Friday, October 22, 2010

Using (Encoded) Pseudonym in Copyright Application

Dear Rich: I saw your answer to a similar question from September 22nd, acknowledging that proving to a court that digital signatures are reliable may be difficult. What is their current status in regards to fully pseudonymous registration with the U.S. Copyright Office? My intent is to identify the author by a pseudonym, and the claimant by that same pseudonym. The Copyright Office warns that this may "raise questions about its ownership". I want to have my answer to such questions ready, by placing a PGP public key (or at least its fingerprint) into one of the registration form's fields. There is no field labelled or documented for this purpose, and, when I called the Copyright Office to inquire, the person who spoke with me had no idea what PGP or a digital signature was, nor was my quick explanation at all familiar (I was informed that they are rather behind the times when it comes to technology). I could just place it into the most likely-looking field, but I don't want my application to be rejected because of ASCII characters that don't belong (putting apparent gibberish into a name-only field). I can also embed the entire public key into the (digital) identifying material, I just don't expect that to be recognized (as a legitimate identifier) as readily as the Claimant fields on the application form itself would. I also don't expect it to become a topic for litigation, but if it does, I am confident that no one else could demonstrate ownership of the corresponding private key. I also retain sole possession of the original, physical work of art. Just like the Copyright Office, the Dear Rich staff is also behind the times with technology. (We're still using iLife10, our PC struggles to run W7 64 bit, we use the pre-camera iPod Touch, and our phone is definitely not smart.) However, we wonder why you're going to these extremes to hide your identity from the Copyright Office. 
What's the benefit? If you're intent on protecting your identity, why register at all? As you probably know from reading our blog, you get copyright protection automatically. You need the registrationtypically for three reasons: (1) if you want to sue someone; (2) it allows you to seek statutory damages and attorney fees if your registration is in place before the infringement occurs (or you register within 90 days of publication); and (3) registration provides a means for people to reach you in the event they want to license or exploit the work (or find you to sue you for infringement). In reality, we're willing to bet that 99% of registrants don't exercise these rights --- that is, they don't sue and the filing isn't necessary to locate them. 
Ultimately, there's no secrecy anyway. No matter what lengths you go to preserve your identity, you'll have to (1) provide a mailing address for the certificate; and (2) more importantly, you'll have to identify yourself in court if you later want to preserve your rights and go after someone who rips you off. If you don't want to go after infringers and the sole reason for doing this is to make sure nobody knows who you are, then we're back to the question, why register at all?
Placing PGP data in one of the fields. Like we said, we're no tech geniuses, so, maybe we're not seeing the advantage of embedding the PGP key in one of the document fields. We're not clear what that gets you except to prove that the secret claimant and pseudonym are the same. Or is this like the DaVinci Code, and somebody is supposed to figure it all out later after you're gone (as religious or government operatives pursue each other)? 
Bottom line dept. We support your desire to use a pseudonym. There's a great tradition for that in the U.S. But we don't think the Copyright Office will look fondly on placing improper information (embedded PGP keys) in an application field. After all, inserting an unrelated PGP key is not an answer to a question. Embedding it in the deposit materials seems a bit unhelpful and presumes that the Copyright Office will forever retain your materials (which it does not -- See Section 17 USC Sec. 704 (d)). We would recommend either not registering or perhaps pursuing rights under aCreative Commons license.