I make it a habit to listen to the WordPress Podcast, as I use the software both at home and at work. The most recent episode focused on plagiarism and copyright and what WordPress users (and bloggers in general) can do to prevent and combat content theft. Overall, it was a good listen, but it presented a common, yet somewhat flawed view of US Copyright Law among content producers.
I’m not a lawyer (more of a legal aficionado–copyright and constitutional mainly), but I’d like to offer some additional information that I’ve learn about U.S. Copyright law, because there is a significant gap in protection.
The common belief is that as soon as you create any artistic work (music, visual, literary, etc) you own it, it’s yours, you are the copyright holder. That is technically true.
17 USC 408(a) says:
Such registration is not a condition of copyright protection
meaning that yes, your work is yours and is protected from the moment it is fixed in tangible form.
However, 17 USC 411(a) says
no action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title.
meaning that without registering your work with the U.S. Copyright Office, you can’t sue and seek damages for infringement. As for court cases, Google’s Senior Copyright Council, William Patry, has written (1 2) on his blog about court cases being thrown out for lack of jurisdiction.
Furthermore, you only have a three month window from the date of publication to file a registration application if you wish to seek damages from infringement that occurs between publication and registration.
Example: You create some content and don’t file an application with the Copyright Office. Four months goes by before you discover that someone has been passing of your creation as their own. At this point, you are outside the three month window and could not sue for statutory damages against that infringer.
You can however, file an application at that point and be protected from any future infringement. If you had filed before the three month window closed, you would have been able to go after the original offender.
Again, I’m not a lawyer, but that’s my understanding.
4 responses so far ↓
1 Jonathan Bailey // Mar 8, 2008 at 10:10 pm
Technically you are correct. I’ve commented on this issue many times before on my site and used it to illustrate why the U.S. is so far behind the rest of the world on matters of copyright.
However, what it overlooks is that, in matters of copyright, you have protections beyond just suing. The DMCA actually affords you two.
The first is the DMCA takedown notice, which you do not have to have a registered work for. The second is protection against the removal of copyright management information, such as the name of the author, year of creation, license information, etc.
Even without registration you can still demand takedown of a work, something that is MUCH more common than a lawsuit, and if you do sue, though you have to register before filing, you can sue for the violation of the CMI of a work that was not registered at the time. That, as some court rulings have shown, can equal damages on par with statutory damages.
So what you say is technically true and needs to be fixed, but there is much more to the story, especially since the most commonly leveraged rights, even among those who have registered their works, are available upon creation.
Hope that this helps and I’m glad that you enjoyed the podcast! Also, remember that I am not an attorney either…
[Reply]
2 Nik // Mar 9, 2008 at 12:11 am
Hi Jonathan!
Thanks for the comment and information. I always love a good copyright discussion.
I have to admit that I’m not that familiar with the copyright management information portion of the law. Most discussions I’ve read have focused on the content itself, which is covered in Chapter 4, rather than the CMI-related issues in Chapter 12 (added by the DMCA).
Just from glancing over it, it does seem like the law is more solid in its protection against outright plagiarism/unattributed copying rather than straight-up unauthorized content duplication.
Of course, the DMCA is limited to digital content, but since that is the realm of the blogger, it’s good to see the provisions in place.
However, even with the DMCA’s stricter rules for digital content, there’s still the potential for a significant limit to its protection. True, a takedown notice will stop the act of infringement.
But imagine a scenario where someone leaves all the copyright attribution in place and simply makes money by selling access to your work without your permission. A takedown notice would make them stop, but there doesn’t seem to be a way as the law currently stands to recover damages from that person without having registered a formal copyright.
I agree with you though, the system needs an overhaul.
Also, keep those podcasts coming!
[Reply]
3 Wp Wordpress » Blog Archive » Episode 37: WordPress 2.5 quietly misses release date // Mar 12, 2008 at 1:34 pm
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