In the United States, though copyright protection takes effect the minute that a work is fixated into a tangible medium of expression, enforcing those rights is a much trickier matter. As according to the U.S. Copyright Office, registration with the USCO is a requirement before suing in Federal court.
Furthermore, only if a work is registered prior to an infringement or within three months of publication can statutory damages and attorney fees be awarded. Without those damages and fees, pursuing most cases of copyright infringement is financial infeasible.
This makes registering with the USCO a critical element of any copyright legal defense strategy. Though you do not need a registration to file DMCA notices or cease and desist letter, you do need it in order to make going to court a viable alternative.
However, one attorney, Carolyn E. Wright, has pointed out a way to minimize the importance of such a registration by using copyright management information (Section 1202 of the U.S. Copyright Act) to build up damages that do not require registration.
It is an interesting strategy and, though it has a few flaws with it, could become an important element of any copyright protection system.
A CMI Recap
Copyright Management Information (CMI) is defined by the law as “information conveyed in connection with copies or phonorecords of a work or performances or displays of a work,” that is used to present information about the copyright holder, the license the work is released under or the work itself. It does not, however, cover information about the user.
Section 1202 of the U.S. Copyright Act prohibits both the removal of CMI and the providing of false CMI. This means that a lot of information related to a work, including it’s Numly ESN, Registered Commons serial number, Creative Commons License, as well as the author and title information are all protected and can not be removed or altered.
The law provides a penalty of “not less than $2,500 or more than $25,000″ for each violation. That can easily build up into a hefty fine, especially in cases of scraping or widespread image theft where many different works are being taken.
It is important to note that the CMI must be affixed to the work itself. It can not be positioned around it. A copyright statement under an image is different from a watermark on the image itself. Similarly, copyright information embedded in the MP3 is different than a notice below the download link.
In short, the removal of the CMI is supposed to show bad faith, an intent to remove the information for personal gain. While this might be an issue in some cases of copyright infringement, it is not a problem in most cases of plagiarism, where the person is intentionally both removing existing CMI, but also providing false CMI.
It’s a great way to legally deal with plagiarists, whom most agree are the worst infringers of all.
And End Run Around the USCO?
As Wright points out in her article, the damages associated with either removing CMI or providing false CMI do not depend upon prior registration with the USCO.
This is great news for U.S.-based copyright holders who have not registered with the USCO. Though actual damages alone may not warrant taking legal recourse against a plagiarist, the potential damages for violating CMI may, very well, be worthwhile.
Of course, this is not an end run around the USCO. The requirement to register before you sue for infringement still remains intact. Should you discover an infringement, it will still be a requirement to register your work before you file suit.
Also, this does not change the requirement to register before building up statutory damages. Since items posted to the Web are not considered published works, unless the author decides they are, they have to be registered before the infirngement takes place to earn statutory damages. Furthermore, even if the author decides the works are published, the grace period is only three months and most Web sites do not meet the USCO definition for publication.
All in all, though CMI does not provide an end run around registering for the USCO, it might provide opportunities to sue and enforce rights where none might have existed before. Best of all, since CMI manipulation is most commonly performed by plagiarists, the most desired targets for such suits, it might help put a stop to some of the most frustrating and personal copyright cases.
If you are a United States copyright holder and you have an interest in filing suit for copyright infringement, it is still absolutely crucial that you register with the USCO. Even if you only plan on seeking damages related to CMI, it is better to have the registration in hand before something happens, so that you can move quickly.
Of course, registration does little good for bloggers, who’s works are often stolen before they even have a chance to register it, but it may help other Webmasters who have more static sites.
In the end, the fact that CMI might be useful in cases where registration with the USCO has not been done, either due to lack of desire or impracticality, is not so much a cheer about the importance of CMI, but rather, a criticism of the requirement of registration.
If ever there was an argument for putting an end to the registration requirement, the Internet is it. Though the USCO is preparing to release its online registration form, the problem is not in the method, but rather, in the requirement itself.
The U.S. stands alone in this requirement and, quite frankly, this is one time we should not stand at all.
Special Thanks: A big thank you goes out to Denise Howell for her guidance and help with this article!