Copyright Law - Southern District of Texas Still Has Dial-Up and Holds Uploaded Webpages Not Published or Accessible

By Turner, R. Brice | Suffolk University Law Review, Fall 2013 | Go to article overview

Copyright Law - Southern District of Texas Still Has Dial-Up and Holds Uploaded Webpages Not Published or Accessible


Turner, R. Brice, Suffolk University Law Review


Copyright Law--Southern District of Texas Still Has Dial-Up and Holds Uploaded Webpages Not Published or Accessible--Rogers v. Better Business Bureau of Metropolitan Houston, Inc., 887 F. Supp. 2d 722 (S.D. Tex. 2012)

In order to bring a copyright infringement suit before a court, the work must first have been registered with the United States Copyright Office (Copyright Office). (1) In addition to permitting copyright infringement actions, a copyright's registration "constitute[s] prima facie evidence of the validity of the copyright." (2) The certificate of registration is usually held valid unless a defendant can prove that the claimant presented inaccurate information to the Copyright Office with the intent to commit fraud. (3) In Rogers v. Better Business Bureau of Metropolitan Houston, Inc.,4 the United States District Court for the Southern District of Texas analyzed whether uploading webpages to the internet constituted "publication" under copyright law, an act that would invalidate a certificate of copyright registration covering an unpublished collection of webpages. (5) Rulings from district courts in other circuits regarding whether uploading a work constitutes publication were examined, but ultimately the Rogers court deviated from the trend of other courts and declined to find the webpages published as a matter of law by deferring to the decisions made by the author and Copyright Office. (6)

On December 24, 2001, the defendant contracted with the plaintiff to create webpages for the defendant's member businesses. (7) The contract was for a one-year term and automatically renewed afterwards on a month-to-month basis with the defendant, who passed on the expense of the plaintiff's creation and maintenance fees to its member businesses. (8) Between 2001 and 2009, the plaintiff created these webpages for the defendant with each webpage being hosted and displayed at www.reliabilitymall.com--owned by the plaintiff--in exchange for an annual licensing fee. (9) In early 2010, the plaintiff applied for a certificate of registration from the Copyright Office for the webpages of www.reliabilitymall.com and registered it as an unpublished, nondramatic literary work; the certificate issued on January 31, 2010. (10) In October 2010, the plaintiff filed suit against the defendant for copyright infringement, claiming the defendant's continued use of the webpages after the contract terminated infringed on his copyright. (11)

Two days after filing suit, the plaintiff applied for supplementary registration for the webpages created. (12) In this supplemental registration, the plaintiff cited reasons to support his argument that the webpages were unpublished, including:

 Claimant created the registered Web pages between 2001-2009 to be
 displayed online. Each of Claimant's Web pages has a unique
 "Reliabilitymall.com" URL and was created independently for
 companies and individuals. Each Web page, or "site," was displayed
 on the www.ReliabilityMall.com [website] for one year in exchange
 for an annual licensing fee. (13)

The Copyright Office granted the supplemental registration and the defendant later filed for summary judgment on the issue of copyright infringement. (14) In its motion for summary judgment, the defendant argued that the plaintiff's claim of copyright protection on the webpages was invalid as a matter of law because uploading webpages to the internet constituted publication. (15)

Under the power of the Intellectual Property Clause in Article I of the U.S. Constitution, Congress passed the first Copyright Act in 1790 (1790 Act), which Congress most recently amended in 1998 (current Copyright Act) to extend the protection period of copyrights. (16) Congress originally passed the 1790 Act with the intent to stimulate education through narrow protection for an author's maps, charts, and books only. (17) Congress has amended the 1790 Act over the years by expanding the period of time a copyright is protected, increasing the types of works protected under the statute to keep up with new technologies, and relaxing the formalities to which a potential rights holder must adhere to benefit from protection under the current Copyright Act. …

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Copyright Law - Southern District of Texas Still Has Dial-Up and Holds Uploaded Webpages Not Published or Accessible
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