The new system creates a two-fold registration for each work that’s uploaded through the system:

1. A triple fingerprint of the work designed to ensure its integrity. This is done using MD5, SHA1 and SHA512 hashes.
2. A certificate generated by an outside authority, one that is approved by the Spanish Ministry of Industry for the purpose of providing such evidence. The certificate is time stamped twice to ensure there are no errors and that the information is accurate.

Users will then be able to download both the registration evidence and the work from their Safe Creative account and it should provide much better support should a dispute over a work arise, especially if it does so in Spain or in the EU. Also, since the certificate is performed by a third party, it provides a guarantee that it will remain useful should Safe Creative close or that you decide to close your account.

However, the drawback of this is that, due to the increased cost of performing registrations, Safe Creative is now starting to limit free accounts to 10 registrations per month. Also, free users will not be able to download the full certificate and instead will have to sign up for either a premium or a pro account to have access to that information.

While the move is likely to upset many free users, it does put Safe Creative in a much stronger position to help its users and provide strong evidence that could be used in a legal dispute.

My Thoughts on the Move

Back in October, I talked about the service EasyTimeStamping.com, which provides a very similar form of registration, one passed through a government-approved certificate authority.

The goal of these registrations is to make sure that the information collected by these non-repudiation services (file information, date, time, author, etc.) is of use in a court of law. In the United States, the only way to obtain this kind of evidence is through a U.S. Copyright Office (USCO) registration, which provides what is known as prima facie evidence of ownership. This, as with approved certificates, makes it so that someone trying to challenge your claim has to provide evidence capable of refuting the existing registration, giving you a great advantage in such a dispute.

That being said, Safe Creative’s prices, 36 Euros ($46) per year for a premium account for unlimited registrations, fares a lot better for rightsholders who register a large number of works. A 50 Euro ($64) package from EasyTimeStamping.com only provides 200 registrations, an amount most active writers, photographers, etc. will go through well before a year is out.

However, since the U.S. Copyright Office is the only provider accepted in the U.S. for such evidence, this new service probably isn’t of much benefit to U.S.-based copyright holders. Those wanting or needing to go beyond the 10 registrations available in the free account may want to look at Myows as a good alternative. However those outside the U.S., in particular those in the EU, may well find Safe Creative’s service very compelling as it’s both cheaper and easier than four USCO registrations ($140 if filed electronically), which is what it would take to ensure nothing was registered past the three month window for ensuring complete protection of published works.

In short, bloggers and others just looking for a stop gap to help with the delay between USCO registrations or provide less-secure proof of ownership will, most likely, be frustrated by this move. But those who are looking for more serious protection of their work, in particular outside of the U.S., will likely gain a great deal from it.

Bottom Line

All in all, what’s happening with Safe Creative and other official registration services overseas is that they are democratizing the registration process. I had talked about something like this in 2009 as a way of fixing the woes of the U.S. Copyright Office. The idea was to “deputize” third parties to process copyright registrations to enable cheaper registrations, better service and quicker processing of claims.

These other countries are doing exactly that by giving official approval to certificate providers, which in turn use registration services to handle the processing of works. It’s interesting though because these solutions, which work very well overall, are coming from countries that had no registration system in place prior to the Web but saw the need to verify ownership of works online

It makes one wonder how different the U.S. Copyright Office would be if it were being constructed today…

Disclosure: I have done paid consulting for Safe Creative.

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

1: Universal Censors Megaupload Song, Gets Branded a “Rogue Label”

First off today, cyberlocker site Megaupload released a music video featuring many of music’s top stars including Diddy, Will.i.am, Snoop Dog and more. Though the video didn’t talk about copyright issues, it showed the artists talking about how much they love or use Megaupload, even as the RIAA and the MPAA seek to classify Megaupload as a “Rogue” website that enables widespread copyright infringement. However, Universal Music has filed several takedown notices against YouTube version of the video, putting Megaupload’s account at risk of being banned even though, according to Megaupload, the label doesn’t own anything in the video. Site founder Kim Dotcom went on to say that Universal was a “Rogue” label and that they had filed a counternotice relating to the video.

