Copyright: Author's Response

How should an author respond in a legal landscape that expects action?

Category: writing

In the first article in this series, I provided a copyright overview that states that “Registered or not, an Author has a responsibility to ensure they can prove their authorship of a work.” In the second article, I discuss what copyright means in the 9th Circuit as it pertains to proving authorship. In the last article, I discussed the value of the author’s work product. In this article, I share how I think we as authors should respond to this legal landscape.

Disclaimer! Only licensed attorneys are allowed to give legal advice. I have a law degree, but I am not a licensed attorney. I am only telling you my perception on copyright. I encourage you to contact an intellectual property attorney for proper legal advice. If anybody gives you legal advice who is not your attorney...check with an attorney.

We’ve already discussed that copyright law expects us to protect and defend our work. The 9th Circuit explains that the validity of our authorship is ultimately a question for a jury, that a registered work provides a rebuttable presumption of authorship. In its jury questions, it instructs the jury to consider the originality of the work (non-derivative and creative) and a mastermind role in creation of the work. The author’s work product, rightly done, should contribute to demonstrating both originality and the mastermind role.

Historically, an author’s work product comprised wood pulp and ink. It was physical, likely put in a box and ignored on a shelf once the book was complete. In 1976, books were still printed on presses using letter molds, though the technology had improved dramatically. But, when I wrote my papers in law school, I kept record of all the research and notes on whatever I wrote about. I still have research on two of those papers in storage.

Now a print book is the result of a computer printer. The author’s work product is likely also electronic. It is stored on thumb drives, hard drives, or perhaps a cloud storage provider such as Dropbox or Google Docs. Maybe you use Evernote for your novel or series bible, storing the character sketches, etc. Or, you’re using Scrivener for everything.

The risk, I think, is that with electronic storage you are less likely able to show evolution. This can be addressed by frequent snapshots of your overall work-in-progress with related notes. Scrivener’s snapshot feature helps, as is it’s backup method. How frequently? Perhaps once per month of active research and writing.

A Proposed Solution

Here is how I endeavor to address the need of maintaining my author’s work product, and not lose my work due to computer crash.

Verku to Centralize Author’s Work Product

I have dithered for years between Scrivener and LaTeX, and my works are found in both formats. A few months ago I returned to the text-file approach using Markdown via Verku. If you are still fond of Scrivener, then Jamie Rubin’s article about GitHub should help.

Ultimately, it does not matter if you use MS Word, Google Docs, Scrivener or what. What matters is that you periodically retain copies of your work somewhere secure to show incremental improvement that a jury could believe is yours.

Git to Save Your Work

I use Git to track incremental changes to my work. By using GitHub, BitBucket or another third-party service, I am safeguarded from losing the data should my computer crash. As git is focused on tracking incremental changes, it is an ideal tool. I have evidence of work going back nearly a decade.

Git can also help in this regard. As suggests, you can backup your progress using GitHub, BitBucket or the like. Assuming you committed frequently, then the degree of evolution offered is striking. The key is to reduce the likelihood of infringement by keeping any git repository private…if they can’t see it, they can’t steal it.

The advantage of a service like GitHub is that you never have to worry about a computer crashing on you. It is not the preferred way of syncing between authors, because the conflicts will force you to get down to the document level to correct.

What About Non-Repudiation Services?

There’s a service out there called “non-repudiation,” such as My Free Copyright.com. This is an extension of the Poor Man’s Copyright updated to the Internet age. The MYC site claims that it is important to register with a third-party site, preferably them. In reading their FAQ, they do not support you in court. In their Terms of Service, General Conditions #6 and #7, the tacitly assert that this service may be useless to you in legal defense of your copyright ownership.

I originally drafted this article several months before its release. Since then, the My Free Copyright.com website appears to have gone bust. This shows the challenge you have in relying on a third-party. Even GitHub may fail. But, Git as an archival protocol will not.

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Photo Credit: Response is Fight or Flight (JLaw45/Flickr CC BY 2.0.)