Let's get something straight right from jump. This post isn't going to provide legal advice about copyright. The whole subject is so complicated and baffling, I'm surprised anyone can understand, let alone give cogent legal advice on copyright law. Therefore, I'd be an idiot to try to do so in a blog post. So here is my disclaimer--up front and unambiguous--DO NOT rely on anything written here as legal advice. If you have a specific copyright question, consult an attorney--preferably one who, unlike me, is familiar with copyright laws in detail.
Okay, having gotten that out of the way, let me just observe that many people seem to be confused over how to protect their online writing. They ought to be confused. Because, as I see it, they have little in the way of meaningful protection.
I recently heard someone say that they put their name "all over" anything they wrote online, in order to make sure it was clear they had rights in the work. That's an excellent practice--but it doesn't mean you can do much if someone absconds with your work.
While it's true that you hold a copyright on any writing that is put in "tangible" form (ignoring for the moment how "tangible" should be interpreted to apply to something published only on the Web), what you have is a "common law" copyright under state law. And without registering the copyright under the federal Copyright Act (which requires a work to be registered with the U.S. Copyright Office to be protected under its provisions), if you sue someone for infringing your copyright, you can only collect money you can prove you've lost as a direct result of that infringement. Registration qualifies you for specified statutory damages--no need to prove them, because they're spelled out. Thus, the importance of registering one's work.
Now, to complicate matters further, a decision has come down from the federal court of appeals that covers New York. It was a New York federal court that decided New York Times v. Tasini--you remember that case, in which the U.S. Supreme Court ultimately decided that publishers couldn't reproduce freelancers' work in electronic databases without further compensation to the writers (assuming writers hadn't signed away their electronic rights in the contract, which they generally hadn't, since that kind of publishing wasn't around or even anticipated at the time).
This "victory" (which could be easily circumvented in future contracts with provisions on electronic rights) led to a class action in New York federal court called "In Re: Literary Works in Electronic Databases Copyright Litigation," in which freelancers sought the compensation they were supposed to get under Tasini for past work republished in electronic form. It resulted in an $18 million settlement.
Now, here's the catch. The freelancer class consisted of three subclasses: Subclass A, freelancers who'd registered their work from the start (a minute percentage of the class, at best); Subclass B, those who registered after the infringement but before Dec. 31, 2002 (couldn't tell you why they picked that date); and Subclass C, those who never registered their work (almost all of the class).
Guess what? The appeals court struck down the lower court's approval of the settlement, saying that no settlement could be granted for unregistered copyright holders. Given the huge percentage of unregistered work done by the freelancers, the decision effectively rendered Tasini meaningless.
The reason for this is the crux of the Web writer's problem. The court held that without registration, the lower federal court had no jurisdiction to hear the copyright claim to begin with, leading to the inevitable result that they couldn't settle a claim they had no authority to decide. (Federal courts can only decide claims they have federal jurisdiction over--trust me, you don't want to know any more on the subject than that.)
The dissent argued that the provision the majority relied upon in making the decision was a "claim-processing" provision, not one granting the court jurisdiction. But that was the dissent.
For what it's worth, the decision is only binding in the Second Circuit (which includes New York (site of publishing mecca New York City), Connecticut and Vermont). However, it can be cited as "persuasive authority" in other circuits.
Bottom line: the best you have with an unregistered copyright is a "common law" claim that you can't even piggyback onto related federal (registered) claims going to federal court. Could you go to state court over this? Well, yes, but you'll still have one heck of a time proving the requisite damages. It will probably cost you more than you stand to gain from the whole exercise.
So you may hold the copyright to your Web writing, and it may have your name on it in 100 places. And you can write threatening letters to anyone who steals your stuff, demanding they cease publication or pay you for using it. And, if they're nice, maybe they will. But if they don't, unless you've printed or downloaded onto a disc all your online work and registered it with the Copyright Office (a feasible option for ebooks, but for those who blog or write ezines or write articles only for the Web--I don't think so), as to how you will enforce those rights . . . that's a question to which I have no answer.
Now, maybe someone who practices this type of law does. If so, I'd love to hear it.
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