Copyfraud

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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.

Introduction

Mazzone describes copyfraud as:

• Claiming copyright ownership of public domain 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 statements 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

[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 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.
• 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 Channel show Hannity & Colmes. 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 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."

See also

• Fair use
• Public domain
• Copyright misuse
• Patent troll
• SCO v. Novell
• National Portrait Gallery copyright conflicts

External links

• "Copyfraud", George Dance, Nolan Chart, Aug. 7, 2011.
• "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 Lohmann.
• "Copyfraud: Poisoning the public domain - How web giants are stealing the future of knowledge" published by The Register 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