federal litigation. 34 However, the Court disagreed with OSG in two other remedies cases, one involving criminal charges against a copyright infringer and the other concerning the appropriate standard for awarding attorney fees to prevailing defendants.35

OSG has participated as amicus in ten cases calling for interpretations of substantive provisions of U.S. copyright law. In four cases, the Court agreed with OSG about which party should prevail, but not with OSG’s analyses of the issues. In four other cases, the Court disagreed not only with OSG’s analysis, but also about which litigant should prevail. In a ninth case, the Court split 4-4 despite OSG’s recommendation to rule in favor of the copyright owner respondent. A tenth substantive interpretation case in which OSG was amicus is pending.36