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.