Copyfraud

Reproductions of public domain works by artists such as van Gogh are often printed by museums with a false copyright notice.^[1]:1042

Copyfraud refers to false copyright claims by individuals or institutions with respect to content that is in the public domain. Such claims are wrongful, at least under U.S. and Australian copyright law, because material that is not copyrighted is free for all to use, modify and reproduce. Copyfraud also includes overreaching claims by publishers, museums and others, as where a legitimate copyright owner knowingly, or with constructive knowledge, claims rights beyond what the law allows.

The term "copyfraud" was coined by Jason Mazzone, a Professor of Law at the University of Illinois.^[2][3] Because copyfraud carries little or no oversight by authorities and few legal consequences, it exists on a massive scale, with millions of works in the public domain falsely labelled as copyrighted. Payments are therefore unnecessarily made by businesses and individuals for licensing fees. Mazzone states that copyfraud stifles valid reproduction of free material, discourages innovation and undermines free speech rights.^[1]:1028[4] Other legal scholars have suggested public and private remedies, and a few cases have been brought involving copyfraud.

Definition

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}

Analysis

Wikimania 2012 graphic for a lecture about the subject

Mazzone argues that copyfraud is usually successful because there are few and weak laws criminalizing false statements about copyrights, lax enforcement of such laws, few people who are competent to give legal advice on the copyright status of commandeered material, and few people willing to risk a lawsuit to resist the fraudulent licensing fees:

Copyright law itself creates strong incentives for copyfraud. The Copyright Act provides for no civil penalty for falsely claiming ownership of public domain materials. There is also no remedy under the Act for individuals who wrongly refrain from legal copying or who make payment for permission to copy something they are in fact entitled to use for free. While falsely claiming copyright is technically a criminal offense under the Act, prosecutions are extremely rare. These circumstances have produced fraud on an untold scale, with millions of works in the public domain deemed copyrighted, and countless dollars paid out every year in licensing fees to make copies that could be made for free. Copyfraud stifles valid forms of reproduction and undermines free speech.^[1]

Mazzone continues: "[C]opyfraud upsets the constitutional balance and undermines First Amendment values", chilling free expression and stifling creativity.^{[1]:1029–30}

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 the U.S. Copyright Act does not expressly provide for any civil actions to remedy claims of copyright 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 Professor Peter Suber argued in a 2011 article that the United States should "make the penalties for copyfraud (false claim of copyright) at least as severe as the penalties for infringement; that is, take the wrongful decrease in the circulation of ideas at least as seriously as the wrongful increase in the circulation of ideas."^[5]

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 includes false claims of copyright ownership of public domain material, or claims to impose copyright restrictions beyond those permitted by the law.

Copies of public domain books hundreds of years old, such as this one, are often sold under a claim of copyright by the new publisher.^[6]

American 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 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.^[7] 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.^[8] 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."

Cory Doctorow, in a 2014 Boing Boing article, noted the "widespread practice of putting restrictions on scanned copies of public domain books online" and the many "powerful entities who lobby online services for a shoot now/ask questions later approach to copyright takedowns, while the victims of the fraud have no powerful voice advocating for them."^[9] Professor Tanya Asim Cooper wrote that Corbis's claims to copyright in its digital reproductions of public domain art images are "spurious ... abuses ... restricting access to art that belongs to the public by requiring payment of unnecessary fees and stifling the proliferation of new, creative expression, of 'Progress' that the Constitution guarantees.^[10] Charles Eicher pointed out the prevalence of copyfraud with respect to Google Books, Creative Commons' efforts to "license" public domain works, and other areas. He explained one of the copyfraudsters' unscrupulous methods: After you scan a public domain book, "reformat it as a PDF, mark it with a copyright date, register it as a new book with an ISBN, then submit it to Amazon.com for sale [or] as an ebook on Kindle. Once the book is listed for sale ... submit it to Google Books for inclusion in its index. Google earns a small kickback on every sale referred to Amazon or other booksellers."^[11] Eicher suggests several remedies:

