Copyright: If You’re Going to Register, Register Right Away

Several months ago (Copyright Registration: Whether, When and Why), I wrote about the benefits of registering a copyright. A recent case in the U.S. District Court for the Northern District of California (Dongxiao Yue, et al., v. Chordiant Software, Inc., et al.) shows that if you are going to register a copyright, you should register it right away.

Plaintiffs accused defendants of copyright infringement with respect to two pieces of software that were covered by registered copyrights. The defendants moved for a summary judgment that plaintiffs were not entitled to statutory damages and attorney fees because the alleged infringement began before the plaintiffs registered their copyrights.

Plaintiffs countered that because defendants distributed plaintiffs’ software with a different defendant software package, and copied plaintiffs’ software to a different directory, after the registration date, defendants committed two new types of infringement after that date. The court disagreed, stating that, as a matter of law, these acts were not materially different from the earlier alleged infringement (i.e., unauthorized distribution of the same file), so the “new” acts did not create a separate date for commencing infringement.

The court, thus, granted the summary judgment, which was highly detrimental to the plaintiffs because:

• Instead of the having a right to statutory damages of up to $30,000 per infringement (or $150,000 in the case of intentional infringement), plaintiffs will have to prove actual damages – which might be quite limited, and in any event could be expensive to prove.
• Plaintiffs will have to pay their own attorney fees without the possibility of recovery from defendants.

Important lesson: If there is any likelihood that you will want to enforce your copyright in a work against an infringer, register that copyright with the U.S. Copyright Office – and do so right away.

Check out all other posts about copyright.

Dana H. Shultz, Attorney at Law  +1 510 547-0545  dana [at] danashultz [dot] com
This blog does not provide legal advice and does not create an attorney-client relationship. If you need legal advice, please contact a lawyer directly.