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Archiver > APG > 2008-12 > 1228155415


From: C Agthe <>
Subject: Re: [APG] Copyright Law Question (and Possible Solution)
Date: Mon, 1 Dec 2008 13:16:55 -0500
References: <586952.36544.qm@web31608.mail.mud.yahoo.com>
In-Reply-To: <586952.36544.qm@web31608.mail.mud.yahoo.com>


On Dec 1, 2008, at 2:10 AM, Ray Beere Johnson II wrote:

> ...The fee is $45 if you don't register online - which, in
> practice, you can't do if you don't have access to credit (they
> won't take, say, PayPal - you have to have a Treasury account which
> requires a CCN) which many writers don't have.

You can pay online if you have a credit card, or a savings or
checking account (same as PayPal). I think most writers would
qualify for online payment, but those who don't, or who choose to pay
offline, can also pay by check to establish a deposit account that
gets debited each time you register a work. You can then still
register online. Or, you can pay a service company to register your
work for you (more expensive, but useful for people who don't want to
handle the paperwork / payment themselves). Why would you want to
pay via PayPal, anyway? PayPal charges transactions fees, the LoC/
Treasury Dept. system doesn't, so PayPal would actually be more
expensive an option.


> And even $35 is prohibitive when many magazines will only pay $20
> or even less - and you also have to pay the price of two copies of
> the work to deposit with the registration. ...Group registration is
> a great idea - but if you wait after something is published and get
> ripped off, you are likely to spend more on legal fees than you'll
> get in damages.

If you have the work in electronic form, and can file electronically,
you can send the deposit electronically, too. There shouldn't be any
additional cost (beyond your ISP / Internet access rates, which I
don't think is what you were referring to). If you send the deposit
by mail, you have the cost of printing out and mailing it. An
article for a magazine shouldn't be too bad; a full-length book would
be much worse -- so the added cost depends on what you're registering
and whether or not you have to do it snail mail. I'm not sure I
understand the last sentence -- all registrations are after
publication. Do you mean registration after post-publication
infringement? Even that isn't so bad -- if the infringing act is on
a web site, for instance, each day (and each server backup) of the
site's being up might constitute a separate infringement (that
depends on the circumstances). So, if you discover an infringement 3
days after it's uploaded and promptly register your copyright, and
the work stays online for another 7 days, you could theoretically
recover for 7 or more (if the automated backups count) infringements,
each at the statutory rate. But this is outside my expertise -- what
constitutes a separate act of infringement can get complicated -- so
you'd really need advice of counsel.


> ... Since I already know I have no hope of gaining anything despite
> the fact my own work was brazenly stolen, there is no point in
> suing. In fact, I dare not even issue a take-down notice, as I was
> warned that, if the thief decided to claim "fair use" he could sue
> _me_ and I'd need to hire a lawyer to prove otherwise. So I don't
> need legal advice - there isn't a thing the law will allow me to do
> unless I care to spend money I will never get back and can't afford
> to lose.

Actually, you SHOULD have legal advice, as you seem to be basing your
decisions on inaccurate information from misinformed people. Fair
use is a DEFENSE to an infringement claim -- so if you sued someone,
they could defend by claiming fair use -- NOT a RIGHT someone can
assert against you -- so they canNOT sue you on the basis of claiming
fair use. There are legal remedies short of a lawsuit, in any
event. A lawsuit is your last resort. Again, this is why you need
legal counsel -- to find out what the options are.


> ...The e-zine exists only online, so I'm not sure how anyone would
> submit a copy to the Library of Congress. It is also based in
> Canada, so I doubt the requirement applies to them.

US registration requirements apply to everyone (domestic and foreign)
who wants to protect their work in the US. And works can be
submitted electronically -- yes, you can even register a website.
All this and more is explained on the US Copyright Office website.

More importantly, you've introduced a highly important new fact. If
the work was first published by a Canadian co., arguably Canadian law
applies. (In fact, I think Canadian law would apply more easily
apply than US -- because courts here look at where the publisher is,
where the server is, how broad the access is, and other factors, and
weigh them differently and come to different conclusions about
whether a US court has jurisdiction). I'm not an expert on Canadian
law -- though I was there in the early 80s when they passed a major
revision of their law, I haven't kept up with developments in the 20+
years since -- but I'm fairly sure there is no registration
requirement under Canadian law. The DMCA (US law) almost certainly
wouldn't help the infringer under Canadian law. Here's an official
FAQ on Canadian copyright law -- http://www.pch.gc.ca/progs/ac-ca/
progs/pda-cpb/faq-info/faq_e.cfm -- that should give you more
information.

Claire

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