Brief of Amicus Curiae of CEI in Naruto v. Slater

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UPDATE: On April 23, 2018 the U.S. Court of Appeals for the Ninth Circuit affirmed the ruling of the district court and concluded that “this monkey—and all animals, since they are not human—lacks statutory standing under the Copyright Act.” See the opinion here.

On April 13, 2018, the U.S. Court of Appeals for the Ninth Circuit denied the People for the Ethical Treatment of Animals (PETA)’s motion to vacate the district court’s ruling that only humans can own a copyright in Naruto v. Slater​. View the order here. The Competitive Enterprise Institute filed an amicus brief opposing the motion. Read it below. 

Controlling precedent does not permit parties to secure vacatur of a district court decision through settlement on appeal. See U.S. Bancorp Mortgage Co. v. Bonner Mall P’ship, 513 U.S. 18, 29 (1994) (“mootness by reason of settlement does not justify vacatur of a judgment under review”); DHX, Inc. v. Allianz AGF MAT, Ltd., 425 F.3d 1169, 1179 (9th Cir. 2005). When settling a suit, a litigant voluntarily forfeits his legal remedy of appeal, and so “by his own choice,” “surrender[s] his claim to the equitable remedy of vacatur.” Bonner Mall, 513 U.S. at 25.

PETA attempts to evade this rule by asserting that the monkey Naruto was not party to the settlement, so it would be unfair to force the monkey to “acquiesce” to the district court’s judgment. Joint Motion 5. Yet PETA has consistently claimed to represent Naruto as a “next friend.” PETA still contends that it meets the requirements to serve as next friend. Id. at 5 n.2.

Because only Naruto claimed to possess a cause of action, any settlement in this matter necessarily resolved Naruto’s claims, and this sort of voluntary settlement does not permit this Court to vacate the district court’s order. Alternatively, if PETA actually did abandon its fiduciary duty as Naruto’s next friend and selfishly settled only on its own behalf, the underlying controversy remains live, dismissal improper, and the panel may proceed to issue its opinion regarding Naruto’s appeal.

Litigants who settle their dispute while an appeal is pending often file a joint motion asking us not only to dismiss the appeal but also to vacate the opinion and judgment of the district court. We always deny these motions to the extent they ask us to annul the district court’s acts, on the ground that an opinion is a public act of the government, which may not be expunged by private agreement. History cannot be rewritten. There is no common law writ of erasure. …

True, litigation is conducted to resolve the parties’ controversies; precedent is a byproduct of resolving disputes rather than the raison d’etre of the judicial system. When a clash between genuine adversaries produces a precedent, however, the judicial system ought not allow the social value of that precedent, created at cost to the public and other litigants, to be a bargaining chip in the process of settlement. The precedent, a public act of a public official, is not the parties’ property. We would not approve a settlement that required us to publish (or depublish) one of our own opinions, or to strike a portion of its reasoning. To the extent an opinion permits the invocation of Parklane, it may have great value to strangers—a value that one or another party to today’s case may try to appropriate in the settlement, but which is not theirs to sell. If parties want to avoid stare decisis and preclusive effects, they need only settle before the district court renders a decision, an outcome our approach encourages.

Matter of Memorial Hosp. of Iowa County, Inc., 862 F.2d 1299, 1300, 1302 (7th Cir. 1988) (Easterbrook, J.) (cleaned up).

Finally, CEI notes that if the panel is close to a decision, the post-oral argument FRAP 42 motion does not preclude it from issuing one if feels that would be the best use of the judicial resources already expended in this case.