Amicus Curiae Brief — BMG Rights Management (US) LLC, et al., Petitioners v. Cyril E. Vetter, et al.

Supreme Court briefJul 16, 2026

Ask Donna

What actually matters in this document.

Text

No. 25-1391

IN THE

Supreme Court of the United States

BMG RIGHTS MANAGEMENT (US) LLC, et al.,

Petitioners,

CYRIL E. VETTER, et al.,

Respondents.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

BRIEF OF 20 INTELLECTUAL PROPERTY

LAW PROFESSORS AS AMICI CURIAE

IN SUPPORT OF PETITIONERS

AND THE PETITION FOR CERTIORARI

Tyler T. Ochoa

Counsel of Record

SANTA CLARA UNIVERSITY

SCHOOL OF LAW

500 El Camino Real

Santa Clara, CA 95053

(408) 554-2765

ttochoa@scu.edu

Counsel for Amici Curiae

TABLE OF CONTENTS

INTEREST OF AMICI CURIAE............................. 1

SUMMARY OF ARGUMENT ................................. 2

ARGUMENT.............................................................. 4

THE INTERNATIONAL COPYRIGHT SYSTEM

IS BASED ON THE PRINCIPLES OF

TERRITORIALITY AND NATIONAL

TREATMENT. ...................................................... 4

II. THE FIFTH CIRCUIT’S DECISION IN THIS

CASE VIOLATES BOTH THE PRINCIPLE OF

TERRITORIALITY AND THE PRINCIPLE OF

NATIONAL TREATMENT. ................................. 8

A. The Fifth Circuit’s Decision in this Case

Violates the Principle of Territoriality. ......... 8

B. The Fifth Circuit’s Decision in this Case

Violates the Principle of National

Treatment. .................................................... 11

C. The Fifth Circuit’s Decision in this Case

Also Violates the Strong Presumption

Against Extraterritoriality........................... 14

III. THE FIFTH CIRCUIT’S DECISION IN THIS

CASE CREATES A SPLIT IN AUTHORITY

AND DISRUPTS THE INTERNATIONAL

CONCLUSION ........................................................ 21

APPENDIX .............................................................. 22

TABLE OF AUTHORITIES

Cases

Abitron Austria GmbH v. Hetronic Int’l, Inc.,

600 U.S. 412 (2023) .................................. 3, 14, 16

Clancy v. Jack Ryan Enterprises, Ltd., 2021

WL 488683 (D. Md. Feb. 10, 2021) .................... 17

Fred Ahlert Music Corp. v. Warner/Chappell

Music, Inc., 155 F.3d 17 (2d Cir. 1998) ............. 17

Golan v. Holder, 565 U.S. 302 (2014) .............. 4, 5, 11

Morrison v. National Australia Bank Ltd.,

561 U.S. 247 (2010) ........................................... 14

Murray v. Schooner Charming Betsy, 6 U.S.

(2 Cranch) 64 (1804) ........................................... 13

RJR Nabisco, Inc. v. European Community,

579 U.S. 325 (2016) ........................................... 14

Siegel v. Warner Bros. Entertainment, Inc.,

542 F. Supp. 2d 1098 (C.D. Cal. 2008),

rev'd in part on other grounds, 504 F.

App'x 586 (9th Cir. 2013) ................................... 17

Vetter v. Resnik, 163 F.4th 951 (5th Cir.

2026).............................................. 8-9, 11-12, 15-16

iii

Statutes

17 U.S.C. § 101 ........................................................ 13

17 U.S.C. § 104(b)(2) ............................................... 13

17 U.S.C. § 203(b)(5) ................................................. 8

17 U.S.C. § 304(c)(6)(E) ............................. 2, 8, 15, 16

Act of Mar. 3, 1891 (Chace Act), ch. 565, § 13,

26 Stat. 1106 ...................................................... 10

Berne Convention Implementation Act, Pub.

L. 100-568, § 2, 102 Stat. 2853 ............................ 4

Rules

Supreme Court Rule 37 ............................................. 1

Treaties

Agreement on Trade Related Aspects of

Intellectual Property Rights (“TRIPS”),

Art. 9.1, 33 I.L.M. 1197, 1201 ......................... 2, 6

Berne Convention for the Protection of

Literary and Artistic Works, Sept. 9,

1886, as revised at Paris on July 24, 1971,

1161 U.N.T.S. 3, and as amended in 1979,

S. Treaty Doc. No. 99-27 (1986) ............... 3-7, 9-13

Foreign Cases

OLG Düsseldorf, Judgment of 24 April 2007,

Case No. I-20 U 175/06, available at

https://nrwe.justiz.nrw.de/olgs/duesseldorf/

j2007/I_20_U_175_06urteil20070424.html

(last visited July 15, 2026) ............................ 18-19

Redwood Music Ltd. v. Bourne Estate, 1995

CanLII 7324 (Ont. Ct. Gen. Div.),

available at <https://canlii.ca/t/1w7zl>

(last visited July 5, 2026) .............................. 19-20

Other Authorities

Daniel C.K. Chow & Edward Lee,

International Intellectual Property:

