Full opinion text
Opinion by Judge GRABER. Dissenting Opinions by Judges BERZON and BEA. GRABER, Circuit Judge. May an assignee who holds an accrued claim for copyright infringement, but who has no legal or beneficial interest in the copyright itself, institute an action for infringement? After analyzing the 1976 Copyright Act and its history, as well as the scant, although persuasive, precedent that is available in analogous situations, we answer that question “no.” Accordingly, we reverse the ruling of the district court, which allowed this action by the assignee to proceed. FACTUAL AND PROCEDURAL BACKGROUND Nancey Silvers wrote the script of a made-for-television movie called “The Other Woman.” Although Silvers wrote “The Other Woman” script, she did not hold the copyright, because “The Other Woman” was a work-for-hire that Silvers completed for Frank & Bob Films II, aka Von Zer-neck/Sertner Films (“Frank & Bob Films”). Frank & Bob Films was the original owner of the copyright to “The Other Woman,” and remains so today. About three years after “The Other Woman” aired on a broadcast network, Sony Pictures Entertainment, Inc., released the motion picture “Stepmom.” After the release of “Stepmom,” Frank & Bob Films executed an “Assignment of Claims and Causes of Action” in favor of Silvers. Frank & Bob Films retained ownership of the underlying copyright to “The Other Woman” script, but assigned to Silvers “all right, title and interest in and to any claims and causes of action against Sony Pictures Entertainment, Inc., Columbia TriStar, and any other appropriate persons or entities, with respect to the screenplay ‘The Other Woman ’ ... and the motion picture ‘Stepmom.’ ” Silvers then filed a complaint against Sony for copyright infringement, alleging that the movie “Stepmom” was substantially similar to the script for “The Other Woman.” Sony moved to dismiss on the ground that Silvers lacked standing to bring an action for copyright infringement in the absence of some legal or beneficial ownership in the underlying copyright. The district court denied the motion and certified the issue for interlocutory appeal. See 28 U.S.C. § 1292(b) (providing procedure). A panel of this court affirmed the district court’s decision. Silvers v. Sony Pictures Entm’t, Inc., 330 F.3d 1204 (9th Cir.2003). The court then voted to take this case en banc, 370 F.3d 1252 (9th Cir.2004), withdrawing that opinion. STANDARD OF REVIEW We review de novo the district court’s denial of Sony’s motion to dismiss. Glen Holly Entm’t v. Tektronix Inc., 352 F.3d 367, 368 (9th Cir.2003). Likewise, we review de novo the district court’s resolution of legal issues. Cal. Satellite Sys. v. Seimon, 767 F.2d 1364, 1366 (9th Cir.1985). DISCUSSION A. The Statute Article I, section 8, clause 8, of the Constitution states: “The Congress shall have Power ... To promote the Progress of Science and useful Arts by securing for limited Times to Authors ... the exclusive Right to their ... Writings.... ” As is clear from its text, that clause of the Constitution grants no substantive protections to authors. Rather, Congress is empowered to provide copyright protection. Copyright, therefore, is a creature of statute, and the only rights that exist under copyright law are those granted by statute. As the Supreme Court wrote 170 years ago: This right [in copyright] ... does not exist at common law-it originated, if at all, under the acts of congress. No one can deny that when the legislature are about to vest an exclusive right in an author or an inventor, they have the power to prescribe the conditions on which such right shall be enjoyed.... Wheaton v. Peters, 33 U.S. (8 Pet.) 591, 663-64, 8 L.Ed. 1055 (1834); see also Stewart v. Abend, 495 U.S. 207, 251, 110 S.Ct. 1750, 109 L.Ed.2d 184 (1990) (Stevens, J„ dissenting) (stating that copyright is statutorily created); M. Kramer Mfg. Co. v. Andrews, 783 F.2d 421, 432 (4th Cir.1986) (“The right of copyright is a creature of federal statute, with its constitutional base in Article I, § 8, cl. 8.”); Russell v. Price, 612 F.2d 1123, 1129 n. 17 (9th Cir.1979) (“Common-law copyright is no longer recognized under the [1976] Act....”); Microsoft Corp. v. Grey Computer, 910 F.Supp. 1077, 1084 (D.Md.1995) (“Unlike contracts, copyrights and the rights flowing therefrom are entirely creatures of statute.... ”). Accordingly, our starting point is the statute. Section 501(b) of the 1976 Copyright Act establishes who is legally authorized to sue for infringement of a copyright: The 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). The meaning of that provision appears clear. To be entitled to sue for copyright infringement, the plaintiff must be the “legal or beneficial owner of an exclusive right under a copyright.” See 4 Business and Commercial Litigation in Federal Courts, at 1062, § 65.3(a)(4) (Robert L. Haig ed.) (West Group & ABA 1998) (“If a claimant is not a proper owner of copyright rights, then it cannot invoke copyright protection stemming from the exclusive rights belonging to the owner, including infringement of the copyright.”). Section 106 of the 1976 Copyright Act, in turn, defines “exclusive rights”: (1) to reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivative works based upon the copyrighted work; (3) to distribute copies or phonorec-ords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; (5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and (6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission. 17 U.S.C. § 106. The right to sue for an accrued claim for infringement is not an exclusive right under § 106. Section 201(d) refers to exclusive rights and provides: (1) The ownership of a copyright may be transferred in whole or in part by any means of conveyance or by operation of law, and may be bequeathed by will or pass as personal property by the applicable laws of intestate succession. (2) Any of the exclusive rights comprised in a copyright, including any subdivision of any of the rights specified by section 106, may be transferred as provided by clause (1) and owned separately. The owner of any particular exclusive right is entitled, to the extent of that right, to all of the protection and remedies accorded to the copyright owner by this title. 17 U.S.C. § 201(d). Exclusive rights in a copyright may be transferred and owned separately, but § 201(d) creates no exclusive rights other than those listed in § 106, nor does it create an exception to § 501(b). Section 501(b) must also be read in conjunction with § 501(a), which provides that one who “violates any of the exclusive rights of the copyright owner as provided by sections 106 through 122 ... is an infringer.” The definition of an infringer in subsection (a) is parallel to the definition of a proper plaintiff in subsection (b). Common to both subsections is an exclusive copyright interest. In addition, when a copyright interest is transferred it must be recorded to protect the copyright holder’s right to bring an infringement suit. 17 U.S.C. § 205(d); see H.R.Rep. No. 94-1476, at 129 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5744 (“The provisions of subsection (d)[] requir[e] recordation of transfers as a prerequisite to the institution of an infringement suit....”). This requirement ensures that prospective buyers or transferees have notice of the copyright interests owned by others. See H.R.Rep. No. 94-1476, at 128, reprinted in 1976 U.S.C.C.A.N. at 5744 (stating that a copyright recorded in compliance with subsection (c) provides constructive notice of its contents). By contrast, the recording statute does not contemplate a transfer of anything other than an ownership interest in the copyright, along with the concomitant exclusive rights. Returning to the operative section, under § 501(b) the plaintiff must have a legal or beneficial interest in at least one of the exclusive rights described in § 106. Additionally, in order for a plaintiff to be “entitled ... to institute an action” for infringement, the infringement must be “committed while he or she is the owner of’ the particular exclusive right allegedly infringed. 