Page:Dynamic Solutions v. Planning & Control.pdf/13

 Defendants next claim that plaintiff’s copyright is invalid because it has failed to deposit a copy of its work with the Copyright Office, pursuant to 17 U.S.C. § 408(b).

When DSI filed its copyright registration statements for the Alpha Micro software, it gave the date of creation and publication date as 1983 for the Operations Management program (Pl. Ex. 6) and 1984 for the Project Management program. (Pl. Ex. 7). The filings were accompanied by copies of the first and last 25 pages of the programs, pursuant to 37 C.F.R. § 202.20(c)(vii)(A). However, DSI did not deposit versions of the programs that existed in 1983 and 1984, but somewhat revised versions that existed at the time of filing in February, 1986. Melhado testified that the 1983 and 1984 versions no longer existed and could not be reproduced. Melhado could not specify how the programs changed in the intervening period, and did not know whether any of the changes were in the first and last 25 pages of the programs. (Tr. 98–99). Since DSI claims copyrights upon 1983 and 1984 programs not deposited with the Copyright Office, defendants maintain, their copyrights are invalid.

This claim is without support in the present Copyright Act. Deposit is part of the registration procedures under the 1976 Copyright Act, and the Act expressly provides, with certain exceptions not claimed by defendants here, that “registration is not a condition of copyright protection.” 17 U.S.C. § 408(a). Compare Wheaton v. Peters, 33 U.S. (8 Peters) 591, 664–65, 8 L.Ed. 1055 (1834) (holding deposit a prerequisite to protection under earlier copyright law).

Defendants might have urged that plaintiff had no right to sue for infringement, for compliance with the Act’s registration requirements is a prerequisite to a right to sue for infringement. 17 U.S.C. § 411(a). This argument would be closer to but still wide of the mark. Although defendants characterize plaintiff’s behavior as a complete failure to deposit the source codes for which they claim protection, it can just as easily be characterized as an error in the dates listed on the registration form. Errors on the registration application do not affect plaintiff’s right to sue for infringement unless they are knowing and might have caused the Copyright Office to reject the application. Eckes v. Card Prices Update, 736 F.2d 859, 861–62 (2d Cir.1984) (quoting Russ Berrie & Co. v. Jerry Eisner Co., 482 F.Supp. 980, 988 (S.D.N.Y.1980))) [sic]. Innocent errors do not abrogate the presumption of validity afforded registered works by section 410(c) of the Act. Id.

There is no reason to believe that DSI knowingly attempted to deceive the Copyright Office as to the date of creation of the programs. Nor is there any reason to believe that the Copyright Office might have rejected the registrations had they given 1986 as the date of creation and publication. The error has no effect, therefore, on plaintiff’s right to sue on the presumption of validity arising from the certificate of registration. Compare Russ Berrie, supra, 482 F.Supp. at 987–88 (copyright claimant intentionally failed to disclose that copyrighted work was not wholly original).

Defendants’ reliance on Unistrut Corp. v. Power, 280 F.2d 18, 23 (1st Cir.1960) is misplaced for similar reasons. In Unistrut, the plaintiff claimed infringement of a catalog. The catalog “was originally copyrighted in 1942 by proper filing in the Copyright Office.” However, at trial the plaintiff only introduced the 1943 edition of the catalog. The later edition contained certain unspecified additions. The Court found the later editions had “clearly [been] pirated,” but also found “there was no proof that copies of this later edition were