Problems, Cases, and Materials 17, 34

(5th ed. 2025) ................................................. 7, 10

Graeme B. Dinwoodie, International

in International Copyright Law and

Practice (Burton Ong ed., LexisNexis

2025) ............................................................ 6, 7, 13

Paul Goldstein & P. Bernt Hugenholtz,

International Copyright: Principles, Law

and Practice §4.1, §4.2 (2d ed. 2010) .................. 7

INTEREST OF AMICI CURIAE

This brief amicus curiae in support of Petitioners

and the Petition for Certiorari is submitted pursuant

to Rule 37 of the Rules of this Court.1

Amici are professors of copyright law, intellectual property law, and/or international intellectual

property law who are familiar with principles of

international intellectual property law and its

relationship to copyright law in the United States.

Amici have no financial interest in the parties to or

the outcome of this case. Amici share a professional

and academic interest in ensuring that U.S. copyright

law is interpreted in a manner that is consistent with

fundamental principles of international intellectual

property law and with Congressional intent. To that

end, amici present a summary of their understanding

of the relationship between U.S. copyright law and

those fundamental principles, to aid the Court in its

deliberations.

A full list of amici can be found in the Appendix.

1 No party or counsel for a party authored this brief in whole

or in part or made a monetary contribution intended to fund its

preparation or submission. No person other than the amici made

a monetary contribution to the preparation or submission of this

brief. Amici’s university affiliations are for identification purposes only; amici’s universities take no position on this case.

Pursuant to Rule 37.2 of the Rules of this Court, counsel of

record for the amici provided counsel for all parties notice of

amici’s intention to file an amicus curiae brief at the petition

stage on July 3, 2026, which was at least 10 days prior to the due

date for the amicus curiae brief.

SUMMARY OF ARGUMENT

International copyright treaties are premised on

two fundamental principles: the principle of

territoriality, and the principle of national treatment.

The principle of territoriality means that each nation

legislates and regulates intellectual property rights

within its own borders. The principle of national

treatment requires that each nation give to the

nationals of other treaty member nations at least the

same protection that it provides to its own nationals.

The Fifth Circuit’s decision in this case violates

both of those principles. Under the principle of

territoriality, copyrights in countries outside the

United States “arise under” and are governed by the

Circuit, however, held that the foreign copyright

interests of U.S. authors and their assignees “arise

under” U.S. copyright law. This violates the longstanding territoriality principle, and it contradicts the

express language of the U.S. Copyright Act that

“[t]ermination of a grant under this subsection affects

only those rights covered by the grant that arise under

this title, and in no way affects rights arising under

any other Federal, State, or foreign laws.” 17 U.S.C. §

304(c)(6)(E) (emphasis added).

The Fifth Circuit’s decision also violates the principle of national treatment. The logical implication of

the Fifth Circuit’s decision is that termination applies

only to U.S. authors and their assignees, because their

rights “arise under” U.S. law, while the copyright

interests of foreign authors and their assignees “arise

under” the laws of their countries of origin. Under the

Fifth Circuit’s decision, foreign authors may be denied

their rights to termination in the United States

altogether, even though U.S. law provides such

termination rights to domestic authors. But under the

Berne Convention and the U.S. Copyright Act, the

United States has an obligation to provide foreign

provides to domestic copyright owners.

The Fifth Circuit’s decision also violates the

presumption that “legislation of Congress, unless a

contrary intent appears, is meant to apply only within

the territorial jurisdiction of the United States.”

Abitron Austria GmbH v. Hetronic Int’l, Inc., 600 U.S.

412, 417 (2023) (cleaned up). Instead of applying the

presumption, the Fifth Circuit relied on the absence of

any geographic limitation in the statute to infer that

it applied internationally. That approach turns the

presumption against extraterritoriality on its head,

making it a presumption in favor of extraterritorial

reach unless Congress expressly stated otherwise.

By contradicting the fundamental principles of

international intellectual property law, the Fifth’s

Circuit’s decision disrupts the foreign relations of the

United States and creates tremendous uncertainty for

domestic and foreign copyright owners, assignees, and

licensees alike. Assignees and licensees of U.S.

authors are now likely to face contradictory rulings,

with the Fifth Circuit holding that termination of all

foreign copyright interests of U.S. authors are

governed by U.S. copyright law, while foreign courts

will continue to follow fundamental principles and

hold that termination of foreign copyright interests of

U.S. authors are governed by the laws of the country

for which protection is sought.

