Laatz v. Zazzle

Background

Plaintiffs petitioned under 28 U.S.C. § 1292(b) for certification of an earlier order for interlocutory review, meaning an immediate appeal before the case was otherwise ready for a final appeal. The earlier order granted Defendants’ motion for reconsideration of a summary-judgment ruling concerning Plaintiffs’ federal copyright-infringement claim based on registrations for the Blooming Elegant fonts.

The court had previously granted in part and denied in part Defendants’ motion for summary judgment. It invalidated the registrations for font data because the registrations lacked human authorship. In the later reconsideration order, the court determined that Plaintiffs did not meet the statutory requirements to bring the federal copyright claim because Plaintiff had neither a registration nor a refusal of registration. The court explained that, after the font-data registrations were found invalid, it no longer mattered whether the Blooming Elegant fonts were copyrightable as computer programs.

Defendants did not oppose the petition but asked the court to stay the case if certification were granted.

Legal standard

Under § 1292(b), a district court may certify an otherwise nonappealable order for immediate appellate review only in exceptional circumstances. The party seeking certification must show: (1) a controlling question of law; (2) substantial grounds for disagreement about that question; and (3) that an immediate appeal would materially advance the end of the litigation. Such requests are granted sparingly.

Discussion

Plaintiffs identified two proposed questions. First, they asked whether a plaintiff’s pre-suit copyright registration can later be invalidated because the application contained inaccurate information, particularly when the inaccuracy does not require invalidation under 17 U.S.C. § 411(b)(1). Second, they asked whether, in that situation, the court must refer the corrected information to the Copyright Office under § 411(b)(2), or may instead dismiss the claim for failure to meet § 411(a)’s pre-suit registration requirement.

The court agreed that the proposed issues involved controlling questions of law. It stated that whether Plaintiffs met § 411’s registration requirement was a pure legal question and a threshold issue in determining whether they had a private cause of action under the copyright statutes. A reversal could materially affect the outcome of the case.

The court nevertheless found that Plaintiffs failed to establish substantial grounds for a difference of opinion. Plaintiffs argued only generally that reasonable judges could disagree based on the statute and existing case law. They did not identify unclear controlling law, a circuit split, or a novel question of first impression. The court also rejected Plaintiffs’ suggestion that the fact that it had reconsidered its earlier order automatically showed that interlocutory review was appropriate.

The court further rejected Plaintiffs’ argument that an immediate appeal would advance termination of the case by avoiding a possible second trial or encouraging settlement. The possibility that reversal could lead to a jury trial on the copyright claim was not enough to justify interlocutory review. The court noted that the action had been pending for more than three years, that earlier scheduling accommodations had not produced a settlement, and that further postponement of the scheduled trial was not warranted.

Disposition

The court ordered that Plaintiffs’ petition for certification for interlocutory review be DENIED.