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Jeremy: Agreed. Your average blog post has the shelf life of a banana. Scratch that, I can drive home with bananas in the trunk…

Matt: Wow. This issue is even MORE convoluted than I thought. I would have done better citation but but my quote was based on an email conversation I had with the uSCO about three years ago (prior to Plagiarism Today) about me registering a literature site I ran.

At issue was my literature. At that point the site was about ten years old. Half of it had been put into a self-published book, the other half had not. Though they wouldn't tell me what to do, in typical USCO fashion, they indicated to me that the portions that were not in the book were unpublished.

That is an interesting ruling and I was unfamiliar with it. However, it makes it clear that this is not an issue that has been resolved. I guess my attitude would be to err on the side of caution and assume it isn't published on the Web until we get a better consensus.

All in all, just another great example of how the Internet is really screwing up the USCO registration system.

Thank you very much for this I'm updating the article now to reflect this!

However, you said this: “copyright law does not consider merely posting a work to the Web publication.” While the Copyright Office (rather frustratingly) doesn’t appear to take a position on this, there is some case law that holds that posting a work to the web does in fact constitute publication. Getaped.com, Inc. v. Cangemi, 188 F. Supp. 2d 398 (S.D.N.Y. 2002), is the most frequently cited example. Here’s a relevant portion:

“By accessing a webpage, the user not only views the page but can also view — and copy — the code used to create it. In other words, merely by accessing a webpage, an Internet user acquires the ability to make a copy of that webpage, a copy that is, in fact, indistinguishable in every part from the original. Consequently, when a website goes live, the creator loses the ability to control either duplication or further distribution of his or her work. A webpage in this respect is indistinguishable from photographs, music files or software posted on the web — all can be freely copied. Thus, when a webpage goes live on
the Internet, it is distributed and ”published” in the same way the music files in Napster or the photographs in the various Playboy decisions were distributed and ”published.’”"

As you might expect, the argument regarding whether the website in question was published was raised in the context of whether statutory damages were available or not. Now, I don’t necessarily agree with this holding, as I don’t see the logical connection between losing the ability to control duplication and publication. However, it is worth keeping in mind.

However, you said this: "copyright law does not consider merely posting a work to the Web publication." While the Copyright Office (rather frustratingly) doesn't appear to take a position on this, there is some case law that holds that posting a work to the web does in fact constitute publication. Getaped.com, Inc. v. Cangemi, 188 F. Supp. 2d 398 (S.D.N.Y. 2002), is the most frequently cited example. Here's a relevant portion:

"By accessing a webpage, the user not only views the page but can also view — and copy — the code used to create it. In other words, merely by accessing a webpage, an Internet user acquires the ability to make a copy of that webpage, a copy that is, in fact, indistinguishable in every part from the original. Consequently, when a website goes live, the creator loses the ability to control either duplication or further distribution of his or her work. A webpage in this respect is indistinguishable from photographs, music files or software posted on the web — all can be freely copied. Thus, when a webpage goes live on

the Internet, it is distributed and ''published'' in the same way the music files in Napster or the photographs in the various Playboy decisions were distributed and ''published.'""

As you might expect, the argument regarding whether the website in question was published was raised in the context of whether statutory damages were available or not. Now, I don't necessarily agree with this holding, as I don't see the logical connection between losing the ability to control duplication and publication. However, it is worth keeping in mind.

the Internet, it is distributed and ''published'' in the same way the music files in Napster or the photographs in the various Playboy decisions were distributed and ''published.'""As you might expect, the argument regarding whether the website in question was published was raised in the context of whether statutory damages were available or not. Now, I don't necessarily agree with this holding, as I don't see the logical connection between losing the ability to control duplication and publication. However, it is worth keeping in mind.