Backlog At The Copyright Office Highlights Massive Problem With The System

from the it-doesn't-scale dept

Thu, May 21st 2009 12:12pm — Mike Masnick

As you hopefully know, you don't need to register to get a copyright these days (and haven't since 1976), but you can still register, and need to do so if you want to sue someone else for damages. So, professional creators still register copyright on pretty much everything they do -- though the process is still a bit unclear even to the experts. At the recent copyright conference at Santa Clara University, one of the more amusing moments was when someone asked about registering blog posts and how that could/should be done -- and a bunch of the world's foremost experts in copyright law (including multiple representatives from the Copyright Office) effectively threw up their hands and said they had no clue what actually needed to be registered and how. It resulted in a lot of rather awkward laughter from folks in the room.

Of course, unlike the Patent Office, where there's at least some review, the Copyright Office registration process is about as close to a rubber stamp as can be. Yet, it appears that the rubber stamp has gotten a little slow. The Washington Post has a nice article about the growing backlog at the office, causing delays in processing time to reach nearly 18 months. The main cause of the delay? A complex computer system that was supposed to speed things up. Somehow, that doesn't seem surprising.

Of course, there are a few oddities in the article. First, the Copyright Office claims it can't just staff up to deal with the backlog because it takes a year to train someone. That seems a bit excessive for what's pretty close to a rubber stamp process. Second, the article totally glosses over an important little tidbit:

The delays do not appear to be hampering the business of the major publishing houses or those willing to spend $685 for a "special handling fee" that expedites registration.

That seems rather important, because you could easily make the argument that the Copyright Office has every incentive in the world to let that backlog and its $45 applications pile up to encourage "serious" professionals to file the expedited $685 option.

Third, because it's a newspaper article, it has to include a heart-wrenching story of someone impacted by this, and so we get:

Marissa Ditkowsky, a Long Island teenager, has been checking her mailbox for 15 months for the copyright registration for three songs she wrote, recorded and sent on a compact disc to the federal government.

"We lost a whole year," said her mother, Alita, who wants to launch her guitar-strumming daughter on a music career. At 14, Marissa is too young to appear on "American Idol." Instead, she wants to sing her songs during open-mike nights at local clubs and make a professional demo she can shop to music companies.

But Alita Ditkowsky does not want her daughter to perform without a copyright, because she fears that Marissa's songs are so good, someone else will steal them. She said she learned that lesson years ago while trying to get a job at an advertising agency.

"They asked me to write an ad for the Schick electric shaver," Ditkowsky said. "So one day in my car, I hear this radio spot I had wrote for the Schick electric shaver. It was my commercial, word for word. They used it, didn't pay me for it, didn't even hire me. But legally, I had no recourse."

Yikes. She should be a lot more worried about obscurity than anyone taking her songs. Keeping her daughter away from performing open mic nights just because they haven't received the registration seems silly and incredibly counterproductive. She would still hold the copyright on the songs, she would just be limited in what she could sue over until the registration is official. Claiming that she would have "no recourse" is incorrect. The "lost year" is their own fault, not the fault of the Copyright Office.

Either way, this whole thing highlights yet another problem of any gov't granted monopoly system: the wasteful bureaucracy involved -- even in just rubber stamping things. Such bureaucracies simply don't scale as activity increases, and since we live in this world where the Copyright industry has continually tried to "educate" the public about the vast importance of securing copyrights on everything, it's no surprise that the Copyright Office is overwhelmed -- even with the computer system problems.

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Filed Under: backlog, copyright, copyright office

26 Comments

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Bettawrekonize, 21 May 2009 @ 12:19pm

"one of the more amusing moments was when someone asked about registering blog posts and how "

This is a very bad idea. The idea behind blogs is often to criticize and if I can't quote a blog substantially enough to reveal the context it might be difficult to criticize effectively. Not to mention are ideas on blogs going to be copyright as well? What if someone has a sentence that expresses an idea, like the sentence, "the government is retarded," does that sentence now become copyright? If we start copyrighting the pool of sentences that can express ideas then how are we to express ideas?
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- DJ, 21 May 2009 @ 1:10pm
  
  Re:
  Well done, sir. You have just opened, and spilled on the table, the whole can of worms against copyright in general.
  
  Meaning, your points are EXACTLY why most of us don't even like copyright to begin with.
  
