Is Copyright Non-Repudiation Worthwhile

myfreecopyright-logoOver the past few weeks I’ve been getting emails and notifications about new non-repudiation services and, once I am able to organize a review, I plan on covering many of them here, but this sudden interest in non-repudiation services certainly has me curious.

On one hand, non-repudiation is a relatively easy business to start. All you need is a means for people to upload content, a way to fingerprint it (something that is available via open source) and a Web interface to control the uploads and display the information. Once you’ve done that, you can charge for your service based on a fee system you set up.

The problem, however, is that it is very hard to do one right. Security has to be solid, so that even the admins can not tamper with uploads, it has to interact with blogging platforms and, for maximum benefit, it has to accept all types of media. This is surprisingly difficult to do while ensuring that your service could stand up in court if needed.

The question becomes whether or not non-repudiation services are worthwhile for either customers or creators. If the services themselves are a scam or if they provide some real benefit. It is not a simple question and one’s answer will vary wildly on their situation.

What is Non-Repudiation

numly-logoIn the broadest terms, non-repudiation is a concept of ensuring that another party can not repudiate, or refute the validity, or a certain fact, statement, etc. In short, it is a way of proving that something is true.

Most commonly non-repudiation issues deal with signatures and contracts, but also, in the case of copyright, with proving authorship and time of creation.

On copyright matters, non-repudiation usually refers to some kind of service that is used at the time of creation. Typically one submits their work to the service, where it is then fingerprinted or otherwise preserved, and a report is generated about what was submitted and when. Examples on the Web include MyFreeCopyright, Registered Commons and Numly.

The idea is that, in the event the authorship comes into dispute, the creator can then use the service to back up their claim and provide extra evidence of ownership.

Though no non-repudiation service has been tested in court to my knowledge, at least no Web-based one, in theory it could work so long as the operators were willing to be deposed and testify about the validity of their service and of the reports they generate.

This is not to say that non-repudiation is sure bet as any flaw in the system could hinder its ability to support the claim, but it does mean that the benefits and drawbacks of non-repudiation should be weighed carefully.

Potential Uses for Non-Repudiation

registered-commons-logoEven though everything on the Web is recorded in dozens of different ways, it can be surprisingly difficult to determine when something was created and by whom. The reason is that most timestamps can be changed, including blog timestamps, server clocks among others.

This can cause headaches in a copyright dispute, making it unclear who posted what first and where. Non-repudiation services attempt to resolve that by bringing a relatively impartial third party into the mix that documents the time of submission, what was uploaded and where it came from.

It is a bit like having a witness to the creation of a work but, ideally, one that is computerized, cannot lie and will be trusted to tell the truth.

However, as one might imagine, the execution is a bit more difficult than implied.

The Problems and Limitations

The biggest limitation, at least in the U.S., is that in order to sue for copyright infringement, you have to first register your work with the U.S. Copyright Office. That registration costs $35 and can take months to confirm, but it provides both a non-repudiation service and prima facie evidence of copyright ownership. Legally, it is many times more valuable than any third-party service and, since you have to do it any way to take any legal action, it is likely all one would want or need.

That being said, the USCO is a notoriously slow, difficult to use and expensive. Theoretically, though it would provide less protection, one could use a third-party service and only register when and if they felt the need to take legal action, but that creates other issues, especially around the damages that could be claimed.

The other problem is that none of these services have been tested in any court anywhere in the world. It is unclear what, if any, effect they would have on a case. The Internet Archive was tossed out in one trial due to a lack of information about how the pages were generated and it is clear that no service would stand up in court without the cooperation of the creators.

Of course, even with the support of the creators, it is hard to determine how much use such a service would be. It would depend heavily on the security protocols in place at the company and how reliable the system was. Unfortunately, we have no way to know how well it will hold until after it gets tested.

The biggest problem, however, is the cost in both money and time. Preparing works for non-repudiation can be time-consuming, depending on the service, and expensive. All for something that may do no good when it becomes necessary.

What is worse is that many of these services can promote themselves in ways that make false promises and lead creators into thinking they have rights and protections they don’t have, creating even greater problems than if the creator had done nothing at all.

In short, these services can be valuable tools, but only when used within their limitations and not relied upon exclusively.

So Who Should Use It?

The question then becomes, “When is it appropriate to use such services?”

Clearly, they can not be relied upon as the sole means of proving ownership, especially in the U.S., but they can still provide some benefit.

Consider the following cases:

  1. Bloggers: If you’re a blogger, registering every entry is impractical. You can get most of the same benefit by regularly re-registering your entire site. In between registrations, a good non-repudiation service can validate when entries went live, provide proof in case a dispute breaks out in the court of public opinion and give bloggers a second line of proof compared to their own timestamps.
  2. Other Countries: If you live in another country that does not have a USCO-like system of registration, a non-repudiation service may help some. Though not as strong as a government-backed system, it can some support.
  3. Works Needing Interim Registration: If for some reason a work needs to be distributed on the Web or otherwise published before a registration can be completed, which is now very rare considering the USCO has an online system, an instant registration with a non-repudiation service can provide a backup until a formal one can be filed and at least offer some proof to the validity of claims of authorship and creation.

In all of this, the critical theme is that non-repudiation is no substitution for USCO registration (even if you are not in the U.S.) but it can provide some service in some cases.

However, the problem is that many of these companies, with their literature and their service, target copyright holders that will get no benefit from what they offer. If, for example, you want to register a novel before sending it to publishers, there is no reason to use a non-repudiation service, you can simply file for a USCO registration and be better protected.

The same goes for undisplayed artwork, musical pieces and so on.

The key is that non-repudiation can fill a gap in the USCO registration process that makes it impractical for many works to be registered before they are put on the Web. Anything else, almost always, would be better served by a real registration.

What to Look For in a Company

For the most part, cost and convenience are going to be the most important things to look for in such a company. Though other aspects may be what determines whether a service holds up in court, those elements are almost impossible to grade until such a situation happens. Thus, you want to spend as little as possible on the protection as reasonable.

Though you clearly won’t want to give your trust to an obviously dicey site, the less you pay and the less energy it takes to use the service, the service, the better. Ideally, it would capture your content automatically, preferably through RSS or a plugin, and do so for either free or a low monthly fee.

Since all services have an equal promise of their ability to stand up in court, no promise, these become the deciding factors.

Conclusions

Non-repudiation does have a limited role and there is definitely a need for it. There has been an unsightly gap created by the U.S. Copyright Office and its means for registration that these services can fill.

However, the role is very limited and the service is frequently pushed upon the wrong kind of copyright holder because they are more often willing to pay for any security they can get.

In the end, though online non-repudiation is faster, better and more reliable than poor man’s copyright, it is far from perfect and should never be counted on as the sole means of protection.

Still, with free and easy services available, there is little reason not to at least try them out, especially if your work can not be registered with the USCO in a timely manner for whatever reason.

In the end, what I think others should do is this: Be smart about the service(s) you choose, be aware of the limitations of non-repudiation and don’t give in to scam sites that overcharge and over-promise.

If you do that, then it can be a valuable tool that you should consider.

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