The plot has thickened in the longest-running “whodunit” in the blockchain space: Who is Satoshi Nakamoto, the pseudonymous creator of Bitcoin and author of the white paper that started it all, Bitcoin: A Peer-to-Peer Electronic Cash System? Published in 2008, Nakamoto’s paper proposed a form of electronic cash that would operate purely peer-to-peer, without the need for a trusted intermediary (such as a centralized financial institution) and in a verifiable manner that protects against the “double-spend” problem. That white paper served as the launch pad for the Bitcoin network and inspired blockchain’s proliferation. Over a decade later, the true identity of Nakamoto and whether Nakamoto is a single person or a collective remain a mystery, despite speculation and multiple claims to the digital throne.

Recently, claimants turned to intellectual property registrations in their campaigns for recognition. In April 2019, Australian entrepreneur Craig Wright (who has long claimed to be Nakamoto) sparked controversy in the blockchain community by filing two copyright registrations claiming authorship of Nakamoto’s white paper (Reg. No. TXu002136996) and the original Bitcoin source code (Reg. No. TX0008708058). In the wake of Wright’s claims, on May 24, 2019, Wei Liu, reportedly a cryptocurrency entrepreneur and a Chinese citizen with an address in California, upped the ante by also filing a copyright registration (Reg. No. TX0008726120) asserting that he had in fact authored the white paper.

The gauntlet, it seemed, had been thrown down.

Breaking his silence days later, though, Liu reportedly stated that “I filed [the registration] just to let people know anyone can register a copyright. Everyone can be Satoshi Nakamoto.”

It is true that anyone can register a copyright in a given work of authorship, even if their claim of ownership is in fact invalid, so the existence of a copyright registration does not necessarily indicate veracity. Two days prior to Liu’s registration, in light of questions surrounding Wright’s filings the U.S. Copyright Office issued a press release clarifying that “the claimant certifies as to the truth of the statements made in submitted materials. The Copyright Office does not investigate the truth of any statement made. A registration represents a claim to an interest in a work protected by copyright law, not a determination of the truth of the claims therein.” Further, where a published work is published under a pseudonym, “the Copyright Office does not investigate whether there is a provable connection between the claimant and the pseudonymous author.”

The Criminal Offenses section of the Copyright Act (17 U.S.C. § 506) is perhaps best known for criminalizing copyright infringement that is done “willfully” in certain circumstances. Clause (e) of Section 506 also states, though, that: “Any person who knowingly makes a false representation of a material fact in the application for copyright registration provided for by section 409, or in any written statement filed in connection with the application, shall be fined not more than $2,500.” In practice, however, clause (e) does not present much of a deterrent, as it is not often enforced by the government and does not create a private right of action, meaning that individuals cannot bring a lawsuit to enforce the law.

Why file a copyright registration? Aside from the potential publicity, key advantages of registering a copyright include:

  • enabling the copyright registrant to sue for infringement (registration is a prerequisite);
  • establishing prima facie evidence (albeit rebuttable) of the validity of the copyright and the facts stated in the certificate (although this benefit only applies when registration is made before or within five years of publication of the copyrighted work, so this would not apply with respect to Liu’s and Wright’s recent registrations); and
  • qualifying the copyright owner to receive statutory damages (without having to prove actual damages, which is often a difficult task), attorneys’ fees and costs, provided that the registration is made prior to infringement or within three months after the work is published.

The original Bitcoin source code was released under the open source MIT License, which gives everyone the right to “use, copy, modify, merge, publish, distribute, sublicense, and/or sell copies of” the software, making a successful copyright infringement claim relating to the use of the Bitcoin source code unlikely. Also, due to the passage of time between the publication of the white paper and the release of the original Bitcoin source code, some of the key benefits of registration do not apply. The registration of copyright in the white paper, however, opens the possibility of copyright infringement claims against infringing users of the white paper (e.g., those who create works derivative of the white paper without a license).

It will be interesting to see whether future applications for federal trademark registration of the name “Satoshi Nakamoto” (one registration and one application already exist) will factor into the debate over who Nakamoto is.

Although these copyright and trademark registrations do not conclusively reveal the identity of Satoshi Nakamoto, they demonstrate that intellectual property registrations can be leveraged as a tool in infringement litigation and in influencing narratives. They also serve as a reminder to consider the numerous potential intellectual property issues in a space that often deals in open source code, public networks and the free exchange of ideas but also intersects with proprietary code, products and services.

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Photo of Wai Choy Wai Choy

Wai Choy has deep expertise in technology, media and intellectual property-related transactions and counseling and is a partner in Proskauer’s Corporate Department, Technology, Media & Telecommunications (TMT) Group, and Blockchain & Digital Assets Group. He is recognized as a trusted advisor to asset…

Wai Choy has deep expertise in technology, media and intellectual property-related transactions and counseling and is a partner in Proskauer’s Corporate Department, Technology, Media & Telecommunications (TMT) Group, and Blockchain & Digital Assets Group. He is recognized as a trusted advisor to asset managers, operating companies and other enterprises at various stages in their development and across industries, including technology, technology-enabled services, media, financial services, e-commerce, sports and healthcare.

In the context of private equity, mergers, acquisitions and financings, Wai:

  • Structures and negotiates key transaction documents, such as purchase, merger, transition services and intellectual property license agreements;
  • Leads teams in conducting legal due diligence and provides industry-specific market insights;
  • Advises clients on technology, intellectual property, privacy and data security matters; and
  • Represents portfolio companies pre-sale or post-acquisition in their business operations, including key commercial transactions and strategic agreements.

Wai also helps operating companies navigate legal and business matters in their day-to-day business operations and leads the structuring, drafting and negotiation of a wide range of contracts, such as:

  • Service agreements for a variety of services, including outsourcing, software as a service (SaaS) and other hosted services, data analytics, digital marketing, software and website development, systems integration, technology implementation and payment processing;
  • Collaboration agreements between strategic partners for the development, manufacturing and commercialization of new technology, products and services;
  • Software license agreements and other complex intellectual property license and assignment agreements;
  • Revenue sharing, joint venture, reseller, supply, equipment purchasing, manufacturing and other types of general commercial agreements;
  • Content production, license and distribution agreements covering various business models and distribution methods;
  • In the biotech, pharma and medical device arena, agreements covering research and development collaborations, intellectual property licenses, manufacturing, supply and distribution services, sponsored research, grants, revenue sharing and other strategic partnerships among commercial entities, academic institutions and/or charitable organizations;
  • Terms of use, privacy policies and end user license agreements for websites, mobile apps and other software; and
  • Advertising-related agreements spanning digital, radio and billboard media, including programmatic advertising platform agreements, lead generation service agreements, advertising reseller and affiliate agreements, insertion orders and advertising terms and conditions.

Wai serves as Co-Editor of Proskauer’s Blockchain and the Law blog and counsels business and legal teams on blockchain and distributed ledger technology development, structuring and implementation, cryptocurrencies, non-fungible tokens (NFTs), fan tokens and other digital assets, and associated legal issues.

Prior to joining Proskauer, Wai worked in the Business & Legal Affairs departments of Marvel Studios in Los Angeles and Marvel Entertainment in New York. At the University of Pennsylvania Law School, Wai served as Senior Editor of the University of Pennsylvania Law Review and was a Levy Scholar.