Copyfraud
Encyclopedia
Copyfraud is a term used by Jason Mazzone, an Associate Professor of Law at Brooklyn Law School
, to describe the use of false claims of copyright
to attempt to control works not under one's legal control.
Mazzone argues that copyfraud is usually successful because there are few and weak laws criminalizing false statement
s about copyrights and lax enforcement of such laws and because few people are competent enough to give legal advice
on the copyright status of commandeered material.
In the U.S. Copyright Act, only two sections deal with improper assertions of copyright on public domain materials: Section 506(c) criminalizes fraudulent uses of copyright notices and Section 506(e) punishes knowingly making a false representation of a material fact in the application for copyright registration. Section 512(f) additionally punishes using the safe harbor
provisions of the Digital Millennium Copyright Act to remove material the issuer knows is not infringing. But apart from these two sections, the U.S. Copyright Act does not provide for any civil penalties for claiming copyrights on public domain materials, nor does the Act prescribe relief for individuals who refrain from copying or pay for copying permission to an entity that engages in copyfraud.
Section 202 of the Australian Copyright Act 1968, which imposes penalties for 'groundless threats of legal proceedings', provides a cause of action of any false claims of copyright infringement. This should include false claims of copyright ownership of public domain material, or claims to impose copyright restrictions beyond those permitted by the law.
Legal scholar Paul J. Heald, in a 1993 paper published in the Journal of Intellectual Property Law, explored the possibility that payment demands for spurious copyrights might be resisted under a number of commerce-law theories: (1) Breach of warranty of title; (2) unjust enrichment; (3) fraud, and (4) false advertising. Heald cited a case in which the first of these theories was used successfully in a copyright context: Tams-Witmark Music Library v. New Opera Company. In this case
Brooklyn Law School
Brooklyn Law School is a law school located in Brooklyn Heights, in Downtown Brooklyn, New York.-History:Founded in 1901 by William Payson Richardson and Norman P. Heffley, Brooklyn Law School was the first law school on Long Island. Using space provided by Heffley’s business school, the law...
, to describe the use of false claims of copyright
Copyright
Copyright is a legal concept, enacted by most governments, giving the creator of an original work exclusive rights to it, usually for a limited time...
to attempt to control works not under one's legal control.
Introduction
Mazzone describes copyfraud as:- Claiming copyright ownership of public domainPublic domainWorks are in the public domain if the intellectual property rights have expired, if the intellectual property rights are forfeited, or if they are not covered by intellectual property rights at all...
material. - Imposition by a copyright owner of restrictions beyond what the law allows.
- Claiming copyright ownership on the basis of ownership of copies or archives.
- Claiming copyright ownership by publishing a public domain work in a different medium.
Mazzone argues that copyfraud is usually successful because there are few and weak laws criminalizing false statement
False statement
A false statement is a statement that is either willfully or unknowingly untrue. Though the word fallacy is often used as a synonym for false statement, this is not what is meant by "fallacy" in logic or most formal contexts....
s about copyrights and lax enforcement of such laws and because few people are competent enough to give legal advice
Legal advice
In the common law, legal advice is the giving of a formal opinion regarding the substance or procedure of the law by an officer of the court , ordinarily in exchange for financial or other tangible compensation...
on the copyright status of commandeered material.
In the U.S. Copyright Act, only two sections deal with improper assertions of copyright on public domain materials: Section 506(c) criminalizes fraudulent uses of copyright notices and Section 506(e) punishes knowingly making a false representation of a material fact in the application for copyright registration. Section 512(f) additionally punishes using the safe harbor
Online Copyright Infringement Liability Limitation Act
The Online Copyright Infringement Liability Limitation Act is United States federal law that creates a conditional safe harbor for online service providers and other Internet intermediaries by shielding them for their own acts of direct copyright infringement as well as...
provisions of the Digital Millennium Copyright Act to remove material the issuer knows is not infringing. But apart from these two sections, the U.S. Copyright Act does not provide for any civil penalties for claiming copyrights on public domain materials, nor does the Act prescribe relief for individuals who refrain from copying or pay for copying permission to an entity that engages in copyfraud.
Section 202 of the Australian Copyright Act 1968, which imposes penalties for 'groundless threats of legal proceedings', provides a cause of action of any false claims of copyright infringement. This should include false claims of copyright ownership of public domain material, or claims to impose copyright restrictions beyond those permitted by the law.
Legal scholar Paul J. Heald, in a 1993 paper published in the Journal of Intellectual Property Law, explored the possibility that payment demands for spurious copyrights might be resisted under a number of commerce-law theories: (1) Breach of warranty of title; (2) unjust enrichment; (3) fraud, and (4) false advertising. Heald cited a case in which the first of these theories was used successfully in a copyright context: Tams-Witmark Music Library v. New Opera Company. In this case
[A]n opera company purchased the right to perform the opera The Merry Widow for $50,000 a year. After a little more than a year of performances, the company discovered that the work had passed into the public domain several years before due to a failure on the part of the copyright holder to renew the copyright. It ceased paying royalties, and after being sued by the owner of the abandoned copyright, counterclaimed for damages in the amount paid to the owner on a breach of warranty/failure of consideration theory. The trial court awarded the opera company $50,500 in damages, and the court of appeals affirmed the judgement, finding that The Merry Widow "passed, finally, completely and forever into the public domain and became freely available to the unrestricted use of anyone....New Opera's pleas of breach of warranty and total failure of consideration were established, and by undisputed proof."