Because the Fifth Circuit’s decision violates two

fundamental principles of international intellectual

property law, and a split of authority already exists,

the Court should grant the petition for certiorari.

ARGUMENT

THE INTERNATIONAL COPYRIGHT

SYSTEM IS BASED ON THE PRINCIPLES

OF TERRITORIALITY AND NATIONAL

TREATMENT.

The international copyright treaties to which the

U.S. is a party are premised on two fundamental

principles: the principle of territoriality, and the

principle of national treatment. The principle of

territoriality means that each nation legislates and

regulates intellectual property rights within its own

borders. The principle of national treatment requires

that each nation must give to the nationals of other

treaty member nations at least the same protection

that it provides to its own nationals.

The text of the Berne Convention embodies these

two principles. “The Berne Convention for the Protection of Literary and Artistic Works… is the principal

accord governing international copyright relations.”

Golan v. Holder, 565 U.S. 302, 306-07 (2014).

Although the United States does not consider the

Berne Convention to be self-executing, see Berne

Convention Implementation Act (BCIA), Pub. L. 100568, § 2(1), 102 Stat. 2853, it has incorporated the

principles of the Berne Convention into its domestic

amendments made by this Act, together with the law

as it exists on the date of the enactment of this Act,

satisfy the obligations of the United States in

adhering to the Berne Convention.”).

The text of the Berne Convention is premised on

the principle of territoriality. While “[e]ach country …

must afford at least the minimum level of protection

specified by Berne,” Golan, 565 U.S. at 308, the text of

the Convention repeatedly provides that various

details “shall be a matter for legislation in the

countries of the Union.” See, e.g., Berne arts. 2(2), 2(4),

2(7), 2bis(1), 2bis(2), 7(4), 9(2), 10(2) 10bis(1), 10bis(2),

11bis(2), 14bis(2)(a).2 This repeated incantation

recognizes that each nation determines for itself the

borders. In one case, moreover, that limitation is even

more explicit. Art. 13(1) of Berne provides:

Each country of the Union may impose for

itself reservations and conditions on the

exclusive right granted to the author of a

musical work and to the author of any words

… to authorize the sound recording of that

musical work, together with such words, if

any; but all such reservations and conditions

shall apply only in the countries which have

imposed them … (emphasis added)

Under the principle of territoriality, “an author of

a literary work will upon creation (and in some

countries, fixation) of the work receive a bundle of

national copyrights, each conferring protection within

a single nation-state. … Thus, an author who

Berne Convention for the Protection of Literary and

Artistic Works, Sept. 9, 1886, as revised at Paris on July 24, 1971,

1161 U.N.T.S. 3, and amended in 1979, S. Treaty Doc. No. 99-27

(1986), available at https://www.wipo.int/wipolex/en/text/283698.

publishes a work in France receives protection in

France according to French copyright law and receives

protection in the United Kingdom separately

according to the rules of U.K. copyright law. She owns

a French copyright and, separately, a U.K. copyright.”

Graeme B. Dinwoodie, International Copyright Law:

The Introduction § 1, in International Copyright Law

and Practice (Burton Ong ed., LexisNexis 2025)

[hereinafter Dinwoodie].

The text of the Berne Convention also embodies

the principle of national treatment. Berne Art. 5(1)

provides that “[a]uthors shall enjoy … in countries of

the Union other than the country of origin, the rights

which their respective laws do now or may hereafter

grant to their nationals, as well as the rights specially

granted by this Convention.” Berne, art. 5(1)

(emphasis added). Thus, where the “country of origin”

is the United States, copyright protection “in

countries … other than the country of origin,” i.e., in

countries outside the United States, is provided by

“the rights which their respective laws do now or may

hereafter grant to their nationals,” i.e., by foreign law.

Conversely, the United States is obligated to extend

rights to foreign authors that are at least as generous

as those provided to U.S. authors.

The next paragraph of the Berne Convention

makes it clear that copyrights in foreign countries are

separate from and independent of the copyright in the

country of origin. It provides that “[t]he enjoyment

and the exercise of these rights [i.e., rights “in

countries … other than the country of origin”] … shall

be independent of the existence of protection in the

country of origin of the work.” Berne Art. 5(2)

(emphasis added). “Consequently, apart from the

provisions of this Convention, the extent of protection

… shall be governed exclusively by the laws of the

country where protection is claimed.” Berne, Art. 5(2)

(emphasis added). In other words, copyright

protection outside the country of origin is governed

exclusively by foreign law.

