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Re: Pee Jay says silence is golden

From: Alexander Terekhov
Subject: Re: Pee Jay says silence is golden
Date: Fri, 18 Dec 2009 15:16:33 +0100

Alan Mackenzie wrote:
> > The defendants have standing to challenge that copyright registration.
> Wierd.  Why do they have this standing?  It would appear to be none of
> their business precisely who is registered as the copyright owner.

Uh silly Alan...

"Fraud on the Copyright Office can invalidate a copyright registration.
As you may recall, copyright registration is not a prerequisite to
ownership of a copyright; copyright springs into existence automatically
when a work of authorship is fixed in a tangible medium. But copyright
registration is required to bring an infringement suit, and fraud on the
Copyright Office will defeat registration and thus destroy the
jurisdictional basis for a copyright infringement case. 

Fraud requires a specific intent to deceive or cheat, but that can be
shown by circumstantial evidence. So, fraud on the Copyright Office
generally arises in the context of a mistake in a copyright registration
that the defendant, the accused infringer, will try to argue was
deliberate. If the defendant can show that the mistake was deliberate
and material, and therefore fraud on the Copyright Office, then the
defendant may succeed in getting an infringement suit thrown out of
court. (The copyright owner may be able to re-register and re-file the
suit, but may lose the right to statutory damages and an award of
attorneys' fees that early registration provides.) 

The Ninth Circuit has said that inadvertent mistakes in a copyright
registration do not invalidate the registration and thus do not bar
infringement actions, unless the alleged infringer has relied to its
detriment on the mistake, or the claimant intended to defraud the
Copyright Office by making the misstatement. So an innocent mistake will
not invalidate the copyright registration. 

It is better to avoid an argument about whether a mistake is innocent or
fraudulent, however. This is one good reason to be careful when
preparing your application for copyright registration. The forms are
simple and the instructions are generally clear. But sometimes the
issues can be tricky. In particular, be careful if the work is based
upon a preexisting work, or if it has been prepared by an independent
contractor. If you have any questions, it may be worth your time and
money to have an attorney assist you in preparing your copyright
registration forms. 

Bob Godhey is a partner in the Honolulu law firm of Jackson Godbey
Griffiths. A graduate of the Harvard Law School, he has degrees in
electrical engineering and math. He welcomes comments at


(GNG is a derecursive recursive derecursion which pwns GNU since it can 
be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards 
too, whereas GNU cannot.)

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