To put it mildly, it was a mess. To register all of the work on this site the way the U.S. Copyright Office recommends, it would cost over $155,575 in fees alone to register the site. Even just registering the major articles would be more than $73,360 in fees alone.
However, one of the ways to cut down on those costs is to do a group registration. That gives you the opportunity to register up to 10 works (in this case posts) at a time. While that’s not a huge improvement in terms of practicality, costing $24,475 in fees alone for this site, it does open up some new options.
The problem is that the U.S. Copyright Office considers most websites to be “published” rather than “unpublished”. The reason isn’t because the content is posted on the internet, but because of social media buttons and other sharing tools, most sites authorize the redistribution of the content.
This was a problem was first noted here in 2014 by Kathryn Goldman of Charm City Legal. This is because of rule changes the U.S. Copyright Office made that year that specifically addressed digital content, including websites and blogs.
However, Goldman has an updated post on her blog. With it she offers a new approach on how to make sure that your blog is not a published work in the eyes of the U.S. Copyright Office.
While it doesn’t necessarily make registering all of your work much more practical, it may help with registering more of it and, thus, gaining more of the benefits a registration with the U.S. Copyright Office provides.
The Basic Principle
The basic problem is this. The idea of the published/unpublished dichotomy really doesn’t work well on the internet. It was a system that worked reasonably well when most content was distributed in physical formats, but it breaks down online.
As a result, the U.S. Copyright Office actually looks at what the author intended to do with their work when posting it online. However, most websites don’t express a clear intention one way or another, prompting the USCO to look at actions that indicate that intent, such as the aforementioned social sharing, print, email and other buttons.
As such, Goldman’s strategy is actually a two-part deal:
- Remove all buttons and features that enable visitors to share or redistribute your full posts.
- Make a clear statement of your intention that the content is unpublished and is not for distribution.
The first part is fairly straightforward. First, remove any social or sharing functionality that sends out your full articles. For example, if you have an “email this article” button that puts the whole article in the body of the email, either remove it or change it so that it sends just the summary.
Second, if your site has an RSS feed, set it to summary. This is a wise move from a content protection standpoint (especially since RSS reading is less common today than it was 15 years ago) but it’s also another indication that you do not intend to distribute copies of the work.
The second part is also fairly easy as it just means either adding a terms of service or adding language to an existing one. Goldman has suggested language in her post but it simply has to state that the work is unpublished and that the user is not to publish, sell, rent, reproduce, duplicate or redistribute the material from the site without prior consent.
According to Goldman, “Publication, in the copyright sense of the word, means making a creative work (in this instance, a blog post) available for sale or further distribution. Public display does not mean the work has been published.” As such, removing any invitation to print, email or otherwise distribute a work and making a clear statement against the practice should allow for the work to be registered as an unpublished work.
While that still limits you to ten posts, Goldman recommends using that to register the top ten posts on your site quarterly, regardless of when they were written. Though it’s an imperfect and incomplete solutions, it probably provides the best balance between cost, time and protection.
That said, it’s important to note that, with unpublished works, if the infringement doesn’t take place before the registration, the rightsholder doesn’t qualify for statutory damages or legal costs. With published works, rightsholders can either register before the infringement or anytime within three months after publication to register to receive those damages.
Still, in terms of simply getting blog and similar content registered, this is likely one of the best ways, especially if you have evergreen content that is likely to retain interest (and still be infringed) for a long time to come.
The Potential Risk
Last week, we also discussed the dangers of getting your copyright registration wrong. Thee case dealt with a fabric company, Fiesta Fabric, that sued a clothing manufacturer, Sanctuary Clothing, for allegedly stealing one of their designs.
The court ruled that the Fiesta’s copyright registration was invalid since it was registered as an unpublished work but at least a small amount had been sold. For that error, the case was tossed and the Fiesta was ordered to pay Sanctuary (the alleged infringer) some $121,423 in attorneys’ fees and court costs.
The court did this because, while they didn’t believe Fiesta had attempted to defraud the USCO, that they knowingly filed the registration with inaccurate information because there was “no reasonable basis” for their claims.
Granted, a scenario such as this is unlikely for someone doing this. Other cases, such as Archie MD, INC. v. Elsevier, Inc. found that an error in publication status did not preclude an infringement claim as it dealt with an “unsettled legal question.” There is definitely a great deal unsettled here.
But that lack of certainty just makes this all the more nerve-wracking. If the USCO determines that you’re trying to register a group of published works as unpublished, it will likely reject your application or, at the very least, ask it to be amended or clarified.
If you get your registration and file a lawsuit with it, if the court finds that you knowingly registered a group of published works as unpublished, as with the Fiesta case, it can result in your case being tossed and you owing attorneys’ fees and other costs.
It seems odd that creators are asked to play such a high-stakes game in determining whether one pre-internet term or another pre-internet term applies to online content. If the U.S. Copyright Office can’t provide simple and clear guidelines, what hope is there for people like me?
The registration system, quite simply, is a mess. Though we need to join the rest of the world and ditch the registration requirement, if we are going to insist upon keeping it, we need to make sure it works for all creators.
Clearly, right now, it doesn’t.
The next obvious question is what am I going to do? The honest answer is: I don’t know.
Much of the content on Plagiarism Today is likely considered published. Not only have I, in the past, had tools for printing and emailing articles, but for most of the site’s history I used a Creative Commons license that encouraged sharing and republishing. My intentions were pretty clear.
But even with newer works I’m skeptical on what the benefit for me would be. Though the CC license is long gone, I still grant very liberal permission to reuse my work to those who ask and the likelihood I’ll need and benefit from suing someone is pretty low.
Furthermore, with the current rules, I can only do 10 posts at a time. 100 works, which would be $550 in fees, would only account for 2.2% of the site.
Still, this may be an approach that can help others. If registration is important to you and your work, this might be a way to make it happen. As imperfect as it is thanks to the recent USCO rule changes, it’s still better than the alternative.
If you feel the need to register your work, this is likely one of the best approaches you’re going to find.