Muchnick v. Thomson Corp.

JOHN M. WALKER, JR., Circuit Judge,

dissenting:

The majority insists that the copyright-registration requirement, 17 U.S.C. § 411(a), presents a “jurisdictional” bar to this class-action settlement. To be sure, in the past we have labeled the copyright-registration requirement as “jurisdictional,” at least with respect to an action for damages. The Supreme Court, however, in Eberhart v. United States, 546 U.S. 12, 126 S.Ct. 403, 163 L.Ed.2d 14 (2005) (per curiam), urged us to more carefully distinguish between true jurisdictional bars and claim-processing rules that may be waived and to revisit our use of the “jurisdiction” label in that light. Following that instruction and bearing in mind the underlying purpose of 17 U.S.C. § 411(a), as well as our recent holding that not all members of a settlement-only class need to possess a valid cause of action under the applicable law, leads me to conclude that the fact that some of the otherwise presumably valid copyrights have not been registered is an insufficient basis for undoing this class-action settlement.

In Kontrick v. Ryan, 540 U.S. 443, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004), and Eberhart, the DP Supreme Court held that even “emphatic” time prescriptions in the *129rules of court are not necessarily “jurisdictional,” Kontrick, 540 U.S. at 454, 124 S.Ct. 906. It explained, “[cjlarity would be facilitated ... if courts and litigants use the label ‘jurisdictional’ not for claim-processing rules, but only for prescriptions delineating the classes of cases (subject matter jurisdiction) and the persons (personal jurisdiction) falling within a court’s adjudicatory authority.” Eberhart, 546 U.S. at 16, 126 S.Ct. 403 (internal quotation marks omitted). Then, in Arbaugh v. Y & H Corp., 546 U.S. 500, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006), the Court applied Eberhart and Kontrick to a statute, concluding that the employee-numerosity requirement of Title VII, 42 U.S.C. § 2000e(b), is not jurisdictional, noting that “the 15-employee threshold appears in a separate provision that ‘does not speak in jurisdictional terms or refer in any way to the jurisdiction of the district courts,’ ” 546 U.S. at 515, 126 S.Ct. 1235. Finally, and most recently, in Bowles v. Russell, — U.S.-, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007), the Supreme Court determined that 28 U.S.C. § 2107(a), which explicitly provides that in a civil action “no appeal shall bring any judgment ... before a court of appeals for review unless notice of appeal is filed[] within thirty days” of entry of judgment, is jurisdictional. The Court emphasized the jurisdictional significance “of the fact that a time limitation is set forth in a statute,” 127 S.Ct. at 2364, and noted that § 2107(a) admits of no exception, see id. at 2365 (adverting to the fact that “we have treated the rule-based time limit for criminal cases differently, stating that it may be waived”).

As will be explained, I think that § 411(a) is more like the employee-numer-osity requirement in Arbaugh than it is like § 2107(a) in Bowles. Moreover, because Congress passed § 411(a) to facilitate the enforcement of copyrights, I conclude that compliance with § 411(a) is a mandatory prerequisite to the accrual of a cause of action for damages, but not a prerequisite to the possession of constitutional standing. Thus this suit falls within the ambit of our holding in Denney v. Deutsche Bank AG, 443 F.3d 253 (2d Cir.2006), that not all members of a settlement-only class must possess a valid cause of action under the applicable law at the time of settlement.

Plaintiffs are a class of mostly freelance authors whose work has been reproduced without their consent in defendants’ electronic databases. An individual infringement suit for damages requires that the plaintiffs copyright be registered; yet few members of the class hold registered copyrights in their work. Of course, should any wish to sue individually, the formality of prior registration could be met. After several years of intense negotiation, and prior to trial (and hence without registration of many of the copyrights held by class members), plaintiffs and defendants reached the comprehensive settlement that is the subject of this appeal. The majority DP vacates that settlement on the basis that the district court lacked jurisdiction over the class because most of its members have not registered their copyrights. For the reasons that follow, I respectfully dissent.