Government should act [by using its regulatory power] to secure its authority over copyrights. ... Private interests should be prohibited from exerting pseudo-regulatory powers. ... Anti-trust actions could break up the newly forming publishing cartel [of Google and Amazon] before it becomes entrenched. ... Google's orphan books settlement should be given further judicial review and invalidated. ... Google and Amazon should be prohibited from offering books with false copyrights, the public should be empowered to flag copyfraud books and issue a take-down notice.^[11]

This image from The White House's flickr account is in the public domain because it is a US federal government work. Yet, it bears a claim that the "photograph may not be manipulated in any way".^[12]

Notable cases and examples

• In 1984, Universal Studios sued Nintendo to stop Nintendo from profiting on its Donkey Kong arcade game, claiming that Donkey Kong was too similar to Universal's King Kong game. Nintendo's lawyers showed that Universal had successfully argued, in 1975 legal proceedings against RKO General, that King Kong was in the public domain. Nintendo also won the appeal, a counterclaim, and a further appeal.^[13][14][15]
• In 2006, Michael Crook filed false Digital Millennium Copyright Act (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".^[16][17]
• In 2013, the Arthur Conan Doyle estate was accused of copyfraud by Leslie Klinger in a lawsuit in Illinois for demanding that Klinger pay a license fee for the use in his book of the character Sherlock Holmes and other characters and elements in Conan Doyle's works published before 1923. The US Supreme Court agreed with Klinger, ruling that these characters and elements are in the American public domain.^[18][19]
• 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".^[20][21] In September 2015, the court granted summary judgement ruling that Warner/Chappell's copyright claim was invalid, and that the song is in the public domain, except for Warner/Chappell's specific piano arrangements of the song.^[22][23]
• In 2015, the American Antiquarian Society, previously criticized for claiming propriety rights over its collections material in the public domain, updated its website to reflect a rights and reproductions policy that makes no claims to copyright. The AAS allows users to "freely download and use any of [the] images" on its online image database, and it does not require a user to cite the library as a source. Additionally, the AAS now allows unrestricted photography within its reading room.^{[1]:1053 [24]}
• In 2015, two people obtained a 3D scan of the famous Bust of Nefertiti displayed at the Neues Museum in Berlin. They released the data on the internet, allowing the public to copy the bust. Their aim was to defy "a culture of 'hyperownership'" and "the strict limitations that museums often place on sharing the informational data regarding their collection with the public. ... Even when their cases lack legal support, museums and governments can try to use copyright or contract law to restrict access to cultural materials, to claim that they own all of the data and images outright, or to use digital rights management technology to lock up their data altogether. The result is 'copyfraud'".^[3]
• In 2015, Lenz v. Universal Music Corp. affirmed a holding that copyright owners must consider fair use in good faith before issuing a takedown notice for content posted on the internet.^[25][26] Boing Boing considers such uses of the DMCA to be "bogus complaints" a kind of copyfraud.^[27] Improper claims of copyright with respect to works used under a free license, such as one by German royalty collector GEMA in 2011, have been termed copyfraud.^[28]
• In 2015 Ashley Madison, which issued numerous DMCA notices to try to stop journalists and others from using public domain information. Sony did the same in 2014.^[29]
• In 2016, photographer Carol M. Highsmith sued two stock photography organizations, Getty Images and Alamy, for $1.35 billion over their attempts to assert copyright over, and charge fees for the use of, 18,755 of her images which she releases royalty-free. Getty had sent her a bill for one of the images, which she used on her own website.^[30][31]

See also

• Copyright misuse
• Fair use
• National Portrait Gallery and Wikimedia Foundation copyright dispute
• Patent troll
• SCO Group, Inc. v. Novell, Inc.

References

Further reading

• Mazzone, Jason (2011). Copyfraud and Other Abuses of Intellectual Property Law. Stanford Law Books. ISBN 0804760063. 

External links

Wikimedia Commons has media related to Copyfraud.

• Copyfraud examples, Techdirt
• Ebbinghouse, Carol. "'Copyfraud' and Public Domain Works", Searcher: The Magazine for Database Professionals, vol. 16, no. 1, January 2008, pp. 40–62
• "How Wikimedia defends the public domain against Copyfraud (France 2015)
• same (France 2016)
• same (France 2016)
• "Possession is 99% of the Law: 3D Printing, Public Domain Cultural Artifacts & Copyright", USC Law School (2016)