The copyright registration forms require you to specify whether your work is "published" or "unpublished". If it's unpublished, you can use the "short" registration form, otherwise it's the regular form which requires a bit more information.
You'd think that the distinction would be quite straightforward. Although the legal definition of "publication" is fairly clear, its application to online works is literally not available. 17 USC Section 101 defines "publication" as:
" ... the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication".
So far as books or photos or CDs are concerned, this is pretty clear: you have to perform a physical transfer from yourself to someone else in some sense to have "published" the work. There isn't any point quibbling about "publication" actually happening when you get your book printed, which is how most of us would think of it, because until somebody else gets a copy it hasn't been "published".
It's when you start to think about web sites that the muzziness of this definition gets in your way. You don't actually ever distribute copies of your web site, even though parts of it do get downloaded to the viewer's computer; you could in fact argue that all you ever do is publicly display your site, for the same reason. Nevertheless, since you are doing this for the edification and pleasure of the public at large, you are in fact making your site available to the public in some sense, which the word "publication" clearly implies (my dictionary has "... make public or generally known;"); so you can argue equally loudly that your site is published once you get it uploaded to the server.
The registration procedure leaves it up to you which one you specify, and in my conversations with the Copyright Office, I've been told that it's up to you, the registrant, to determine whether a web site is published or unpublished. There isn't one right answer, and many web sites have been registered as published, many others as unpublished.
I'd say that sooner or later the issue will be legally clarified so after a certain date you'll know which is which. But almost certainly the law won't be retroactive.
Certainly it's less work and a shorter form to specify "unpublished" but then again your site is on the air. There is one other caveat: for published sites, the Copyright Office requires that you specify the date that it was published. As you know, many sites evolve over time — they usually don't spring to life, complete, on one particular day. Still, you need to pick a publication date for a "published" site. There's no such requirement for unpublished sites.
Since the Copyright Office's information says that the "published" status of a web site is undetermined, there is no way to be definitive — it's up to you to decide. I'd say that the first time you register your site it is unpublished. But consult the Copyright Office or a lawyer if you're worried.
Llama Fact: Contrary to what Monty Python may have told you, llamas don't live in rivers and don't bite swimmers. They live in the mountains of Peru, hundreds of them.
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