I. Jurisdiction and Section 411(a)

Section 411(a) of Title 17 provides that “no action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title.” I turn first to the text of § 411(a) and ask whether it speaks in “jurisdictional” terms. See Leocal v. Ashcroft, 543 U.S. 1, 8, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004). It does not. See Boos v. Runyon, 201 F.3d 178, 182 (2d *130Cir.2000) (“The statutory provision allowing employees of federal agencies to sue in district court [i.e., 42 U.S.C. § DP 2000e-16(c) ] sets forth certain prerequisites to suit. In doing so, it does not speak in expressly jurisdictional terms.” (emphasis added)). Compare Arbaugh, 126 S.Ct. at 1244 (noting that plaintiff “invoked federal-question jurisdiction under § 1331, but her case ‘[arose]’ under a federal law, Title VII, that specifies, as a prerequisite to its application, the existence of a particular fact”), with Maj. Op. at 121 (“In a copyright action, a district court initially derives its jurisdiction from two sources: 28 U.S.C. §§ 1331 and 1338.”).

Section 411(a) does not, by its terms, provide the copyright holder with any of the sticks in his bundle of rights. Cf. 17 U.S.C. §§ 106-122 (discussing copyright holder’s rights). Indeed, it is addressed to the copyright holder, not the courts, cf. 28 U.S.C. § 2107(a) (speaking to the courts); Lin Zhong v. U.S. Dep’t of Justice, 461 F.3d 101, 107 (2d Cir.2006) (noting that 8 U.S.C. § 1252(d) stipulates that courts of appeals may review only “final order[s] of removal”), amended and superseded by 480 F.3d 104 (2d Cir.2007), and it simply sets forth a prerequisite to suit-namely, registration. Furthermore, as 17 U.S.C. § 501(b) makes clear, § 411(a) speaks not to rights but to the means of their vindication. It stipulates, “[t]he legal or beneficial owner of an exclusive right under a copyright is entitled, subject to the requirements of section 411, to institute an action for any infringement of that particular right committed while he or she is the owner of it.” 17 U.S.C. § 501(b) (emphasis added).

As we have emphasized, the distinction between a rights-creating. statute and an enforcement mechanism is an important one: we typically consider the latter a claim-processing rule within the meaning of Eberhart. For instance, in Richardson v. Goord, 347 F.3d 431 (2d Cir.2003) (per curiam), we concluded that the exhaustion requirement of the Prison Litigation Reform Act (“PLRA”) is a claim-processing rule because exhaustion is not “essential to the existence of the claim, ... and therefore to DP the presence of an Article III case or controversy,” id. at 434 (internal quotation marks and citation omitted); see also Coleman v. Newburgh Enlarged City Sch. Dist., 503 F.3d 198, 209 n. 1 (2d Cir.2007) (Straub, J., concurring); Boos, 201 F.3d at 182 (holding that Title VIPs exhaustion requirement is not jurisdictional and may be waived). Similarly, registration is not essential to the existence of a copyright claim or, as is discussed below in Part II, to the presence of an Article III case or controversy. Section 411(a) provides that even if registration has been refused by the Copyright Office, “the applicant is entitled to institute an action for infringement if notice thereof, with a copy of the complaint, is served on the Register of Copyrights.... [T]he Register’s failure to become a party shall not deprive the court of jurisdiction to determine that issue.” 17 U.S.C. § 411(a). Thus, the registration requirement appears simply to be a procedural or “administrative prerequisite!],” Boos, 201 F.3d at 183, to ensure that the “deposit, application, and fee ... have been delivered to the Copyright Office in proper form,” 17 U.S.C. § 411(a). And failure to comply with an administrative prerequisite “would not deprive district courts of jurisdiction.” Boos, 201 F.3d at 183. Indeed, under § 411(a), district courts’ jurisdiction is not disturbed by the denial of registration or by the Register’s failure, in that event, to become a party to the litigation.

Second, the legislative history of Title 17 confirms that § 411(a) does not create rights but is rather like the enforcement mechanisms or claim-processing rules in *131Kontrick, Eberhart, and Arbaugh. See 17 U.S.C. § 408(a) (“[Registration is not a condition of copyright protection.”); H.R.Rep. No. 94-1476, at 152 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5768 (“Except where, under section 405(a), registration is made to preserve a copyright that would otherwise be invalidated because of omission of the notice, registration is not a condition of copyright protection.”); see also id. at 157 (“Under [§ 411(a) ], a copyright owner who has not registered his claim can have a valid cause of action against someone who has infringed his copyright, but he cannot enforce his rights in the courts until he has máde registration.” (emphasis added)).