17 U.S.C. § 501(b). The statute does not say expressly that only a legal or beneficial owner of an exclusive right is entitled to sue. But, under traditional principles of statutory interpretation, Congress’ explicit listing of who may sue for copyright infringement should be understood as an exclusion of others from suing for infringement. The doctrine of expressio unius est exclusio alterius “as applied to statutory interpretation creates a presumption that when a statute designates certain persons, things, or manners of operation, all omissions should be understood as exclusions.” Boudette v. Barnette, 923 F.2d 754, 756-57 (9th Cir.1991). There are two particularly important reasons to apply such a presumption here. First, we are mindful of the principle with which we began our discussion: Copyright is a creature of statute, so we will not lightly insert common law principles that Congress has left out. Second, the dura-tional limitation in § 501(b) shows that Congress restricted even the legal or beneficial owner of a copyright; the owner is not entitled to sue unless the alleged infringement occurred “while he or she [was] the owner of it.” In other words, Congress’ grant of the right to sue was carefully circumscribed. We think the meaning of § 501(b) is clear, but we recognize that its omission explicitly to address the present question may create an ambiguity. Therefore, we consult legislative history. See United States v. Daas, 198 F.3d 1167, 1174 (9th Cir.1999) (“The first step in ascertaining congressional intent is to look to the plain language of the statute.... If the statute is ambiguous ... courts may look to its legislative history for evidence of congressional intent.”). B. Legislative History The 1976 Copyright Act was the result of 15 years of drafting, deliberations, and compromise. See H.R.Rep. No. 94-1476. The House Report suggests strongly that Congress intended to limit the class of persons who may sue for infringement: Subsection (b) of section 501 enables the owner of a particular right to bring an infringement action in that owner’s name alone, while at the same time insuring to the extent possible that the other oumers whose rights may be affected are notified and given a chance to join the action. The first sentence of subsection (b) empowers the “legal or beneficial owner of an exclusive right” to bring suit for “any infringement of that particular right committed while he or she is the owner of it.” A “beneficial owner” for this purpose would include, for example, an author who had parted with legal title to the copyright in exchange for percentage royalties based on sales or license fees. H.R.Rep. No. 94-1476, at 159, reprinted in 1976 U.S.C.C.A.N. at 5775 (emphasis added). Non-owners claiming a bare right to sue, such as Silvers, are not entitled to notice or joinder, which suggests that Congress did not envision their existence, or that the right to sue was a right severable from ownership of one of the authorized exclusive rights. In other words, Congress wanted to ensure that an owner of any exclusive right in the copyright was entitled to bring a suit for infringement. Congress foresaw a permissible division of exclusive rights; the owner of any one of those exclusive rights may sue, with other owners being entitled to notice and joinder. In this sense, Congress intended to “unbundle” the exclusive rights. Under the 1909 Copyright Act, which was the predecessor of the Copyright Act of 1976, a copyright “proprietor” was the only individual who had standing to sue for an infringement. 17 U.S.C. § 101(b) (1952); Gardner v. Nike, Inc., 279 F.3d 774, 777-78 (9th Cir.2002). Courts interpreted the 1909 statute as providing a proprietor with an indivisible bundle of rights arising from a copyright — -rights that could not be assigned piecemeal. Id. at 778. This enforced unity of rights created serious hardships for copyright holders who were interested in assigning the various property rights arising from a copyright separately, for instance selling the motion picture rights in a novel separately from the right to print the novel in book form. See Roger D. Blair & Thomas F. Cotter, The Elusive Logic of Standing Doctrine in Intellectual Property Law, 74 Tul. L.Rev. 1323, 1366-67 (2000) (discussing history). Congress, aware of these constraints on commercial dealings, largely dispensed with the doctrine of indivisibility in the Copyright Act of 1976. Id.; see also H.R.Rep. No. 94-1476, at 123, reprinted in 1976 U.S.C.C.A.N. at 5738-39 (noting that the right to assign separate property interests in a copyright had “long been sought by authors and their representatives” and had “attracted wide support from other groups”). Although Congress allowed for divisibility of ownership interests under a copyright, it did not alter the requirement that only owners of an exclusive right in the copyright could bring suit. The legislative history makes clear, too, that the list of exclusive rights found in § 106 is exhaustive. The House Report states: The exclusive rights accorded to a copyright owner under section 106 are “to do and to authorize” any of the activities specified in the five numbered clauses. H.R.Rep. No. 94-1476, at 61, reprinted in 1976 U.S.C.C.A.N. at 5674. If a right is not “specified,” then it is not one of the exclusive rights granted by Congress. The House Report that deals with the exclusive rights provided in § 106 also explains that “[e]ach of the five enumerated rights may be subdivided indefinitely and, ... in connection with section 201 [governing transfer of rights], each subdivision of an exclusive right may be owned and enforced separately.” Id. (emphasis added). In other words, exclusive rights may be chopped up and owned separately, and each separate owner of a subdivided exclusive right may sue to enforce that owned portion of an exclusive right, no matter how small. For instance, A may own the copyright in a book, while B may own the right to develop the book into a screenplay. A may sue an infringer of the book; B may sue an infringer of the screenplay. But only owners of an exclusive right in a copyright may sue. For instance, neither A nor B in the example above could assign an accrued claim for copyright infringement to C if C had no legal or beneficial interest in the copyright. C. Patent Law We have long noted the strong connection between copyright and patent law: “Where precedent in copyright cases is lacking, it is appropriate to look for guidance to patent law ‘because of the historic kinship between patent law and copyright law.’ ” Harris v. Emus Records Corp., 734 F.2d 1329, 1333 (9th Cir.1984) (quoting Sony Corp. of Am. v. Universal City Studios, 464 U.S. 417, 439, 104 S.Ct. 774, 78 L.Ed.2d 574 (1984)); see also Gardner, 279 F.3d at 780-81 (relying in part on patent law to hold that rights under an exclusive copyright license could not be assigned without the original licensor’s consent and holding that assignee lacked standing to sue). Although the Supreme Court has not addressed the issue at hand, it has addressed the question whether a bare assignment can give rise to a cause of action in the context of patent law. The Patent Act of 1952 provides that “[a] patentee shall have remedy by civil action for infringement of his patent.” 35 U.S.C. § 281 (1988). Like the 1976 Copyright Act, the Patent Act does not explicitly forbid an assignment of causes of action separate from an assignment of substantive rights in the protected work. Nonetheless, the Supreme Court has interpreted the Patent Act to provide that only a holder of patent rights may sue. In Crown Die & Tool Co. v. Nye Tool & Machine Works, 261 U.S. 24, 26, 33-35, 43 S.Ct. 254, 67 L.Ed. 516 (1923), the Supreme Court considered whether a patent holder could assign its claims for infringement to another party without also transferring rights in the patent. Like the 1976 Copyright Act, the Patent Act that was in force at the time the Supreme Court decided Crown Die did not explicitly forbid the assignment of bare causes of action for infringement: Every patent or any interest therein shall be assignable in law by an instrument in writing, and the patentee or his assigns or legal representatives may in like manner grant and convey an exclusive right under his patent to the whole or any specified part of the United States. Pub.L. No. 147, § 6, 42 Stat. 389, 391 (1922) (amending R.S. § 4849). Nevertheless, the Supreme Court held that a bare assignment cannot give rise to a cause of action for infringement. The Court expressed its holding in durational terms that echo 17 U.S.C. § 501(b): “If the owner of the patent when the infringements took place has assigned his patent to one, and his claims for damages for infringement to another, then the latter cannot sue at law at all but must compel his assignor of the claims to sue for him.” Id. at 44, 43 S.Ct. 254. The Court reasoned: “The [patent] monopoly did not exist at common law, and the rights, therefore, which may be exercised under it cannot be regulated by the rules of the common law. It is created by the act of Congress; and no rights can be acquired in it unless authorized by statute, and in the manner the statute prescribes.” Id. at 40, 43 S.Ct. 254 (quoting Gayler v. Wilder, 51 U.S. (10 How.) 477, 494, 13 L.Ed. 504 (1850)). That text is substantively identical to the Court’s expression of the nature of copyright in Wheaton, 33 U.S. at 663-64: This right [in copyright] ... does not exist at common law — it originated, if at all, under the acts of congress. No one can deny that when the legislature are about to vest an exclusive right in an author or an inventor, they have the power to prescribe the conditions on which such right shall be enjoyed.... Crown Die effectively creates a presumption that, when we consider standing under a statutory scheme involving intellectual property, common law doctrine does not apply. Courts continue to read the patent statute to mean that, in general, only a paten-tee (or an exclusive licensee who possesses all substantial rights in the patent) may institute an action for infringement. See Prima Tek II, L.L.C. v. A-Roo Co., 222 F.3d 1372, 1381 (Fed.Cir.2000) (“Standing to sue for infringement depends entirely on the putative plaintiffs proprietary interest in the patent, not on any contractual arrangements among the parties regarding who may sue and who will be bound by judgments.... [A]’right to sue’ clause cannot confer standing on a bare licensee .... ”); Ortho Pharm. Corp. v. Genetics Inst., Inc., 52 F.3d 1026, 1030 (Fed.Cir.1995) (“Thus, the statute requires that the parties to an infringement suit will have the patentee on one side and the accused infringer on the other. Without the paten-tee as plaintiff, the remedies provided in the patent statute are unavailable except in extraordinary circumstances as where the patentee is the infringer, and cannot sue himself.” (internal quotation marks omitted)). We should interpret the Copyright Act consistently with the requirement of the Patent Act. Despite the differences between patents and copyrights, and between the statutes governing them, the common question is whether a substantive, exclusive right to intellectual property may be divorced from a cause of action for infringement of that substantive right. Under both copyright and patent law, substantive rights are assignable; the question whether those rights are severable from the entitlement to sue someone for infringing those rights requires a similar analysis. Crown Die rejected the centerpiece of the district court’s reasoning here, viz.: that because Congress did not expressly proscribe the right to assign a cause of action alone, such a right must exist. Instead, the Court used the same logic that we have applied: No rights exist with respect to patents unless they are created affirmatively by Congress, and courts may recognize only those rights that appear in the statute. D. Cases From Other Circuits Last but not least, we turn for guidance to the case law of other courts. Two other circuits have faced questions somewhat similar to the one we confront here. We find the Fifth Circuit’s decision under the 1909 Copyright Act to be less persuasive than the Second Circuit’s more recent opinion under the 1976 Copyright Act. In Prather v. Neva Paperbacks, Inc., 410 F.2d 698, 699 (5th Cir.1969), an author’s publisher assigned to the author both the copyright to the author’s work and the accrued causes of action related to the work. When the author sued the publisher for copyright infringement, the publisher claimed that the author lacked standing to sue. Id. The Fifth Circuit disagreed and held that the publisher clearly had transferred the right to sue to the author; the author, therefore, could maintain an action for infringement. Id. at 700. Prather is unhelpful authority for two reasons. First, it was decided before the 1976 Copyright Act was enacted and thus does not bear on how we should interpret § 501(b). The predecessor to the 1976 Act, the 1909 Act, simply afforded the “proprietor” of a copyright the right to sue for infringement. 17 U.S.C. § 101(b) (1952); see also Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 132 (1976). The 1909 Act did not define “proprietor” or “exclusive rights,” nor did it provide that “legal or beneficial owners” of exclusive rights were entitled to sue for infringement. 