Copyfraud

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Copyfraud is a form of copyright misuse. The term was coined by Jason Mazzone, a Professor of Law at Brooklyn Law School, to describe situations where individuals and institutions illegally claim copyright ownership of content in the public domain and other forms of overreaching by publishers and others who claim rights that the law does not give them; these actions carry little or no oversight by authorities or legal consequences. Mazzone pointed out ways in which copyright overreaching interferes with the public's legitimate use and reproduction of works, discourages innovation and free speech, and creates costs.[1]:1028

Definition[edit]

Mazzone describes copyfraud as:

  • Claiming copyright ownership of public domain material.[1]:1038
  • Imposition by a copyright owner of restrictions beyond what the law allows.[1]:1047
  • Claiming copyright ownership on the basis of ownership of copies or archives.[1]:1052
  • Attaching copyright notices to a public domain work converted to a different medium.[1]:1044–45

Mazzone argues that copyfraud is usually successful because there are few and weak laws criminalizing false statements about copyrights, there is lax enforcement of such laws, and few people are competent to give legal advice on the copyright status of commandeered material.[1]:1029–30

Wikimania 2012 graphic for a lecture about the subject

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.[1]:1036 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.[1]:1030

Section 202 of the Australian Copyright Act 1968, which imposes penalties for "groundless threats of legal proceedings", provides a cause of action in that country for 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.

American legal scholar Paul J. Heald, in a 1993 paper published in the Journal of Intellectual Property Law,[2] explored the possibility that payment demands for spurious copyrights might be resisted in civil lawsuits 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.[3] 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."

Notable cases[edit]

  • In 1984, Universal Studios sued Nintendo to stop them from profiting on their new Donkey Kong arcade game, on the basis that Donkey Kong was too similar to King Kong, which they owned. In the end, Nintendo's lawyers showed that Universal had argued against RKO General in 1975 that King Kong was in the public domain. Nintendo also won the appeal, a counterclaim, and a further appeal.[4][5][6]
  • In 2006, Michael Crook filed false DMCA claims against websites, claiming copyright on screenshots of his appearance on the Fox News Channel show Hannity & Colmes. In a March 2007 settlement, Crook agreed to withdraw the claims, "take a copyright law course and apologize for interfering with the free speech rights of his targets."[7][8]
  • The American Antiquarian Society 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."[1]:1053 [9]
  • The Arthur Conan Doyle estate was accused of copyfraud by Leslie Klinger in 2013 in a lawsuit in Illinois.[10][11]
  • In 2013, Good Morning to You Productions, a documentary film company, sued Warner/Chappell Music for falsely claiming copyright to the song "Happy Birthday to You".[12] The lawsuit has continued in federal court in California as a putative class action under the name Rupa Marya, et al. v. Warner/Chappell Music.[13][14]

See also[edit]

References[edit]

  1. ^ a b c d e f g h i Mazzone, Jason (2006). "Copyfraud". New York University Law Review 81 (3): 1026. Archived from the original on February 26, 2011. 
  2. ^ Heald, Paul J. "Payment Demands for Spurious Copyrights: Four Causes of Action", Journal of Intellectual Property Law, vol. 1, 1993–1994, p. 259
  3. ^ 81 N.E. 2d 70 (NY 1948)
  4. ^ United States Court of Appeals, Second Circuit (October 4, 1984). Universal City Studios, Inc. v. Nintendo Co., Ltd.
  5. ^ United States Court of Appeals, Second Circuit (July 15, 1986). Universal City Studios, Inc. v. Nintendo Co., Ltd.
  6. ^ Reyners, Conrad (March 17, 2008). "The plight of Pirates on the information superwaves". Salient. Retrieved 2012-09-07. 
  7. ^ "Diehl v. Crook | Electronic Frontier Foundation". Eff.org. Retrieved 2009-07-19. 
  8. ^ Cobia, Jeffrey. "The DMCA Takedown Notice Procedure: Misues, Abuses, and Shortcomings of the Process", Minn. J. L. SCI. & Tech. 2009;10(1):387-411
  9. ^ "Rights and Reproductions at the American Antiquarian Society". Americanantiquarian.org. 2009-04-16. Retrieved 2009-07-19. 
  10. ^ Bogle, Ariel. "Sherlock Holmes estate charged with 'copyfraud'", Melville House, March 11, 2013
  11. ^ 3 DAYS (2013-09-13). "Conan Doyle Estate: Denying Sherlock Holmes Copyright Gives Him 'Multiple Personalities'". Hollywoodreporter.com. Retrieved 2013-09-17. 
  12. ^ Masnick, Mike. "Lawsuit Filed to Prove Happy Birthday Is in The Public Domain; Demands Warner Pay Back Millions of License Fees", Techdirt.com, June 13, 2013
  13. ^ Masnick, Mike. "Warner Music Reprising the Role of the Evil Slayer of the Public Domain, Fights Back Against Happy Birthday Lawsuit", Techdirt.com, September 3, 2013
  14. ^ Johnson, Ted. "Court Keeps Candles Lit on Dispute Over 'Happy Birthday' Copyright", Variety, October 7, 2013

External links[edit]