Congress passed § 411(a) to implement a policy preference that courts, before they process a copyright claim, should consider the views of the Copyright Office, whose duty is to determine whether “ ‘the material deposited constitutes copyrightable subject matter and the other legal and formal requirements of [Title 17] have been met.’ ” H.R.Rep. No. 94-1476, at 156, 1976 U.S.C.C.A.N. at 5772. Indeed, “[t]he Copyright Office certificate of registration is prima facie evidence of the facts stated therein. This has generally been held to mean prima facie proof of ownership and validity.” Novelty Textile Mills, Inc. v. Joan Fabrics Corp., 558 F.2d 1090, 1092 n. 1 (2d Cir.1977) (citation omitted); see Paul Morelli Design, Inc. v. Tiffany & Co., 200 F.Supp.2d 482, 485-486 (E.D.Pa.2002) (discussing deference due the Copyright Office); H.R.Rep. No. 94-1476, at 156-67, 1976 U.S.C.C.A.N. at 5772-88 (“Under section 410(c), a certificate is to ‘constitute prima facie evidence of the validity of the copyright and of the facts stated in the certificate.’ The principle that a certificate represents prima facie evidence of copyright validity has been established in a long line of court decisions, and it is a sound one.”). In this respect, § 411(a) is like other statutory exhaustion requirements, which are designed to permit agencies to pass first on contested questions, the resolution of which requires a certain quantum of expertise, and most such exhaustion requirements are not jurisdictional.1 See, e.g., Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 118-20 (2d Cir.2007) (discussing the Immigration and Nationality Act and holding that the mandatory requirement of issue exhaustion in asylum cases was not a jurisdictional prerequisite to review and that failure to exhaust could be waived); Paese v. Hartford Life Accident Ins. Co., 449 F.3d 435, 446 (2d Cir.2006) (ERISA); Boos, 201 F.3d at 182 (Title VII); Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 642 n. 2 (2d Cir.1988) (Labor Management Relations Act of 1947). Furthermore, because this suit was settled before trial, the views of the Copyright Office are unhelpful; the copyright registration requirement only serves its statutory purpose when a cause is litigated, not settled.

*132The legislative history of the Copyright Act also suggests that registration, rather than being a prerequisite to federal jurisdiction, is a prerequisite to certain remedies — namely statutory damages and attorney’s fees. See H.R. No. 94-1476, at 158, 1976 U.S.C.C.A.N. at 5774; see also 17 U.S.C. § 412. Registration furthers the important policy behind copyright of disclosing works and making them part of the public domain. But because registration is not required for copyright protection, the Copyright Act provides the additional remedies of statutory damages and attorney’s fees as incentives to register. See H.R. No. 94-1476, at 158, 1976 U.S.C.C.A.N. at 5774 (“The need for section 412 arises from [the fact that] ... [c]opyright registration for published works, which is useful and important to users and the public at large, would no longer be compulsory, and should therefore be induced in some practical way.” (emphasis added)).