2: Yoga Pose Copyright Bid Too Much of a Stretch, U.S. Says in Bikram Battle

Next up today, the U.S. Copyright Office has announced that it is reversing course and no longer accepting registrations for yoga poses and other exercises. The office, in an email that was submitted as evidence in a dispute between two New York-based yoga studios, the Copyright Office said that yoga poses, “Do not constitute the subject matter that Congress intended to protect as choreography,” and, as such, will not provide registration certificates for them. Previously, the Copyright Office had done so, even if the poses were in the public domain, but reached the new conclusion after reviewing the legislative history of copyright law.

3: YouTube acquires RightsFlow

Finally today, Google’s YouTube service has acquired RightsFlow, a licensing service that specializing in streamlining the licensing process for music. The move is, most likely, an effort to simplify and speed up the process of licensing music on YouTube. YouTube, which is currently being sued by Viacom for its practices in its early years, has been working hard to secure licensing and rights to music and videos uploaded to its service and, by acquiring RightsFlow, seeks to simplify that process.

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 5 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.

However, no two artists are in the same position. A strategy that works for Metallica is not going to work for an upstart blogger. So, nearly every tool out there, no matter how insane it might seem, probably does at least some good for someone.

But then there are the copyright ideas that just don’t do anything or, in extreme cases, actually do much more harm than good.

These are ideas that need to be shot down and put away so better ideas can take their place. However, even though some of these have been around (and debunked) for decades, they continue to linger.

So what are those ideas? There are many out there but here are the ones I’m seeing the most and would like to see finally done away with.

1. Badges and Buttons Everywhere

It seems that nearly every copyright-related service out there is offering badges, banners and buttons for others to use. Though many of these companies do great work and provide a valuable service, the badges and buttons are a complete, or at least near-complete, waste of time.

The problem is simple: Few, if any, would-be plagiarists are going to be deterred by such buttons (if they even notice them) and with so much of the copying taking place via automated means, especially RSS scraping, your infringer likely never even saw the site.

These buttons are just a means to generate links back to the companies. Nothing more.

Better Approach: Instead of using badges and buttons, make sure your copyright notice is in check and that it has all of the required elements.

2. No Right-Click/No Select Text Scripts

There are hundreds of scripts that block right clicks and text selection on a site and they, for the most part, do their job. However, the issue with these scripts isn’t that they don’t stop at least some infringement, but that they do much more harm than good.

My own experiments with Tynt have shown that the vast majority of copying is for use that’s clearly non-infringing. Far more people copy content to share legitimately than to infringe.

Couple that with how easily these systems are defeated and there is literally no reason to use them.

Better Approach: Tynt, if used correctly, can track your copied content and help you understand what’s being used. Be careful though not to use it to mess with the copy/paste function, only to track it.

3. Self-Written Licenses

I covered this in greater detail previously but it bears repeating: Never write your own copyright license.

Not only is it legally risky unless you are an attorney, but such licenses rarely get read and almost never change behavior.

Besides, you don’t need a license to require others to ask permission to use your work. Also, if you want to give permission, there are a slew of professionally-written and free licenses that you can apply at your leisure.

Better Approach: Either stick to “all rights reserved” and handle permission requests one at a time or, if you want, choose any one of the other, professionally-written licenses out there.

4. Fake “Copyright Registration” Services

Though there are some great non-repudation services out there such as Myows and Safe Creative, there are a slew of other services with insane pricing schemes and scare-tactic marketing strategies.

Some of these services will cost up to $20 or more to register one file. Worst of all, these services don’t even register the file with the U.S. Copyright Office (USCO), which is a requirement in the U.S. in order to have full legal protection.

Instead, these services just accept a copy of your file, print you a certificate as to when they got it and take your money.

Better Approach: Non-repudiation services can be helpful but Safe Creative and Myows are both free and provide a slew of additional features. Even advanced certification services, such as EastTimestamping charge well less than a dollar per registration. Never pay more.

5. EXIF Data

Theoretically, this should be a great idea. EXIF, or EXchangeable Image File format, lets you embed text-based information in a jpg file. This includes information about the camera, the date it was taken and even the GPS coordinates. It can also include copyright holder and author information.

The problem isn’t the format itself, which works very well, but that the data is stripped almost everywhere it’s uploaded. In short, nearly every time that you or a plagiarist posts the photo online, including Facebook and Flickr, that information is ripped out as part of the compression process.