17 U.S.C. § 101(b) (1952). Those features, missing in the 1909 Act, but present in the 1976 Act, are central to a decision on the present question. Second, the assignment in Prather involved both accrued causes of action and some of what we now would call exclusive rights. The contract included an assignment of “all ... right, title and interest in and to the copyright” of the book involved. Prather, 410 F.2d at 699 n. 1. Therefore, the Prather court was not faced, as we are, with a situation in which the owner of all the exclusive rights and the owner of the accrued causes of action are two different people. The Second Circuit came to a different conclusion under the 1976 Copyright Act. In Eden Toys, Inc. v. Florelee Undergarment Co., 697 F.2d 27 (2d Cir.1982), superseded by rule and statute on other grounds, the court held that one who owns no exclusive right in a copyright may not sue for infringement. The court explained: Eden apparently believed that a third basis for standing under the Copyright Act existed, namely authorization by the copyright holder of suit by a person other than an exclusive licensee. Clause 9 of the 1975 Eden/Paddington agreement ... contemplates such an arrangement. We do not believe that the Copyright Act permits holders of rights under copyrights to choose third parties to bring suits on their behalf. While F.R. Civ. P. 17(a) ordinarily permits the real party in interest to ratify a suit brought by another party, the Copyright Law is quite specific in stating that only the “owner of an exclusive right under a copyright” may bring suit. Id. at 32 n. 3 (citations omitted). It is not entirely clear whether the copyright holder in Eden Toys had granted to Eden the right to sue on accrued causes of action, as is the case here, or only the right to sue prospectively. Whether the assignment was prospective or retrospective, however, the court made plain the basic principle, which we also have derived from § 501(b) and its context and history, that only the owner of an exclusive right under the copyright is entitled to sue for infringement. A few years later, the Second Circuit decided ABKCO Music, Inc. v. Harrisongs Music, Ltd., 944 F.2d 971, 980 (2d Cir.1991), a copyright case in which ABKCO had bought both the copyright to a song and “any and all rights assertable under copyright against the Infringing Composition in any part of the world which may have heretofore arisen or which may hereafter arise.” (Internal quotation marks omitted.)' Although the infringement in question had occurred before ABKCO bought the copyright, the court held that ABKCO could sue the infringer “not out of its ownership of the copyright, but from its ownership of the claims themselves which it purchased, along with the copyright, in 1978.” Id. at 981. The Second Circuit made clear that its decision was limited to the situation in which the same entity purchased both the copyright and accrued claims; the only issue was one of timing, whether ownership of the copyright and occurrence of the infringement had to coincide. The court reaffirmed the principle of Eden Toys that a party that has no ownership interest has no standing to sue; “the Copyright Act does not permit copyright holders to choose third parties to bring suits on their behalf.” Id. at 980. We think it important to parallel the Second Circuit for two reasons. First, and more importantly, our independent analysis leads us to the same conclusion. Second, the creation of a circuit split would be particularly troublesome in the realm of copyright. The Supreme Court has noted “Congress’ paramount goal in revising the 1976 Act of enhancing predictability and certainty of copyright ownership.” Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730, 749, 109 S.Ct. 2166, 104 L.Ed.2d 811 (1989). As we have phrased it, “[c]on-gressional intent to have national uniformity in copyright laws is clear.” Syntek Semiconductor Co. v. Microchip Tech. Inc., 307 F.3d 775, 781 (9th Cir.2002). That admonition makes sense, given the nature of intellectual property. Inconsistent rules among the circuits would lead to different levels of protection in different areas of the country, even if the same alleged infringement is occurring nationwide. CONCLUSION The bare assignment of an accrued cause of action is impermissible under 17 U.S.C. § 501(b). Because that is all Frank & Bob Films conveyed to Silvers, Silvers was not entitled to institute and may not maintain this action against Sony for alleged infringement of the copyright in “The Other Woman.” REVERSED. . This holding makes perfect sense, as it is consistent with the Act and with the constitutional purpose of encouraging authors and inventors by creating a limited monopoly on their works and inventions. When one acquires a copyright that has been infringed, one is acquiring a copyright whose value has been impaired. Consequently, to receive maximum value for the impaired copyright, one must also convey the right to recover the value of the impairment by instituting a copyright action. Of course, in this sort of commercial transaction the ultimate payment would be calculated minus the costs of suit. . Prather arose under the 1909 Copyright Act, not under the 1976 Copyright Act. Therefore, we create no split with the Fifth Circuit, which has yet to decide anything about the meaning of 17 U.S.C. § 501(b), a provision that had no direct analogue in the earlier statute.
BERZON, Circuit Judge, with whom REINHARDT, Circuit Judge, joins, dissenting: I respectfully dissent. Applying the usual mode of analysis used in this circuit for determining whether a statute allows assignment of claims, I would conclude that Nancey Silvers, as the original creator of “The Other Woman,” should be allowed to pursue the accrued causes of action that Frank & Bob Films II assigned to her. Section 501(b) of the 1976 Copyright Act establishes the standing requirement for infringement actions: The 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). The majority relies on the notion that “[t]he meaning of that provision appears clear,” ante at 884, to conclude that the assignment to Silvers is invalid because she does not own an exclusive right under the copyright. Ante at 890. The majority opinion, however, is internally inconsistent, provides inadequate support for its conclusion, and ignores our analogous precedents. 1. The inconsistency turns on the majority’s citation of § 501(b)’s durational limitation, i.e., that the owner is not entitled to sue unless the alleged infringement occurred “while he or she [was] the owner of [the copyright right],” as evidence of Congress’s tight circumscription of persons who have standing to sue. Ante at 885-86. The majority maintains that “Congress’ explicit listing of who may sue for copyright infringement should be understood as an exclusion of others from suing for infringement.” Ante at 885. As the majority later acknowledges, however, the durational limitation is hardly airtight. After a copyright holder sells a copyright, in whole or in part, the new owner may pursue a cause of action that accrued before purchase, as long as the cause of action is transferred along with the copyright. Ante at 890, fn. 1. The majority maintains that this “makes per-feet sense,” because “[w]hen one acquires a copyright that has been infringed, one is acquiring a copyright whose value has been impaired,” and “[e]onsequently, to receive maximum value for the impaired copyright, one must also convey the right to recover the value of the impairment by instituting a copyright action.” Ante at 890, fn. 1. However practical this analysis, the fact remains that it cannot be squared with a literal reading of section 501(b), on which the majority otherwise rests. And, as the language of section 501(b) is not necessarily determinative in deciding the viability of assignments of accrued rights to sue for copyright infringement, section 501(b) cannot, absent further analysis, dictate the majority’s conclusion that no assignment of accrued causes of action without transfer of the underlying copyright is permissible. 