Proof of Existence Is Not Proof of Ownership

By Joe Naylor
May 2, 2018

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 meta data 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 I registered with 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, my business partner Ted does.

And now let’s imagine the worst-case:

  1. Ted takes the photo, posts it to his website and inscribes the JPEG file with a blockchain copyright registry service.
  2. Someone downloads the image from his site and changes the EXIF metadata of the file to their name, thereby creating a twin-JPEG with 100% identical image content, but different bytes.
  3. They register their version of the image 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 entered in the EXIF meta data.
  4. Ted’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 Ted’s file; but nobody can find Ted’s inscription unless they have a bit-identical copy of the image file Ted registered.
  5. Our bad actor starts licensing the copy of Ted’s image that contains their 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 someone’s image is viewed as authentic, solely because they inscribed it on a blockchain under their name and falsified copyright information, then they can steal potential sales from the original photographer. And while they wouldn’t be able to actually file a complaint in a US federal court, some could use their fraudulent blockchain registration certificate to directly pursue 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 the costs of registration with the US Copyright Office can be significant, especially if you are shooting thousands of photos, 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.

 

The Author

Joe Naylor

Joe Naylor is the President and CEO of ImageRights International, the global leader in copyright enforcement services for photo agencies and professional photographers. . Joe’s career spans more than twenty years in the design, development, operations, sales, and marketing of communications and internet-based services at eFax.com, j2 Global Communications, and WebMessenger. In 2007, Joe began collaborating with professional photographer Ted VanCleave on solutions to the challenges that commercial photographers, photo agencies and media companies face with respect to online copyright protection; and in 2008 the two founded ImageRights International, Inc. Joe holds a B.S. in Electrical Engineering from the University of Texas at Austin, completed the Program for Leadership Development at Harvard Business School and has served on the Digital Media Licensing Association's (formerly PACA) International Committee.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 2 Comments comments. Join the discussion.

  1. Anon May 2, 2018 9:51 am

    I liked everything about your article except for one (very minor) viewpoint difference:

    While the costs of registration with the US Copyright Office can be significant,

    I suppose this stems from knowing the relative costs of other IP protection efforts….

  2. Lost In Norway May 2, 2018 5:12 pm

    Just wanted to say that this was a great article and that I look forward to reading more of your work. What I keep thinking about with blockchain is that it would have been great back in the first to invent world.

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