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The rule of doubt has never been codified in any version of the Copyright Act, and no court has ruled on its application. It was created by the Copyright Office, which has historically interpreted its responsibilities as permitting discretionary registration in cases of doubt. Herbert A. Howell, former Assistant Register of Copyrights, describing the “rule of doubt,” wrote in 1942 that notwithstanding a probable loss of copyright due to failure to satisfy certain complex technical requirements then in effect, “the Copyright Office has always been inclined to give the author the benefit of the doubt, if there be any, and make registration for whatever it may be worth.” The Compendium of Copyright Office Practices II directs examiners to register claims in certain factual and legal situations under the rule of doubt, or with a “cautionary” or “warning” letter.
Computer program Edit
|“|| The Copyright Office will issue a certificate of registration, even when an applicant for registration of a computer program containing trade secrets is not willing to submit source code and submits object code instead. When it issues such a registration, it does so under the 'rule of doubt' procedure. The 'rule of doubt' is more accurately described as the rule of 'the benefit of the doubt' (in favor of the copyright applicant). If the application is otherwise proper, the Copyright Office will issue such a registration, which makes it clear that no determination has been made concerning the existence of copyrightable authorship. The Copyright Office issues its registration on this limited basis because of its belief that object code is 'basically unintelligible' to its examiners, so that they cannot make a definitive determination of its copyrightability. In order to receive such a rule of doubt registration, the applicant must submit a letter stating that the program does contain original authorship.
While there is no clear law delineating how the rule of doubt registration affects the status of the registered work in litigation, it is likely that such a registration would not be accorded the same weight as a conventional registration. The Copyright Office has recognized that in making this kind of registration, the burden is placed on the courts to make a determination about the existence of copyrightable subject authorship. This additional burden is especially important in the case of requests to the court for preliminary relief in the form of temporary restraining orders and preliminary injunctions.
Prior to Feist, the Copyright Office registered a number of compilations under the rule of doubt. The “doubt” was primarily based on the co-existence in case law of the sweat of the brow standard with the 1976 Copyright Act’s explicit originality standard. One such registration involved the bibliographic database of the On-line Computer Library Center (“OCLC”), which consisted of a collection of numerous member libraries' catalogue entries, where the order was determined by the contributing libraries and the arrangement was chronological. Another case involved an application from the National Republican Congressional Committee for registration of its donor lists, arranged by zip code and alphabetically within each code. The Office registered the list as a compilation, but in correspondence with the applicant noted its uncertainty and the need for judicial guidance on the copyrightability of compilations of data.
- ↑ Herbert A. Howell, The Copyright Law 92 (1942).
- ↑ See, e.g., Compendium of Copyright Office Practices II, Chapter 4 (Notice), § 4.2.4.IV., at 4-29; Chapter 4 (Notice), § 4.3.3.II, at 4-38; Chapter 7 (Works by Foreign Authors), § 7.2.1.II.b, at 7-7; Chapter 8 (Copyright in Works First Published Abroad), § 8.2.1.III.a, at 8-9.
- ↑ Office of Technology Assessment, “Finding a Balance: Computer Software, Intellectual Property, and the Challenge of Technological Change” 66 (May 1992) (citations omitted).
- ↑ In subsequent litigation, the National Republican Congressional Committee filed suit against a private corporation engaged in the commercial sale of various types of data, alleging unauthorized use of its lists. The district court dismissed, finding the copyrightability of the compilation of donor facts incompatible with the public interest goals of the Federal Election Campaign Act; the D.C. Circuit postponed consideration pending a separate, administrative interpretation by the Federal Election Commission. National Republican Congressional Comm. v. Legi-Tech Corp., 795 F.2d 190, 192 (D.C. Cir. 1986). In doing so, the circuit court observed that “the copyrightability of compilations of data is a highly uncertain area of the law which has divided courts and commentators alike.” Id. at 194.