Some people eat, sleep and chew gum, I do genealogy and write...

Sunday, October 23, 2011

Let me explain a little more about copyright law

The United States' copyright law is based on the U.S. Constitutional provision in Article 1, Section 8 which says that Congress shall have the power, " To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;"

The power to regulate copyrights is vested in the Federal Government. Section 1338 of Title 28 of the United States Code confers upon the federal district courts exclusive jurisdiction over claims of copyright infringement. The cost of bringing a lawsuit in the Federal courts can be prohibitive. But there are statutory remedies. Quoting the Statement of the United States Copyright Office before the Subcommittee on Courts, the Internet, and Intellectual Property, Committee on the Judiciary, in the United States House of Representatives, 109th Congress, 2nd Session, March 29, 2006 "Remedies for Small Copyright Claims:"
Of course, there are provisions built into the copyright law that are designed in part to provide even the copyright owner of modest means with a reasonable prospect of recovering not only compensation for infringement but also the expenses of litigation in a successful infringement suit. Unlike most areas of the law, copyright law permits a court to award a reasonable attorney's fee to a successful plaintiff (or defendant). Moreover, a copyright owner may elect to receive an award of statutory damages of up to $30,000 per infringed work—and up to $150,000 per work in cases of willful infringement—in lieu of actual damages and profits. (citations omitted).
Unfortunately, rarely will an attorney take a copyright case on contingency. One way to reduce the individual cost of bringing such a suit is to have several parties act together to make their claims.

Copyright law is not by any means unique to the United States. There is an international copyright law and 164 countries have signed the treaty creating the law. The law is called the Berne Convention for the Protection of Literary and Artistic Works, usually known as the Berne Convention.  This international agreement governing copyright, was first accepted in Berne, Switzerland in 1886. See Wikipedia:Berne Convention for the Protection of Literary and Artistic Works. Over 100 years later, on March 1, 1989, the U.S. Berne Convention Implementation Act of 1988 was enacted, and the United States Senate ratified the treaty, making the U.S. a party to the Berne Convention.

Copyright is a good news/bad news type of law. The good news is you have plenty of statutory and case law support to make a copyright claim. The bad news is, as I said above, the cost of doing so may be prohibitive. This is especially true if the copyright violator is outside of your country's jurisdiction. Although copyright registration with the U.S. Copyright Office or the corresponding agency in your country, may not be necessary for protection, it is necessary in the United States as a prerequisite to bringing a copyright infringement suit in the Federal court.

Another major issue with copyright cases is the venue of the case. Although, in the U.S., all of the Federal District Courts have jurisdiction over a copyright case, the real issue is the venue, or which of all the courts will be the one to hear the case. Some cases have held that the venue for hearing a copyright case is the place where the copyright holder resides. See Brayton Purcell, LLP v. Recordon & Recordon v. Apptomix, Inc. and Jonathan Lee,  575 F.3d 981 (9th Cir. 2009). But that is not a universally held decision.

If you are at all contemplating filing legal action as a result of an alleged copyright violation, it is absolutely essential that you obtain competent legal advice. Most of what you read or hear about copyright law is vastly oversimplified and can be misleading. On the other hand, it is just as expensive for the violator to obtain legal counsel to defend against a lawsuit. Unless they are predatory and living in a country that is not a signatory to the Berne Convention, most copyright claims with which I have been familiar end up with the removal of the publication causing the copyright violation. Although allowed, in my experience, monetary damages are most uncommon unless the copyright holder is willing to go all the way in the court system.

Although, I am a licensed attorney practicing in the State of Arizona, what I have written should not be construed to be legal advice about any particular claim or controversy. You are encouraged to seek competent legal advice if you are the victim of a copyright infringement.

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