No Mail Getting Through:
The Registration of Copyrights for Adult Content Material in the Post 9-11 World
By J. D. Obenberger, Attorney at Law
© MMII J. D. Obenberger, All Rights Reserved
Written for and Published on the World Wide Web by YNOT News, January, 2002
The Comments of Marybeth Peters, US Register of Copyrights
The day after I returned to Chicago from Internext, I attended a continuing legal education seminar on the topic of Copyright held under the auspices of the Patent, Copyright, and Trademark Committee of the Chicago Bar Association.
We who attended the seminar were fortunate to have Ms. Marybeth Peters, the Register of Copyrights of the United States Copyright Office, Library of Congress, give us a presentation on recent updates to Copyright Law and copyright registration practice in her office; I was especially fortunate to have the opportunity to speak with her briefly, after her presentation, on the registration of adult content materials. Ms. Peters has served as the Register since 1994, and before that was Chief of the Examinations Division in the Copyright office, which processes the applications for registration and grants or denies registration. She is the author of The General Guide to the Copyright Act of 1976. She has a long list of academic distinctions, including as an adjunct law professor at both the University of Miami School of Law and The Georgetown University Law Center. She is a member of the Board of Directors of the Computer Law Association.
Copyright and the registration of copyright are two very different things; Copyright now arises and vests in the author at the time a work is created simply by its creation. However, it is not until the copyrighted work is registered that the author may bring an action for infringement of his copyright. Also, the registration of a work within ninety days of its first publication provides powerful economic advantages to the author that may make the difference between having a practical ability to enforce it and being able to do nothing effective against infringers.
Ms. Peters' job places her in charge of the process of copyright registration. Image content providers, designers, illustrators and text authors in the adult internet should know that registration of copyrightable material such as images, code, illustrations, and text within three months of its first publication vests the author with invaluable rights that are lost forever without timely registration; The author who registers his copyrightable material in the US Copyright Office within three months of its first publication becomes thereby entitled to recover his reasonable attorney's fees from the infringer as part of his judgment when he or she is successful in an infringement lawsuit; The general rule that the extraordinary remedies of attorney's fees and statutory damages are available only if the work was registered before the infringement does carry a special proviso, however, that any registration within the first three months publication will be sufficient to vest the author with rights to those remedies, even if the infringement preceded the timely registration. Absent timely US registration, he or she must bear his or her own attorney's fees, a factor that may make it impractical to bring suit against an infringer in the first place. Moreover, timely registration also permits the Court to enter presumed statutory damages for infringement without the need to present often expensive expert testimony as to the economic value of the infringement. Failure to register in a timely manner often makes it impractical to bring an action for infringement and, in my view, contributes to the prevalent atmosphere of intellectual property piracy that is pervasive in the adult internet.
I spoke to Ms. Peters in particular about the registration of adult content materials. She related that large amounts of explicit materials are received in the Copyright Office on a regular basis. The Copyright Office does not view itself as a censor of morality or obscenity in the registration process, and while there exists some judicial precedent for the proposition that no copyright can properly vest in materials that are obscene, her office simply does not get involved in issues of obscenity: Neither Ms. Peters, nor the Examination Section, nor the Copyright Office will deny registration on the grounds of obscenity; Not only do they simply not perceive themselves as censors, but there would be a thorny problem in trying to ascertain just whose "community standards" should apply in the Copyright Office, lest the standards of Washington, D.C. become imposed as those of the nation for the purposes of copyright law.
Adult content materials received for deposit in the Copyright Office are the subjects of special security measures because of historical problems with their disappearance. (Must be the janitors or members of the public. Surely not the staff!)
Should materials be received that contain what is obviously and unambiguously child pornography, it will be turned over to the Justice Department for investigation and prosecution in its discretion, as provided for by regulation.
Since October 17, 2001, the Copyright Office has received no mail at all from the Postal Service, a result of the receipt of toxic, disease-causing anthrax spores in mail delivered on Capitol Hill to government offices in the time preceding that date. All of the mail addressed to the Copyright office now sits in trailers, awaiting the start of screening for anthrax spores, to be conducted at a remote location in Maryland. Since that irradiation facility is not yet equipped nor in operation, new mail sent now will join the material in the trucks and wait for eventual processing. Parcels brought in by even commercial messengers are being directed to its loading dock for remote storage and ultimate screening at the same facility when it opens, though late word is that Fedex and UPS applications are being received and processed. Otherwise, the only materials getting though for current registration are those that are brought in person to the Office by a non-messenger, by the prospective registrant, by an attorney, or by a clerk. Once the irradiation facility is open, UPS and Fedex parcels will be routed through it for irradiation before being processed in the Copyright Office, and the only parcels that will get through directly will be those brought by a non-messenger.
