Currently, the content of Plagiarism Today is not registered with the U.S. Copyright Office. The reason isn’t because I don’t want to enjoy full protection in these posts I spend hours per day writing or that I’m unaware of the usefulness of a registration, but because it’s not practical.
In any other country, this wouldn’t be a problem. My ability to enforce my rights wouldn’t be beholden to a piece of paper from the local copyright office as, elsewhere, there is no registration requirement for filing a lawsuit and no benefit beyond public record.
Still, that’s not the situation we live in today in the United States. When compared to foreign creators, our copyright is second rate in our own country because of this registration requirement as foreign creators do not need to file a registration to file a lawsuit. Worst of all, many of us are completely disenfranchised from legal recourse (and statutory damages) because registration is impractical or impossible.
But that got me thinking? What would happen if I came into a financial windfall and suddenly had all the time in the world? What would it take to fully register Plagiarism Today in its current form?
Plagiarism Today was launched in August 2005 and, as of this writing, has some 4,445 posts. If I wanted to register every single post on this site, what would it take?
The answer is: A lot. In fact, even with the most generous interpretation of the rules, it would take far more time and money than is practical. To understand why, we have to look at the various options that are provided and calculate the costs behind them.
The Cost of Registering Everything
Historically, the simplest solution has been to file group registrations. Basically bundle everything up that you wrote, submit it as one registration (Currently $55) and be done with it.
However, there’s two major problems with that.
First, new rules at the U.S. Copyright Office that took effect on May 15 limit the number of works that can be filed in a group registration of unpublished works to just 10 (Note: Photographers can still file up to 750). That means this site, using a group registration, would require 445 separate registrations. At the current fee of $55 per registration that would require $24,475 in fees alone. That says nothing about the time it would take or the help I would likely need.
The second problem is that most websites, including this one, are likely considered published by the U.S. Copyright Office. That is because this site, like most sites, use social sharing buttons and other means to allow users to distribute copies. As such, Plagiarism Today wouldn’t likely qualify for group registration at all, forcing me to register every single work separately.
Though there are ways to register certain kinds of published works, they are limited to:
- A group of issues from the same serial publication
- A group of issues from the same newspaper (regardless of whether the paper is published daily, weekly, bi-weekly, etc.)
- A group of issues from the same newsletter
- A group of contributions published in periodicals
A blog, such as Plagiarism Today, doesn’t fall under any of these. The U.S. Copyright Office made this abundantly clear in June 2017 when it announced rule changes to group registrations for contributions to periodicals. It said:
In a similar vein, NWU (National Writers Union) seeks a new group registration method for contributions to Web sites, as well as other categories of works. Specifically, NWU submitted a petition urging the Office to create additional group registration options for the following categories of works: ‘‘(a) Multiple works first distributed electronically on multiple dates, regardless of whether they constitute contributions to periodicals or a database and regardless of whether they might be deemed to have been, at the time of registration, published or unpublished, and (b) multiple works that would otherwise be eligible for group registration except that they were not first published as contributions to periodicals.’’ The Office is considering the NWU’s requests and will take them into account when developing its priorities for future upgrades to the electronic registration system.
This option, to date, has not been implemented and likely will not be implemented for quite some time as there is not even a proposal for consideration.
Note: For this article I consulted with Kathryn Goldman of Charm City Legal. She wrote the 2014 guest post on this site but also has an updated post on her site. There, she outlines a system for registering blogs as unpublished works that I will cover in a future post and may adopt here. However, it doesn’t apply to Plagiarism Today as of right now.
So where does this leave me? Because of this, every single post on Plagiarism Today requires a separate registration, I would need to file 4,445 registrations. Fortunately, I could take advantage of the cheaper “One Work, One Author” registration, which costs $35. Still, that brings the total to $155,575 not counting the time it would take and the help I would need to hire. That is just fees.
When I hit publish on this post, that goes up by another $35.
That is, to put it mildly, impossible. Though I am happy with the living I make, I cannot afford to pay more than the value my house to register my site with the U.S. Copyright Office, especially since the benefit is speculative at best. For this to pay dividends, someone would have to infringe my website in a very significant way. They would then have to be practical to sue, I would have to win damages and then collect on them.
There’s almost no chance I would see any of this money returned to me and it is completely not worth my time, energy or expense to do it.
Still, there has to be another strategy… right?
So what else can we do? There must be a way to reduce these costs and gain at least some benefit from the registration.
First, we can skip out on registering all non-feature articles. Many of the posts on the site are 3 Count columns, old podcasts, video posts, etc. that really don’t get much benefit from registration as infringement is unlikely. Still, according to my WordPress, that leaves 2,096 posts, which is a cost of $73,360 in fees alone.
Second, we can forget about registering older works that are older than three months. Though there’s no time limit for registration, works registered within three months of publication qualify for statutory damages and attorneys fees regardless of when the infringement take place. Given that most infringement happens within hours or days of publication, it makes sense to focus on these works.
From this writing, that takes us back to March 9, 2019. That’s just 68 works. However, that is still $2,380. Register just main articles in that time and we’re down to 35 works and $1,225.
That’s certainly better but still cost-prohibitive and it only protects a small portion of the site. In particular, it misses nearly all of the site’s most-popular and most-copied posts. Furthermore, if we did this every quarter it would still be approximately $4,900 per year just to register the main articles.
We could, instead, use the power of hindsight and only register the top X number of posts. The top ten posts on the site make up about 50% of the site’s traffic. That would only take $350. However, due to the long tail nature of the site, that starts to tick up exponentially as we try to get a larger and larger percent.
In short, much past 10 posts is the point of diminishing returns.
The big problem with this approach is that it depends on hindsight. I likely won’t know I have a new top 10 article until well after three months have passed. New content often dominates and it’s only in aggregate these trends emerge. That means these registrations would not likely be within the three month window that may hinder their usefulness, especially for the purpose of collecting maximum damages.
Another final possibility is randomization. Simply register random recent posts as I go along. It might not many works or the most popular, but it could defend against whole site copying.
However, wholesale site copying is just not a kind of infringement I see anymore. The days of RSS scraping are largely gone and most of the infringement I see is the copying of one-off articles.
While an interesting option, it doesn’t really help and only defends against a hypothetical infringer that doesn’t really exist.
However, that’s kind of the nature of the copyright registration process. It’s an expensive and time-consuming process that, for most works, is a waste. Still, it’s important to do just in case the work is infringed in such a way that it becomes essential.
This is especially true with the potential passing of the CASE Act, which would create a copyright small claims court.
That’s the nature of the copyright registration process in 2019. Many creators, such as myself, are cordoned off from it by how impractical it is for our work. This disenfranchises us from the legal system when our work is infringed and removes key damages if we register after the fact, making it difficult, if not impossible to register after an infringement and then file a lawsuit.
While there are things that the US Copyright Office could do to make this process easier, following the National Writers Union proposal would be one, there’s simply no way to make such a registration system perfectly equitable for all creators. Even if it only took $1 to register and required almost no form, there would still be those that were unaware they had to do it or were unable to do it for various reasons.
The best solution, and the only realistic one, is to do away with the registration requirement. Failing that, there are ways that the U.S. Copyright Office could drastically improve the process and encourage registrations from a wider array of creators.
If copyright is truly supposed to protect the work of all creators, then the registration process should be practical and usable for all creators. However, it clearly isn’t.
The time has long past to fix that.