  Example: (true story) In high school I had to do a paper about cartography. I had an idea for an absolutely awesome opening line "In the beginning, there were maps." My teacher loved it, but then asked why there was no reference footnote.... That line was used in one of my research books, and even though I really did think of it on my own, I had to reference it because of -- wait for it -- copyright.
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  - Anonymous Coward, 26 May 2009 @ 5:51am
    
    Re: Re:
    DJ:
    
    No...I do not think your teacher was asking for the cite because of copyright. I think your teacher was asking for the cite because of plagiarism. Schools try very hard to assure that students are properly citing work to prevent accusations of plagiarism, which has become rampant for a variety of reasons. I also suspect that your teacher may have been aware of the phrase from past experience, and may have considered the phrase sufficiently "well-known" to need a cite. Or is it possible that you had to have a minimum number of cites in your paper and that one added to the list?
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- gentian, 27 May 2009 @ 3:49pm
  
  Re: Backlog at the Copyright Office
  For Bettawrekonize: Ideas are not copyrightable. See the U.S. Copyright Office website under publications. Circular 1 will be helpful for basic information about copyright. Short sentences such as "the government is retarded" is too short to be copyrightable. (I used to work in the CO and left because management wouldn't listen when I tried to show them what a mess their new system was going to be. Fortunately, I was able to retire.) Also, any copyrightable text on a blog is under copyright protection at the moment it is "fixed", presumably when it is saved on the server (when you click "Submit"). The person who wrote the text is the author and the copyright owner.
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Anonymous Coward, 21 May 2009 @ 12:50pm

A couple of points that might be informative.

First, the Copyright Office is not a part of the USPTO. It is a part of the Library of Congress, and in the funding process for the Library is not exactly at the head of the line.

Second, it used to be that the practice of copyright law was generally limited to attorneys who additionally practiced patent, trademark and unfair competition law. These lawyers knew the law and were able to provide meaningful legal and business advice that gave clients perspective on the pros and cons of registering a claim to copyright. When I began practicing in the late 70's the typical pendency time for a copyright application was in the order of just a few weeks. Since then, however, it seems that every Tom, Dick, Harry and Sally who is a general practitioner also hold themselves out as IP "experts", even though their "expertise" is generally limited to run-of-the-mill matters. With the explosive growth in "experts" came an explosive growth in registrations (after all, it is easy money for the lawyer).

Whenever I read about the Copyright Office backlog, I generally need to look for the problem no further than all of my "bretheren" who have discovered an easy way by which copyright (and trademark) law can be used to quickly rack up billable hours.
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- DJ, 21 May 2009 @ 1:13pm
  
  Re:
  It's nice to know that even some lawyers don't like lawyers!
  :D
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- Mike (profile), 21 May 2009 @ 1:50pm
  
  Re:
  First, the Copyright Office is not a part of the USPTO
  
  That's an odd point to make, considering that no one said or implied otherwise. Why even bring it up, other than to imply that we had said that?
  
  Whenever I read about the Copyright Office backlog, I generally need to look for the problem no further than all of my "bretheren" who have discovered an easy way by which copyright (and trademark) law can be used to quickly rack up billable hours.
  
  If only that were the case. Unfortunately that seems unlikely. We've reached an era where people are being told on a daily basis to secure their copyright and how important that is.
  
  Meanwhile, I find it amusing that you're among the crew of commenters who gets angry whenever we blame the lawyers, saying that lawyers only do what their clients tell them to do... Except, when we point out how problematic that is in this situation, suddenly it's the lawyers' fault?
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  - Anonymous Coward, 21 May 2009 @ 3:01pm
    
    Re: Re:
    No need to be defensive since my comment was meant to be merely informative, and not a criticism implying an "oversight". This is why, for the benefit of some who might not be particularly familiar with the Copyright Office, I started out with the following:
    
    A couple of points that might be informative.
    
    BTW, I see no good purpose served by responding in an argumentative manner to a post intended to be merely cumulative to the information contained in the article.
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    - Mike (profile), 21 May 2009 @ 3:42pm
      
      Re: Re: Re:
      No need to be defensive since my comment was meant to be merely informative, and not a criticism implying an "oversight".
      
      Given that you have a long history of couching personal attack on us behind the phrase "a couple of points that might be informative" it's difficult to take you seriously on this point. You use that phrase as if it absolves you from an attack and you can just hide behind it.
      
      And, I wasn't defensive in responding to that initial point. I asked why bring it up at all, as it seemed totally unnecessary since no one even seemed confused by the point. The only reason I could see to raise it is to imply -- falsely -- that we did not know that point.
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      - Anonymous Coward, 21 May 2009 @ 9:47pm
        
        Re: Re: Re: Re:
        a couple of points that might be informative
        
        I do not recall ever having used this phrase before. If so, I am at a loss the understand reference to its "long history" of use.
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- Anonymous Coward, 21 May 2009 @ 2:46pm
  
  Re: a couple of points that might be informative
  You are correct as to both points. As to the lack of funding for the Library of Congress resulting in little funding to improve the Copyright Office, just remember that Americans want lower taxes. That includes you. There's no funding because no one is willing to pay the taxes to support the service levels everyone thinks should exist. If the trend towards lower taxes continues, and yes it might even with Obama, then expect nothing but worsing services in the future. There's no free lunch.
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  - Anonymous of course, 21 May 2009 @ 4:19pm
    
    Re: Re: a couple of points that might be informative
    Oh those miserly tax payers. The problem is obvious, they don't pay enough to fund such essential services. Well not the essential services and the not so essential services.
    
