Re: Web site Copying

My sense is that the argument Mike finds unpersuasive becomes more persuasive in the context of infringement of the right to display the work publicly. I would agree that is sounds somewhat dubious to allege a "fresh" reproduction of the work every day it is available on the Internet, even if some servers may be continually reproducing and caching it, if the alleged infringer does not specifically reproduce it (upload it) again to the server. But the right to display the work publicly is one in which the infringement becomes actionable the moment the copyright is registered and the work is still being displayed, wouldn't you think? In other words, even if the work I registered was published by me last year, and it was last year's copy that was reproduced onto a server and is being publicly displayed, it is still being publicly displayed after the registration, ergo the post-registration display is actionable even if the pre-registration display and reproduction to the server are not.

Mike's inquiry has taken on a special interest for me just today, given that someone has make a near wholesale reproduction of one of my clients' websites that has not been registered, and continues to display it publicly to this day.

John

John T. Mitchell
http://interactionlaw.com

On Apr 21, 2006, at 8:15 PM, Mike Phillips wrote:

> 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 Mon Apr 24 2006 - 23:25:01 GMT