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[zocher01]

My specific question is regarding statutory requirements placed on the Copyright Office for handling appeals.  My attorney's assistant told me there is a statutory requirement that the C.O. respond to our appeal within a certain time.  I am led to believe that the time limit is 8 or 9 months from the appeal filing date, by which time they must either reject the appeal or grant the registration.  Furthermore, I was told that failing to respond within the statutory time limit required automatic registration of the appealed applications.  This certainly seems logical to me, otherwise applications or appeals could moulder away indefinitely, without recourse.

So here are my specific questions:

   1. Are there statutes in place that require the C.O. to respond to an appeal?
   2. Is there a statute that limits the time for the C.O. to respond to an appeal?
   3. What is the statutory time limit for the C.O. to respond to an appeal?
   4. What are the consequences if the C.O. fails to respond within the time limit?
   5. What legal remedies or rights does the appellant have when the C.O. fails to respond?
   6. What can be done to compel the C.O. to respond?

I want to write to my Representatives in Congress to ask them to look into this matter.  But before I do, I want to have all of the facts at hand so I can inform them of any statutory requirements the C.O. has not met.  According to my attorney's assistant, the C.O. has reportedly admitted two-fold negligence on their part by failing to respond.  But that was 10 months ago, already past the supposed deadline, and we still have not received any response to our appeal.  Surely the appellant has rights in this matter, I just need to know what they are.  It has been over FOUR years since these applications were submitted, 18 months since the appeal was filed, certainly long enough for action by the C.O.

I have been asking my attorney (a high-priced, well known NYC law firm) for months for an update and he keeps saying there is nothing new, or the C.O. is not responding to him.  I'm beginning to wonder if this is really the C.O. that is stalling, or if my attorney has made some technical errors and is trying to hide behind a red-herring.  For the present, I'm assuming it is the C.O. and therefore I would like to write my Representatives in Congress. 

Any help on this would be greatly appreciated.

[mactheknife]

The actual statute doesn't say anything about appeals.  The regulation regarding appeals is at37 CFR § 202.5 (note: not sure if this will actually link correctly but the code of federal regulations are available a lot of places on line).  You're supposed to get a decision within 4 months.  Unfortunately, it also states, "failure by the Registration and Recordation Program to send the written notification within the four-month period shall not result in registration of the applicant's work."  So theoretically, there's no consequence if they hang onto your case for a bit.

If you write your Congressperson, and let them know it's been as long as it has, they should be able to kick the CO in the pants a little, assuming all of the appropriate procedures have been followed.  I'm a former copyright examiner so I know sort of what happens behind the scenes; I'm pretty sure that the CO is not intentionally stalling but it's possible there's a backlog at the appeal stage, or it's possible that your instincts about your attorney (high priced as he may be) are correct.

[zocher01]

Mactheknife,

Thanks for your response. 

I wonder why my attorney's assistant suggested that failure to respond by the CO required registration, when it so clearly states that is not the case. Perhaps that's why there is a new assistant.

Anyway, thanks for your help.  It seems writing my Congressmen may be the best that I can do at this point.  I must say, the four year waiting period seems quite excessive; perhaps you should consider moon-lighting for them.

Cheers

[Kaitlin]

Re delay at the copyright office, don't know if this is necessarily affecting the appeals process, but apparently there's quite a backlog in registrations.  See today's Washington Post, page one below the fold in hard copy, online at:

http://www.washingtonpost.com/wp-dyn/content/article/2009/05/18/AR2009051803171.html?sub=AR

(Note, that the author errs in stating that copyright registrants pay for the "right to claim legal ownership" of their works.  Under current law, anyone has the right to make that "claim" by putting the date of publication and their name after the copyright symbol, (c) , on the work.  Registration provides other benefits.)

[zocher01]

Thanks Kaitlin, I only hope it won't be another four years!

[mactheknife]

I'm pretty sure the delay mentioned in the Post is not causing the delay in the appeals process.  The vast majority of applications result in registration, and even where an app is rejected most people don't bother appealing as it's rather expensive.

Zocher01, if you want you can send me a private message with the particulars of your situation and I can see what I can do for you...

[zocher01]

Thanks mactheknife, I will PM you.