Basically, most sites remove the information in a bid to make file size smaller and reduce bandwidth. An unfortunate decision, to say the least.

Better Approach: Image watermarking, either visisble or invisible, is your best approach to protect and track your content. EXIF data just doesn’t get passed along reliably enough to be useful.

Bottom Line

Though I would love to live in a world where I could give the same, simple copyright advice to everyone, that’s not the reality we face. However, there are a few things that I can definitely tell creators to avoid using or, at the very least, avoid relying on.

Whether it’s snake oil salesmen trying to separate you from your money or people with good intentions dealing with unfair realities, some ideas just don’t work.

It’s best to move away from those as quickly as possible so we can find the ideas that do work and focus our energies or productive ways to protect ones work.

Disclosure: I have done paid consulting for both Safe Creative and Myows.

But in the U.S. there is at least one other obligation that you have to fulfill, namely registering your site and/or your service with the U.S. Copyright Office.

But while the form is simple and having a centralized list of DMCA agents sounds like a very good thing, it simply hasn’t worked out and in the approximately 15 years since the law was passed, the U.S. Copyright Office’s list process and list is a complete disaster with no hopes for improvement.

The time has clearly come to either amend the DMCA and remove this requirement for hosts or give the Copyright Office the resources to set up and manage this list properly.

The status quo simply can not stand and there are at least nine very good reasons for that.

1. It’s Expensive

The current fees for registering a DMCA agent with the U.S. Copyright Office are $105 for the initial filing fee plus $30 for each group of ten or fewer additional names.

While that might not be much to a large or even mid-sized hosts, smaller sites, such as forum sites and upstart photo sharing services may find this cost prohibitive. Worse yet, these are often the companies that benefit the most from such registrations as they lack the resources to carry on a legal fight and are often targeted by groups such as Righthaven.

On top of being expensive, the pricing is also odd with an amended registration costing the same amount as a new one.

2. It’s Slow

Even as the U.S. Copyright Office has begun to make improvements in turnaround times for copyright registrations, the process of appointing a DMCA agent is still slow, often taking several months.

This delay can be very painful to anyone who is rushing to set up a new service that wants to take advantage of this protection. Even worse, there is no way to register an agent online as all filings have to be filled out, printed and then mailed in.

3. The List it Outdated

The list at the Copyright Office site is routinely out of date. Hosts routinely forget to amend their registrations or simply don’t bother doing so. However, even if they do remember, the costs often discourage them and the delays after receipt prevent it from being timely.

This makes the USCO list almost useless for finding information about DMCA agents.

4. The List is Incomplete

Many hosts that do qualify for DMCA protection and do actually comply with DMCA notices have not filed with the Copyright Office. This can be for one of many reasons, including ignorance or having simply forgotten, but it not only makes the list even less useful to those filing DMCA notices but also burdens otherwise cooperative hosts with potential liability.

5. The List is a Mess

The fact it takes some registrations so long to appear is interesting because all the Copyright Office does is take the mailed in form, scan it and put a link to it on their site.

Their index is nothing but a series of 27 pages, one for each letter of the alphabet and one for numerals, that contain links to the relevant PDFs. That’s it.

It’s ugly, unsearchable and many of the scans are unreadable.

6. Hosts Already Have to Post Their Information

According to Section 512(C)(2) Hosts already have to post the DMCA contact information on their site. Generally, this information is more up-to-date and most DMCA filers turn to the host’s site first before looking to the Copyright Office’s list.

There is little reason for duplication of this effort as a host that hasn’t posted the info on their site isn’t likely to have registered with the Copyright Office.

7. It’s Out of Line With Other Countries

Most nations that have similar notice-and-takedown systems don’t use any kind of central repository of this information and, instead, put the burden on the host to post the contact info as needed.

This system seems to work well and, per number 6, is the most common way for filers to get the needed information in the U.S. as well.

8. The Copyright Office Doesn’t Want It

According to various people who either work at the Copyright Office or work with the office on a regular basis, the USCO never wanted this particular duty and was never given adequate funding to do it.

