Check the bottom of this post for helpful links, including a downloadable pdf of this post and links for downloading my templates.
Author's Notes and Acknowledgements: I am not a lawyer and this is not legal advice. This is for educational purposes only.
Now that that's out of the way, let me warn you, this one's a long one and it's full of legal jargon. Hopefully I made it easy to understand. Because of the sensitive nature of my claims in this post I have meticulously tracked down every single law or statute I reference and cited them here to back up my claims.
Why do I know this crap? ADHD and a rabbit hole---what can I say?
So, most of us remember the recent strings of Google Play scraping and theft. I think you're going to want to read this, check my work, and look into it.
Prologue: Copyright
In the US, Canada, and the UK your work is protected by copyright law the moment you type or write it down. What you get out of that protection varies, though.
In Canada this is taken very literally. You can sue an infringer for statutory damages and legal fees without filing a copyright registration. However, having a copyright certificate gives you "presumption of ownership," making it even easier. Easiest mode, and so literally any writer in Canada should be looking into suing scrapers and infringers every time they so much as sneeze your way. Your statutory damages are $500-$20,000 CAD per commercial infringement.¹,²
In the UK---*as long as my rabbit hole meanderings weren't wrong---*it's my understanding that they don't really have much of a copyright registration system in the same way the US does. You cannot ever sue for statutory damages. You may only sue for actual damages.³,⁴
In the US however, you're required to file for a copyright either within 3 months of first publish, or prior to the infringement occurring, in order to be eligible for statutory damages and legal fees.
This doesn't mean your property is not protected. You can DMCA takedown requests and force them to take down your stolen property. You cannot sue for damages, legal fees, attorney fees, etc, without an approved-or refused-registration. You may begin a claim with the CCB, provided you have a pending registration, however that claim will be placed in abeyance until the Copyright Office grants the certificate. If the Office refuses, the CCB will dismiss the claim without prejudice.²⁴,²⁵,²⁶
Chapter One: Registering
So what do you do? Honestly, you don't need to do anything unless you just plain want to, or you're on Amazon, in which case you probably don't need this guide. For the sake of education though, you can file what is called a Group Registration of Short Online Literary Works. Form GRTX.
You can file from 2 to 50 chapters at a time, provided they were first published within 3 consecutive calendar months of each other. Not 90 days, if you publish on Jan 31, you only get to file items published through March, absolutely no April dates. Filing this GRTX results in listing each individual chapter as its own property. Well, that kind of sounds like a lot of work, doesn't it?
Okay, then later on, you can do a standard filing for whatever chapters are in the volume you release on the compilation and changes between the RR/Patreon versions, and the finalized KDP version. This only covers the edits and the compilation (the book). While the prior GRTX still covers what it covered, it's never overwritten*.*
Do those extra fees from before really matter? Yes. Lawyers are expensive, the process can take years in federal court, and nobody is going to take a case where all they can sue for is $15 in potential lost Patreon dues and a couple bucks gross Play Books sales. So after filing the copyright and being eligible for these damages, suddenly your attorneys fees are paid by the infringer, the legal filings fees are paid by the infringer. Most lucratively, the statutory damages pay between $750-$30,000 per item, $150,000 if your lawyer can prove willful infringement.
In order to be eligible for statutory damages from an infringement event, you must either:
- File the stolen property's copyright within 3 months of first publication. This means you can retroactively file a suit against copyright theft if you get the chapter registered within 3 months of first publication.
OR
- Have filed the stolen property's copyright prior to the infringement event.
Look at that top bullet again. What happens when you do the annoying GTRX filing is: you get up to 50 individual properties. Valued at a standard minimum of $750 in statutory damages each, and it climbs to $150,000 per work in some instances.
You can take 50 .docx files, enter their file names and matching chapter names into an excel spreadsheet with the first publication date and the word count of each individual document. You can pay the copyright office $65 to make that legal today. Then you can sue anyone who touches your IP again. Like we just had that string of during the last couple months. The statute of limitations is 3 years for copyright claims.
Again I'm not a lawyer but that sounds to me like any one of us could have 50 chapters of a fiction up that got scraped and dropped onto Google Play Books for $0.99. At a full file minimum, that's $37,500 in statutory damages in the US, $7.5M in maximums.
Now the reality is, that should you sue the scrapers, and win. You probably won't manage to get that much. You'd be owed plenty, for sure, but you can't get blood from a stone, a fake ghost, or an offshore shell company.
So if we can't get blood out of a stone, why file and deal with the registration hassle?
Well, for starters, not every thief is a small time scraper. If a large scale operation steals from you and you sue, you actually get a pay day.
Remember that you do not sue the store, you sue the thief. Google did not steal your fictions, the "author" did.
Chapter Two: Civil Action
So we have our copyright, but what do we actually do?