The United States recommitted itself to these

principles when it signed the Agreement on Trade

Related Aspects of Intellectual Property Rights (or

“TRIPS”), which obligates the United States to comply

with Articles 1-21 of the Berne Convention (save one).

TRIPS Agreement, Art. 9.1, 33 I.L.M. 1197, 1201.

Scholars agree that both of these principles are

the foundation of the international copyright system.

“Copyright law is territorial. The creation of a work

results in a bundle of independent copyrights in all

reflected in all national laws, but also underpins and

shapes the content of international copyright law.”

Dinwoodie, supra, at § 3[1]. “Copyright law’s strict

adherence to the principle of territoriality has deep

historical roots.” Paul Goldstein & P. Bernt

Hugenholtz, International Copyright: Principles, Law

and Practice §4.1 (2d ed. 2010). National treatment is

“embodied in the main copyright and neighboring

rights conventions” and is “pervasive[] in

international copyright” law. Id. at 4.2. “The principle

of national treatment is a principle of nondiscrimination, requiring each nation to accord

treatment to foreign nationals that is at least as

favorable as that accorded to its own nationals.”

Daniel C.K. Chow & Edward Lee, International

Intellectual Property: Problems, Cases, and Materials

34 (5th ed. 2025).

II. THE FIFTH CIRCUIT’S DECISION IN THIS

CASE VIOLATES BOTH THE PRINCIPLE

OF TERRITORIALITY AND THE

PRINCIPLE OF NATIONAL TREATMENT.

A. The Fifth Circuit’s Decision in this Case

Violates the Principle of Territoriality.

The plain language of the Copyright Act follows

the principle of territoriality. It provides that “[t]ermination of a grant under this subsection affects only

those rights covered by the grant that arise under this

title, and in no way affects rights arising under any

other Federal, State, or foreign laws.” 17 U.S.C. §

304(c)(6)(E).3 As the Fifth Circuit conceded, “[b]ased

on the plain language of ‘arise under this title,’

termination covers copyrights that were granted

under Title 17 of the U.S. Code, which includes the

U.S. Copyright Act, and excludes copyrights that were

granted under ‘any other Federal, State, or foreign

laws.’” Vetter v. Resnik, 163 F.4th 951, 957 (5th Cir.

2026).

Recall that under the principle of territoriality,

copyrights in countries outside the United States are

independent of the U.S. copyright. Thus, Petitioners’

predecessor-in-interest was entirely correct when it

argued below that “the U.S. Copyright Act, together

with the implementing legislation of each other

member country, creates multiple and separate

Subsection 304(c) governs termination for pre-1978

grants in pre-1978 works. The identical language appears in the

subsection governing termination for grants executed on or after

January 1, 1978. See 17 U.S.C. § 203(b)(5).

single overarching … master copyright that each

country is required to honor.” Vetter, 163 F.4th at 962.

The Fifth Circuit, however, rejected that premise

and instead held that “a copyright is better understood as being granted under the U.S. Copyright Act

and recognized by member countries pursuant to the

Berne Convention and Universal Copyright Convention.” 163 F.4th at 963. This led it to the bizarre

conclusion that the foreign copyright interests of U.S.

authors and their assignees (i.e., the right to prohibit

conduct occurring in foreign countries) “arose under

the U.S. Copyright Act.” 163 F.4th at 957.

But the Fifth Circuit’s premise and conclusion is

directly contradicted by the text of the Berne Convention. The Convention provides that “in countries …

other than the country of origin,” Berne Art. 5(1),

existence of protection in the country of origin of the

work.” Berne Art. 5(2) (emphasis added). In other

words, copyrights in countries outside the United

States are independent of the U.S. copyright, and do

not arise under U.S. domestic law. “Consequently,

apart from the provisions of this Convention, the

extent of protection … shall be governed exclusively by

the laws of the country where protection is claimed.”

Berne, Art. 5(2) (emphasis added). In other words,

governed exclusively by foreign law.

Moreover, the Fifth Circuit’s decision is inconsistent with the fact that U.S. authors and works were

protected in foreign nations before the U.S. joined the

Berne Convention, and before the Universal Copyright Convention even existed. Some countries

provided rights to U.S. authors before the 1891 Chace

Act extended copyright protection in the United

States to foreign authors for the first time. Under that

Act, Congress conferred reciprocal rights on another

country’s authors only after a Presidential Proclamation certifying that “such foreign state or nation

permits to citizens of the United States of America the

benefit of copyright on substantially the same basis as

its own citizens.” Act of Mar. 3, 1891, ch. 565, § 13, 26

Stat. 1106. As the U.S. was not yet a party to any

basis for U.S. authors to obtain copyright protection in

foreign countries was that such copyrights “arose

under” foreign law.