This effort is well outside of the Copyright Office’s core directive of registering copyrights and advising on copyright legislation and is largely unneeded. To prove this, the Copyright Office failed to list its DMCA agent database on its about page, where it lists all of its core functions, including with the website specifically.

9. Frankly, it’s Ridiculous

Think about everything above. For an important legal function in the U.S., we have a system where we have to spend over $100 to register a Web-based business via postal mail and then have that registration scanned and put back on the Web. It’s a system that almost no one uses and has resulted in an incomplete, out of date and almost useless “database” of image-only PDFs.

The simple truth is that this system would have been considered out of date even in 1996, when the DMCA was passed. Now, it is dead weight on the DMCA process and weight and it needs to either be removed or improved.

The Solution

In the end, there’s only two realistic ways to fix this problem:

1. Kill the Copyright Office List: Eliminate the need to register your host with the USCO and put the burden on hosts to provide the needed information on their sites. It may be time for standards on how that information should be presented and how it can be located.
2. Fix the Existing System: If we believe that having a centralized repository, despite its problems, is worthwhile then we need to fix the existing system. Modernize it so both hosts and filers actually use the database. Make registering easier and cheaper as well as giving better access to the data.

Unfortunately, the first solution requires a change in the law, which isn’t likely, and the second requires that the Copyright Office receive adequate funding for the project, which is equally unlikely.

In short, we’re most likely stuck with the status quo, even though it is completely ridiculous and, in the long run, entirely unsustainable.

Bottom Line

In the end, the Copryight Office’s DMCA system is really nothing more than an unloved and often-forgotten side note of the DMCA. No matter what you may think about the DMCA or notice and takedown specifically, there is little doubt that the Copyright Office’s attempts at maintaing a central database for this information have been a dismal failure.

So grand is this failure that most filers prefer to search through host’s websites and not even attempt to look in what should have been the most convenient and accurate place.

Simply put, if the Copyright Office can’t maintain this service properly, then we need to free both the USCO and hosts from the burden of dealing with it. If it’s not doing anyone any good, it’s best that it be gone.

Disclosure: Through my consulting practice I routinely file DMCA agent registrations and, often, act as the DMCA agent for various hosts, forums, etc.

While that would be a reassuring statistic, her very next paragraph seems to counter it, “I know everyone has a horror story, and I’ve heard many of them. And yes I have even had my art used (by the average clueless person) and I’m still alive.”

Instead of looking at actual copyright infringement numbers, to get her statistic, Harper looks at the number of lawsuits filed versus the number of registrations that have been filed. Unfortunately, these numbers don’t cover the cases of copyright infringement resolved out of court including via DMCA notice, cease and desist letter and generally asking them nicely to stop. It also doesn’t cover the cases where no action was taken at all.

In my experience, for every case of copyright infringement that results in any kind of a lawsuit, thousands, if not tens of thousands, are dealt with via other means. For every case dealt with, thousands, if not tens of thousands more go untouched.

So, instead of simply saying “art stolen” the sentence should, ideally, read “If you have registered your copyright you are more likely to be killed in a car wreck or by a firearm than to ever file suit using that registration.” That, in turn, is very likely true.

While that seems to be less eye-catching, it does point to a separate issue. The majority of people who obtain copyright registrations never use them, at least not in court. So why go through the time and expense of registering your works?

There are actually many reasons for that and here are just a few of the bigger ones to consider.

Copyright Registrations Help w/ All Infringements

In many ways, carrying around a timely-filed copyright registration is a lot like carrying a loaded gun (to borrow the handgun comparison). With the threat of ultra-high statutory damages lingering over any infringer, especially those with deep pockets, they are more interested in settling copyright disputes quickly and making sure that the person with the registration is happy.

For example, the stock photo industry has used their copyright registrations to procure thousand dollar plus settlements from infringers as part of their controversial campaign. Generally, businesses know that it is better to pay the $1,000 settlement cost than to risk being hit with statutory damages that could reach $150,000.

Without a copyright registration, any cease and desist letter carries significantly less weight. Anyone who knows copyright law will realize that threats of litigation are, more or less, meaningless.

In short, even if you never file suit using your copyright registration, you have a much bigger upper hand in any copyright disputes that do arise, regardless if they never make it to court.

