The Role of the United States Copyright Office

The recent case of SuperGU vs. Pligg has brought new attention to the role of the United States Copyright Office (USCO).

In the case Pligg, an open source Content Management System (CMS) for producing Digg-like sites, received a cease and desist letter from commercial competitor SuperGU regarding a template that Pligg distributes with its software.

According to Eric Heikkinen, the co-founder of Pligg, the code that is in dispute was almost completely the original work of contributors to Pligg and other open source projects, created well before SuperGu’s founder, James Phelps, became involved.

Still, when asked to produce evidence of copyright ownership, Phelps’s attorney responded with a copy of a USCO registration. This has lead some to, mistakenly, claim that SuperGU has “copyrighted” Pligg’s code or worry that SuperGU, if falsely claiming the code, may be able to get away with it. .

Fortunately for Pligg, and for content creators everywhere, this is not the case. When one takes a look at the role of the USCO and how it applies to this case, it quickly becomes clear that the registration is almost completely meaningless.

Otherwise, not only would chaos ensue in the world of copyright law, but the United States would be in violation of critical international treaties.

An Archaic Institution

The USCO is something of an oddity in the world. Since the Berne Convention put an end to all formalities in obtaining a copyright, making it automatic upon the creation of the work, most countries viewed their copyright offices as archaic and either did away with them or changed their role.

The United States did not.

Though other countries have deposit requirements for certain entities, such as publishers, these are not requirements to obtain copyright protection. Rather, they are related to maintaining a library of information and ensuring public access to it.

But even in the United States, the role of the copyright office was severely limited. No longer a mandatory stop to obtain copyright protection, the registration element of the USCO remained relevant by becoming a requirement to sue for infringement in a federal court and thus obtain maximum damages.

Even though a work enjoys full copyright protection at the moment of creation, the creator is severely limited in trying to defend his or her rights unless the work is registered.

Certainly such protection is critical, but the benefit of copyright registration effectively stops there. It’s basically little more than a ticket into a Federal courtroom and a right to collect higher damages should an infringement occur.

The Limitations

The biggest problem with the USC is that it is merely a formality. You fill out a form, provide some backup and you receive a registration certificate. There is little, if any, attempt to validate the authenticity of the registration. That is in stark contrast to the United States Patent and Trademark Office, which has procedures to avoid duplicate patents and trademarks from being awarded.

Though it is a violation of Federal law to knowingly falsify a copyright application, copyright disputes are common, especially when multiple authors might be involved, and people do genuinely misinterpret the law.

It is not unheard of for multiple parties to register and receive certificates for the exact same work, especially when there is a disagreement over ownership. Such is the case with Novell and SCO regarding their dispute over Unix code.

A certificate from the USCO is certainly provides prima facie proof of ownership, but it is not definitive proof. All it says is that you possessed the work at the date of submission and that you claimed it as yours. In that regard, it is no different than Numly or Registered Commons.

If other evidence surfaces that indicated the work existed beforehand, under someone else’s copyright and was not transferred to the party claiming it, the copyright registration is meaningless. Prima facie evidence can be rebutted.

In short, you don’t copyright a work by filing it with the USCO, you merely undergo a formality to gain access to Federal courts when suing over the material. It is not a matter of the government giving you copyright of a work nor is it even definitive proof of ownership. It is just a claim that can be entered as evidence.

Anyone who feels that they can “hijack” a copyright by using the USCO is sorely mistaken and will be in for a rude awakening. If this were true, content creators everywhere would be easy pray to individuals who simply pay the $45 registration fee and copyright their publicly available works out from underneath them.

Though the registration process is definitely flawed, it does not allow for those kinds of abuses to take place.

Conclusions

While the role of the USCO is very limited in today’s copyright world, it is a very confusing one. Many still feel that it is legally necessary to file with the USCO in order to obtain copyright at all, others feel that it’s possible to steal other’s work by simply submitting it as your own.

Neither of these things are true but a “Certificate of Registration” (PDF) from the USCO can be very intimidating to someone who knows little about how copyright law works. It appears to be a formal government document designating an individual or a company as the copyright holder. In truth though, it is much less than that.

The confusion that the USCO creates only makes it easier for malicious individuals to use it to intimidate and even harass others.

In the end, this is just another reason in the long list to join up with the rest of the world and do away with the United States Copyright Office, at least in its current form.

In the long run, it is the only solution that is viable and the best possible outcome for everyone, copyright holders and users alike.

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