Online Services Mislead About Copyright Protection

A new app has recently launched via Twitter. Blockai, a San Francisco based enterprise promotes its Twitter app as a means for artists to “register” their copyrights. Blockai’s website claims that they are: “Democratizing Copyright. Most artists cannot afford to register and protect their copyrights. We’re providing a free alternative.”  By using a blockchain database, based on Bitcoin protocol, Blockai instantly time-stamps an uploaded work and provides a “certificate of publication.”  The whole process is very easy and very fast.  In fact, below is my Blockai “certificate of publication” for one of my photographs “Golden Hour Reflection.” Very official looking.

Blockai’s copyright democratization is a laudable goal, no doubt.  But the claimed result is a little questionable.  Blockai states that they are “making it free for everyone to claim and protect their copyright.”  However, this is a little too simplistic.  As with most things that are “free,” you get what you pay for — as the old saying goes.

Blockai also has a competitor in the online copyright protection game — the website DMCA.com, which promotes its free “DMCA Badge.” This DMCA Badge supposedly “guarantees that online criminals and content thieves hesitate before copying your original material.” Besides the free “Badge,” DMCA.com also offers a sheaf of additional services for a subscription fee, with the exception of actually registering copyrights.  Blockai, along with DMCA.com, may be able to make it free for people to “claim” their copyrights, but actual copyright protection is another matter, and one that is hardly “free.”

A valid copyright in a work comes into being when the work is created. The Copyright Law states a valid copyright exists when “original works of authorship [are] fixed in any tangible medium….”  There is no legal requirement to register the copyright with the US Copyright Office.  But official registration provides some valuable remedies to copyright owners.  Further, a valid copyright registration is a prerequisite before a copyright owner can file a law suit.

Blockai states that their certificate is “proof of publication” and can help people “when sending cease and desist orders or DMCA requests [i.e., take-down requests under the Digital Millennium Copyright Act]”.  But matters concerning copyright infringement are not so simple.  It is here that boasts of these Internet services are a little deceptive.

Here are the hard facts.  First, private citizens do not get to issue “orders” to anyone — that is the purview of courts of law, although a person can send a cease and desist “demand” to an infringer. But demands can be ignored or disputed.  It is true that even though a copyright is not registered, under the Digital Millennium Copyright Act (the real “DMCA” as opposed to the website “DMCA.com”) a person can still send a take-down demand to an Internet service provider concerning the posting of infringing material.  However, if a counter-notice is sent, the Internet provider is required to re-post the material online.  The original owner will then have to file a lawsuit to have the material removed.  Furthermore, a copyright owner has a very short window of time, only about 10 to 14 days, to file a law suit after receiving the counter-notice.  And there’s the rub.

A copyright registration is indeed required to file a lawsuit. A lawsuit based on an unregistered copyright will be dismissed outright by the court.  And if the copyright is later registered (i.e., after the date of the claimed infringement), the Copyright Law will deprive a copyright owner of some very important legal remedies.  Normally, the owner of a registered copyright can be awarded money damages in a successful law suit. Money damages can take the form of the actual losses suffered by the owner, including loss of licensing fees.  Where it is difficult for the owner to prove actual money losses, a court can award statutory money damages — i.e., a presumption of monetary loss that is awarded under the Copyright Law calculated on a sliding scale.  In addition, the Copyright Law allows a court to order the loser to pay the winner’s attorney’s fees.  The prospect that a defendant may have to pay the copyright owner’s attorney’s fees — very often in six figures at the least — is a huge club in encouraging defendants to settle.  In fact, about 99% of all copyright cases settle before trial.  But without a copyright registration in place before the infringement occurred, the right to recover attorney’s fees goes away as well as the alternative of statutory damages.  Plaintiffs are left then with having to prove their actual loses, and without the prospect of getting back the attorney’s fees they’ve paid.  In cases where there is no registration in place before the date of infringement, the defense attorneys will make it very, very expensive for a plaintiff to prosecute the case.

The problem with Blockai is that they imply that their certificate of publication will provide sufficient protection for artists and their works. That is simply not the case.  In some fairness, Blockai’s website does state that: “In the U.S.A., to win money in a lawsuit you would need to have registered your copyright with the copyright office.”  However, what Blockai fails to note is that an owner’s law suit will be severely hamstrung without an officially registered copyright already in place.  Relying on the Blockai’s certificate of publication, or DMCA.com’s “DMCA Badge,” for actual protection and then later trying to register the copyright, could leave copyright owners in a serious lurch.  It takes time to secure the copyright registration.  At present the Copyright Office is backed up six to nine months on processing applications, and even the expedited “special handling” can take three to four weeks at least — too late if the infringement has already occurred and too late for the small filing window under the DMCA (not “DMCA.com”).

Regarding a cease and desist or take-down demand under the DMCA, there is one hyper-technical exception to the registration requirement for a law suit.  This exception concerns the anti-circumvention prohibitions to prevent misuse or manipulation of the copyright management information, or the “CMI.” The CMI is the information in the work concerning the owner, metadata, publication, etc.  In some instances, a court may allow a law suit on an unregistered copyright where the claim is solely to prevent misuse of the CMI — but there will be no possibility of an award of money damages or attorney’s fees.

The lesson here is that there is no substitute for actual copyright registration, regardless of what various Internet providers promote and push. In terms of actual legal protection, free online certificates of publication and so-called badges amount to a big zero.  The actual cost of registration is not onerous and for artists who produce a large volume of works, such as photographers, individual works can be gathered together and registered as collections.  Don’t throw away valuable rights on vague promises of easy online “registrations” from enterprises that are not the US Copyright Office.  Free online certificates that “register” publication of work will not get you into the court house.

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