Better Contract Negotiations

If you are interested in licensing your work to third parties, having a timely-filed copyright registration is also a huge help here.

Not only does having the state of mind to register your work show that you are serious about it and not someone to be trifled with, but, going back to the loaded gun idea, it shows that you are a threat if your negotiating partner attempts to do something unsavory.

With countless cases of artists having works stolen while they were trying to negotiate licenses for them, having a registration or having filed one before you go into negotiations lessens the likelihood of that happening because doing it carries severe consequences.

In that regard, having a registration actually makes you less likely to be infringed.

Proof of Authorship

Finally, it’s important to remember that there are two sides to every copyright dispute. You can, just as easily, find yourself on the defendant side of one, especially if someone mistakes your creation for an infringement.

However, a copyright registration can help in these cases too.

If someone sues you for copyright infringement, your copyright registration services as prima facie evidence of ownership, meaning that it is considered evidence “on its face” and that the other side has the burden of proof in disproving it.

If your registration came before their work, the case is a slam dunk. Even if it didn’t, the presence of the registration greatly supports your arguments and may help in negotiating a settlement.

While it won’t do you much good to register a blatantly infringing work, if there is a legitimate dispute over ownership of a copyrighted work, having your version of it registered can be of great value.

Bottom Line

Though I’m critical of Harper’s inflammatory (and incorrect as presented) statement, I do agree with what she’s trying to do, namely encourage artists paralyzed with fear of their work being stolen to stop being so afraid. It’s a noble cause and one I support, though I prefer to educate artists on how to respond to infringement and on the simple truth that most infringement is, by itself, not that harmful.

Artists shouldn’t be prevented from creating art by the fear of being infringed, that doesn’t make sense when the law so clearly protects you. On that front, one of those key legal protections, in the U.S. at least, is copyright registraton and it is a powerful tool that can help you even if you never plan on suing.

That being said, you probably shouldn’t bother registering your work unless you are ready to sue. You might never need to and probably won’t, but much like carrying a loaded weapon (going back to that analogy once more). If you are going to carry it, you need to be prepared for the possibility you will have to use it. To do so otherwise is simply irresponsible.

As with anything in life, a copyright registration brings both rights and responsibilities so you should be ready for both before you send that registration off.

With that in mind, I decided to download and give three of these apps a try.

The results, however, were a bit disappointing, while I was glad to see that they all provided some level of convenience and access, they didn’t seem to offer much that can’t be found online elsewhere.

Still, for some the low-cost of these apps may be more than worthwhile and, to help you make a decision about which, if any, to get, I’ve gone through and reviewed three of the more popular iPhone copyright law apps.

Apptorney: IP

Apptorney: IP is different from the others on the list in that it is not targeted solely at copyright. Created by Erik M. Pelton & Associates, the app provides information on all areas of intellectual property including trademark, patent and copyright.

On the copyright side specifically, the app features links to the copyright office, the USCO’s fees page, the link to download the forms, perform a copyright search, filing a copyright and the full U.S. copyright code, both in text and PDF format.

Unfortunately for those interested in copyright, the app is very trademark-centric. Copyright takes a back seat and, of the links that are provided, many are practically useless on a mobile device, including the one to file a copyright. Though the IP blogs list is interesting, it is mostly made up of trademark blogs, with only two or three sites on the list that discuss copyright at all and none that make it their sole focus.

All in all, it’s a good app for those with a broader interest in intellectual property, but it’s poorly organized and almost useless for those primarily focused on copyright. Also, all the links just point to Web-based resources, meaning it doesn’t do anything you can’t do with bookmarks.

Still, it is free so there’s no harm in trying it.

Price: Free

Copyright Legal Coach

Written Michael Byczek, Copyright Legal Coach (CLC) is a direct opposite to Apptorney: IP. Focused solely on copyright, CLC provides a wealth of information on copyright law and organizes it reasonably well.

Broken down into three parts, registration, U.S. code and Code of Federal Regulations (CFR), the latter of which is comprised of U.S. Copyright Office and Copyright Arbitration Royalty Panel Procedures, CLC will give you more about the law than you ever wanted to know.