You have 2 path's ahead of you: Federal Court, and CCB(Copyright Claims Board). Federal Court is a final destination and locks you out of CCB. CCB is a quicker and cheaper alternative to Federal Court, with a nuanced lockout, I'll get into below.
Federal Court: The Big Money.
You strap in, this process takes years. Oh and, don't expect a lawyer to actually jump at this. Mainly because suing a ghost isn't exactly profitable.
Make sure you have your approved copyright registration, call a lawyer, and setup a contingency agreement. This is where they agree to take your case on contingency, an agreement where they take no money up front. Think of this like getting published. The publisher takes on the financial risk and costs of your advance, editing, covers, narrators, ads, etc. You both get a cut once certain costs are covered (usually the advance). Same idea for your contingency lawyer.
Just make sure you CYA.
You make sure your agreement states that they will front the case costs and work "for free" until you get paid. In return, they take a large cut of your winnings, something like 30%-50% depending on you, your deal, and them. That % cut usually does not include case costs, just the lawyer's pay.
Make sure this agreement explicitly ties their payment to recovery, stating they only get paid if you get paid and that this includes all case costs. Remember, lawyers are sharks after all. You need to protect yourself from them just as much as the thief. So make sure all case costs, and attorney's fees are part of this recovery contingency. This is a "Full Contingency" contract.¹²
It'll say something like this:
- The law firm will advance all case costs and expenses.
- If there is no financial recovery, the client is not responsible for reimbursing the firm for advanced case costs.
- You owe no attorney's fees if there is no recovery.
- In the event of recovery client owes firm 33% of recovered monies in attorney's fees plus all accrued case costs.
Double check your contract to see what happens if the court awards fees separately, as that can impact final payouts.¹⁵
CCB: The Path of Least Resistance.
If you decide to go this route, things can resolve much quicker (sometimes within 6 months to a year), and with less headache. The trade-off is the final maximum payouts, and that the thief can opt out.¹³,¹⁴
Under this path, the maximum statutory penalty for individual works is $15,000, with a maximum of $30,000 per claim, no matter how many works.¹³
Doing this, you don't need a lawyer. You do it yourself with far more ease than navigating federal court.
You start by filing for a Digital Millennium Copyright Act (DMCA) § 512(h) subpoena with federal district court local to the subpoenaed party. For Google, that's the U.S. District Court for the Northern District of California, San Jose Division for best proximity.
In order to file for the subpoena you need the following:
- Form JS-44²³
- (Application for Issuance) - You will write this yourself. It is not strictly required.
- Exhibit A: The DMCA takedown request*
- Exhibit B: A Sworn Declaration of Intent*²¹
- Exhibit C: The proposed subpoena, form AO 88B*²²
- Exhibit D: Your list of works xls file submitted to copyright registration. It is not strictly required.
- Schedule A: Documents to be Produced. While not strictly required, it's technically part of the subpoena since you would need a font size less than 1 to fit everything
I will include templates of all of these documents at the end of the post.
You will merge everything down into 2 files, File A is your application, Exhibits A, B, and D. This is your supporting documentation to the court so they know what you are doing and why. As stated, the cover and Exhibit D are not strictly required. You can send the packet without them. File B is the subpoena and schedule A. This is what will be signed and stamped by the clerk and then sent to Google.
The DMCA takedown request is able to be your email thread with Google regarding the takedown when you did all their clicking. You likely did this several times. Pick the earliest email with the response that said "We've passed your request along to the appropriate team here at Google for further investigation." Print that entire email thread to PDF. If you had to send more stuff during that process, include it in the Exhibit A packet.
The proposed subpoena, form AO 88B, this is what will receive the stamp and be approved, to then be served to Google.
Sworn Declaration of Intent. This is a freeform document you draft up and sign. It tells the court that you are just requesting the information to protect your legal copyright.
You get the stamped and signed subpoena back and then hire a Process Server to actually go and serve Google with your subpoena. Expect to tell them where to go. You then wait 30 days to receive the requested information.
Next, you create an account and file the claim with the CCB on their portal.¹⁶ Provide all your copyright docs like your registration number, or even your pending application number. Yes, you can file while still waiting for the answer from the copyright office.¹⁷
Submit the required discovery information to prove your claim. Follow any and all instructions from the CCB as the process moves forward. Then you wait.
Eventually, you will receive a Final Determination. 3 Copyright Claims Officers will review all the evidence and documentation that was provided by you and the scraper, then issue a written Final Determination. This will state exactly how much the scraper is required to pay you in damages, up to that $30,000 cap.
Chapter Three: Payment
I won my federal suit, now what?
Since you have a lawyer, they'll be setting this up. They want to get paid after all. The money goes into a client trust account-an IOLTA,¹¹ and is then distributed based on the contract, usually looking like this.
