You're right that statutory damages and fees generally can't be collected for unregistered works. That makes it financially unrewarding to pursue a copyright action. But that doesn't mean it's not a copyright violation. Whether the works are registered or not, they are still protected by copyright. Registration just improves your recovery.
You're missing something here WJL (and the "barrister")
For something to
be a copyright violation,
it has to be found to be one by a court of competent jurisdiction.
Otherwise its an
alleged copyright violation.
Now the distinction may seem trite, but it is not. Call someone a "child molestor" and see what happens, unless of course they have been convicted of the offense.
There are a
lot of
alleged copyright violations that happen every single day. Virtually
all of them never turn into
actual copyright violations, because it is uneconomic to apply that label to them.
Those engaged in legal trickery and outright extortion
love to be imprecise in their langauge in this regard, but usually do so
only when threatening someone in a letter or otherwise in a form of conversation where no potentially false and defamatory statement gets published. Otherwise, they had damn well better be right about their allegations, and they can pretty easily end up being
forced to prove them, which is ruinously expensive in most cases.
Injunctions are "fairly" easy to get in some cases, but is it worth it? That depends on what's going on. They're not cheap to get though - they are not automatic, you do have to file an original suit and serve process (you can't ask for an injunction without a case that it applies to), and you then have to go in front of a judge and convince the judge that
irreparable harm will ensue that cannot be compensated for with a money judgment, that
you are likely to win at trial on the merits, and that the
balance of harms favors you .vs. the respondant. If you can do all three, you get your injunction. Where there is no registration of the work and no economic damages of significance to claim, you're screwed unless you can find (or buy) a crooked judge, as while you may be very likely (or even certain!) to win, the other two "prongs" of the test for an injunction fail.
Injunctions are an
extraordinary remedy in the courts. Yes, they are granted in cases of continuing harm that have no money damage amount that will "fix" the problem. But they ain't cheap to get, and again, for an unregistered work, you can't go back to the person doing the infringing and get your FEES AND COSTS.
Again, the general case of someone posting something on the net ain't likely to get there for an injunction, and its generally foolish to even try, since you can't get fees (which will be substantial) in any event.
ESSENTIALLY ALL of the cited "high profile" cases involve
registered works. Now in those cases it
is worthwhile to sue, because you can get not only statutory damages but also fees and costs.
As for editorial control, that is a MURKY area, and part of why the DCMA was passed. Exactly what IS "editorial control"? There were ISPs back in my day of running one who claimed that they were immune from prosecution (not just suit!) for CHILD PORN in
clearly marked Usenet newsgroups because they did not "edit" anything coming into their servers. One of them in NY state found out that was a poor line of defense, and had their hardware seized and the owners charged with a whole bunch (like hundreds - one for each actual picture found!) of felonies. Why? They had constructive knowledge based on the volume - they HAD TO KNOW it was going on, and the storage areas were clearly (and correctly!) labelled. Clearly, someone running a web board where they reserve the right to remove things (like Scubaboard) has a LOT more potential liability than someone running a webboard which does not have any active editorial - or any - control. The "worst case", in terms of liability, is a media that has actual EDITORS (e.g. a moderated forum) where there is prior restraint on posting.
I used to have to deal with this stuff all the time - literally. 10,000+ customers does that - we were getting nasty demand letters all the time.
The fun part was when some person alleged copyright infringement, it was a non-registered work, and they'd rattle the saber about naming us as a contributory infringer and also demand the subscriber's billing information. I used to chuckle at those letters and occasionally tell the sender to go screw, with a polite explanation that (1) we're probably immune from the suit anyway, (2) the complaining party can't produce a registration, thus, has only economic damages to claim, and that's IF they can establish authorship and ownership, (3) we know they can't claim or get fees or statutory damages, (4) there's no subpoena, and until there is, you can get screwed on us releasing any customer data, and (5) your mother had the IQ of a pair of shoes if you really think its worthwhile to sue us, or the customer, for republication of something you put out on the Internet, at no charge, where there are no economic damages and you can claim neither statutory damages or fees.
Not once did that from of reply draw a subpoena or actual lawsuit in response. It did draw a screaming phone call once in a while, which I would calmly inform the caller was being taped (a legal requirement - whether they heard it over their 120db yelling is open to debate) and then proceeded to pass them around the office for my, and my staff's, amusement.