The app also doesn’t just link to the relevant web pages, as with Apptorney, and instead includes the text in a very easy-to-read iBooks-like environment. Navigating the app is very straightforward, though I found it odd that the registration guide was the default screen and not the U.S. code, but it’s simple, fast and gives you access to the elements of the law you need quickly.

Price: $0.99

U.S.C. Title 17: Copyrights

Finally, written by Fitz Collings, U.S.C. Title 17 is an iphone app solely focused on the law itself. In fact, it’s pretty much what the app title says it is, U.S.C Title 17, in easy-to-read format.

Though it’s not as overwhelming as CLC, it does provide less information and, if you aren’t already familiar with the law and what is in each section you might find yourself hunting around for the correct line as the app makes no attempt to explain things in plain English.

One feature I do like is the “Goto” feature which lets you punch in the section number you want to leap to and it automatically opens up that area. So, for example, if you want to go straight to Section 512 it’s a quick jump. Though it doesn’t really save any key presses, it does save some scrolling and searching.

All in all, the information is more bare bones and there’s no effort to break it up, but it’s a complete look at U.S. copyright law.

Price: $0.99

Bottom Line

All in all, these apps are interesting but I’m not really sure how often I’m going to use them. Though I do look up copyright law often, with the law available online on various sites, including the U.S. Copyright Office site. I’m not really sure how important these apps are to have.

That being said, if it is worth it to you to pay 99 cents for an offline, easy-to-read version of the U.S. copyright code, I slightly prefer CLC. The app is just a bit more robust and approachable. Though both it and U.S.C. Title 17 are both easy to use, I like the structure of CLC a bit better and found it to be more complete. That being said, U.S.C. Title 17 is a bit easier to read, using a default larger font.

All in all, it depends on what you want but either app will fulfill the function you want. If you want/need the CFC and prefer headers in plain English, get CLC, just want the law in the most readable format, U.S.C. Title 17 is the better bet.

If you don’t want either but still might want to read the code on your phone in a pinch, just bookmark the USCO site and go there. It works reasonably well.

Marybeth Peters, who has served as the Register of Copyrights for the U.S. Copyright Office, the highest position at the office, has announced her intention to retire. Peters has served as the Register of Copyrights since 1994, where she succeeded, Barbara Ringer, who was the then acting Register.

Peters’ retirement caps off a 45-year term of service to the U.S. Copyright Office. She started with the USCO in 1965 where she worked as a shelflister in the processing department. She then became an examiner and promoted to the position of chief of examining division in 1980. She also served as the acting general counsel for the USCO 1993-1994, before being given the job of Register.

Outside the USCO, Peters served as a consultant on copyright law to the World Intellectual Property Organization in 1989-1990.

Peters has been very active during her tenure traveling and giving lectures to schools and organizations across the world. She has become one of the best-known and most-respected voices in copyright, both domestically and internationally.

The U.S. Copyright Office has posted a vacancy for the position on their site, inviting others to apply for the position.

1: Legal experts: LimeWire Likely Doomed

First off today, feedback and commentary from yesterday’s ruling in the LimeWire case is flowing in and a consensus is emerging, LimeWire is doomed. The big question at this time is whether the record labels, which successfully sued LimeWire and its CEO for vicarious copyright infringement will file for an injunction against the service before the June 1 status conference or attempt to work out a resolution there. In fact, most experts agree even an appeal will do little to stave off an injunction, if requested, as the judge felt she had many good reasons to make the ruling she did.

2: Nintendo Files Lawsuit Against R4 Seller

Next up today, Nintendo has filed a lawsuit against video game seller NXPGAME saying that the company sold the R4 Chip, which Nintendo says is a chip used to play pirated Nintendo DS games and is a violation of the Digital Millennium Copyright Act. Nintendo also claims that they previously demanded the company stop sale of the R4 chip and they complied, only to open up a new site to sell it and redirect their visitors there.

3: New SDNY Case Points Out Need For Reform

Finally today, artists and photographers who thought they had found an end-run around much of the U.S. registration requirement were sorely disappointed this week. Artists who had used Corbis to bundle their works and register them under Corbis’ name, with an agreement the rights would refer back to the photographer after registration, have had their approach shot down in court and their registrations invalidated. The judge in the case did recognize that, though constrained by the law, the law was probably not the best thought out and likely in need of reform.

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.

