Friday, December 14, 2007

damages for unregistered works

In re: Literary Works in Electronic Databases Copyright Litigation (2d Cir. Nov. 29, 2007)

I’m very late on this, so I will only say a few things: The majority suggests that a court might not have the power to enjoin the infringement of unregistered copyrights; and that even if it does have that power where a defendant has engaged in a “pattern of infringement,” the relief has to be directed towards the plaintiff’s copyrights, not others’. It might not have much relevance to the YouTube/Viacom litigation – but it might. Certainly it is another piece of evidence for the growing digital divide between copyrighted works that are “really” copyrighted in that their big owners can enlist automated and nonautomated enforcement against unauthorized copying or modification and works that aren’t.

And relatedly, the dissent points out that the result of invalidating the settlement in this case is that owners of copyrights in unregistered works go from getting a lot less than owners of copyrights in registered works to getting nothing at all (and, not incidentally, making sure that gaps in the digital archives remain dark). Given that registration costs more than actual damages would be worth, the chances of mass registrations to join a more limited lawsuit are not worth calculating. Even assuming that the limitations period was tolled while owners of unregistered works were putative class members, that period now restarts, and soon enough the remaining liability will simply disappear, leaving nothing behind but a bunch of bitterness and holes in the digital version of the paper of record.

I find this hard to see as a victory for anyone, though I find the majority’s statutory analysis more persuasive than the dissent’s. In my ideal world, the defendants would have filed a defensive class action – creating other big jurisdictional problems, but at least letting them plug up the holes in the digital record. Though I hope the holes close on their own as digital archives switch to images of the original pages, which at least should be deemed equivalent to microfilm and thus protected by the compilation copyright owner’s privilege to republish.

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