branchandroot | Ruminations on copyright and blogs

So, in the wake of The Telos Affair, I’ve been thinking about the astonishing tangle that is copyright law and the even more astonishing tangle that is copyright law applied to online documents.

My train of thought started with Walker being dreadfully wrong on all counts. His use is commercial, and therefore not personal research, and it isn't for review purposes either, because he isn't reviewing fan response. Instead he is copying other people's reviews of Torchwood, which is the actual subject of the book. How much he's copied doesn't much matter, given those two things, and, in any case, neither US nor UK copyright law specifies any set amount--in both cases it is the nature of the copying that matters first, and he fails that right up front. As for he and his et al making attempts to conflate the conventions of academic citation with copyright law... let me pause to laugh quite a lot.

The thing is, such considerations are what a court would look at, supposing the original authors brought suit to force Walker to either stop publication or cough up some of the profit, and that's where the nature of the original text comes in, and that's where I depart from the Affair specifics and start thinking in more general terms.

I started wondering what would be required to bring suit in a theoretical, similar future case, aside from more money than anyone involved has to spend. And, in the US, where, for example, myself and my blog/journal reside, one of the pre-requisites is that one's copyright be registered.

This gets us into the hideous legal rat's nest wherein US copyright holds to the principle of inherent copyright, that is the notion that every publication is protected by copyright whether it's formally registered or not, while at the same time holding that formal registration is required in order to enforce copyright protections. In other words, every publication has theoretical protection, but you can only actually take action against someone who violates it if you have registered the work in question.

Mind you, registration does not always seem to be an absolute requirement, despite section 411. According to some accounts, what is needed to sue is simply some form of proof that the work under contention belongs to you, hence the old trick of mailing yourself a copy of a manuscript and using the postmark as proof. Registration is, however, clearly the strongest proof and apparently required in general. (Incidentally, this source also highlights what a PITA a suit is, and helps explain why Cease and Desist letters always use such aggressive language, hoping for a TKO in the first round.)

So I did a little poking around to see if I could register my journal. Eventually I had to email the Copyright Office and ask whether it could be done and, if so, using what form, because none of their documentation gave me a clear answer. This, it turns out, is because there isn't one. The response I got was:

It would be a basic registration. It is not possible to make a blanket copyright registration that would cover future versions or future works by an author. Copyright registration pertains only to the version of the work that was submitted with the application and filing fee. If you have made substantial changes to your blog, you would file another registration to protect the changes. Keep in mind that if you consider your blog to be published, you would have to register the work as it was first published.

Neither the Copyright Office nor Congress has yet addressed the issue of whether internet posting alone definitively constitutes "publication" as defined by the copyright law. Under the definition of publication, the law states: "A public performance or display of a work does not of itself constitute publication." In other words publication does not necessarily occur when merely displaying or exhibiting the work. On the other hand, if you were selling or offering to sell a work on a website, or otherwise encouraging the downloading/distribution of the work, it would more likely be considered published than not. We advise that you use your own judgment in assessing whether your work is published, as there does not yet exist an established policy. The Copyright Office will not second-guess your judgment on this issue.

In other words, "Sure, give us thirty-five bucks every month to register your blog and keep that registration up to date!" More precisely, this response suggests that blogs and journals may not enjoy inherent copyright, in the US, because they may not count as publication. (This is asinine, yes; laws about digital media are lagging ridiculously, possibly because making them is going to be the most amazing amount of trouble and mess.) Now, it's possible to register unpublished works, so a formal registration would still protect my journal. But I would have to register revisions very frequently in order to keep that protection up to date. And each time would mean another fee, which would get prohibitive really fast.

So, coming back to the question of whether anything can be done in court to prevent people like Walker from being slime, the answer seems to be "very little, without a lot more money". The best option for blogs and such would seem to be using a copyright notice as a sort of fence-post, something that says "I count this as published, and my property, and just might be inclined to do something about trespassers, so step off."

Note, this does not mean that a journal can never be quoted. If it's public, if an entry is not protected or limited in viewership, it can be cited and quoted all the livelong day for purposes of news reporting or analysis and review (review of your writing as the subject, that is, not copying your review to save someone else having to make his own, no matter what Walker thinks). This is the nature of public writing, and despite the internal conventions we have developed in places like LJ, that hold someone's journal to be personal space, digital text without any mechanical limitation placed on the viewership is about as public as writing gets.

In any case, I do not recommend anyone go and register their journal or blog with the Copyright Office. It's too much cost for not enough return, as the (laggard) laws currently stand. For those who are concerned, I do recommend a copyright notice, eg "Copyright Your Name, DateBlogStarted-CurrentDate". A printed copy, from an exported pdf, that has been notarized or otherwise officially date stamped may also be of some assistance if you decide to play the first few rounds of the C&D game of chicken. The best approach, however, would seem to be collective action within our own community, since that is most likely where any such wholesale copying will take place. As The Telos Affair demonstrates, it may be possible to smack an offender's hands hard enough to make them desist, even if they don't have the intellectual wherewithal to figure out why.