Proof of Existence Is Not Proof of Ownership: Thoughts of a Bohemian
Guest post by Joe Naylor, CEO of ImageRights
There is a dangerous movement afoot; the idea that registration of your images on the blockchain is a cheap and simple alternative to registration with the United States Copyright Office. It is not.
Those providing copyright registration services based solely on the blockchain will argue that inscribing a hash of your image along with its accompanying metadata creates an immutable record of your copyright ownership. False.
What these services offer is the second largest application of the blockchain after Bitcoin: Proof of Existence.
What these services prove is that your image file with the metadata you input existed at the time that the hash was created and inscribed into the blockchain. However, what they fail to acknowledge is that the information can be easily manipulated. Almost anyone can download an image and edit the metadata, populating the data fields with whatever information they choose.
To emphasize the point, here is an example of a photo that was registered through a blockchain copyright registry service along with its blockchain certificate of registration. The only problem is that this photo was not shot by me nor do I own the copyrights to it, John Smith does.
And now let’s imagine the worst-case:
- John Smith takes a photo, posts it to his website and inscribes the JPEG file with a blockchain copyright registry service.
- I download the image from his site and change the EXIF metadata of the file to my name, thereby creating a twin-JPEG with 100% identical image content, but different bytes.
- I register my file with another blockchain copyright registry, which works even if both registries are on the same blockchain because the bytes are different due to the different name I entered in the EXIF metadata.
- John Smith’s registry shuts down (e.g. goes bankrupt, management decides it’s not a profitable business unit, etc.). The blockchain still contains the inscribed hash for John Smith’s file, but nobody can find John Smith’s inscription unless they have a bit-identical copy of the image file John Smith registered.
- I start licensing the copy John Smith’s image that contains my name in the EXIF data to unsuspecting buyers.
The messaging from the blockchain copyright registration services is extremely harmful to both the creators and users of the photographs. Many users searching the blockchain may take their claims as reliable and fail to perform their due diligence to verify the information provided on the blockchain.
If my image is viewed as authentic, solely because the work is inscribed on the blockchain under my name and falsified copyright information, then I can steal potential sales from the original photographer. Some may even try to go as far as pursuing copyright infringement claims for images they do not actually own the copyright to.
Essentially, these blockchain copyright registration services are proving that you had a specific file at a specific time; but, they cannot make any guarantees about the creation of the file, the content in those files, or the true copyright ownership of those files.
Whatever your position ideologically, the law states that you can’t file a copyright infringement complaint in US federal court if you haven’t registered the image with the US Copyright Office (USCO). Without a timely registration, meaning the image was registered within three months of publication or before the start date of the infringement, you are unable to seek statutory damages of up to $150,000 per infringed work or attorney’s fees. If this crucial step is missed and the copyright information is only inscribed to the blockchain, without a USCO registration, there are potentially hundreds of thousands of dollars that could be lost in a copyright infringement case.
It is also important to know that a major differentiator between a blockchain registration and USCO registration is that the U.S Copyright Office Certificate of Registration serves as prima facie evidence that you are the copyright owner of the image. Prima facie is Latin for “at first look,” or “on its face,” referring to a lawsuit or criminal prosecution in which the evidence before trial is sufficient to prove the case unless there is substantial contradictory evidence presented at trial. Blockchain registration certificates do not carry this legal weight.
Furthermore, when you register works with the USCO, you must acknowledge and agree to the following:
17 USC 506(e): Any person who knowingly makes a false representation of a material fact in the application for copyright registration provided by section 409, or in any written statement filed with the application, shall be fined not more than $2500.
*I certify that I am the author, copyright claimant, or owner of exclusive rights, or the authorized agent of the author, copyright claimant, or owner of exclusive rights of this work and that the information given in this application is correct to the best of my knowledge.
Currently, there are not any blockchain registration services that require such an agreement or that can impose such fines by statute for fraudulently misrepresenting copyright ownership information.
While registration with the US Copyright Office can be expensive, don’t be deluded into thinking that the blockchain is some cheap cure-all for legally protecting your copyrighted work. The blockchain is not a government registry, but rather by definition is a distributed ledger without any central authority. Anyone can inscribe whatever they want in the blockchain without any legal recourse. That’s not quite the case with the United States Copyright Office. Proof of Existence is not Proof of Ownership.