joegratz.net

The Copyright Office today released its interim regulations implementing the pre-registration provisions of the ART Act. Under that law, those who distribute pre-release copies of a work intended for later commercial distribution can be sued for copyright infringement even if the copyright holder has not yet finished or registered the copyrighted work, so long as the copyright holder “pre-registered” the work.

The most interesting aspect of the interim regulations is the inclusion of “advertising or marketing photographs” among those classes of works that can be pre-registered. This inclusion comes at the request of the Advertising Photographers of America, who, in their comments in the rulemaking proceeding, stated that preregistration was needed in light of three recent events:

1) The unauthorized pre-release of photographs of the Microsoft Xbox 360 on or about April 22, 2005. The photographs were illegally leaked and were pre-registration available, both the photographer and Microsoft could have enforcement solutions and protection they may not otherwise have had.

2) The unauthorized pre-release of a photograph on or about September 29, 2004, of a not-yet announced personal digital assistant — the PalmOne Tungsten T5. . . .

3) The unauthorized publication by The Nation on or about February 9, 2004 of still photographs produced on the set of the Oliver Stone movie Alexander, prior to the motion picture’s authorized release. . . .

It appears that electronics manufacturers and their photographers want to use the ART Act to stop the leaks of information about not-yet-released products by suing those who disseminate leaked product photos.

Previously, such a suit would have been difficult; you can only sue for copyright infringement after having registered a work, and in order to register you need to deposit the work with the Copyright Office, after which it’s publicly available. Photos of secret products are never registered, since that would let the cat out of the bag. Under the ART Act, as implemented by this new regulation, a company would be able to pre-register photos of its secret product, then immediately sue anyone who leaked the photos or distributed leaked photos. Successful plaintiffs would be able to get up to $150,000 per infringement, plus attorneys’ fees, without having to show any actual damages.

This is not the sort of act that Congress intended to prohibit by enacting the ART Act. Product photographs are posted by gadget blogs because of the facts they contain, not because of any creative content. There’s simply no other way to illustrate a story about a soon-to-be-released gadget except by showing pictures of the device. The use of copyright law to control the dissemination of facts is not in keeping with American copyright policy. Defendants in lawsuits over leaked product photographs are likely to have good fair use and idea/expression dichotomy defenses, but this regulation nonetheless increases the legal risk of fact dissemination, something copyright shouldn’t regulate.

In a potential boon to gadget blogs, however, the Copyright Office declined requests to keep pre-registrations secret, stating that to do so would be “inconsistent with the very concept of preregistration and registration systems.” Pre-registration documents will be available on the Copyright Office web site.

Interestingly, pre-release product photographs can’t be the subject of criminal copyright infringement prosecutions. While the ART Act allows the Register of Copyrights to decide what works can be pre-registered, the Act’s criminal provisions apply only to pre-release computer programs, music, and audiovisual works like movies and TV shows.