NYIPLA Will Submit an Amicus Brief in Unicolors, Inc. v. H&M Hennes & Mauritz, L.P.

NYIPLA has submitted an amicus curiae brief in Unicolors, Inc. v. H&M Hennes & Mauritz, L.P., No. 20-915.  The case involves Section 411(b) of the Copyright Act, which provides that a registration containing inaccurate information is presumptively valid unless the applicant knew the information was inaccurate and the inaccuracy of the information would have caused refusal of the registration.  Where there is inaccuracy and knowledge of inaccuracy, under Section 411(b), a court shall refer the question of whether the inaccuracy was material to the Register.  The Petitioner argues that Section 411(b) codified the common law fraud-on-the-Copyright-Office doctrine and therefore requires an intent to defraud to be shown before referral to the Register is appropriate.  The Petitioner further contends that this reading would mean that registrations are not invalidated on the basis of technicalities.  
 
In its amicus curiae brief, NYIPLA argues that the Register is best positioned to decide whether the inaccurate information in a registration is a technicality or would be material to her decision to grant a registration.  NYIPLA’s brief also explains that Section 411(b)’s plain terms do not require a separate showing of an intent to defraud, and that its legislative history does not reflect that Congress intended such a requirement.  Rather, the statute as-written is consistent with an intent to defraud because it requires falsity, knowledge of falsity, and materiality.  Further, Section 506(e) makes it a criminal offense to knowingly make a false representation on an application, and each applicant must certify that the information provided is correct.  Finally, NYIPLA’s brief explains that referral to the Register is sound policy, for the Register is best positioned to know whether it would have granted an application containing inaccurate information.