    I like talk of belt tightening from people that vote for themselves salary increases right up to the point when they fear the tar and feathers will be put to use.
    
    Trend towards lower taxes... what color are the trees
    on your planet?
    
    All around me people are losing their jobs, or if they're lucky taking pay cuts (unless they're an AFSME member,)
    that's certain to put a crimp in the tax revenues.
    
    I think it's only just beginning. We're seeing the
    "oh shit bump" on the back side of the slide into a depression. That's the point where the government
    tries to do a bunch of things to prevent it but it
    simply forestalls the inevitable.
    
    There was a free lunch but it looks like the hog tough
    is running dry.
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- Nobody, 26 May 2009 @ 6:54am
  
  Re: "explosive growth in registrations"
  Anonymous Coward is incorrect in saying that there was an "explosive growth in registrations" since the late 70s. Take a look at the history of registrations on page 58 of the most recently published CO annual report (http://www.copyright.gov/reports/annual/2007/ar2007.pdf). You will note that registrations have remained at a fairly steady rate of just above a half million per year. Ergo, the CO's current growing backlog can NOT be blamed on an increase in registrations. The fault lies elsewhere.
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  - gentian, 27 May 2009 @ 3:57pm
    
    Re: Re: "explosive growth in registrations"
    The fault lies with the management, who refused to listen to employees who knew better than they. They made mistake after mistake with the design of a new system that they should have realized would make the processing time much longer, but they told staff and everyone that it would shorten the inprocess time. I used to work there, and I saw it all. It's the same sort of problem that has occurred at Enron, NASA, FBI... and the large banks and other private and government institutions that continue to make bad decisions. We in the CO (who knew better) used to shake our heads and say, "at least no one is dying because of these decisions", but I for one knew that many people's lives would be stressed unnecessarily. You wouldn't believe the stress that the non-management employees are going through now in the Copyright Office. Not to mention the public that would like their certificates of registration.
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Shane Chambers, 22 May 2009 @ 6:29am

I tend to collect quotations, and was reminded of this one when reading your synopses. This is pretty much what you said Mike, and personally speaking, I agree with both of you.

No matter what its price, a work has no value unless it is seen; unfound masterpieces are worthless. When there are millions of books, millions of songs, millions of films, millions of applications, millions of everything requesting our attention—and most of it free—being found is valuable.” —Kevin Kelly
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jilocasin (profile), 22 May 2009 @ 6:38am

Isn't _EVERYTHING_ copywritten by now?
Since the mid 70's every utterance that anyone's bothered to write or otherwise record is automatically covered by copyright, right?

Since at least the mid 80's (when the internet was opened up to the great unwashed masses) people have been 'writing' their conversations down.

While there is an impressive number of words in the American English language, the majority or people in the majority of discourse use only a fraction of that number of words.

Can anyone see where I'm going here? At this point anything you can write/say is most likely already covered by someone else's copyright.

Time to scrap the entire idea. Copyright for a limited time (12-28 years) only on things that you specifically apply for a copyright on. Of course for that to work at this point, we need to start by scrapping all implied copyrights.

I've probably violated an unknown number of peoples copyrights just writing this.......
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- gentian, 27 May 2009 @ 4:06pm
  
  Re: Isn't _EVERYTHING_ copywritten by now?
  Actually, not everything is. There is a famous court case with the opinion written by a judge named Learned Hand (isn't that a cool name for a judge?). He wrote that if two different people wrote the exact same text of the poem "Ode on a Grecian Urn", but neither person saw the other person's work (poem), had no access to the other person's poem, etc, that both poems would be copyrightable. That's why examiners in the Copyright Office don't search to compare your submission to anyone else's... like the Patent Office is supposed to do to check for prior art, etc. All this said, there have been court cases that upheld unconscious plagiarism such as the George Harrison song "My Sweet Lord". He had access to another popular song by the Platters, had doubtless heard it many times on the radio, and his song was considered unconscious plagiarism.
  
  Copyright is a really good way to remunerate authors (a term which includes musicians, filmmakers, and other creators of copyrightable works). It allows authors to obtain royalties, etc. for their works and, if the work is popular enough to give good enough royalties, it thereby frees them up from other work to give them time to create more.
  
