Re: Harpsichordist (Was: web-publishing & copyright...)

On March 17, 1998, John Sankey <bf250[_at_]freenet.carleton.ca> wrote:
>
> I've been recording early harpsichord music for the net for some years
> now, in Canada according to Canadian copyright rules (no registration).
>
> A creep in the USA has downloaded most of my files, erased the
> copyright notice in them (it is in the MIDI file field defined for that
> purpose, in the manner defined), rubber-banded the contents, and has
> not only reposted them as his own work, but has apparently registered
> the whole lot according to USA law.
>
> I have zero practical remedy except to use a search engine occasionally
> to search for his files, to explain the situation to the site manager,
> and to ask that they be removed. At least half the time, the creep is
> notified, a screaming match with the creep ensues, and the site manager
> takes us both off the site.
>
> I'm told that if I go to the USA and sue, he will win because of his
> registration. If he were to turn up here in Canada, all I'd have to
> do is to haul a harpsichord into the courtroom and I'd win. But, even
> then, I'd lose my life savings in legal fees because I'd never be able
> to collect anything across the border.

     Mr. Sankey -- It may be true that you have zero practical remedy. One of the few disadvantages about being a professor is that our sense of the practical gets dulled after a few years in academia . . .

     But allow me to correct you on one point. It is NOT true that if you sue in the U.S., "he will win because of his registration." All the registration does is create a PRESUMPTION that he is the author. You would be given an opportunity to prove that you are the true author of the sound recordings at issue. And if you could prove that, you could also prove that his infringement was in bad faith, which would permit you to get an injunction and a court order for your attorneys fees under U.S. law.

     Whether it is practical for you to do so is another question. It is unfortunately true that copyright litigation can be expensive. All too often, creeps don't have any money, so your legal fees might never be recovered. And enforcing the injunction might be difficult as a practical matter as well. But it seems to me that's a problem in any country; it certainly isn't specific to U.S. copyright law.

     I hope the creep's behavior doesn't dissuade you from your mission of musical ambassadorship. Best wishes --

Tyler T. Ochoa
Associate Professor
Whittier Law School
tochoa[_at_]law.whittier.edu Received on Wed Mar 18 1998 - 20:27:45 GMT