Third, § 411(a) is riddled with jurisdic-tionally recognized exceptions. Cf. Bowles, 127 S.Ct. at 2365 n. 4 (noting that jurisdictional requirements are seldom waivable); Fernandez v. Chertoff, 471 F.3d 45, 58 (2d Cir.2006) (noting that the Title VII exhaustion requirement is not jurisdictional because it “ ‘is subject to waiver, estoppel, and equitable tolling’ ” (quoting Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982))); Mosely v. Bd. of Educ., 434 F.3d 527, 532-33 (7th Cir.2006). For instance, courts routinely permit plaintiffs to file suit before applying for a copyright or while the Copyright Office is considering their application. See Apple Barrel Prods., Inc. v. Beard, 730 F.2d 384, 387 (5th Cir.1984) (permitting plaintiff to file suit despite the fact that the Copyright Office had yet to act on his application); see also Positive Black Talk Inc. v. Cash Money Records Inc., 394 F.3d 357, 366 (5th Cir.2004) (“The notion that the supplemental pleading cures the technical defect, notwithstanding the clear language of § 411, is consistent with the principle that technicalities should not prevent litigants from having their cases heard on the merits.”); M.G.B. Homes, Inc. v. Ameron Homes, Inc., 903 F.2d 1486, 1488-89 (11th Cir.1990); J. Racenstein & Co., Inc. v. Wallace, No. 96 CIV. 9222, 1997 WL 605107, at *1-2 (S.D.N.Y. Oct.l, 1997). The general exception that allows post-suit registration is particularly telling because “[ijt has long been the case that ‘the jurisdiction of the court depends upon the state of things at the time of the action brought.’ ” Grupo Dataflux v. Atlas Global Group, 541 U.S. 567, 571, 124 S.Ct. 1920, 158 L.Ed.2d 866 (2004) (quoting Mullan v. Torrance, 22 U.S. (9 Wheat.) 537, 539, 6 L.Ed. 154 (1824)).

Moreover, as the majority notes, several circuits have seen fit to enjoin the infringement of an unregistered copyright. See Perfect 10, Inc. v. Amazon.com, Inc., 487 F.3d 701, 710 n. 1 (9th Cir.2007); Olan Mills Inc. v. Linn Photo Co., 23 F.3d 1345, 1349 (8th Cir.1994); Pac. & S. Co., Inc. v. Duncan, 744 F.2d 1490, 1499 & n. 17 (11th Cir.1984). These circuits have reasoned that, by’ the very language of 17 U.S.C. § 502(a), “[t]he power to grant injunctive relief is not limited to registered copyrights, or even to those copyrights which give rise to an infringement action.” Olan Mills, 23 F.3d at 1349; see also 17 U.S.C. § 502(a) (providing that a court may “grant temporary and final injunctions on such terms as it may deem reasonable to prevent or restrain infringement of a copyright” (emphasis added)); Perfect 10, Inc., 487 F.3d at 710 n. 1 (“[T]he Copyright Act gives courts broad authority to issue in-junctive relief.”); Pac. & S. Co., Inc., 744 F.2d at 1499 n. 17. Permitting district courts to enjoin the infringement of unregistered copyrights is not only consistent with § 502(a), but also gives meaning to § 408(a)’s provision that “registration is not a condition of copyright protection,” and to the congressional policy of making available the additional remedies of statutory damages and attorney’s fees to those *133who register. Cf. Walker Mfg., Inc. v. Hoffman, Inc., 220 F.Supp.2d 1024, 1039 (N.D. Iowa 2002) (“Where the owner of an unregistered copyright seeks injunctive relief, as opposed to statutory damages, the Eighth Circuit Court of Appeals has held such an action is viable even in the absence of. copyright registration.”).

Finally, it is evident that § 411(a) in not a definitive limitation on the court’s power, characteristic of a jurisdictional provision, from § 411(a)’s. explicit exception of foreign works from its reach. . See 17 U.S.C. § 411(a) (discussing “United States work[s]”). The history of this exception further counsels concluding that § 411(a), unlike jurisdictional provisions, is not meant to be inflexible. In discussing possible ways to amend the Copyright Act to bring it into compliance with the Berne Convention,2 the Senate Judiciary Committee argued that because

[rjegistration ... [while] not, technically speaking, a condition for the existence of copyright, .... is, however, a precondition for the exercise of any of the ... rights conferred by copyright, ... [the] metaphysical distinction between the existence of a right to prevent unauthorized use of a copyrighted work, and the exercise of that right, [should not be] maintain[ed].

S.Rep. No. 100-352, at 16-17 (1988), reprinted in 1988 U.S.C.C.A.N. 3706, 3721-22. Although the House did not endorse the Senate’s view, Congress as a whole was able to reach consensus on an amendment to the Act only because it deemed § 411(a) a “formality,” and the Berne Convention did not forbid signatories from “ ‘imposing] [formalities] ... on works first published in its own territory.’ ” La Resolana Architects, PA v. Clay Realtors Angel Fire, 416 F.3d 1195, 1206 & n. 11 (10th Cir.2005).

