fun facts about u.s. copyright law

[deadrats]

i'm sure that most of you have heard of the small handful of attorneys that have recently tried to bring mass copyright infringement lawsuits against porn pirates (ala riaa and napster/limewire/etc), thus far the guy that hopes to be the most prolific of all such attorneys has had almost all his lawsuits kneecapped by federal judges for various reasons.

he recently had another lawsuit tossed for a very interesting reason:

http://arstechnica.com/tech-policy/news/2011/04/judge-administers-another-beatdown-to-...1#comments-bar

Separately, a different judge tossed Steele's case on behalf of MCGIP (video: Gloryhole: Dayna Vendetta) back on March 10. The reason? Steele had only filed a copyright registration form on behalf of the film—necessary for litigation—but the film had not actually been registered yet with the Copyright Office. Case dismissed. (After Steele complained, the judge rescinded his order but told Steele he "is ordered to show cause within 14 days why the case should not be dismissed for failure to state a claim upon which relief can be granted." That hearing has been delayed until later this month.)

this paragraph caught me by surprise, when the first lawsuits started flying against napster and friends; i kept hearing that copyright was created automatically the moment any work was created and that due to international treaties we honored other country's copyrights as they honored ours.

a visit to the u.s. copyright office seemed to bear this out:

http://www.copyright.gov/help/faq/faq-general.html#register

When is my work protected?
Your work is under copyright protection the moment it is created and fixed in a tangible form that it is perceptible either directly or with the aid of a machine or device.

so end of story, right? not quite, reading the very next paragraph we learn:

Do I have to register with your office to be protected?
No. In general, registration is voluntary. Copyright exists from the moment the work is created. You will have to register, however, if you wish to bring a lawsuit for infringement of a U.S. work. See Circular 1, Copyright Basics, section “Copyright Registration.”

so how do you like them apples? if a work is not registered with the u.s. copyright office you can not bring a lawsuit for infringement and you can't collect statutory damages, the net effect is that the work is effectively in the public domain.

kind of reminds me of montana (i believe that is the state), for years they had no speed limit on their highways until the DOT threatened to withhold federal highway funds if they didn't institute a speed limit in conformance with other states. montana set a highway speed limit of 70 mph. and punishment for breaking the limit? $5, no matter how much over the limit you were. (not sure if this is still the case).

[gadgetguy]

so how do you like them apples? if a work is not registered with the u.s. copyright office you can not bring a lawsuit for infringement and you can't collect statutory damages, the net effect is that the work is effectively in the public domain.

No, it just means you have to register it to bring a lawsuit in a US court. Registration means filling out a form, paying a fee (I think $50), then waiting for the copyright office to send confirmation. The courts can't hear the case until it's registered. This lawyer tried to bring the lawsuit before confirming that the form he sent had actually been accepted and the copyright registered, so the judge kicked it. That's not the same as being in the public domain at all.

[deadrats]

No, it just means you have to register it to bring a lawsuit in a US court. Registration means filling out a form, paying a fee (I think $50), then waiting for the copyright office to send confirmation. The courts can't hear the case until it's registered. This lawyer tried to bring the lawsuit before confirming that the form he sent had actually been accepted and the copyright registered, so the judge kicked it. That's not the same as being in the public domain at all.

it's actually more than that, it means that you can't bring a lawsuit for infringement if the infringement occurred prior to the date of registration, the net effect is that there is no difference between a work being in the public domain and being copyrighted in an unenforceable way until that registration takes place.