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On July 17, Chief Judge Spencer of the Eastern District of Virginia issued an opinion in Tavory v. NTP. This case is a follow-on to the NTP v. RIM patent litigation, and features a number of copyright claims by Tavory, alleging that he had written some of the software at issue. The patents in suit contain source code that Tavory claims to have authored, and Tavory claims that the reproduction of the patents themselves is copyright infringement.

Tavory had a problem, though. He hadn’t registered his copyrights at the time he wrote the software, and no copy of the relevant version of the software existed. Copyright registration, a prerequisite for an infringement suit, requires the deposit of a copy (although in the case of software the requirements are very odd). So what did Tavory do? He tried to reconstruct, from memory, what the relevant version of the source code would have been, and deposited the result.

Turns out you can’t do that.

In explaining why, Judge Spencer sets forth the following gorgeous passage on the doctrinal necessity of the deposit requirement:

In one sense, the deposit requirement serves a gatekeeping function. Effective registration of a copyright is predicated on the submission of some objective indicia of an individual’s authorship. In another sense, the requirement serves an evidentiary function. The copies that are submitted in connection with an application for registration then become part of a record by which claims of infringement are tested. The utility of these functions, as well as our confidence in the integrity of the copyright system, breaks down when recollection is tolerated. That is because memories are inherently unreliable. They are susceptible to influence and subject to change. Time is especially corrosive, and the more time that passes, the more our memories fail. These are simple facts of life, and the Copyright Act deals with these facts by not dealing with them at all. For the purpose of the deposit requirement, the degree to which the registrant relied on his memory does not matter. The Copyright Act does not countenance the validity of any deposit copy that was made with even the slightest reference to recollection.

Accordingly, the court held that Tavory’s copyright registration was invalid, and that the court lacked subject matter jurisdiction.

But the lack of subject matter jurisdiction didn’t keep the court from saying a number of other smart things. The most interesting relates to the copyright “litigation privilege” — the relatively ill-defined idea that infringement that occurs in the course of litigation is sometimes not actionable, either as a fair use or under some independent equitable doctrine. Tavory claimed that NTP’s reproduction of the patents-in-suit in connection with the litigation itself constituted infringement; NTP asserted that copying incident to litigation was fair use.

The court found that NTP’s copying was fair use, holding that, while a categorical rule might be inappropriate, “where, as here, the works produced before the Court are material to the litigation, and where the party offering production of the work has done so without notice or knowledge of another’s claim to copyright, the equities are in favor of fair use.” That would seem to cover nearly all of the prima facie “infringement” that goes on in the course of litigation, and provides needed guidance in a tiny, seldom-litigated corner of copyright law.

UPDATE: My initial post failed to recognize that this opinion contains one of the finest sentences in the Federal Supplement 2d:

In 1993, MTV aired Beavis and Butt-Head, an animated series that centered on two Texas teens and their penchant for petty vandalism, music videos, and “chillaxin’.”

Wondering why it’s relevant? See Kodadek v. MTV Networks, 152 F.3d 1209 (9th Cir. 1998), in which the plaintiff deposited with the Copyright Office drawings he made in 1993, after seeing the allegedly infringing TV show. The plaintiff asserted that the drawings were just like ones he’d given to Mike Judge, Beavis auteur, in 1991.  Turns out you can’t do that.