2. If the language of § 501(b) is not determinative, then what is? I agree with Judge Bea that the assumption that background common law principles apply with regard to assignment of accrued causes of action applies to the Copyright Act as to other federal statutes. Post at 901-03. I part company with Judge Bea, however, at the point at which he suggests that an entirely free market for accrued causes of action in copyright is the proper antidote to the majority’s preclusion of effective transfer of such accrued causes of action. Post at 905. Instead, I would hold that Silvers, given her status as the original creator of the contested “work-for-hire,” may pursue the accrued claims assigned by Frank & Bob Films, while a complete stranger to the creative process could not. Contrary to the majority’s strict statutory approach, the question of valid assignment “is appropriate for the development of interstitial federal common law [to ensure] harmony with the overall purposes of the [Copyright Act].” Gulfstream III Assocs. v. Gulfstream Aerospace Corp., 995 F.2d 425, 438 (3d Cir.1993). Our circuit’s precedents support this approach to the general question of whether claims created by federal statute are assignable. In particular, this circuit’s cases deciding whether to enforce assignments of Employee Retirement Income Security Act (“ERISA”) claims, which focus on whether “the general goal of the statute would be served by prohibiting the type of assignments involved in th[e] case,” Misic v. Bldg. Serv. Employees Health & Welfare Trust, 789 F.2d 1374, 1377 (9th Cir.1986) (per curiam), provide a helpful analog for consideration of Silvers’ case. Misic decided that a health care provider, assigned accrued causes of action for health welfare benefits by his patients, could pursue his ERISA lawsuit. Our analysis proceeded in two steps. First, we reviewed the statutory text to decide whether ERISA permitted assignment of the claims for reimbursement of welfare benefits. Id. at 1376-77. The statute specifically precludes assignment or alienation of pension benefits, but is silent as to assignment of welfare benefits. We interpreted ERISA’s silence on assignment in the welfare benefit plan context, in light of the explicit anti-assignment provision for pension claims, to allow assignment of welfare claims, because “[n]either the specific purpose of the anti-assignment provision nor the general goal of the statute would be served by prohibiting the type of assignment involved in [the] case.” Id. at 1377 (emphases added). Second, we decided that the assignee, Misic, had standing to sue, even though the statutory provision authorizing suit identified only “participants, beneficiaries, fiduciaries, and the Secretary of Labor” as the parties with standing bring suit. Id. at 1378 (citing 29 U.S.C. § 1132(a)). Unlike the majority in this case, we did not consider the statutory language determinative on the question of assignability of accrued causes of action. Instead, we looked to the relevant statute to determine whether the assignors had standing, not to decide whether to honor the assignment. We concluded that the assignment was permissible because “Dr. Misic ‘st[ood] in the shoes of the [b]eneficiaries;’ and Dr. Misic’s assignors, beneficiaries under the Act [were] expressly authorized by[the statute] to sue to recover benefits due under a plan.” Id. (emphasis added, second alteration in original). We took the same general approach, albeit with the opposite result, in Simon v. Value Behavioral Health, Inc., 208 F.3d 1073 (9th Cir.2000). Although we read Misic to allow assignment to healthcare providers, we refused in Simon to honor the assignment of claims from “health care providers to whom the beneficiaries originally assigned their claims.” Id. at 1081. Simon explains that in Misic, we granted derivative standing to health care providers not because we believed that federal common law on derivative standing trumps the plain language of [the statute]. We granted it because permitting health care providers to sue in place of the beneficiaries they had treated was consistent with Congressional intent in enacting ERISA. Id. Our decision to disallow assignment of claims by health care providers was related to underlying public policy concerns, as “granting] Simon standing would[have] be[en] tantamount to transforming health benefit claims into a freely tradable commodity.” Id. Predicting that the opposite result “would allow third parties with no relationship to the beneficiary to acquire claims solely for the purpose of litigating them,” we declined to recognize the assignment as it was unclear “how such a result would further ERISA’s purpose.” Id. Both this circuit and others have used similar policy-based analyses in deciding whether assignments of other federal statutory claims were valid. See, e.g., Simon, 208 F.3d at 1082-83 (antitrust claim under the Clayton act); Klamath Lake Pharm. Ass’n v. Klamath Med. Serv. Bureau, 701 F.2d 1276 (9th Cir.1983) (considering the background rule that only a real party in interest may prosecute claims in federal court to hold that an assignment was valid); Pac. Coast Agric. Export Ass’n v. Sunkist Growers, Inc., 526 F.2d 1196 (9th Cir.1975); see also Tex. Life, Accident, Health & Hosp. Serv. Ins. Guar. Ass’n v. Gaylord Entm’t Group, 105 F.3d 210, 215 (5th Cir.1997) (using Misic’s approach to consider whether “derivative standing to assignees of breach of fiduciary duty claims ... [would] frustrate ERISA’s purpose”). I would do so here as well. 3. I turn, therefore, to whether Frank & Bob Films’ assignment of the accrued cause of action to Silvers, the original creator of “The Other Woman,” should be permitted under 17 U.S.C. § 501(b). As the majority makes clear, Silvers is not the owner of the copyright and therefore would not ordinarily be permitted to pursue a copyright infringement claim. Following our approach in the ERISA cases discussed above, the relevant inquiry is whether recognition of the assignment to Silvers is consistent with Congress’ overall intent in enacting the 1976 Copyright Act. The basic purpose of copyright is “to promote the creation and publication of free expression.” Eldred v. Ashcroft, 537 U.S. 186, 219, 123 S.Ct. 769, 154 L.Ed.2d 683 (2003). Congress has struck “a difficult balance between the interests of authors and inventors in the control and exploitation of their writings and discoveries on the one hand, and society’s competing interest in the free flow of ideas, information, and commerce on the other hand.” Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 429, 104 S.Ct. 774, 78 L.Ed.2d 574 (1984). To achieve that balance, embedded in “the traditional contours of copyright protection,” Eldred, 537 U.S. at 221, 123 S.Ct. 769, are two major First Amendment protections: (1) as “between ideas and expression ... only the latter [is] eligible for copyright protection,” id. at 219, 123 S.Ct. 769; and (2) “the ‘fair use’ defense allows the public to use not only facts and ideas contained in a copyrighted work, but also expression itself in certain circumstances.” Id. (citing 17 U.S.C. § 107). I see nothing in the assignment of accrued claims of Frank & Bob Films for infringement of a work created by Silvers to Silvers that violates these background principles. Silvers has a significant interest in the infringement of “The Other Woman,” as she was the original creator. She might well herself have held the copyright had she not contracted with Frank & Bob Films to create a work-for-hire. Although she relinquished the right to the copyright through her contract with Frank & Bob Films, she maintained an interest in how her work was used. More importantly, Silvers, as the creator, is the person for whom the copyright system is designed to provide incentives for more creations. In addition, allowing this assignment is consistent with “the need for free alienability and divisibility” of copyright. Gardner v. Nike, Inc., 279 F.3d 774, 781 (9th Cir.2002). It also conforms with “the necessity [of] preserving] the rights and control of ... owners and creators.” Id. Supporting this result is the consideration, discussed above, that section 501(b)’s limitations have not been and should not be read as narrowly as possible. As noted, the majority makes clear that allowing a copyright owner to pursue claims that accrued before he held the copyright, once assigned along with the copyright, is eminently sensible. Ante at 890, fn. 1. I see no reason why allowing assignment to original creators of copyrighted works without the copyright would any more undermine the delicate balance that Congress has struck. Moreover, as Judge Bea notes, post at 900-01, Congress is perfectly capable of including anti-assignment provisions in federal statutory schemes, but declined to so in the 1976 Act. I would hold, therefore, that Frank & Bob Films, for whom Silvers completed her work-for-hire, may assign its accrued causes of action related to that work-for-hire to Silvers. 4. The majority places significant weight on Crown Die & Tool Co. v. Nye Tool & Machine Works, 261 U.S. 24, 43 S.Ct. 254, 67 L.Ed. 516 (1923), dealing with a somewhat similar question under patent law. The differences between copyright and patent law, and between the nature of the assignment in Crown Die and this case, are significant enough to warrant a different result. In general, “patents and copyrights do not entail the same exchange.” Eldred, 537 U.S. at 216, 123 S.Ct. 769. “The disclosure required by the Patent Act is ‘the quid pro quo of the right to exclude.’ ” J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred Int’l, Inc., 534 U.S. 124, 142, 122 S.Ct. 593, 151 L.Ed.2d 508 (2001) (quoting Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 484, 94 S.Ct. 1879, 40 L.Ed.2d 315 (1974)). “For the author seeking copyright protection, in contrast, disclosure is the desired objective, not something exacted from the author in exchange for the copyright.” Eldred, 537 U.S. at 216-17, 123 S.Ct. 769. These distinctions are reflected in the rules governing suits for infringements of copyrights and patents. Patentees, for example, “should be joined, either voluntarily or involuntarily, in any infringement suit brought by an exclusive licensee.” Prima Tek II, L.L.C. v. A-Roo Co., 222 F.3d 1372, 1377 (Fed.Cir.2000) (emphasis added). This scheme differs markedly from that of copyright infringement suits, as a copyright holder may transfer the “ ‘exclusive’ rights to use and to authorize the use of his work in five qualified ways.” Sony Corp., 464 U.S. at 433, 104 S.Ct. 774 (citing 17 U.S.C. § 106). Once he does so, “[t]he owner of any particular exclusive right is entitled, to the extent of that right, to all of the protection and remedies accorded to the copyright owner.” 17 U.S.C. § 201(d)(2). With these differences in mind, I do not find the majority’s reliance on Crown Die, 261 U.S. 24, 43 S.Ct. 254 (1923), persuasive in the current circumstances. The majority states that “Crown Die effectively creates a presumption that, when we consider standing under a statutory scheme involving intellectual property, common law doctrine does not apply.” Ante at 889-90. I find no support for such a broad statement, given the significant changes to copyright law since Crown Die was decided. Issuance of a copyright no longer “vest[s] an exclusive right in an author,” Wheaton v. Peters, 33 U.S. (8 Pet.) 591, 663, 8 L.Ed. 1055 (1834) (emphasis added), but several exclusive rights that the copyright holder may then divide infinitely. Furthermore, unlike an inventor who holds a patent, the original copyright holder need not remain involved in every infringement action brought under a copyright. In addition, and critically, Crown Die dealt with a very different factual scenario than the one we have here. Reed Manufacturing, the patentee of a screw-thread cutting device invented by Wright and Hubbard, assigned its infringement claims against Crown Die & Tool Company to Nye Tool & Machine Works, a competitor of Crown Die. Crown Die, 261 U.S. at 25-26, 43 S.Ct. 254. The assignment would have been analogous to the one before us if Reed had assigned its claims to Wright and Hubbard, rather than to a competitor of Crown Die. Crown Die did not, therefore, decide the precise question we have before us. A different result in Crown Die would not only have created significant tension with the nature of the monopoly that a patentee holds, but it would have made an accrued cause of action a commodity on an open market, permitting assignees without connection to the patented invention to pursue infringement claims, “with the sole motive of harassing [infringers].” Id at 39, 43 S.Ct. 254. That Nye and Crown Die were competitors could only have reinforced this concern. The 1976 Act ushered in a new era of copyright law, while leaving in place the general principal goal of copyright: “to promote the creation and publication of free expression.” Eldred, 537 U.S. at 219, 123 S.Ct. 769. I find no reason why Frank & Bob’s Films’ assignment of accrued claims against Sony to Nancey Silvers does not comport with that goal. I respectfully dissent. . ERISA provides: Assignment or alienation of benefits (1).Each pension plan shall provide that benefits provided under the plan may not be assigned or alienated. (2) For the purposes of paragraph (1) of this subsection, there shall not be taken into account any voluntary and revocable assignment of not to exceed 10 percent of any benefit payment, or of any irrevocable assignment or alienation of benefits executed before September 2, 1974. 29 U.S.C. § 1056(d). . The statute provided, in relevant part: "A civil action may be brought (1) by a participant or beneficiary ... (B) to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan.” 29 U.S.C. § 1132(a) (emphasis added). . As the majority notes, ante at 886-87, the 1976 Act’s legislative history indicates that "[ejach of the five enumerated rights may be subdivided indefinitely and, ... each subdivision of an exclusive right may be owned and enforced separately." H.R.Rep. No. 94-1476, at 61, reprinted in 1976 U.S.C.C.A.N. 5659, 5674 (emphases added).
