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Failure to Register Invalidates Copyright? NOT!!!
Posted by James Grimmelmann on Sunday, October 12 @ 11:11:46 EDT Copyright
Slashdot is running a story about the MT-32 Emulation Project, an attempt to replicate in software the features of the great late-80s Roland MT-32 synthesizer. (I had one. It turned gaming into a profound emotional experience. I'm not kidding. It sounded that good.)

Well, Roland nastygrammed the Project, claiming copyright in the sound samples embedded in the MT-32's ROM. In response, the only adult member of the Project team fired back a letter pointing out that Roland had never registered that copyright. And since the MT-32 had been distributed before 1989 (when the Berne round of copyright "reform" went into effect), 17 U.S.C. section 405 meant that Roland had lost its copyright, according to the Project team.

Use it or lose it, right?

No! No! No! This meme must be killed NOW! The Project's home page seems to indicate that they've already backed down from this stance and won't contest in court the enforceability of the copyright. As well they shouldn't, because they would lose. Painfully so. See inside for a quick treatment.

I'm running out the door, so I don't have time to write a proper legal analysis. But this issue has been litigated already and decided in favor of the copyright holder. Cameron v. Graphic Management Assocs., Inc., at 817 F. Supp. 19 for those of you with access to a law library, decided in 1992, settled this question. It remains good law, squarely on point, and unambiguously in Roland's favor. I quote:

On the other hand, failure to obtain registration within five years would not render Cameron's copyright invalid. Rather, § 410(c) simply says that Cameron would not be automatically entitled to the prima facie presumption of copyright validity.
Translation: as long as Roland can produce substantial evidence that the copyrights are legit (that is, primarily that they were original enough to be copyrightable at all, a claim I don't think the Project crew has ever suggested it could challenge), Roland can just register its copyrights and then start suing like crazy. End of story.

Lesson one: even if you think that nastygram you just got is utterly baseless, ask a lawyer! It took me less than five minutes to look up the Cameron case; a real copyright lawyer would have known without having to look. If you've been nastygrammed and don't know where to find a lawyer, ask the EFF for a referral (and send a copy of the 'gram to Chilling Effects while you're at it).

Lesson two: FAILURE TO REGISTER COPYRIGHTS DOESN'T RENDER THEM INVALID. Tell your friends. Tell your enemies. Tell your cat and your dog. But please, please, please, don't let anyone run around with the idea that copyrights just go away if they're not registered. There are bad legal theories, and then there are ones that are outright dangerous, and this is among the latter. It's the legal equivalent of a gun loaded with foot-seeking bullets.

UPDATED 5:35 PM, October 14, 2003: Post in haste, repent at leisure. Yes, I meant "Berne" rather than "Sonny." I should note also that Cameron is not airtight precedent (it's a short opinion, to which the registration question was secondary, inter alia). But where the potential infringer has good actual knowledge of the would-be copyright holder, the failure-to-affix claim strikes me as being without traction.

As noted, I am not a copyright lawyer -- my point is precisely that us non-copyright lawerys make mistakes when dealing with copyright law.

 
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Confusion (Score: 0)
by Anonymous on Sunday, October 12 @ 18:15:34 EDT
The project's response was full of other confusion as well. I think they though reverse engineering was somehow in violation of the DMCA and that figuring out how to get the samples off the synth and how to decode them wouldn't count as reverse engineering. Of course that doesn't make those actions in violation of the DMCA. I think the only way it came into play was the ISP safe harbor provision.


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Re: Failure to Register Invalidates Copyright? NOT!!! (Score: 0)
by Anonymous on Tuesday, October 14 @ 12:20:32 EDT
The issue isn't about failure to register copyright. Its about failure to provide any notice of copyright at all. The MT-32 ROM is completely devoid of marking suggesting a copyright. This is exactly what 17 U.S.C. 405 is about. Furthermore, I don't think the 1992 law would apply here, since it was still within the window (1989-1994) that companies could register their copyrights and thereby remedy themselves via 17 U.S.C. 405(a)(2). Of course, I'm going to have to look the law up myself but don't have time at the moment. If you still think I'm wrong on this point, please, amend your essay to deal with the points I brought up. Again, I was never talking about Roland neglecting registration, I was talking about Roland neglecting to make notice of copyright on their work.


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Re: Failure to Register Invalidates Copyright? NOT!!! (Score: 0)
by Anonymous on Tuesday, October 14 @ 12:24:50 EDT
Oh yeah, your essay is wrong on another point too. It wasn't the Sonny Bono act that change the law, it was the Berne Convention Act of 1988 that changed it. Me thinks you forgot to put IANAL in front of your post. (Which places us both in the same boat)


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Re: Failure to Register Invalidates Copyright? NOT!!! (Score: 0)
by Anonymous on Tuesday, October 14 @ 12:30:49 EDT
Oh yeah, and one more point: Roland did not lose their copyright, they forefeited it. Copyrights cannot be lost, rather only trademarks and patents can.


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Re: Failure to Register Invalidates Copyright? NOT!!! (Score: 0)
by Anonymous on Tuesday, October 14 @ 17:44:19 EDT
Ok. I've read the case law regardng 817 F. Supp. 19. This has nothing to do with the omission of notice and testing the law as written in 17 U.S.C. 405. In fact, no where in the court's opinion do they even reference 17 U.S.C. 405 because its not relevant to issue at hand. In this case, an employee filed a copyright claim on some software he wrote as work for hire to retaliate against the company that fired him. He won the case despite not filing a copyright, but this in and of itself was unrelated to any change in the law due to the Berne Convention Implementation Act of 1988.


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