Have any suggestions for the 3 Count? Let me know via Twitter @plagiarismtoday.

1: Government of Ireland Invites Feedback on Draft Copyright Regulations

First off today, Ireland is seeking feedback on new copyright legislation that it hopes will bring its country’s copyright code into compliance with EU directives. The legislation aims to codify both the safe harbor protection for ISPs but also provide injunctive relief against them, meaning that they can be ordered to block access to sites that are alleged to be infringing. The new legislation follows a lawsuit in which EMI sued to get The Pirate Bay blocked in the country but the court ruled they couldn’t force action because, while safe harbors had been codified into Irish law, the injunctive relief had not, meaning there were no grounds for the injunction.

2: Removal of Printed Photo Credit Qualifies as DMCA Violation, Court Says

Next up today, the Third Circuit Court of Appeals has ruled that a photograph attribution printed on the same page as an image constitutes copyright management information and its removal is a copyright infringement. The case stems from photographer Peter Murphy, who was hired in 2006 by New Jersey Monthly magazine to photograph local shock jocks Craig Carton and Ray Rossi for a “best of” edition of the magazine. The radio station Carton and Rossi work for took the image from the site and reused it on their page, inviting others to alter the photo. The lower court ruled that the use of the image was a fair use and the removal of the attribution line was not a removal of copyright management information but the Appeals Court reversed both of those decisions, setting the stage for this dispute to go to trial.

3: Kind of Screwed

Finally today entrepreneur Andy Baio had a vision for an album, a remake of Miles Davis’ album “Kind of Blue” made music from 80s video game consoles, commonly called “chiptune” songs. For the cover of the album, Baio had a friend create a pixel version of the original iconic cover, only to have the photographer of that image file a lawsuit against him claiming that it was an infringement of his work. Baio has settled the case for $32,500 saying he does not feel he did anything wrong but that this was merely the cheapest way to resolve the case and put it behind him. This case follows in the wake of other “appropriation art” cases such as the Shepard Fairey lawsuit over the Obama “Hope” poster.

Suggestions

That’s it for the three count today. We will be back tomorrow with three more copyright links. If you have a link that you want to suggest a link for the column or have any proposals to make it better. Feel free to leave a comment or send me an email. I hope to hear from you.

Want the Full Story?

Tune in every Wednesday evening at 6 PM ET for the live recording of the Copyright 2.0 Show or wait and get the edited version Friday right here on Plagiarism Today.

The 3 Count Logo was created by Justin Goff and is licensed under a Creative Commons Attribution License.

Worst hit of all are the bloggers, who often endure the worst kinds of infringement only to discover that they have no ability to enforce their rights.

At fault is a legal system that is still in place nearly 20 years after it was supposed to be eradicated. It ensures that copyright in the United States favors big businesses, such as the publishing houses, record labels and movie studios, while limiting the rights of the everyday citizen.

Worst of all, even as the government talks about strengthening other areas of copyright law to the point of insanity, there is no mention of righting this fundamental imbalance.

It is time to close the United States Copyright Office, or at least a large portion of it, end the registration requirement and, finally, bring small copyright holders to table.

No other Western nation has this requirement and it is time for the U.S. to catch up with the rest of the world.

A Bit of History

When the United States signed on to the Berne Convention in 1989, well after nearly every other country had signed on, all formalities required to obtain a copyright were supposed to be eliminated. This included, in theory, copyright registration.

The United States, however, found a way around that. According to U.S. law, all of the rights a copyright holder obtains are bestowed upon them once the work is “fixated into a tangible medium of expression” but one has to register their copyright and pay the $45 fee before they can sue for any infringement in a Federal court.

This is akin to saying that you own a vehicle once you have paid for it, however, you have to register it with the motor vehicle office and pay a fee before the police will look for it if it is stolen. The ownership is effectively meaningless.

Worse still, in the U.S., you can only sue for statutory damages for infringement that occurs after the work is registered. Since actual damages in many infringements is effectively zero (and are difficult to prove when they take place), suing for infringements that take place before registration is almost impossible.

This system does not hurt traditional media. The cost of registering works is not prohibitive to them and, generally, they can register works before they are distributed, such as submitting a CD or book before publication. Bloggers, on the other hand, can not afford the $45 per work fee and can not wait to register a work before publishing it. For us, creation and distribution are the same process.

At best, bloggers can register their site as a collection, for one fee, months after the first works were published. This is far too late to deal with most infringement as the life cycle of a blog entry is often measured in hours, not weeks.

By the time the registration is complete, the opportunity to enforce copyright has long since passed.

An Unfair System

In addition to favoring large copyright holders, the system is unfair for a spate of of other reasons as well.