- Case costs are paid in full first. Whether you got a lump sum or have to wait for trickled garnishments or payments, nobody gets a dime until the case costs are paid. Just like a lot of publishing deals. The case costs were your advance.
- The split. Once the case costs are paid off the firm will split the incoming money based on your contract. Just like royalties. The firm takes their 33%-50%, and you get your 50%-67%.
Just poke your lawyer every 10 to 20 years, as judgements do expire if you don't file a motion to renew. This varies based on the state the suit occurred in.⁹,¹⁰
So, the CCB gave me a piece of paper...
They did. Now you need to take that paper to your local District Court, have it filed and confirmed. This'll cost you some fees which vary by state, but these may be added to the scraper's debts.¹⁹,²⁰
Now the scraper has 90 days to pay your or file an appeal. In the federal court path, the lawyers handle all this, but in this solo world, you get to do it!
If, after 90 days, the scraper hasn't paid up, you then get to file for a Writ of Garnishment. You must do this within 1 year of the Final Determination. You hire a process server or the U.S. Marshals to serve the writ to the garnishee. The garnishee is the bank or employer who has the scraper's money, and you must file a separate Writ and serve each one individually to collect money from them. From here you start hopefully collecting your damages.
Chapter 4: The End
Thank you for reading my dissertation. I hope this has been an enlightening and educational journey for you.
I believe that, armed with the included information, independent authors and writers are shown the tools to carve out just a little bit more justice for themselves. The tools have been there; we just didn't know how to use them.
This information was compiled and presented in good faith with the intent to educate those eligible for copyright on their rights. It is not my intent to misinform, misguide or lead anyone astray in any way shape or form. (I'll save the misinformation for the fictions, right?)
Resources & Citations:
Cover images:
Scale of Justice (public domain image from Wikimedia Commons)
Flag Background (public domain image from publicdomainpictures)
Gavel (public domain image from publicdomainpictures)
Book (free use license w/ attribution. Designed by Magnific www.magnific.com)
Register Your Copyright! Remember published “Group of short online literary works.”
https://www.copyright.gov/eco/grtx/
CA.
https://laws-lois.justice.gc.ca/eng/acts/c-42/section-38.1.html 1
https://ised-isde.canada.ca/site/canadian-intellectual-property-office/en/copyright-infringement 2
UK.
https://www.gov.uk/copyright 3
https://emlaw.co.uk/a-guide-to-copyright/ 4
US.
https://www.copyright.gov/rulemaking/shortonline-literaryworks/ 5
https://www.copyright.gov/title37/202/37cfr202-4.html 6,7
https://www.copyright.gov/title17/92chap5.html 8
https://www.law.cornell.edu/uscode/text/28/1962 9
https://www.law.cornell.edu/rules/frcp/rule_69 10
https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_15_safekeeping_property/ 11
https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_5_fees/ 12
https://www.law.cornell.edu/uscode/text/17/1504 13
https://www.law.cornell.edu/uscode/text/17/1506 14
https://www.law.cornell.edu/uscode/text/17/505 15
https://ccb.gov/ 16
https://uscode.house.gov/view.xhtml?hl=false&edition=2024&req=granuleid%3AUSC-prelim-title17-section1505&num=0 17
https://www.law.cornell.edu/uscode/text/17/1508 18
https://uscode.house.gov/view.xhtml?hl=false&edition=2024&req=granuleid%3AUSC-prelim-title28-section1920&num=0 19
https://www.law.cornell.edu/rules/frcp/rule_69 20
https://www.law.cornell.edu/cfr/text/37/221.1#:~:text=If%20the%20Copyright%20Claims%20Board%2C%20in%20its,certificate%20of%20registration%20or%20the%20registration%20number 24
https://www.law.cornell.edu/uscode/text/17/411 25
https://www.supremecourt.gov/opinions/18pdf/17-571_e29f.pdf 26
https://www.copyright.gov/eco/grtx/
Forms.
Public Copyright Subpoena Templates
https://www.uscourts.gov/sites/default/files/ao088b.pdf 22
https://www.uscourts.gov/sites/default/files/js_044_-_civil_cover_sheet_1.pdf 23
Additional US sources not explicitly captioned.
https://www.law.cornell.edu/uscode/text/17/412
https://www.cotmanip.com/articles/how-quick-should-you-register-copyrights
DOWNLOAD THIS POST AS A PDF FOR LATER
ZIP of the .docx templates
If those links don't work here is the free post on Patreon with the direct downloads at the bottom.
https://www.patreon.com/Sanzensekaiseries/posts/copyright-law-on-167989459?utm_medium=clipboard_copy&utm_source=copyLink&utm_campaign=postshare_creator&utm_content=join_link
\I am not a lawyer and this is not legal advice*