Though non-repudiation services, such as MyFreeCopyright, Safe Creative and Myows, are not replacements for the U.S. Copyright Office, they do provide a powerful stop-gap verification for the nine-month wait for a certificate. They also provide a potentially valuable verification service to copyright holders in other nations who have their primary copyright interests lie outside of the U.S.

Unlike the Copyright Office, these services have been in a race to make their services as easy powerful as possible, all while remaining free. MyOws has focused heavily on its interface, MyFreeCopyright with its integration with RSS and Safe Creative has struck partnerships with Jamendo and Magantune among others.

However, Safe Creative recently announced two more new features that many artists will likely find compelling. The first is multiple author support, which is aimed at creators of more complex works, such as audio and video files. The other is an application for bulk uploading, which is aimed at those with a lot of content they want to register at once, such as photographers.

It’s part of a new development push at Safe Creative that I expect will lead to even more innovations down the road.

Multiple Authors

If you’re a musician or video producer, one of the biggest hurdles in using non-repudiation services is that it can be difficult, if not impossible, to indicate multiple authors. Whether it’s two or three writers working on a book, multiple musicians performing on a song or anything else with multiple parties involved, most sites only support one creator.

However, Safe Creative, as part of their new professional services offers just that ability. To access this feature, you simply visit your list of works and, using the drop down, select “Add Rights Holders”

Once you’ve selected that, you’ll be taken to a screen where you enter the email address of the other party. They will, in turn, be asked to confirm their email address and sign up for an account if needed (thus providing their information). Once done, the work will be linked to both accounts.

The process is extremely straightforward and, in my limited testing, seemed to work very well. All in all, this is a very compelling feature for those who routinely collaborate on projects with other artists, which is especially commonplace with music, a key target group for Safe Creative.

Automatic Registration Tool

The other new feature that Safe Creative has been touting is an Automatic Registration Tool, written in Java, that bulk uploads works to Safe Creative and is compatible with Windows, Mac and Linux.

The tool itself is fairly bare-bones, you first have to give the tool access to your account, a largely automated process, and then all you have to do is select a folder of works to register and the application begins to upload and register the various items.

This application is ideal for photographers and musicians who want to register a large number of works quickly. The process itself is relatively quick, I registered about 140 images in under an hour, but the lack of features does hurt the application some.

For example, the app will blindly upload everything in a folder, including the thumbs.db file in my case, so it is important to make sure the folder is cleaned out completely before uploading (though you can always delete later). Also, the application just uses your profile’s default settings and there is no way to select a different license or even choose the content type, so all of my photos were listed as “Articles” in the service. However, there is no easy way, that I’ve found to repair that without changing the works individually.

Still, if you’re a photographer or some other artist in need of registering a large number of works with Safe Creative, this tool will be a godsend.

A Word About Professional Services

Multiple authors and the other features on the professional services page are exactly that, professional services. This includes versioning, private registrations, pseudonym in profile, etc.

Currently, professional services are free and you can “purchase” 30 credits (most services cost five per year) with the click of a mouse. However, this is only during the testing phase.

These services will, eventually, be charged for though it is unclear at this time how much they will cost.

Bottom Line

Safe Creative’s features are extremely compelling and, to my knowledge, they are two that are unique to the service itself. Whether you are an artist who routinely works with others or need to do routine bulk uploads, Safe Creative is now an even more natural choice.

In the bigger picture though, the USCO could learn a great deal from these upstart non-repudiation services. Built with relatively small budgets and either by lone developers or a small team of developers, each of them have features, simplicity and integration that the USCO has failed to do with a multi-million dollar budget and years of development time.

Best of all, since there is competition in the field, unlike the USCO that has a monopoly on registration through it, there is a constant push to add features, make the process faster and simplify registration.

If any of these services managed registration for the USCO, I don’t think users would mind the requirement nearly as much.

Article Updated: See Below

It is well-known that, if you are a U.S. citizen and wish to sue for copyright infringement in a U.S. court, you have to first register your works with the U.S. Copyright Office (USCO). If you wish to collect statutory damages, you need to register either before the infringement or within three months of publication.

