Abstract

In 2005 Congress created a new copyright formality: preregistration. Preregistration addresses a growing phenomenon in which copyrighted works are leaked to the Internet prior to official release. Preregistering a work allows copyright owners immediate access to courts and an expanded menu of remedies.

Based on an originally constructed dataset coupled with user interviews, we study how preregistration has been used from its 2005 inception to the end of 2012. Over 6,000 works have been preregistered in six eligible categories. Several lawsuits were filed in reliance on preregistrations. Most preregistrations are of motion pictures and literary works. Substantial commercial use of the system has been limited to the movie and TV industries. The music, publishing, and computer software industries virtually have not used it in the ordinary course of business. A few particular users have preregistered a great number of works. Different from the use anticipated by Congress, preregistrations were often obtained after infringement (or even a business dispute) had already started. Most preregistrations were made by individual, small-entity, or other one-time users.

The Article recommends that: (1) the duration of preregistrations should be limited; and (2) preregistration (and other copyright) fees should vary with entity size. It offers lessons for formalities and copyright reform: (1) Digital-age formalities may not give rise to the distributional concerns that characterized old formalities; (2) newly minted formalities may limit, rather than expand, access to expressive works; (3) the rates of subsequent registration of preregistered works vary across categories and can inform copyright lawmaking; and (4) the Copyright Office's views may be affected by its institutional interest.

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