Examples
- In 1984, Universal Studios sued NintendoUniversal City Studios, Inc. v. Nintendo Co., Ltd.Universal City Studios, Inc. v. Nintendo Co., Ltd. was a case heard by the United States District Court for the Southern District of New York by Judge Robert W. Sweet. In their complaint, Universal Studios alleged that Nintendo's video game Donkey Kong was a trademark infringement of King Kong, the...
to stop them from profiting on their new Donkey Kong arcade gameDonkey Kong (video game)is an arcade game released by Nintendo in 1981. It is an early example of the platform game genre, as the gameplay focuses on maneuvering the main character across a series of platforms while dodging and jumping over obstacles. In the game, Jumpman must rescue a damsel in distress, Lady, from a...
, on the basis that Donkey Kong was too similar to King KongKing KongKing Kong is a fictional character, a giant movie monster resembling a gorilla, that has appeared in several movies since 1933. These include the groundbreaking 1933 movie, the film remakes of 1976 and 2005, as well as various sequels of the first two films...
, which they owned. In the end, Nintendo's lawyers showed that Universal had argued against RKO GeneralRKO GeneralRKO General was the main holding company through 1991 for the noncore businesses of the General Tire and Rubber Company and, after General Tire's reorganization in the 1980s, GenCorp. The business was based around the consolidation of its parent company's broadcasting interests, dating to 1943, and...
in 1975 that King Kong was in the public domain. Nintendo also won the appeal, a counterclaim, and a further appeal. - In 2006, Michael Crook filed fraudulent DMCA claims against sites critical of him. The material he claimed copyright on was screenshots of his appearance on the Fox News ChannelFox News ChannelFox News Channel , often called Fox News, is a cable and satellite television news channel owned by the Fox Entertainment Group, a subsidiary of News Corporation...
show Hannity & ColmesHannity & ColmesHannity & Colmes was a live television show on Fox News Channel in the United States, hosted by Sean Hannity and Alan Colmes, who respectively presented a conservative and liberal perspective. The series premiered on October 6, 1996, and the final episode aired on January 9, 2009. It was the...
. In a March 2007 settlement, Crook agreed to withdraw the claims, apologize to his victims, and to limit his future copyright claims to material which he was legally allowed to file claims for. - The American Antiquarian SocietyAmerican Antiquarian SocietyThe American Antiquarian Society , located in Worcester, Massachusetts, is both a learned society and national research library of pre-twentieth century American History and culture. Its main building, known also as Antiquarian Hall, is a U.S. National Historic Landmark...
web site states that images of its archived printed materials from the 18th and 19th centuries (now automatically in the public domain due to age) "must be licensed by the society in consequence of its proprietary rights."
See also
- Fair useFair useFair use is a limitation and exception to the exclusive right granted by copyright law to the author of a creative work. In United States copyright law, fair use is a doctrine that permits limited use of copyrighted material without acquiring permission from the rights holders...
- Public domainPublic domainWorks are in the public domain if the intellectual property rights have expired, if the intellectual property rights are forfeited, or if they are not covered by intellectual property rights at all...
- Copyright misuseCopyright misuseCopyright misuse is an equitable defense against copyright infringement in the United States. Under this defense, a copyright infringer may avoid infringement liability if the copyright holder has engaged in abusive or improper conduct in exploiting or enforcing the copyright...
- Patent trollPatent trollPatent troll is a pejorative but questioned term used for a person or company who is a non-practicing inventor, and buys and enforces patents against one or more alleged infringers in a manner considered by the target or observers as unduly aggressive or opportunistic, often with no intention to...
- SCO v. NovellSCO v. NovellSCO v. Novell was a United States lawsuit in which the The SCO Group claimed ownership of the source code for the Unix operating system, including portions of Linux...
- National Portrait Gallery copyright conflictsNational Portrait Gallery copyright conflictsIn July 2009, lawyers representing the National Portrait Gallery of London sent a demand letter threatening possible legal action for alleged copyright infringement, to an editor-user of the free content multimedia repository Wikimedia Commons, a project of the Wikimedia Foundation...
External links
- Copyfraud and Other Abuses of Intellectual Property Law Homepage
- "Too Quick to Copyright" Legal Times article by Jason Mazzone vol.26, no.46
- "Throwing More Light on False Copyright Claims" Hellenic Historical and Genealogical Association article by James F. Ramaley, PhD
- Carol Ebbinghouse, "The Sidebar: Copyfraud and Public Domain Works," Searcher: The Magazine for Database Professionals, vol. 16, no. 1, Jan 2008, page 40-62 article available in hardcopy only
- Copyfraud Electronic Frontier Foundation blog post by Fred von LohmannFred von LohmannFred von Lohmann is an American lawyer practicing as a senior copyright counsel at Google.Before joining Google in July 2010, Fred was a senior staff attorney with the Electronic Frontier Foundation, specializing in intellectual property matters. In that role, he has represented programmers,...
. - "Copyfraud: Poisoning the public domain - How web giants are stealing the future of knowledge" published by The RegisterThe RegisterThe Register is a British technology news and opinion website. It was founded by John Lettice, Mike Magee and Ross Alderson in 1994 as a newsletter called "Chip Connection", initially as an email service...
26 June 2009 - Paul J. Heald, "Payment Demands for Spurious Copyrights: Four Causes of Action", Journal of Intellectual Property Law, vol. 1, 1993-1994, p. 259