BEA, Circuit Judge, with whom KLEINFELD, Circuit Judge, joins, dissenting: The question presented in this case is whether an assignee of an accrued cause of action for copyright infringement, who has no legal or beneficial interest in the copyright itself, has standing to sue for copyright infringement. Sony Pictures Entertainment Inc. (“Sony”) appeals the district court’s order denying its motion to dismiss Nancey Silvers’s (“Silvers”) claim for copyright infringement under 17 U.S.C. § 501(b) for lack of standing under Fed. R.Civ.P. 12(b)(1). After rehearing en banc, the Majority now holds such assignees do not have standing to sue for copyright infringement and reverses the district court’s order denying Sony’s motion to dismiss. I believe that the text, purpose and history of the 1976 Copyright Act (“1976 Act”) allow such assignees of an accrued copyright claim to sue for infringement. Accordingly, I respectfully dissent. I. I quite agree with the Majority that the starting point in this case is necessarily the statute under which Silvers brought suit. See op. at 884. Section 501(b) of the 1976 Act provides, in pertinent part: The 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) (1976). Turning to first principles, then, it is well-established that courts should interpret a statute according to its plain meaning. See United States v. Robinson, 94 F.3d 1325, 1328 (9th Cir.1996) (“If the language of a statute is unambiguous, the plain meaning controls.”). However, where a statute is ambiguous, courts should consult a statute’s legislative history to discern Congressional intent. See United States v. Daas, 198 F.3d 1167, 1174 (9th Cir.1999). Here, as the Majority acknowledges, the statute does not address the present question and is therefore ambiguous. See op. at 885-86 (“[w]e recognize that [Section 501(b)’s] omission explicitly to address the present question may create an ambiguity.”). The key to understanding the legislative history of the 1976 Act, then, is an understanding of the history of standing to sue under copyright law as it existed prior to the 1976 Act. When read in context with copyright law that existed before the 1976 Act, and the portions of the law that were not changed by such Act, a conclusion different from the Majority’s reading emerges. A. History of the 1909 Copyright Act Under the Copyright Act of 1909 (“1909 Act”) (codifying copyright law before the enactment of the 1976 Act), the “proprietor” of a copyright was afforded the right to sue for copyright infringement. 17 U.S.C. § 101(b) (1909). While the 1909 Act did not define the term “proprietor,” courts interpreted that term to mean the “sole owner” of the copyright. See, e.g., Gardner v. Nike, Inc., 279 F.3d 774, 777-778 (9th Cir.2002) (discussing the general history of the 1909 Act and holding that a sublicensee of a copyright lacked standing to sue under the 1976 Act). The 1909 Act was predicated on the “doctrine of indivisibility.” Id. at 778. That is, under the Act, a copyright owner possessed an indivisible “bundle of rights” which were “incapable of assignment in part.” Id. Accordingly, assignment under the 1909 Act included “the totality of rights commanded by copyright.” Id. Transfer of “[ajnything less than an assignment was considered a license.” Id. Regardless the particular use of the copyright, “only the copyright proprietor (which would include an assignee but not a licensee) had standing to bring an infringement action.” Id. (emphasis added). Even though the statute granted standing solely to the “proprietor” of the entire copyright, courts nevertheless allowed assignees of an accrued cause of action for copyright infringement to sue for infringement of their property rights. See Prather v. Neva Paperbacks, Inc., 410 F.2d 698, 700 (5th Cir.1969) (assignee of accrued cause of action had standing to sue for copyright infringement); see also Moran v. London Records, Ltd., 827 F.2d 180, 183 (7th Cir.1987) (noting that courts applying the 1909 Act held that assignees had standing to sue for copyright infringement). The infringement claim, like any other contingent asset, could be sold, much like the copyright holder’s claim against a trade debtor or a coupon clipped from the copyright holder’s bond portfolio. Moreover, all defenses against the assignor were valid against the assignee, who “stood in the shoes” of the assignor. See T.B. Harms & Francis, Day & Hunter v. Stern, 231 F. 645, 647 (2d Cir.1916) (holding that plaintiffs, as assignees of composer’s rights under the contract, “stand in [the] shoes” of the assignor and could assert the defense of lack of mutuality of contract). See also 17 U.S.C. § 201(d)(2) (1976) (“[tjhe owner of any particular exclusive right is entitled, to the extent of that right, to all the protection and remedies accorded to the copyright owner.”). B. History of the 1976 Copyright Act The 1976 Act was the result of 15 years of debate on proposed legislation and was precipitated by Congress’s recognition that the nature of copyrighted works had changed. Congress noted that, during the half-century since the passage of the 1909 Act, “a wide range of new techniques for capturing and communicating printed matter, visual images, and recorded sounds have come into use.” H.R.Rep. No. 94-1476 at 159, reprinted in 1976 U.S.C.C.A.N. 5659 at 5775. For example, no longer was an opera performed only in a theater, but such a work could be performed in movies, television, videos, records, and other forms. Such technical advances “generated new industries and new methods for the production and dissemination of copyrighted works, and the business relations between authors and users have evolved new patterns.” Id. Toward that end, Congress recognized the commercial need to divide and “infinitely subdivide” copyright uses in recognition of increasing technologically driven varieties of means of reproduction and distribution. Thus, one main purpose of the 1976 Act was, for the first time, to recognize the principle of “divisibility” of uses of a copyright, and the ability to convey the rights to uses separately to various reproducers, which divisible rights did not exist under the 1909 Act. See H.R.Rep. No. 94-1476 at 159, reprinted in 1976 U.S.C.C.A.N. 5659 at 5775, infra. Congress further recognized that allowing for “divisibility” of the copyright required a mechanism whereby heretofore barred owners of exclusive licenses could now sue for copyright infringement. Accordingly, Congress enacted Section 501 of the 1976 Act to provide access to the courts for the owner of one or more rights to exclusive use, but did not mention the right of the owner of the overall copyright to sue. See 17 U.S.C. § 501(b). Indeed, in providing for the right of exclusive licensees to sue, the drafters of the 1976 Act stated: The principle of the divisibility of copyright ownership, established by section 201(d), carnes with it the need in infringement actions to safeguard the rights of all copyright owners and to avoid a multiplicity of suits. Subsection (b) of section 501 enables the owner of a particular right to bring an infringement action in that owner’s name alone, while at the same time insuring to the extent possible that the other owners whose rights may be affected are notified and given a chance to join the