In this series on DIY Copyright research, we have discussed how to find useful and reliable precedent and whether that precedent is binding or persuasive. In this next installment, we will take a look at circuit splits and what impact they may have on your research project.
What is a Circuit Split?
The Copyright Act is a federal law which means it was created by the federal government and applies to everyone in the country. Federal court is where conflicts related to federal laws like the Copyright Act are normally heard. The federal court system is split into eleven different regions called "circuits" which encompass most of the states and territories of the United States. There is also a circuit covering the District of Columbia. The different circuits are delineated in the photo above. [1]
Ideally, because the same federal laws apply to us all, we want the different circuits' interpretations of those laws to be consistent. But, a circuit split happens when two or more circuits interpret the same law in conflicting ways. Because we are bound by the law of the circuit where we reside, when there is a circuit split, the same law may be carried out completely differently one circuit than it would for someone who resides in a different circuit.
How Does a Circuit Split Affect my Research?
Circuit splits affect research because the presence of a split can potentially change the outcome of whatever it is you are researching. Lets look at a recently resolved circuit split for example. In Fourth Estate Public Benefit Corporation v. Wall-Street.com the United States Supreme Court, the only entity that can resolve a circuit split, decided an issue that had split the 10th and 11th from the 9th and 5th circuits.
Before a copyright case can be filed in federal court, the copyright must be formally registered with the Copyright Office. [2] The circuits were split on when registration actually occurred - when the paperwork was filed and fee paid (the "application" approach) or when the copyright was officially approved or rejected by the Copyright Office (the "registration" approach).
This seems like a relatively benign issue but it can make all the difference in certain situations. For instance, under the Digital Millennium Copyright Act ("DMCA"), if you find that someone is infringing upon your work online and you have filed a takedown notice against them, if they file a counter-notice you then only have 10 business days to file a court action in order to keep that infringing item offline. If you try to register with the Copyright Office and have to wait for them to approve or refuse your registration, you will miss the deadlines imposed by the DMCA as copyright registration can take months to be adjudicated. Having to wait months for a registration means that an item that infringes your copyright can be put back up for sale online under the DMCA.
So, with a circuit split on an issue like this, if you lived in Arizona (9th Circuit), you could make the DMCA deadline and keep your work protected but if you lived next door in New Mexico (10th Circuit), you could not. This is why circuit splits can have a huge impact on the answer to any research question you may have. For what its worth, the Supreme Court decided that the "registration approach" is indeed the correct one and you must wait until the Copyright Office approves or rejects your application before you can file a lawsuit.
Current Circuit Splits?
Now that I have told you why knowing about a circuit split is so important, there has to be a place to find current splits right? Right?? Unfortunately, there is no accessible (i.e. "free") and reliable method by which circuit splits can be easily identified; it is just not a metric that is kept track of and compiled like other areas of the law. But, all is not lost - there are a few things you can do.
Law Library - At the time I am writing this, a lot of law libraries are closed due to the Covid-19 shutdowns but, if/when you have access to a public law library, the librarians there are an amazing resource and can help you search Lexis and/or Westlaw for current copyright circuit splits. Lexis and Westlaw are the two main legal research databases that are used by law school and law firms worldwide. They are both prohibitively expensive for most DIYers but can generally be accessed for free at law libraries.
Sunday Splits - Emory Law School publishes a website called Sunday Splits where they discuss circuit splits weekly. This site is not focused on intellectual property so you will have to wade a little bit to find the proper information.
Google Scholar - Google Scholar has a Case Law section where you can search an extensive database of state and federal cases. You can go here and choose the "case law" button and limit the search to "Federal courts." From there, if you search for "split" or "circuit split" plus the copyright related terms you're researching you should be able to find some promising leads if any exist.
The Takeaway for Crafters
Although there is no real straight forward method by which we can find all copyright related splits, it is still important to know that such a thing exists and what it means. It is also a good idea to keep these sorts of things in mind when researching because not every case you may find online or see referenced in forums applies to your or your issue in your state.
[1] There is also a thirteenth circuit called the Federal Circuit. The Federal Circuit hears cases arising under certain laws and from certain administrative boards. Because it does not normally hear copyright cases, our discussion won't include the Federal Circuit.
[2] 17 U.S.C § 411.
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