Taken together, § 411(a)’s language, legislative history, jurisdictional exeep-tions, and exception for foreign works strongly indicate that the registration re^ quirement is more akin to a claim-processing rule than a jurisdictional prerequisite.

II. Constitutional Standing in the Class-Action Context and Section 411(a)

This. appeal concerns the pre-trial settlement of a class action. Whether or not § 411(a) is a claim-processing rule, compliance with its requirements is not necessary for a copyright plaintiff to have constitutional standing. Indeed, as the Seventh Circuit has aptly explained, it is hard to see how the filing of an administrative claim could ever be the prerequisite to asserting constitutional injury. See Perez v. Wis. Dep’t of Corr., 182 F.3d 532, 536 (7th Cir.1999) (explaining under the Prison Litigation Reform Act that “Perez was injured (if at all) by deficiencies in medical treatment; an administrative claim is not essential to a case or controversy”).

And, in the class-action context, there is a distinction between constitutional standing, which is always required, and statutory standing, which is not required of all members of a settlement-only class. See In re Lorazepam & Clorazepate Antitrust Litig., 289 F.3d 98, 107-08 (D.C.Cir.2002) (holding in an antitrust class action that “[u]nlik'e constitutional standing, this court’s jurisdiction does not turn on antitrust standing”). Compare Denney, 443 F.3d at 264 (noting that all members of a settlement-only class must have constitutional standing), with id. at 265 (“The future-risk members of the Denney class have suffered injuries-in-fact, irrespective of whether their injuries are sufficient to sustain any cause of action.”).3 For instance, in Lemer v. Fleet Bank, N.A., 318 F.3d 113 (2d Cir.2003), a RICO class action, we held that RICO standing was not *134“jurisdictional,” at least in the class-action context. We explained that “plaintiffs’ lack of statutory standing does not divest the district court of original jurisdiction over the ... action.” Id. at 130. And we went on to conclude that the district court could exercise supplemental jurisdiction over plaintiffs’ state-law claims despite the fact that certain members of the plaintiff class lacked RICO standing. Id. at 125-26 (noting that if plaintiffs’ lack of RICO standing did erect a jurisdictional bar to their RICO claims, “the district court did not have ‘original jurisdiction’ over the action because the RICO claim was the only federal claim and, for the ... plaintiffs, the only basis for subject matter jurisdiction”). We emphasized that RICO standing was “sufficiently intertwined with the merits,” Lerner, 318 F.3d at 128, and thus not jurisdictional.

Drawing such a distinction between constitutional standing, the absence of which deprives the court of authority to redress harm to that plaintiff, and statutory standing, the absence of which may be waived, makes particular sense in the settlement context. We have, for example, approved the settlement of mass-tort lawsuits involving plaintiffs who have been exposed to toxic substances and therefore run the risk of incurring actionable injuries at some point in the future — but who, while they may have constitutional standing, surely could not survive a motion to dismiss for failure to state a claim were they to bring their case to trial. See, e.g., In re Agent Orange Prod. Liab. Litig., 996 F.2d 1425 (2d Cir.1993). And I am not disposed to undo such settlements because certain class members may not, at the moment of settlement, possess the statutory cause of action that they could have in the future and could then litigate. Cf. H.R.Rep. No. 94-1476 (“[A] copyright owner who has not registered his claim can have a valid cause of action against someone who has infringed his copyright, but he cannot enforce his rights in the courts until he has made registration.”).

A plaintiff alleging copyright infringement must show ownership of a valid copyright and copying by the defendant, Warner Bros. Inc. v. Am. Broad. Cos., 654 F.2d 204, 207 (2d Cir.1981); the registration requirement, and resulting opinion of the Copyright Office, bear upon the validity of the copyright and its ownership and thus “go[ ] to the merits of the action,” cf. Lerner, 318 F.3d at 129. But a plaintiff alleging copyright infringement has suffered an injury-in-fact whether or not he has registered his copyright. As the Eighth Circuit has explained, “infringement itself is not conditioned upon registration of the copyright.” Olan Mills, 23 F.3d at 1349. Thus, all members of the plaintiff class — whether or not they have registered their copyrights — have been injured by defendants if we assume the truth of plaintiffs’ allegations.