action. H.R.Rep. No. 94-1476 at 159, reprinted in 1976 U.S.C.C.A.N. 5659 at 5775 (emphasis added). Far from “suggesting] strongly that Congress intended to limit the class of persons who may sue for infringement,” op. at 886 (emphasis added), the statement above in italics — and omitted from the Majority Opinion — demonstrates that Congress intended to enlarge the ability to bring suit to the owners of exclusive rights. Read in context with provisions of the 1909 Act (to the extent the acts are not inconsistent), and contrary to the Majority’s conclusion, the 1976 Act’s Section 501(b) was an enlargement of infringement action rights. Henceforth, standing was not limited only to the “proprietor” of the original copyright; a legal or beneficial owner of exclusive rights severed by assignment from the original copyright also had standing to sue for infringement. However, nothing in the 1976 Act eliminated the rights of copyright owners under Section 101 of the 1909 Act to their remedies, nor the right of property owners to enjoy the property rights granted by the statute, including the assignment and enforcement of accrued causes of action. That, I believe, is the way — and the only way — to read Section 501(b). II. The Majority concludes that because the statute does not expressly grant standing to assignees of an accrued cause of action, such persons do not have standing. See op. at 885-86. Rather, the Majority reasons that, applying the maxim of statutory construction expressio unius exclusio al-teñus est, “Congress’ explicit listing of who may sue for copyright infringement should be understood as an exclusion of others from suing for infringement.” Op. at 885 (emphasis in original). In my view, the Majority misapplies this maxim of statutory construction. First, such maxims of statutory construction are to be used only when Congressional intent cannot be discerned. Indeed, we have noted: Most strongly put, the expressio unius, or indusiounius, principle is that ‘[w]hen a statute limits a thing to be done in a particular mode, it includes a negative of any other mode.’ This is a rule of interpretation, not a rule of law. The maxim is ‘a product of logic and common sense,’ properly applied only when it makes sense as a matter of legislative purpose.... [T]he expressio unius principle describes what we usually mean by a particular manner of expression, but does not prescribe how we must interpret a phrase once written. Understood as a descriptive generalization about language rather than a prescriptive rule of construction, the maxim usefully describes a common syntactical implication. ‘My children are Jonathan, Rebecca and Seth’ means ‘none of my children are Samuel.’ Sometimes there is no negative pregnant: ‘get milk, bread, peanut butter and eggs at the grocery’ probably does not mean ‘do not get ice cream.’ ” Longview Fibre Co. v. Rasmussen, 980 F.2d 1307, 1313 (9th Cir.1992) (internal citations omitted). See also Nat’l R.R. Passenger Corp. v. Nat’l Ass’n of R.R. Passengers, 414 U.S. 453, 458, 94 S.Ct. 690, 38 L.Ed.2d 646 (1974) (“This principle of statutory construction reflects an ancient maxim — expressio unius est exclusion alterius ... But even the most basic general principles of statutory construction must yield to clear contrary evidence of legislative intent.”). Here, Congressional intent is readily discernible, and, as demonstrated above, contrary to the Majority’s application of the maxim. Second, commentators have noted that the use of maxims of statutory construction such as “expressio unius ” are problematic insofar as there is no hierarchy of maxims of statutory interpretation. Why choose expressio unius rather than another maxim, indeed, the exact opposite: that listing some cases may include others? (see fn. 9, infra). In his recent book, A Matter of Interpretation, Justice Scalia wrote, “[t]he hard truth of the matter is that American courts have no intelligible, generally accepted, and consistently applied theory of statutory interpretation.” An-tonin Scalia, A Matter of Interpretation, 14 (1997) (quoting Henry M. Hart, Jr. & Albert M. Sacks, The Legal Process 1169 (William N. Eskridge, Jr. & Philip P. Frickey eds., 1994)). Third, while maxims of statutory construction may, indeed, be helpful in interpreting statutes, they are not binding. The Founders, including Alexander Hamilton, recognized as much. See Alexander Hamilton, The Federalist Papers, No. 83 at 464 (Clinton Rossiter ed., 1961) (“The rules of legal interpretation are rules of common sense, adopted by the courts in the construction of laws. The true test of a just application of them is its conformity with the source from which they are derived.”). Hence, rather than be guided by a Latin maxim nowhere mentioned by the 1976 Act or our jurisprudence as hierarchically preferable to other means of statutory interpretation, we should be guided by plain legislative intent, which, as our Supreme Court reminds us, trumps the ancient Latin maxim underpinning the Majority Opinion’s conclusion. See Nat’l R.R. Passenger Corp., 414 U.S. at 459, 94 S.Ct. 690. Indeed, it should be noted that where Congress chooses to expressly prohibit assignment, it knows how to do so explicitly. See, e.g., Federal Anti-Assignment Act of 1862, 41 U.S.C. § 15 (expressly prohibiting public contract claims against the U.S. government from being assigned); Federal Assignment of Claims Act of 1940, 31 U.S.C. § 3727 (expressly prohibiting assignment of federal claims against the U.S. government from being assigned); Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1056 (expressly prohibiting the assignment of pension benefits). Here, that Congress did not prohibit assignment of infringement claims may well carry a negative pregnant that it intended not to prohibit assignment. A second consideration in statutory interpretation is practicality, or put another way, the avoidance of an absurd result. See Royal Foods Co., Inc. v. RJR Holdings Inc., 252 F.3d 1102 (9th Cir.2001) (courts will not interpret a statute in a way that results in an absurd or unreasonable result). Here, were the statute to be read literally, it would result in absurd or unreasonable results. It has long been recognized that assignment of the copyright does not automatically include assignment of accrued causes of action for earlier infringements of the copyright. See Prather, 410 F.2d at 700 (“ ‘a mere assignment of a copyright does not itself transfer to the assignee any cause of action for infringements that occurred prior to the assignment. Unless the assignment of copyright contains language explicitly transferring causes of action for prior infringements, the assignee cannot maintain a suit for infringements which happened before the effective date of the assignment.’ ”) (internal citations omitted). See also DeSilva Construction Corp. v. Herrald, 213 F.Supp. 184, 192 (M.D.Fla.1962) (holding that the assignment of copyright under 1909 Act does not include the right to sue for “infringements antedating the assignment” and since the assignment as written failed to contain such a grant, “no such right is conferred by the assignment”). The recognition that the right to an accrued cause of action did not (in the absence of an express contractual assignment of such rights) automatically follow t