US Copyright ruling might change the advice we give people

[Janx]

Just saw this article on a SCOTUS ruling about needing to complete registration of copyright before suing:
https://www.natlawreview.com/articl...Dq1bRlPp90VT_7AbbO7QqdB0vkrZxU5KakHIbdtHSVNiE

Now none of us are lawyers (except Danny, etc) but many of us know the basic rule that in the US, your work is automatically copyrighted so you don't need to do anything specific.


But, I recently ran across some wording on the US copyright website that basically said, that's great, but if you need to file a suit on a violation of copyright, it needs to be registered before a copyright court will hear the case. The site implied you had some years retro-actively to do that if need be. Just paraphrasing.

Now this new news comes in, and it makes me rethink the entire advice. You wrote something, let's say an RPG, because we're on EN World. You think "it's America, I'm covered!"

Somebody gets a copy of it (let's say your evil twin who spells his name backwards). They post it online and put their name on it.

You need to send a take-down notice, or a lawyer or something.

Are you good to go and protected?

Based on my new understanding (aka I could be wrong, IANAL), no. You are kinda screwed. It'll take 6 months to register for $35 or $800 to register in 2 weeks. You gotta have $800.

Now imagine, you had a gaming blog. One article a week. Your twin started stealing those. That's $35 a pop to cover your work.

Now maybe I'm missing something here, but you're not really protected by copyright law automatically if you can't get the protections of copyright law automatically.

 

[wingsandsword]

I'm not a lawyer, but a DMCA takedown notice is not the same as a lawsuit. A DMCA takedown notice is a notice filed before you get to the point of filing a suit, giving a chance to resolve a dispute without getting the courts involved.

The decision doesn't seem to say that you need registration before using a takedown notice, just before you file a suit for damages. . .and given the costs of retaining an attorney, filing a suit ect., the costs of filing with the Copyright Office would basically be just another line-item charge in an already expensive process.

It seems more a procedural issue than one that would really be a game changer.

 

[Mort]

Just saw this article on a SCOTUS ruling about needing to complete registration of copyright before suing:
https://www.natlawreview.com/articl...Dq1bRlPp90VT_7AbbO7QqdB0vkrZxU5KakHIbdtHSVNiE

Now none of us are lawyers (except Danny, etc) but many of us know the basic rule that in the US, your work is automatically copyrighted so you don't need to do anything specific.

And that's one of the dangers of thinking you know the law!

Before this Supreme Court Ruling - the circuits were split on the question of whether before you can sue the copyright needed to be registered or whether the registration only needed to be applied for.

In either case - if you didn't do "anything specific" you may have shot yourself in the foot as far as legal action is concerned.

But, I recently ran across some wording on the US copyright website that basically said, that's great, but if you need to file a suit on a violation of copyright, it needs to be registered before a copyright court will hear the case. The site implied you had some years retro-actively to do that if need be. Just paraphrasing.

Now this new news comes in, and it makes me rethink the entire advice. You wrote something, let's say an RPG, because we're on EN World. You think "it's America, I'm covered!"

Somebody gets a copy of it (let's say your evil twin who spells his name backwards). They post it online and put their name on it.

You need to send a take-down notice, or a lawyer or something.

Are you good to go and protected?

Based on my new understanding (aka I could be wrong, IANAL), no. You are kinda screwed. It'll take 6 months to register for $35 or $800 to register in 2 weeks. You gotta have $800.

You send the takedown notice, and regisgter as quickly as you can - cursing that you forgot to register earlier!

Now imagine, you had a gaming blog. One article a week. Your twin started stealing those. That's $35 a pop to cover your work. Now maybe I'm missing something here, but you're not really protected by copyright law automatically if you can't get the protections of copyright law automatically.

If you write a gaming blog that you don't want anyone to copy - you should register your content something like once a year. If you're really paranoid some attorneys will suggest every 3-6 months.

Full disclosure: IAAL - but don't generally come anywhere near copyright - though I have friends who do.

 

[Dannyalcatraz]

It looks scary at first, but I don’t think it’s as bad as it may seem at first Bush. From what I’m seeing, the (unanimous) ruling doesn’t change the law that states copyright automatically arises, just that you have to spend the fees and get registered before you can file a lawsuit.

https://www.jurist.org/news/2019/03...rs-when-copyright-office-grants-registration/

This makes a certain amount of sense:

1) in a copyright case, you can actually reccover for past damages. So being forced to register for copyright protection before suing doesn’t necessarily hurt the IP holder.

2) if IP is deemed by the US Copyright office to not be worthy of copyright protection, that means the case can not be filed. That will help stem the tide of meritless copyright lawsuits. Consider how many songwriters, novelists, etc. have been sued for infringement by people claiming the accused had ripped off something they wrote that (essentially) nobody else ever saw- even if the case is meritless, the accused still has to spend money and time defending against the claim. This new ruling forcing someone to spend the time & $ to file for protection helps weed out the cranks and those gaming the system.

3) I don’t think this ruling inhibits the ability or legality of sending out C&D requests, though it may cause a delay in how quickly a given target may respond. A C&D letter isn’t a lawsuit, but rather, notice that X is making a claim that a given behavior violates their copyright claims, and that they are prepared to enforce said claim. That they may still have to pay registration fees and wait until their registration is approved is a mere detail.

 

[tomBitonti]

Are y’all reading this correctly? My read is that you already needed to register to recover damages. The ruling allows you to now recover damages retroactive to registration.

The Copyright Act of 1976 enabled an owner to have rights over their material, but they were unable to recover for infringements prior to registration of the copyright in accordance with § 411(a) of the Act. The decision Monday resolves this issue by allowing the copyright owner to recover for infringements to the copyright that took place prior to the registration of the copyright under § 411(a).

Thx!
TomB

 

[Dannyalcatraz]

There’s a 3 month grace period for enforcement after publication but before registration is official. In that window, you CAN get full remedies even though your registration is incomplete.

 

[tomBitonti]

Ok, found it:

https://www.intellectualpropertylawblog.com/wp-content/uploads/sites/98/2019/03/Fourth-Estate.pdf

Held: Registration occurs, and a copyright claimant may commence an infringement suit, when the Copyright Office registers a copyright. Upon registration of the copyright, however, a copyright owner can recover for infringement that occurred both before and after registration. Pp. 3–12.

Bold added by me.

The central question which was decided is when a copyright is registered: When the application for registration was made, or when the registration was granted?

There is a second statement in the ruling, which is the statement that recovery can be for infringement that occurred before registration. I'll have to read in more detail to understand the significance of this statement.

The decision doesn't seem to have changed the requirement that a copyright be registered for a suit to be brought.

Thx!
TomB