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                            Transforming Document Recordation at the United States Copyright Office
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Transforming Document Recordation at the United States Copyright Office
                        
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GW Law Faculty Publications & Other Works Faculty Scholarship

2015

Transforming Document Recordation at the United States Transforming Document Recordation at the United States

Copyright Office Copyright Office

Robert Brauneis
The George Washington University Law School, [email protected]

Follow this and additional works at: https://scholarship.law.gwu.edu/faculty_publications

Part of the Law Commons

Recommended Citation Recommended Citation
Brauneis, Robert, Transforming Document Recordation at the United States Copyright Office (December
31, 2014). Available at SSRN: https://ssrn.com/abstract=2611481 or http://dx.doi.org/10.2139/
ssrn.2611481

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u n i t e d s t a t e s c o p y r i g h t o f f i c e

Transforming Document Recordation at
the United States Copyright Office
a report of the abraham l. kaminstein scholar in residence december 2014

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the “first fixation” reading of “actual signature” can support a distinction between “originals”
and “copies.” Under the “but for causation” reading,” any mark or trace attributable to an act of
signing, no matter how many generations of copies removed, counts as an “actual signature.”

A “first fixation” reading of § 205(a) can accommodate electronic signatures, but in
practice it may be safer to require a certification for every remitted document. The process of
remitting a document electronically, by sending it over the Internet, does not send the copy on
the remitter’s computer to the Copyright Office, but creates a new copy of that document, and of
any signature contained in it.207 Even the copy of the document held by the remitter will in many
cases not contain the “first fixation” of the signature. One could argue that when § 205(a) speaks
of “a true copy,” it is contemplating copies that are degraded, and that therefore a perfect digital
copy is not a “copy” within the meaning of § 205(a), but a duplicate original. Yet this is not an
obvious reading of § 205(a), a provision that was not drafted in anticipation of digital
transmission of electronic signatures. Requiring a certification by the remitter for every
electronically remitted document, however, is actually a recommendation of this report that will
be discussed in greater detail below. Thus, an interpretation of § 205(a) as embodying such a
requirement does not, in the view of this report, necessitate a statutory amendment.

b. Copyright Office Electronic Signature Regulations for Remitted Documents:
“Discrete and Identifiable” Signatures. While § 205(a) in its current form can thus be
interpreted as allowing the Copyright Office to accept electronic signatures on remitted
documents, albeit likely with certifications, some consideration should be given to the forms or
types of electronic signatures that Copyright Office regulations should allow. The regulations
should allow a very broad range of electronic signatures. For at least the near future, the
majority of signatures on remitted documents will be digitized images of handwritten signatures,
and so those clearly should be allowed. Because of the desirability of accommodating the bulk
of transfers of copyright interests that are valid under § 204(a), a range of other forms of
electronic signatures should be allowed, from typed signatures to sophisticated digital
signatures.208 If a “yes” click to a terms-of-use agreement is programmed to create a file that
contains the text of the terms of use together with the notation “Assented to by user logged in as
Dorothy Smith, from a computer at IP address 167.89.202.31, at 5:04 PM GMT, June 12, 2014,”
that notation could be considered a valid electronic signature. Parties who want a more secure
form of electronic signature should be able to choose such a form for themselves, and to demand
it in negotiation from those with whom they will contract. As will be discussed below, the
Copyright Office document repository should be able to preserve more secure forms of


207 Cf. Capitol Records, LLC v. Redigi Inc., 934 F. Supp. 2d 640, 649 (S.D.N.Y. 2013) (“It is simply impossible that
the same ‘material object’ can be transferred over the Internet.”).
208 For a discussion of digital signatures and their preservation in the Copyright Office document repository, see p.
72 below.

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electronic signature.209 Yet if parties decide on a less secure form of signature, that form should
generally be accommodated as well.210

There is one way in which Copyright Office regulations should probably stop short of
accommodating everything that could count as a signature under the E-Sign Act. The E-Sign
Act’s definition of “electronic signature” includes “an electronic . . . process, . . . logically
associated with a contract . . .and executed by a person with the intent to sign . . . .”211 That
definition may be so broad that it includes acts that do not generate a trace that is easily remitted
as “a signature” on “a document.”212 For example, a “yes” click on a terms-of-use agreement
may not be stored as a discrete piece of information at all. Rather, the system may simply be
designed not to let the user take a certain action, such as uploading a photograph, without having
clicked “yes.” In that situation, the computer code that allowed the user to proceed only upon
assent to the terms of use, together with the uploaded photograph, would be the only evidence
available that the user did, in fact, click “yes.” Would submission of that computer code,
together with evidence that the user did upload a photograph and the text terms of use, count as a
“signed document”? The difficulty of figuring out whether particular code would in fact
invariably require assent before proceeding is a good reason to require more discrete evidence of
the act of assent. Thus, Copyright Office regulations might require that an electronic signature be
in a “discrete and identifiable form” on the remitted document.213 It is important to recall that
there are separate regulations for specific document types such as notices of terminations of
transfer, so that if the electronic recordation system will accommodate such documents, as it


209 See infra p. 72.
210 To be sure, allowing weak forms of signature makes it easier for third parties to forge signatures and create false
documents. Although a weak signature will provide weak evidence that the party whose signature was forged
actually signed the document, that party is still burdened with having to prove that he did not sign the document.
Casual forms of signature, such as mouse clicks on buttons, are also less likely to serve the “cautionary” function of
warning parties that they are about to take a legally significant act, such as granting valuable rights in a work of
authorship. These concerns, however, would be better addressed through an amendment to § 204, which establishes
the formal requirements for transfers of copyright ownership. Recognizing a transfer as valid under § 204 but
refusing to place it on public record under § 205 has serious drawbacks, as expressed in the text above.
211 15 U.S.C. § 7006.
212 By way of comparison, under current registration practice the Copyright Office “will accept an application that
names the owner of a website as the claimant for [user-generated content] that has been uploaded to that site . . .
[under] a ‘click through’ agreement or terms of service agreement,” but “the claimant must know and have a record
of the names of the authors who transferred ownership of all the exclusive rights to the claimant.” Compendium of
Copyright Office Practices, Third Edition, § 1005 (public draft August 15, 2014). Such a “record of the names of
the authors” might fall short of preserving anything that could be identified as “signatures” of the authors.
213 Such a requirement would be consistent with the E-Sign Act’s provision regarding requirements that contracts or
other records be in writing:

Notwithstanding subsection (a), if a statute, regulation, or other rule of law requires that a contract or other
record relating to a transaction in or affecting interstate or foreign commerce be in writing, the legal effect,
validity, or enforceability of an electronic record of such contract or other record may be denied if such
electronic record is not in a form that is capable of being retained and accurately reproduced for later
reference by all parties or persons who are entitled to retain the contract or other record.

15 U.S.C. § 7001(e).

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14. Updating Contact Information. At any time, the remitter could update contact
information with respect to an existing document record through her user account. The
old contact information would be preserved, and the date and time of the change would
be noted.474


474 See p. 126, supra.

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