The other two requirements of Article III standing — an injury that is traceable to the challenged action and redressable by a favorable decision — are also satisfied in this case. See, e.g., Denney, 443 F.3d at 263, 266. Plaintiffs’ injuries are a direct result of defendants’ infringement and would be redressed by an award of damages for their economic losses. Plaintiffs therefore have standing in the constitutional sense.

Finally, as I noted in Part I, claim-processing rules are not essential to the presence of an Article III case or controversy, Richardson, 347 F.3d at 434. That plaintiffs have established an Article III case or controversy regardless of whether they have registered is further support for the conclusion that § 411(a)’s registration requirement is a claim-processing rule rather than a jurisdictional prerequisite, *135and that plaintiffs’ settlement should not be disturbed.

III. Well-Made Toy, Morris, and Wein-berger Are Distinguishable

In concluding that § 411(a) is “jurisdictional,” the majority relies on two decisions of our court — Well-Made Toy Manufacturing Corp. v. Goffa International Corp., 354 F.3d 112 (2d Cir.2003), and Morris v. Business Concepts, Inc., 259 F.3d 65 (2d Cir.2001) — that attach the “jurisdictional” label to § 411(a). I have already sought to explain why we should reconsider our too-facile use of the jurisdictional label in the wake of Eberhart.4 Cf. Coleman, 503 F.3d 198, 204 (“Recently, ... the Supreme Court has admonished lower courts to more carefully distinguish between jurisdictional rules and mandatory claims-processing rules”). I now explain why those eases, in any event, offer only equivocal support.

The plaintiff in Well-Made Toy, for instance, manufactured two similar rag dolls, differing principally in their size. Although it registered a copyright in only the smaller of the two dolls, 354 F.3d at 114, Well-Made Toy sought damages from the defendant based on the defendant’s alleged reproduction of the larger of the two dolls. In concluding that Well-Made Toy could not maintain such a suit, we distinguished Streetwise Maps, Inc. v. VanDam, Inc., 159 F.3d 739 (2d Cir.1998). In Streetwise Maps, while the plaintiff had registered a copyright in only the second of two maps it published (as in Well-Made Toy), the second map incorporated the substance of the first map (unlike the dolls in Well-Made Toy); and thus, we concluded, the “registration certifícate [for the second map] ... suffice[d] to permit [the plaintiff] to maintain an action for infringement based on defendants’ infringement [of its unregistered copyright in the first map].” Id. at 747. The difference between Well-Made Toy and Streetwise Maps was a matter of logic, not locution: “Because a derivative work is cumulative of the earlier work, it is logical that the registration of the derivative work would relate back to include the original work, while registration of the original material would not carry forward to new, derivative material.” Murray Hill Publ’ns v. ABC Commc’ns, Inc., 264 F.3d 622, 632 (6th Cir.2001) (emphasis added), cited in Well-Made Toy, 354 F.3d at 116.

Morris v. Business Concepts, Inc. is equally unhelpful to the majority. In that case, while we did say that “subject matter jurisdiction was lacking because the registration requirement of § 411(a) was not satisfied,” 259 F.3d at 72, we also asserted, without mentioning “jurisdiction,” that “proper registration is a prerequisite to an action for infringement,” id. at 68 (citing Whimsicality, Inc. v. Rubie’s Costume Co., 891 F.2d 452, 453 (2d Cir.1989)). Thus, Morris is hardly a beacon of clarity. Cf. Paese, 449 F.3d at 443 (discussing the opacity of the court’s precedent respecting exhaustion under ERISA).