Even after the United States joined the Berne

Convention (on March 1, 1989), it should be selfevident that foreign copyrights “arise under” foreign

laws. See Chow & Lee, supra, at 117 (“an author who

is a national of a Berne Union country and who has

created a work ... automatically obtains a copyright for

that work throughout the Berne Union under the

respective laws of each country of the Union.”)

(emphasis added). If the United States were to repeal

its Copyright Act, it would be in violation of its obligations under the Berne Convention; but U.S. authors

and their assignees would still have copyrights in

foreign countries by virtue of the copyright statutes in

those countries. Conversely, if a foreign country were

to repeal its copyright statute, it would be in violation

of its obligations under Berne; but unless the Berne

Convention were considered to be self-executing in

that country, there would be no legal basis for a U.S.

author to assert its supposed rights in that country.

B. The Fifth Circuit’s Decision in this Case

Violates the Principle of National

Treatment.

Under the principle of national treatment,

“[m]embers of the Berne Union agree to treat authors

from other member countries as well as they treat

their own.” Golan, 565 U.S. at 308. The Fifth Circuit

acknowledged only half of this principle. It correctly

stated that “[u]nder the Berne Convention, the

principle of national treatment states that ‘when the

author is not a national of the country of origin of the

work for which he is protected under this Convention,

he shall enjoy in that country the same rights as

national authors.’” Vetter v. Resnik, 163 F.4th at 962,

quoting Berne Art. 5(3). But that subsection applies

only to protection “in that country,” i.e., in the country

of origin. Members of the Berne Union are also obliged

to provide national treatment to works whose country

of origin is outside of the United States. Under Berne

Art. 5(1), “in countries of the Union other than the

country of origin,” “[a]uthors shall enjoy … the rights

which their respective laws do now or may hereafter

grant to their nationals” (emphasis added). Therefore,

if the United States were to provide worldwide termination rights to U.S. authors for U.S. works, it would

be obliged by the Berne Convention to provide

worldwide termination rights to foreign authors for

foreign works as well. But the Fifth Circuit’s aberrant

reading of the U.S. Copyright Act prevents that from

happening.

Under the Fifth Circuit’s novel “single worldwide

and recognized by member countries pursuant to the

Berne Convention and Universal Copyright Convention.” Vetter, 163 F.4th at 963. And “because Vetter's

rights arose under the U.S. Copyright Act, … his

termination would be effective as to all of his rights—

including his copyright to the extent that it extends

internationally.” Vetter, 163 F.4th at 957 (emphasis

added). But under this theory, the Fifth Circuit

erroneously believed that “Vetter’s rights arose under

the U.S. Copyright Act” only because Vetter and

Smith were U.S. authors and their work was first

published in the United States. See Berne Art. 5(4)

(defining “country of origin”). But any copyright

interests that Vetter and Smith received internationally are protected under the national laws of those

countries, not U.S. copyright law, which has no

extraterritorial application.

A foreign author who first publishes in a foreign

member country is also protected by the Berne

Convention. See Berne Art. 3(1). Under the reasoning

implicitly underlying the Fifth Circuit’s theory, the

rights of such a foreign author “arise under” foreign

law; namely, the law of the work’s “country of origin.”

See Vetter, 163 F.4th at 963 (“a foreign national [of a

treaty member country] may seek copyright protection under the Copyright Act although the source of its

rights lies abroad.”) (citation omitted; emphasis

added). But under the Copyright Act, termination

excludes “rights arising under … foreign laws,” 17

U.S.C. § 304(c)(6)(E); so under the Fifth Circuit’s

interpretation, foreign authors who first publish outside the United States (but in a Berne Union country)

are excluded from termination rights in the United

States altogether, because “the source of [their] rights

lies abroad.” See Vetter, 163 F.4th at 963. This despite

the fact that the Copyright Act expressly extends

protection to such foreign works. See 17 U.S.C. §

104(b)(2) (protecting works “first published … in a

foreign nation that, on the date of first publication, is

a treaty party”); 17 U.S.C. § 101 (defining “treaty

party”). Not only would it violate the Act, but it would

be unfair to foreign authors and artists who relied on

U.S. termination interests when they signed contracts

with U.S. publishers and record labels to embrace a

theory that would deprive them of national treatment.

It is a canon of construction that “[a]n act of

Congress ought never to be construed to violate the

law of nations if any other possible construction

remains.” Murray v. Schooner Charming Betsy, 6 U.S.