It is the present policy of the Copyright Office to stamp the application for registration or the recordation of a document at the time of actual delivery in the office. According to Ms. Peter's email to me on January 16, 2002, some thought and attention has been given to dealing with the backlog by applying the postmark or commercial express acceptance date on the envelope when the parcel is actually processed, a decision to do so has not been and may not be reached; The Interim Regulation mentioned later in this article does not provide for such a procedure, but instead contemplates that they will all be stamped with the date of actual receipt in the Copyright Office. It is a virtual certainty that some materials will be received months after they were transmitted. This creates the potential an unjust situation in which valuable "timely registration" rights would be forever lost due to no fault of the author nor attributable fault of the Copyright Office because it is stamped as received, months after mailing.
In order to deal with this potential for injustice and a means to correct it, the Copyright Office, on December 4, 2001, issued Interim Regulations, 37 Code of Federal Regulations 201.8, dealing with the disruption of postal service (Federal Register, Vol.66, No. 233, p. 62932. Comments were closed January 3, 2002. There is presently only a very limited provision for electronic copyright registration in very narrow circumstances, and electronic copyright registration is simply not an option for registration applicants not already using it; Moreover, the Copyright Office has a "deposit requirement" for registration of materials which necessitates sending the best copy of the work in ordinary cases, e.g. a hard bound copy of a book or a 35 mm print of a cinema film.
The Interim Regulation should be closely consulted by anyone now seeking the registration of documents. It is available online at the Copyright Office's site, and it will be provided upon request by my office as well to anyone asking for a copy.
The Interim regulations generally provide that, within one year after an individual receives a certificate of registration or recordation, he or she may apply for reassignment of the date of receipt, and thereby the "effective date" of registration or recordation. The burden will be on the applicant to provide evidence, detailed in the Interim Regulation, as to why the materials would have been received in the Copyright Office on an earlier date but for the disruption in postal service.
For the registration of Copyrights, the Register requests that the request not be submitted until after the applicant receives a certificate; That will be some months from now at the earliest. For recordation of documents, the requests may be submitted now.
This will obviously present complication, expense, and the expenditure of time and attention from those who wish to preserve their "timely registration" of copyrighted materials with a certificate of registration that bears a date within ninety days of first publication. It will be a paperwork nightmare for everybody concerned, with seemingly interminable delay, to fix all of these problems though the immense backlog that grows day by day.
The obvious solution is to have the application for registration submitted now in person in Washington, D.C. by an attorney or the attorney's clerk. This will avoid any delay in obtaining prompt registration of copyrights. My office stands ready, willing, and able to provide that service through other counsel associated with my firm and based in the Washington, D.C. area.
The Copyright Office is struggling to find effective solutions to the immense problems that all of this will cause to authors, publishers, photographers and other applicants for copyright registration.
Register Peters followed up with me by email on January 16, 2002 and advised me that the money for the Library of Congress and its Copyright Office to participate in the House of Representatives off site facility has now been appropriated, and the Library is now in the process of procuring the needed equipment and working out the details. She believes that, starting sometime in February, all new mail, including UPS and Fedex, will go to the offsite Maryland facility where it will be processed on what she hopes will be a "timely basis", and she is projecting that after it starts operation, new mailed submissions to her office will experience a 3 to 5 day delay while the packages are irradiated. What about the backlog that has accumulated in trailers since October? She writes: "With respect to that which is not new but instead has been held, that mail will slowly be brought to this new facility to be treated." My guess is that the emphasis here will be on "slowly"; Do not expect any response for months with respect to anything submitted by mail since October 17, 2001. In view of her comments, my advice to clients would be to have submissions made in person at the Copyright Office until the offsite facility is known to be in good operation resulting in a timely and relatively accurate date stamp for receipt of the application.
This article is written to generally inform the public and does not provide legal advice nor does it establish an attorney-client relationship. If you have a legal issue or question, contact a lawyer. If you are arrested, make no statement, consent to nothing, but make no resistance, and contact a lawyer immediately.
Joe Obenberger is a Chicago Loop lawyer concentrating in the law of free expression and liberty under the United States Constitution, and his firm has represented many owners, employees, and customers of adult-oriented businesses, both online and in the real world. He can be reached in the office at 312 558-6420 or paged in any emergency at 312 250-4118. His e-mail address is email@example.com. His website URL on the world wide web is http://www.xxxlaw.net