Federal Evidence Review

Where certified copies of the copyright registration were not provided, district court could take judicial notice of the federal copyright registrations in the Copyright Office’s registry, in Island Software and Computer Service, Inc. v. Microsoft Corp., 413 F.3d 257, 261 (2d Cir. 2005) (No. 04-0744-CV)

FRE 201 allows a court to take judicial notice of a fact that is “not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” In a copyright dispute, normally the copyright holder provides certified copyright registrations. Can a court take judicial notice of the copyright registration? This issue was considered in a Second Circuit case.

In the case, an investigator purchased three Microsoft software programs from Island Software and Computer Service. After Microsoft reviewed the programs and concluded they were counterfeit, the company sent Island Software a “cease and desist” letter and “threatened future litigation unless Island made a payment of $15,000 and identified the supplier of the counterfeit merchandise.” Island Software, 413 F.3d at 259. Instead, Island Software filed a declaratory judgment action for a determination of non-infringement. Microsoft counterclaimed for copyright and trademark infringement and related claims. The district court granted summary judgment for Microsoft on the copyright and trademark claims but denied summary judgment on the unfair competition claims. During the proceedings, Microsoft provided “copies of its federal copyright registrations, and did not swear to the authenticity of those copies.” Island Software, 413 F.3d at 261.

On appeal, as one issue, the Second Circuit reviewed whether Microsoft had established its copyright ownership. The circuit found an alternative means of establishing this element:
bq. “The district court was entitled to take judicial notice of Microsoft’s federal copyright registrations, as published in the Copyright Office’s registry. Cf. Duluth News-Tribune v. Mesabi Publ’g Co., 84 F.3d 1093, 1096 n.2 (8th Cir. 1996) (taking judicial notice of trademark registrations published in Patent and Trademark Office’s registry). We therefore decline to hold that the district court, by relying on the unauthenticated copies of Microsoft’s registrations, erred in concluding that Microsoft owned the copyrights. Even if the district court abused its discretion by admitting these unauthenticated copies — and we express no opinion on that question — Island suffered no prejudice through that potential evidentiary error. The court’s ultimate conclusion would have been adequately supported by taking judicial notice of the official, published copyright registrations.

Island Software, 413 F.3d at 261.

While it is not recommended that judicial notice substitute for the regular practice of introducing copyright registrations in a copyright case, the Island Software case illustrates the breadth of judicial notice where the requirements of FRE 201 are satisfied.