(2 Cranch) 64, 118 (1804). The Fifth Circuit’s

interpretation of the statute violates the “law of

nations,” namely, the principle of national treatment

in the Berne Convention, because it provides

worldwide termination rights to domestic authors for

domestic works, but it denies the same rights to

foreign authors for foreign works. By contrast, the

Petitioner’s interpretation is consistent with the

principle of national treatment in the Berne

Convention: both domestic and foreign authors enjoy

a right of termination within the territory of the

United States, while termination and reversion rights

in other countries, if any, are left to the copyright laws

of those other countries. Some of those countries have

given authors more generous termination or reversion

rights, and the rationale underlying the Fifth Circuit’s

decision would override those choices.4

See Dinwoodie, supra, at §3[1]: “insofar as copyright law

shapes the cultural landscape of a particular territory, sovereign

states have the right to determine [for themselves] how that

landscape should look.”

C. The Fifth Circuit’s Decision in this Case

Also Violates the Strong Presumption

Against Extraterritoriality.

In the United States, the principle of territoriality

in the international intellectual property system is

reinforced by the strong presumption against

extraterritoriality. “It is a longstanding principle of

American law that legislation of Congress, unless a

contrary intent appears, is meant to apply only within

the territorial jurisdiction of the United States.”

Abitron Austria GmbH v. Hetronic Int’l, Inc., 600 U.S.

412, 417 (2023) (cleaned up), quoting Morrison v.

National Australia Bank Ltd., 561 U.S. 247, 255

(2010). “The presumption ‘serves to avoid the international discord that can result when U. S. law is

applied to conduct in foreign countries’ and reflects

the ‘commonsense notion that Congress generally

legislates with domestic concerns in mind.’” Abitron,

600 U.S. at 417, quoting RJR Nabisco, Inc. v.

European Community, 579 U.S. 325, 335-36 (2016).

Applying the presumption against extraterritoriality involves a two-step framework.

At step one, we determine whether a

provision is extraterritorial, and that

determination turns on whether Congress has

affirmatively and unmistakably instructed

that the provision at issue should “apply to

foreign conduct.” … If a provision is not

[expressly] extraterritorial, we move to step

two, which resolves whether the suit seeks a

(permissible) domestic or (impermissible)

foreign application of the provision.

Abitron, 600 U.S. at 417-18 (emphasis added). See also

Morrison, 561 U.S. at 255 (“unless there is the

affirmative intention of the Congress clearly

expressed to give a statute extraterritorial effect, we

must presume it is primarily concerned with domestic

conditions. … When a statute gives no clear indication

of an extraterritorial application, it has none.”)

(citation and internal quotes omitted).

The Fifth Circuit’s opinion in this case went awry

at step one. Instead of asking “whether Congress has

affirmatively and unmistakably instructed” that the

other countries, the Fifth Circuit instead relied on the

absence of any geographic limitation in the statute to

infer that it applied internationally. See Vetter v.

Resnik, 163 F.4th at 957 (“There is no explicit

geographical limitation in section 304(c)(6)(E) that

restricts the exploitation of Vetter’s rights to uses

within the United States.”).5 That approach turns the

presumption against extraterritoriality on its head,

making it a presumption in favor of extraterritorial

reach unless Congress expressly stated otherwise.

Application of the presumption to this case should

have been a straightforward exercise. Not only did

Congress not “affirmatively and unmistakably” state

that the U.S. Copyright Act applies to ownership of

copyrights in foreign countries, it affirmatively stated

This was not inadvertent, because the Fifth Circuit made

the same mistake when it also held that U.S. renewal rights in

pre-1978 copyrights extend extraterritorially, see Vetter v.

Resnik, 163 F.4th at 965 (“the renewal provision makes no

mention of geographical limitations to the scope of renewal

rights”), despite the fact that members of the Berne Convention

only have a single copyright term, and formalities such as

registration and renewal are prohibited outside the country of

origin by Berne Art. 5(2).

the exact opposite. 17 U.S.C. § 304(c)(6)(E) provides

that “[t]ermination of a grant under this subsection

affects only those rights covered by the grant that

arise under this title, and in no way affects rights

arising under any other Federal, State, or foreign

laws” (emphasis added).

The Fifth Circuit opined that the presumption

against extraterritoriality was inapplicable because

this case involves “ownership, assignment, and

termination” of copyrights, rather than infringement

(conduct). See Vetter v. Resnik, 163 F.4th at 963-64.

The reasoning is specious. Under the principle of

territoriality, ownership of a copyright in another

nation gives the owner the right to exclude others

from conduct (reproduction, adaptation, distribution,

communication to the public, etc.) occurring in that

nation. Assignees and licensees who continue to

reproduce the work in foreign countries based on a

terminated transfer or grant have either infringed the

foreign copyright, or they have not. The concerns

animating the presumption against extraterritoriality

— namely, that it “serves to avoid the international

discord that can result when U.S. law is applied to

conduct in foreign countries,” Abitron, 600 U.S. at 417

— are as fully applicable in the context of ownership

and termination as they are for infringement. Under

the principle of territoriality, foreign countries have

the power to determine for themselves who owns the

right to exclude others from infringing conduct in

their countries. This is especially true where, as here,

Congress has expressly excluded rights “arising under

… foreign laws” from the effect of termination.

