Authors Alliance Submits Reply Comments to USCO on the Meaning of Publication in the Online Context

Posted June 16, 2020
Photo by Lauren Mancke on Unsplash

In March, Authors Alliance submitted comments to the U.S. Copyright Office in response to its request for public input on the meaning of “publication” in the online context. This week, we submitted reply comments to support our position.

In our initial comments, we encouraged the Copyright Office to adopt guidance stating that “publication” occurs when a work is first offered, under the rights-owner’s authority, for viewing online without technological restrictions that prevent downloading or other reuse. This position is supported by the statutory text, the legislative history, the case law, and the policy goals of (1) clear, bright-line guidance and (2) promoting broad use of works by reducing the availability of statutory damages and fee-shifting, which chill use and expression.

Our reply comments explain and expand on the stakes of “forfeiture of rights” under Section 411, a provision of the Copyright Act that provides that a civil action for copyright infringement cannot stand where the plaintiff knowingly included inaccurate information in its copyright application that would have caused the Copyright Office to deny that registration. We explain why this provision and case law underscore the necessity of clear and bright-line guidance, and how the intuitive and unambiguous approach to online publication proposed by Authors Alliance responds to that critical issue. Our comment also explains how a careful examination of the effects of registration errors shows that the stakes are not that high, and most rights can be substantially restored after dismissal due to an invalid registration, with the exception of the already undesirable right to statutory damages.

Authors Alliance thanks the exceptional team at Latham & Watkins for preparing these comments. To read the full comment, click here.