On October 29 a majority of a three-judge panel of the Second Circuit Court of Appeal rejected the $18 million settlement reached in March 2005 after two years of heated negotiations between freelance writers and publishers over electronic copyright infringements involving unauthorized sales over the Internet of writers’ copyrighted works.
The majority decided that writers who had not registered their works with the U.S. Copyright Office are denied any access to federal court for copyright protection and claimed the U.S. District Court had been wrong to accept the case and approve the settlement.
In a dissenting opinion, Judge John B. Walker said the Appeals panel majority erred in applying an ‘enforcement’ provision in the 1976 Copyright Act to assert that the federal courts have no jurisdiction to protect authors’ basic constitutional right to copyright protection under Article 1, Section 8. The enforcement restriction, as later spelled out in the law, was designed to restrict statutory damages to registered rightsholders. Statutory damages are punitive damages: They are an enforcement provision to penalize willful offenders and to discourage more violations of the law. They are not compensatory damages awarded by a court, much less compensation voluntarily agreed upon by parties to a settlement reached to avoid a trial. Punitive damages are usually awarded at many times what compensatory damages would be. As such, punitive damages are also, along with lawyer’s fees, what attracts attorneys to take a case against infringers.
Did the drafters in Congress knew fully well the difficulty most writers would have paying the Copyright Office fees to register every version of a work sold to different markets? They certainly knew how difficult it would be to get a lawyer without the prospect of a punitive award and compensation for lawyer’s fees. They may also have known that most articles are not individually worth paying the registration fee, and that most writers do not register their works no matter how much they are encouraged to do so by writers' advocacy organizations. But what is in the legislative record is none of this; what is emphasized is that requiring registration to gain access to punitive damages and lawyers fees would encourage writers to donate their works to the Library of Congress (of which the Copyright Office is part) and increase revenues for the Copyright Office. The reasons writers did not register most articles before 1976 were not addressed, however, because the focus, as usual, was on the publishers, not the writers, and publishers could afford to register whole issues of their periodicals in their own name, not the writers' names.
This is the issue that needs the legislative remedy I proposed three years ago, and which Congressman Barney Frank told me might work: requiring periodical publishers to do what book publishers already do: register the writers' individual works in the writers' names, not just as a periodical issue under the publisher’s name. With today's electronic registrations, this is not an onerous burden for the publisher.
Like all settlements, this settlement was a compromise between contending sides that not everyone was happy with. The writers who objected to it had every right to do so in court without having to suffer unjust attacks on the integrity of their motives. But I doubt that any of the objectors wanted the judges to go as far as they did and strike at the heart of the right of all freelance writers, not just registered ones, to copyright protection under the Constitution. Unfortunately their objection opened the door to the majority of the appeals panel going way beyond what the objectors claimed. For this I blame not the objectors, but the judges. There is no question that copyright was originally vested by the federal Constitution with the original author, that this is a constitutional protection properly having jurisdiction in federal courts and always has in cases involving interstate commerce like sales over the Internet, and that the 1976 Copyright Act itself acknowledges that “registration is not a condition of copyright protection.”
Yet this decision denies unregistered writers their constitutional right to any copyright protection by federal courts. The ruling contradicts the specific guarantees to copyright protection that is enshrined in the U.S. Constitution. It contradicts over 200 years of constitutional protection against copyright infringement for all writers, not just those who choose to register with the Copyright Office.
This decision is a dangerous precedent that must not be allowed to stand. It must be appealed to the full Second Circuit Court of Appeals, and, if necessary, to the U.S. Supreme Court.