III. THE FIFTH CIRCUIT’S DECISION IN THIS

CASE CREATES A SPLIT IN AUTHORITY

AND DISRUPTS THE INTERNATIONAL

As the Petitioners have pointed out, the Fifth

Circuit’s decision in this case expressly disagreed with

the holdings of all of the other courts that have

addressed the issue, including the Second Circuit. See

Fred Ahlert Music Corp. v. Warner/Chappell Music,

Inc., 155 F.3d 17, 20 (2d Cir. 1998) (upon termination,

“Warner’s domestic rights in the Song reverted to

Dixon’s heirs.”) (emphasis added); Siegel v. Warner

Bros. Entertainment, Inc.), 542 F. Supp. 2d 1098, 1142

(C.D. Cal. 2008) (“the termination notice affects only

the domestic portion of Siegel’s and Shuster’s 1938

worldwide grant (‘all rights’) to Detective Comics”)

(emphasis in original), rev'd in part on other grounds,

504 F. App'x 586 (9th Cir. 2013); Clancy v. Jack Ryan

Enterprises, Ltd., 2021 WL 488683, at *46 (D. Md.

only subject to termination insofar as its U.S. component is concerned, but not subject to termination in

the rest of the world.”). Thus, the Fifth Circuit’s

decision creates a split in controlling authority that

should be addressed.

Moreover, applying the principles of territoriality

and national treatment, many foreign courts have also

held that ownership of copyrights in those countries is

governed by the laws of those countries. The Fifth

Circuit’s ruling therefore creates the very real

possibility of inconsistent rulings, and the uncertainty

and conflict among foreign and domestic law that the

presumption against extraterritoriality is designed to

avoid.

For example, in April 2007 the Oberlandesgericht

Düsseldorf considered a conflict concerning ownership

in Germany of the copyrights to the book series “The

Three Investigators” (known in Germany as “Die Drei

???”), created by American author Robert Arthur. The

court said:

As a preliminary matter, it should be

noted that German law applies to the

questions of ownership at issue here. From

the perspective of conflict of laws, this issue

must be resolved in accordance with the

rules of international intellectual property

law applicable to cross-border situations.

According to the virtually unanimous view,

the governing principle for determining

ownership is the law of the state of

protection—that is, the law of the state for

whose territory intellectual property

protection is claimed. … The territorial

scope of intellectual property rights is

geographically limited to the territory of the

state that grants them individually or

recognizes them generally under specific

conditions. … Under the principle of the

country of protection—as established in Art.

5(2), second sentence, of the Revised Berne

Convention—the questions of initial ownership and the transferability of copyright are

also determined by that law.

OLG Düsseldorf, Judgment of 24 April 2007, Case No.

I-20 U 175/06, para. 24 (citations omitted).6 The

The judgment in German is available online at

https://nrwe.justiz.nrw.de/olgs/duesseldorf/j2007/I_20_U_175_06

German court specifically rejected the applicability in

Germany of U.S. termination rights:

The reversion provision set forth in the U.S.

status of the [assignee]. While the

termination right governed by §§ 203(a)(2)

and 304(c)(2) of the CA may have vested in

the statutory successors, i.e., in this case,

the children of Robert Arthur, upon the

individual author’s death prior to the

termination date, these provisions of U.S.

law are irrelevant under German law. …

Consequently, [the assignee] remains the

holder of the copyrights to this day, insofar

as rights in Germany are concerned.

OLG Düsseldorf, Judgment of 24 April 2007, Case No.

I-20 U 175/06, para. 31 (citation omitted).

Applying the principle of national treatment,

litigants and foreign courts alike have also recognized

that ownership of reversion interests of U.S. authors

in foreign countries are governed by the laws of those

respective countries. For example, in Redwood Music

Ltd. v. Bourne Estate, 1995 CanLII 7324 (Ont. Ct.

Gen. Div.),7 the court explained that “[t]his matter

relates to copyright in popular songs which were

written in the period 1920 to 1945 by composers and

authors resident in the United States.” Id. at para.

[4]C.7. But although the works were written and

published in the United States (at a time when the

urteil20070424.html (last visited July 5, 2026). The quotes from

the opinion are from a machine translation.

The Canadian decision is available online in English at

<https://canlii.ca/t/1w7zl> (last visited July 5, 2026).

