Web site Copying

Because of constantly changing content on most web sites, it is an expensive and time consuming process to maintain current United States copyright registrations on the content of an active web site. Therefore, as it often the case, a client has to file an application to register the copyright after an infringement has begun. Of course Section 412 requires that an application be filed either within three months of first publication or before the infringement begins ("[N]o award of statutory damages or of attorney's fees...shall be made for...any infringement of copyright commenced after first publication of the work and before the effective date of its registration, unless such registration is made within three months after the first publication of the work.")

An argument has been made that I find interesting, but unpersuasive: Unlike a book that has been printed and shipped, an infringing web site can be taken offline immediately thereby ending the infringement. Therefore, according to this argument, each day that an infringing web site "publishes" its content is a new publication. If that theory holds water, it seems that it may be possible to get statutory damages and attorney's fees from an infringer even though the application to register the copyright of the copied web site was filed after infringement. The reason I find the argument unpersuasive is because the statute says "first" publication of the work. What do you think?

I am aware of an attorney who sends cease and desist letters to infringing web sites threatening statutory damages and attorney's fees, even though he filed an application to register the copyright more than three months after "first" publication and after the infringement begins. If he is on all fours legally, it is good strategy to know. Otherwise, he is lucky that he has yet to provoke a declaratory judgment action.

Mike Phillips Received on Sat Apr 22 2006 - 04:15:01 GMT