The majority likewise relies upon Weinberger v. Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975), to support its contention that each member of a settlement-only class must satisfy the “jurisdictidnal” requisites to a suit under the Copyright Act-including, as it so happens, § 411(a). *136But the majority misses the point: Wein-berger supports the conclusion that the essential question is whether compliance with a statutory exhaustion requirement is necessary for plaintiffs to have constitutional standing. And, indeed, in Wein-berger it was. See Perez, 182 F.3d at 535-36 (discussing Weinberger and noting that waiting too long to sue “can be a jurisdictional shortcoming, if the step omitted before suit is essential to ... the presence of an Article III case or controversy”); see also Richardson, 347 F.3d at 434. Weinberger involved 42 U.S.C. § 405(g), a provision of the Social Security Act that channels social security and medicare claims through an administrative process and precludes federal courts from exercising general federal question jurisdiction over such claims.- The Court explained, “it is the Social Security Act which provides both the standing and the substantive basis for the presentation of th[e] constitutional contentions.” Weinberger, 422 U.S. at 760-61, 95 S.Ct. 2457 (emphasis added); see also Shalala v. Ill. Council on Long Term Care, Inc., 529 U.S. 1, 12, 120 S.Ct. 1084, 146 L.Ed.2d 1 (2000) (“[T]he bar of § 405(h) reaches beyond ordinary administrative law principles of ‘ripeness’ and ‘exhaustion of administrative remedies.’ ”); Heckler v. Ringer, 466 U.S. 602, 615, 104 S.Ct. 2013, 80 L.Ed.2d 622 (1984) (holding that the bar to the exercise of federal question jurisdiction applied only when “both the standing and the substantive basis for the presentation” of a claim was the Medicare Act (emphasis added)). But, as I have already explained, in this case, constitutional injury does not depend upon compliance with § 411(a): whether or not they have registered their copyrights, all members of the class in this case have suffered sufficient injury to satisfy Article III.

For the foregoing reasons, I would not dismiss the settlement on jurisdictional grounds.5 I respectfully dissent.

. In fact, the copyright-registration requirement is less stringent than the exhaustion requirement of Title VII: a copyright holder need not obtain a "right to sue” letter from the relevant administrative body. Compare 42 U.S.C. § 2000e-5(e)-(f), with 17 U.S.C. § 411(a) (noting that when "the deposit, application, and fee required for registration have been delivered to the Copyright Office in proper form and registration has been refused, the applicant is entitled to institute an action for infringement”), 2-7 Nimmer on Copyright § 7.16[B][l][a][I] ("[A] party who seeks to register may proceed to litigate the claim, regardless of whether the Copyright Office ultimately issues the certificate, or by contrast denies it.”), and 17 U.S.C. § 410(d) ("The effective date of a copyright registration is the day on which an application, deposit, and fee, which are later determined by the Register of Copyrights or by a court of competent jurisdiction to be acceptable ... have all been received.” (emphasis added)).

. Convention for the Protection of Literary and Artistic Works, Sept. 9, 1886 (Paris Text 1971), S. Treaty Doc. No. 99-27 (1986).

. I thus disagree with the majority that all members of a settlement — only class must possess both constitutional and statutory standing. Cf. Maj. Op. at 126.

. I note in passing that although in Moore v. PaineWebber, Inc., 189 F.3d 165, 169 n. 3 (2d Cir.1999), we “suggested in dictum that RICO’s causation requirement raises a jurisdictional issue,” Lerner, 318 F.3d at 128 (discussing Moore), the author of the majority opinion in the instant case recently joined Lemer, which dismissed that suggestion and held that " ‘RICO standing’ ... is not jurisdictional in nature,” id. at 129 (Sotomayor, J., joined by Straub & Goldberg, JJ.).

. On the merits, the failure to create a subclass consisting of those members holding primarily "C-class” claims, and separate representation for those members, is a serious problem in my view, because the named representatives hold more "A-class” and "B-class” claims than most class members, and thus have an incentive to favor holders of A- and B-class claims over holders of primarily C-class claims. Cf. United Ind. Flight Officers, Inc. v. United Air Lines, Inc., 756 F.2d 1274, 1284 (7th Cir.1985) ("No named plaintiff is a member of subclass 2 alone.”) (emphasis added); Bogosian v. Gulf Oil Corp., 561 F.2d 434, 449 (3d Cir.1977). Objectors point out that such favoritism may have occurred-as the so-called "C-reduction,” see Maj. Op. at 120, ensures that C-class claim holders are paid little or perhaps nothing. Nevertheless, the majority’s conclusion today reduces the value of 'unregistered copyright claims to zero, rendering the merits of the settlement a moot point.