U.S. was not a member of the Berne Convention or the

Universal Copyright Convention), neither the parties

nor the court looked to U.S. law on reversion or termination. Instead, the dispute was about ownership of

reversion rights in Canada under Canadian law, in

Germany under German law, etc. See id. at para.

[4]F.24(c). (“any and all reversionary rights and

interests now or hereafter existing in and under the

copyrights of each of the Works as such reversionary

rights and interests are defined in the respective

countries, territories, or possessions”) (emphasis

added); id. at para. [6] (“the defendant says that

Germany, Austria and Switzerland do not have

reversionary or substituted rights similar to the

Canadian rights, and therefore it does not owe any

money collected in those countries for [the] songs”); id.

at para. [30] (“Both parties called expert witnesses

from Germany to assist the court with both the

interpretation of the German law in question”).

Assignees and licensees of U.S. authors are now

likely to face contradictory rulings, with the Fifth

Circuit holding that ownership of all foreign copyright

interests of U.S. authors are governed by U.S.

follow fundamental principles and hold that

ownership of foreign copyright interests are governed

by the laws of the country in which protection is

sought. The Fifth Circuit’s ruling will also wreak

havoc with future transfers and grants of copyright

interests, as prospective purchasers will be unable to

determine from whom the rights to use a work must

be purchased or licensed.

CONCLUSION

The conclusion of the Fifth Circuit panel that the

foreign copyright interests of U.S. authors arise under

U.S. copyright law cannot be correct. Although the

correct interpretation results in a potential fragmentation of ownership, both the principle of territoriality

and the principle of national treatment, as well as the

plain language of the statute, require that termination under U.S. law only affects ownership of the

U.S. copyright interest, and that ownership of foreign

by the laws of those countries, even for authors of U.S.

works. Those countries, in turn, are obligated to give

U.S. authors the same rights that they give to their

own nationals (including termination and reversion

rights in those countries, if any). Because the Fifth

Circuit’s decision violates these fundamental

principles, and a circuit split already exists, the Court

should grant the petition for certiorari.

Respectfully submitted,

Tyler T. Ochoa

Counsel of Record

SANTA CLARA UNIVERSITY

SCHOOL OF LAW

500 El Camino Real

Santa Clara, CA 95053

(408) 554-2765

ttochoa@scu.edu

Counsel for Amicus Curiae

July 16, 2026

APPENDIX

Table of Appendices

List of Amici Curiae ………………………………….. 22

List of Amici Curiae

Michael W. Carroll

Professor of Law and Director,

Program on Information Justice and

Intellectual Property

American University Washington College of Law

Zachary L. Catanzaro, Esq.

Assistant Professor of Law

Widener University Delaware Law

Professor Margaret Chon

Donald and Lynda Horowitz Endowed Chair

Technology, Innovation Law, and Ethics Institute

Seattle University School of Law

Thomas F. Cotter

Taft Stettinius & Hollister Professor of Law

University of Minnesota Law School

Graeme B. Dinwoodie

Global Professor of Intellectual Property Law

University Distinguished Professor

IIT Chicago-Kent College of Law

Jay Dougherty

Professor of Law, Emeritus

Loyola Marymount University Law School

Andrew J. Dhuey

Professorial Lecturer in Law

The George Washington University Law School

James Grimmelmann

Tessler Professor of Digital and Information Law

Cornell Law School and Cornell Tech

William D. Henslee

Professor of Law

Florida A&M University College of Law

Timothy R. Holbrook

Provost's Professor and Robert B. Yegge Endowed

Distinguished Professor in Law

University of Denver Sturm College of Law

Professor Edward Lee

Datta Center for High Tech Law

Santa Clara University School of Law

Jeffrey A. Lefstin, Ph.D.

Professor of Law

University of California College of the Law

San Francisco

Mark A. Lemley

William H. Neukom Professor and Director

Stanford Program in Law, Science, and Technology

Stanford Law School

Yvette Joy Liebesman

Professor of Law

Saint Louis University School of Law

Professor Tyler T. Ochoa

Datta Center for High Tech Law

Santa Clara University School of Law

Guy A. Rub

Vincent J. Marella Professor of Law

Temple University Beasley School of Law

Pamela Samuelson

Richard M. Sherman Distinguished Professor of Law

University of California at Berkeley Law School

Professor Jessica Silbey

Hon. Frank R. Kenison Distinguished Scholar in Law

Boston University School of Law

Marketa Trimble, Ph.D.

Samuel S. Lionel Prof. of Intellectual Property Law

William S. Boyd School of Law

University of Nevada, Las Vegas

Rebecca Tushnet

Frank Stanton Professor of the First Amendment,

Harvard Law School

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.