• Favors Foreign Works: Due to the Berne Convention, courts have to treat foreign works as if they were registered whether or not they were. Though many foreign copyright holders still register for the prima facie evidence of ownership, they can sue for statutory damages regardless of registration status. In short, the U.S. treats its own copyright holders worse than ones in other countries.
• Favors Wealthy Copyright Holders: A $45 registration fee might not seem like a great deal, but when you register many works, the cost can add up quickly. Simply put, wealthy copyright holders are better able to register and protect their works than poorer ones. The removal of formalities was designed to remove that kind of bias.
• Harms those Ignorant of the Law: Copyright holders unaware that they need to register in order to sue for infringement or collect statutory damages might not register and, out of ignorance, harm their rights. Since copyright law is such a difficult and misunderstood area of law, such confusion is bound to happen among artists, who tend to be laypeople.
• Harms Immediate Media: Any media that does not have a delay between completion and distribution can be harmed by this. Since the copyright holder can not wait for the work to arrive at the USCO, which is when the registration becomes effective, some infringement will almost always happen before the work is registered. This hurts journalists, both traditional and Web-based, as well as many types of radio/tv programming.
• No Benefit to Artists: If the intent of copyright is “To promote the progress of science and useful arts” then this system is a total failure. Removing it would not harm any copyright holders, including those that work well under the system now, but would help the vast majority of rights holders.

None of this would be an issue if the copyright office and copyright law would recognize online distribution of a work as publication. Since you have three months after the date of publication to register a work without missing out on any damages, it would, theoretically, be possible for a blogger to re-register their site every three months.

However, the copyright office, generally, does not consider posting to the Web as publication (PDF), but rather, as public display. Though the author can choose to present the work as published, there is no guarantee that would hold up in court.

When it is all said and done, there is no legitimate reason for keeping this copyright registration policy in place. There is a good reason that other nations have done away with their registration requirements, at least as a requirement for copyright enforcement and it becomes clear why when one looks at the problems associated with such a system.

Worse still, as the Internet not only increases the distribution of works, but the speed with which they are published, it only pushes the Copyright Office further and further in to obseletion, making it nothing more than a relic and an antiquated system.

Some Good News

Fortunately, when it comes to copyright registration and bloggers, there is some good news.

First, copyright registration is not required to file a DMCA notice or send a cease and desist letter.

However, if either of those notices are ignored, then enforcement through a court of law would be almost impossible. One could register then and hope that the work arrives at the USCO before the infringing copy is removed, but even as the work was traveling to the Copyright Office, unclaimable damages would be accruing.

Second, there is one kind of copyright infringement that does not require a registration to sue for, the removal or falsifying of copyright management information (CMI). This is basically the removal of attribution, copyright information or licensing data from a copyright protected work, a critical element of plagiarism but not all copyright infringement.

Though you would still have to register your work before you sued, you could still claim damages for infringements that took place before the registration was filed. Those damages, according to the law, are between $2,500 and $25,000 per work. This amount could easily be worth suing over if more than a few works were taken.

But even with these tools available to non-registered rightsholders, it is clear that severe limitations are still imposed on them, limitations that do not appear ready to be lifted any time soon.

Conclusions

It is the height of insanity that the United States, on one hand, keeps increasing penalties for copyright infringement and empowering copyright holders more than ever while simultaneously keeping the majority of rightsholders from enjoying those privileges.

It is a showcase of favoritism and raises severe questions about the impartiality of our copyright policy.

Of course, if all copyright holders were brought to the table and able to eat the same food as the RIAA, the insanity of much of the U.S. copyright code might be exposed. Drastic steps might seem prudent when trying to defend a multi-billion dollar industry, but what happens when bloggers get the same rights and start to use them?

Strangely, empowering all rightsholders might help users and the public at large by forcing the government to look at its other policies and make rational changes. The abuse of the wealthy can be justified on paper but the abuse of many can not. In short, the current system encourages the RIAA and the MPAA abuses we’ve witnessed by ensuring only a wealthy handful have the ability to take advantage of the law, letting those in power justify the system that is in place.

However, all copyright holders are, supposedly, equal and should enjoy the same protections for their work, regardless of their wealth or background.

The published poet did not work more than the unpublished one. The musician with the record contract put as much love into his music as the one still in his garage.

Copyright law should reflect that, even if it means making other changes to the law. It is that simple.

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.

CMI covers many different types of information, the law itself lists eight kinds, but it includes most of the fundamental elements including the title of the work, the author, the terms of use for the work and any identifying numbers or symbols that link to such information,

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.

Conclusions

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!