The U.S. Copyright Office (CO) released a draft of its Third Compendium of Office Practices this past August. This is the first comprehensive statement of the Office’s practices in three decades (the first since the internet became an integral part of everyday life).
The manual addresses registration practices for digital content for the first time. This was an opportunity for the CO to show that it interprets the existing law as being in step with technology and to offer protection to creators of digital works.
Instead, by making the registration process expensive and burdensome, the CO has eliminated significant copyright protections for the average blogger. Bloggers make up one of the largest categories of content creators on the web.
Although the CO’s manual doesn’t have the force of law, as a practical matter it undermines the needs of the blogging and content marketing communities by denying them the right to statutory damages and attorneys fees should they choose to pursue a civil action against infringers.
Equally as bad as denying access to the basic protections that come with copyright registration, the CO is acting as the great decider of which sites are blogs as opposed to which provide newsletter or serialized content (like the New York Times). Under current practices, serialized content is entitled to powerful protections at a reasonable cost. Blogs are not.
After spending some time with the wholly new Chapter 1000 of the Compendium: Websites and Website Content (PDF), my conclusions about lack of affordability and burdensomeness of registration for the average blogger are inescapable unless the Copyright Office can be convinced to change its practices or expensive litigation can convince Judges that these practices are ill-advised.
The Big Stick: Statutory Damages and Attorneys Fees
One benefit of copyright registration is the ability to sue an infringer for monetary damages in a civil lawsuit and to recover attorneys fees in the event of success.
Statutory damages (up to $150,000) and attorneys fees act as a deterrent to infringement, or if not a deterrent, a big stick that can be used to force satisfactory settlement terms often before suit is even filed.
For purposes of this article, I’m going to set aside the debate about whether an infringement suit is an advisable, or even a meaningful, course of action for infringement of online content. I believe that the option of pursuing litigation with a possibility of statutory damages and attorneys fees should not be taken away from the blogging or content marketing communities.
It’s All About the Timing
In order to recover statutory damages and attorneys fees as a remedy in a civil lawsuit for infringement, an application for registration must be made either three months after publication or before the work is infringed.
For unpublished works, registration must take place before infringement in order to recover statutory damages and attorneys fees.
A common recommendation for bloggers has been that they should register their posts as a group in a single application ($35 fee) every three months, four times a year. Affordability ($35 x 4 =$140) means access to the powerful benefits of statutory damages and attorneys fees. Examples of this recommendation can be found on a blogging tips site and in a post by Ruth Carter, a lawyer who writes about the intersection of blogging and the law.
Whether a work is published or unpublished makes a difference in the timing of the registration.
Is a Blog Post Published or Unpublished?
A published work is one that is offered for sale or distribution to the public.
This definition is expanded in the new CO manual as it applies to online content or blog posts ” online content is considered published if the copyright owner authorizes the end user to retain copies of the content or further distribute the content.
Social sharing buttons or a print button will be understood by the CO to mean that the owner of the content intends to authorize further distribution by the readers.
Simply put, if a blog authorizes sharing, saving, printing or emailing, the post has been published.
The CO manual is careful to say that it’s the applicant, not the Copyright Office, who determines whether a post is published or unpublished in the first place. But, if it looks to the CO like the post has been published when the applicant says it’s unpublished, or the other way around, the registration is going to be delayed or denied.
The difficulty is with the date of publication. Posts published on different dates each need to be filed with their own application at $35 each. Requiring registration of individual blog posts is not economically feasible for most bloggers.
If sharing, print and email buttons on a post means the post is published, how many blogs are out there with unpublished posts? Not many. Sharing is the name of the game, of course, but with credit and a link back.
Many blogs have copyright notices in their footers that say “All Rights Reserved” with the individual posts floating a group of social sharing icons. What message is that blogger sending when looked at through the prism of the CO’s practice manual?
It is a wildly mixed message. “All RIghts Reserved” means don’t copy or redistribute the content. Sharing buttons mean put it on Facebook, Twitter, and LinkedIn, in other words, redistribute the content.
I believe a blogger with a combination of that copyright notice and social sharing icons on the site probably intends, “Share the content and give me credit, but don’t steal it.”
“Don’t scrape it, strip my name and link off it, pass it off as your own, or pirate it.”
This is a reasonable position for a blogger, or content marketer, to take.
The question then becomes, is blog content with “All RIghts Reserved” and social sharing buttons published or unpublished?
In the new CO practice manual, whether a work, such as a blog post, is published or unpublished controls whether the posts can be registered as a group or whether they must be registered individually.
Unpublished posts can be registered as a group, that makes it economical. But here’s the rub ” unpublished works must be registered before they are placed online “for complete certainty,” says the CO manual. That’s an unreasonable and heavy burden given how blogs function.
Websites Aren’t Serials
Another option for economically feasible registration of blog posts would be to consider them a collective work
But the Copyright Office has said “No” to websites as collective works in its manual: “the issues included in the group cannot be . . . a serial that is frequently modified, updated, or adapted, such as a website.”
I don’t see the reasoning here. The New York Times, for instance, is able to take advantage of group registration and its website is frequently modified, updated, or adapted, even after its physical paper has gone to press.
By deciding what a blog isn’t ” a collective work ” the CO has denied bloggers and content marketers another avenue of registration.
The Copyright Office Isn’t Helping Bloggers
The Copyright Office is unable to develop a registration option that provides support for the concept, “Share the content, but don’t steal it.” The CO’s practices don’t allow the law to live and grow with technology and how it is used.
If the CO practice stays as written in the manual, the once standard recommendation to register posts every three months using one application carries a high risk of being rejected by the Copyright Office or later invalidated in a lawsuit.
The draft of the Compendium is going to become final on December 15, 2014. In the meantime, the Copyright Office is taking comments, but it’s not clear what they are going to do with them.
In my opinion, it should be possible to register published posts in a group every three months to gain the big stick protections of statutory damages and attorney fees.
That’s my take on the CO’s practice manual as it affects registration of blog posts. Do you agree with my assessment?
About the Author
Kathryn Goldman is an intellectual property attorney who protects digital content creators including writers, artists, filmmakers, and businesses from having their work and art ripped off. Since she’s a lawyer, she has to mention that she’s not your lawyer (so this article isn’t technically legal advice), but you’re still invited to download her Digital Artists Rip-Off Protection Report.