  I really do recommend that anyone interested goes to the U.S. Copyright Office website and check out their publications/circulars for more information.
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yozoo, 22 May 2009 @ 11:01am

makes me sad
"But Alita Ditkowsky does not want her daughter to perform without a copyright, because she fears that Marissa's songs are so good,"

Its a shame she sees her daughter as some sort of lottery ticket to be hidden in a closet until it can be legally redeemed. If her daughter truly has a talent for song writing, then it is the talent that is valuable, not any specific song. Besides as any musician (or other artists too likely) will tell you, shes 14, no matter how good her songs are now, they are going to get better.
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ciarak, 23 May 2009 @ 5:05am

a possible alternative
I'd like to suggest a possible solution to the many people that I'm sure are in the difficult position that Marissa Ditkowsky is in. Why not look for another way of protecting your work? www.digiprove.com, for example, is a website that allows you to register your work with them and instantly provides you with a time stamped certificate to prove that you were in possession of the content at that moment in time. That's certainly enough to allow you to go out and perform the work - if you come across someone else using it at a later stage you'll have that proof that you were in the possession of the work before they were.
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Anonymous Coward, 12 Jun 2009 @ 6:18am

um...
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Anonymous Coward, 12 Jun 2009 @ 6:22am

I'm kind of surprised both articles (Washington Post and this one)got it wrong. It doesn't take much looking to figure out that your work is officially copyrighted as soon as the copyright office recieves your package. Send it so they have to sign for it and you'll get your slip in a few weeks, or just do it online and it's automatic there too. Takes awhile to get the official slip, but it's copyrighted before that. Sigh. Look it up. Getting folks worked up for nothing (especially that Washington Post article)
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Anonymous Coward, 12 Jun 2009 @ 6:26am

Just read my comment and wanted to clarify. Here's the step by step for anyone who actually cares how to do this. Send your stupid songs that nobody cares about anyway to the copyright office and do it so they have to sign for the package. When they sign for it, your work is automatically copyrighted. It could take a year for the official copyright certificate to get filled out by the overworked copyright agents, but that doesn't really matter - all that matters is that they recieved your package. Also, it's even easier filing online, because your work is copyrighted as soon as they recieve it, which is a matter of seconds. Takes them just as long for the official certificate, but again, IT DOESN'T MATTER. All of this crap is on the copyright FAQs. Sorry if I seem irritable but people like that chick who was waiting to play her songs on open mike bother me because they're freaking out for no reason and the Washington Post should know better!
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gai lucas, 16 Jun 2009 @ 7:24am

lifes train
i would like to purchase the lyrics to lifes train and put music to it i know it is copywritten, how can i locate the author again,would the copywright office give me the information
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Jeffrey Tobias, 2 Jul 2009 @ 9:01am

Copyright Crertificate
May i obtain,a extra Copyright Certificate,as Part-owner of 507 Songs,in the Copyright office,for 72 years? I inherited it,in 1986,and would like to know,besides my father and uncle,having one,as Part-owners,may i obtain one also? Thank you,Jeffrey Tobias, tbsjef@aol.com
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Arborlaw (profile), 24 Sep 2009 @ 8:43am

Copyright Office "streamlines" the registration process
The Copyright Office is trying to deal with the paperwork backlog by no longer requiring mandatory deposits of online-only works during the registration process -- they have proposed to ditch mandatory deposit and only take deposits on their own request. One of the largest concerns with this is the issue of proving your work: if the Copyright Office doesn't necessarily hold it, then it affects the use of the work as evidence in an infringement case. And, as we know, online-only works are dynamic and mutable in a self-serving manner -- you can change them at any time (subject to any archiving such as at archive.org) and in the process make them more infringing, or to erase evidence of infringement. The Office has currently proposed new regulations for online-only works which will affect the mandatory deposit rules, as well as the definition of a "complete copy" and the "best edition" for purposes of blogs and online-only newspapers and other online publishers, and also creative artists who work primarily in digital media or who have online-only portfolios. I've posted links about this, and a copy of the proposed changes, at my website: http://arborlaw.biz/blog/. There is a public comment period for the proposed changes which ends October 11, 2009. I believe that these regulations will be burdensome and difficult to understand and comply with, and I recommend that as many people put comments in as possible before the deadline. While this may affect the backlog by cutting down on the paper-pushing, in my opinion the fuzziness of this will tilt the power balance between large publishers and individuals even farther.

Carol Shepherd, Attorney
Arborlaw PLC
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Cynthia, 16 Feb 2011 @ 8:25am

Incompetence
I carefully followed instructions and filed four CDs of photos with the accompanying required forms from our main post office, certified, with return postcards. I knew it would take a while to hear from the Copyright Office, but recently tried to check progress. They cannot find any of the four CDs. The want me to redo all of it. I am just not believing this. It's like nobody is accountable.
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