However, for a time it was very murky whether this element also applies to foreign authors who wish to sue within the U.S. This is because, in 1989, the U.S. became a signatory to the Berne Convention, over 100 years after the first countries signed on, which states, under article five, that “the enjoyment and the exercise of [rights under the Convention] shall not be subject to any formality.”

The theory was that. while the U.S. could do what they wanted to their own citizens, including subjecting them to the 9-month delay for a registration certificate, but they were bound by the Berne Convention to grant full rights to foreign copyright holders.

However, a decision by a U.S. District Court paints a very different picture, saying that the Berne Convention does not preempt U.S. copyright laws and that the treaty is not self-executing. This essentially means that all copyright holders, regardless of where they are located, need to register their works with the USCO before filing suit in the country if they wish to seek statutory damages.

Needless to say, considering that most nations have no formalities at all for copyright protection, this decision is going to cause some major headache for foreign copyright holders as they try to enforce their rights within the U.S.

What Happened

The case in question is Elsevier B.V. et al v. UnitedHealth Group, Inc.. Elsevier holds copyright in a collection of science books that they make available through their paid database ScienceDirect and they claim that at least one of the defendants, Ingenix, allowed others to access that database unlawfully.

However, many of the works in Elsevier’s portfolio are foreign and lack copyright registration. Elsevier sought statutory damages for those works, claiming that the Berne Convention should allow them to do as such. The judge, however, ruled that the Berne Convention is not self executing, primarily because the Berne Convention Implementation Act of 1988 said so explicitly.

The result is that, even though the U.S. is a signatory to a treaty that forbids formalities in the “enjoyment and the exercise” of copyright, foreign content creators still have to register their works with the USCO to collect all the potential damages and, most likely, to sue at all.

What Changes?

The long and short of this is that, if you are a foreign copyright holder and think you might ever want to sue in the United States for infringement, you should register your works with the USCO and keep those registrations up to date.

Failure to do so could result in you being unable to claim all the damages you would otherwise be entitled to.

To be clear though, lack of registration does not prohibit you from filing DMCA takedown notices nor does it prevent you from sending cease and desist letters, this only restricts your rights when you go to file a lawsuit. Also, you may still be able to sue and collect significant damages for the removal of copyright management information if it is an element of the case.

Still, the point remains that, regardless of where you are located, if you are considering filing a lawsuit in the U.S. at any point, it’s probably worth your while to register your work with the USCO.

My Thoughts

The decision is legally sound, of that there is no dispute. However, it is fascinating when looked at in the broader context of global politics and intellectual property.

The U.S. is one of the first nations to criticize other countries when we feel their copyright laws are lacking. We even have a “Copyright Watch List” of nations we feel are encouraging piracy through either lackadaisical laws or enforcement.

However, this ruling clearly illustrates just how dated and out of touch our own laws are in many ways. Though we are a signatory to a treaty that bars formalities in copyright enforcement, we require copyright holders to register with the USCO to enjoy the full protection allowed under law.

To make matters even worse, the USCO is a notorious mess. This includes delays 9 months and longer for receiving certificates, even after the use of the electronic registration system. Subjecting U.S. citizens to this is already inexcusable, but to force its use internationally is simply mind-blowing.

Sadly, even as we negotiate treaties that seek to push various elements of the U.S. law on other nations, we are not making any push to change our own laws and harmonize them with the rest of the world. The USCO copyright registration system is a dinosaur in many ways and should be done away with.

Especially since we signed a treaty almost 25 years ago that said we would do away with formalities.

Bottom Line

In the end, the result of this is pretty clear, if you are a copyright holder not in the U.S. but may want to sue for copyright infringement in a U.S. court, you need to register your works and keep those registrations up to date if you want all of the damages to be at your disposal.

It is a huge pain and a hassle that most copyright holders outside of the U.S. will be uncomfortable and unfamiliar with, but it is a fact of life at this time.

Hopefully we will begin to see some changes in the law that will make this unnecessary but, in the meantime, it is a reality that we all most adapt to and live with.

Update

Commenter Terry Hart pointed out that there was a previous case on this issue, in the same court, that slipped under my radar and answered this question previously. He also clarified that the issue of registration only affects the ability of the foreign copyright holder to collect statutory damages, not file suit, an element I was admittedly unclear on. I’ve updated the article to reflect these changes.