This white-collar crime is estimated to cost Americans millions, yet the law does little to protect its victims. by George Dance
(libertarian)
Sunday, August 7, 2011
In the late 2000s, an American writer I know from usenet wanted to use a quote by a famous poet in a science fiction story she was writing for an upcoming anthology. So she contacted the poet's publishers, and received a bit of a shock: “They wanted about $500” for a one-time use of the quote. Needless to say, the writer passed. Of course she did not even think of using the quote without paying; as she puts it: “Had I used [that poet's] words without their permission, I could possibly have gotten my friend [the anthology publisher] and myself in a lot of trouble.”(1)
What the poet's publishers did not tell the writer was that they were charging her $500 for a quotation that, in the United States, is in the public domain. The poet had died in 1939,(2) meaning that the American copyrights on his work expired 50 years later, on January 1, 1990.
In 1998, the United States extended its term of copyright protection from 50 to 70 years after an author`s death. However, that was achieved not by retroactively slapping the new copyright onto public domain books, but by instead establishing a 20-year "freeze" during which no copyrights would expire.(3) No books that were in the public domain - including those written by the famous poet - were ever put back into copyright. HIs publishers tried to charge my acquaintance $500 to use a quotation that she and everyone else were perfectly free to use, and had been free to use for more than 15 years.
That could have been for a number of reasons. Perhaps the publishers thought that (with the new law) the poet’s work was now copyrighted in the United States until 2010. That was the case in the United Kingdom, which extended its copyright term (also from 50 to 70 years after the author’s death) in 1995.(4) In the latter country, public domain works were put back into copyright retroactively, and publishers that had legally bought new editions of works were suddenly legally unable to sell them. However, in terms of United States law, the information the publishers gave the writer was wrong. Whatever the motive, the publishers' request for payment looks like an attempt to take money from a gullible writer under a false pretence - a practice that has become known as “copyfraud.”
Brooklyn Law School professor Jason Mazzone, who coined the term “copyfraud” in a 2006 article in the New York University Law Review, defines it as “claiming falsely a copyright in a public domain work.” In his abstract (summary) of the Review article he warned:
Copyfraud is everywhere. False copyright notices appear on modern reprints of Shakespeare's plays, Beethoven's piano scores, greeting card versions of Monet's Water Lilies, and even the U.S. Constitution. Archives claim blanket copyright in everything in their collections. Vendors of microfilmed versions of historical newspapers assert copyright ownership. These false copyright claims, which are often accompanied by threatened litigation for reproducing a work without the owner's permission, result in users seeking licenses and paying fees to reproduce works that are free for everyone to use.(5)
Mazzone says that the law provides strong incentives to commit copyfraud. While under the U.S. Copyright Act “falsely claiming copyright is technically a criminal offense,” prosecutions are “extremely rare”.(5) Even in the case of a successful prosecution, the fine is extremely small: “not more than $2,500." (17 USC S, 506(c)).(6)
Indeed, copyright law in total provides little protection for users of public domain material. “The French poet Alfred de Vigny equated the expiration of copyright with a work falling ‘into the sink hole of the public domain’, and if the public domain receives any attention from intellectual property lawyers it is still treated as little more than that which is left when intellectual property rights, such as copyright, patents, and trademarks, expire or are abandoned.”(7) The intellectual property rights of users of public domain material - the rights of anyone to use the material without harassment - are not even mentioned, much less protected, in standard copyright legislation.
The result, says Mazzone, is “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.” (5)
Many such claims are never tested in a court of law. A notorious example is “Happy Birthday,” which generates $2 million a year for Warner Music and the heirs of alleged authors Patty and Mildred Hill – even though there is “little or no evidence” that the Hill sisters wrote the “Happy Birthday" lyrics. In that case, there is simply no financial incentive for any single user of the song to challenge the claim.(8)
In 2004, Ludlow Music threatened cartoon studio JibJab with a lawsuit over their film, “This Land,” which parodied and used Woody Guthrie’s song “This Land is Your Land.” The Electronic Frontier Foundation, which intervened in the case, found evidence that the U.S. copyright to Guthrie’s song had in fact expired in 1973.(9) Ludlow quickly dropped its suit: its claim of ownership was never examined by a court, and those victimized by its apparent 30-year fraud saw not a penny of restitution.
The New Opera Company was luckier. A year after agreeing to pay Tamla-Witmark Music $50,000 a year for the rights to the opera The Merry Widow, the company discovered that copyright in the opera had lapsed. So it quit paying, and was promptly sued. The opera company countersued and was awarded $50,500 in damages, a judgement that was backed up on appeal.(10)
The New Opera Company successfully sued for ‘breach of warranty of title.’ Other legal grounds for copyfraud victims to sue could include ‘fraud,’ ‘unjust enrichment,’ and ‘false advertising.’(10) However, the copyright law itself gives copyfraud victims no recourse: There is no civil penalty for copyfraud, and “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.”(5)
The threat of copyfraud is particularly ominous on the Web, where it can combine with a new phenomenon called “copyright trolling.” Copyright trolls are law firms that “acquire copyright licenses on articles and images, then go scouring the Web for infringers.... copyright trolls target small companies and individuals. Their business model is to pick on the relatively defenseless, threatening and intimidating people into paying settlements of a few thousand dollars.”(11) Faced with the threat of paying tens of thousands in damages (plus forfeiture of the domain name), many website owners are all too eager to settle for the smaller payout. Because of that, copyright trolls’ claims are rarely tested in court, and bogus copyright claims look as likely to go unexamined as valid ones.
But while copyfraud has an ominous side, it has a humorous side as well. One example is the following notice, which the blog Public Domain Sherpa recently found on a book:
All Rights Reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopy, recording, or any information storage and retrieval system, without permission in writing from the publisher. (Emphasis added.)(6)
What makes that humorous? The fact that it appeared on a printing of the United States Constitution.
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All good points. Of course, the ultimate copyfraud is copyright law itself as it is currently written, which grants a monopoly to the publisher of a writer, artist, movie, stage play, or what-have-you. The idea that Microsoft or Apple, as an example, have the right to monopolize the market on something one of their employees created is simply repugnant. If the idea is to reward the creator of the idea, then we should reward the creator of the idea, not his employer. And certainly we shouldn't be prohibiting people from using a created work by charging a ridiculously high fee for it.
Instead, require that some percentage, perhaps 10%, of the profits accrued from using a work go to the person who created it...not his employer. Don't let copyrighted works be bought and sold, because they don't really qualify as property anyway. Instead, recognize copyright for what it is...a recognition of the need to reward people who invent new stuff, instead of turning it into a way for a small minority of people with access to huge sums of money to use that new stuff to legally monopolize the marketplace.
Posted By: Bill Gee
Date: August 9, 2011 12:26:49 PM
Nice work, George. This American Life did a show recently on so-called "patent trolls" that echoes a number of your points. The short & skinny of the show is that when law firms own copyrights and patents and deliberately "troll" the Internet for people and small companies to sue, the true cost is innovation, invention, and artistic expression. How are we supposed to innovate ourselves to a brighter future when we're too afraid of getting sued to try anything new?
