false copyright and false authors’ rights claims

The Internet enables sharing the intelligence and creativity of persons around the globe. Along with this exciting new set of possibilities is a little recognized shadow: the increased opportunity cost of false copyright and false authors’ rights claims.

In his insightful article, Jason Mazzone examines the problem of false copyright claims with respect to U.S. copyright law. He observes:

Copyright law itself creates strong incentives for copyfraud [false copyright claims]. The limited penalties for copyfraud under the [U.S.] Copyright Act, coupled with weak enforcement of these provisions, give publishers an incentive to claim ownership, however spurious, in everything. Although falsely claiming copyright is technically a criminal offense under the Act, prosecutions are extremely rare. Moreover, the Copyright Act provides no civil penalties for claiming copyrights in public domain materials. [Mazzone, pp. 1029-30]

Mazzone cites numerous examples of what he considers to be copyfraud. One gross, but not unusual, example that he cites is a popular pocket version of the U.S. Constitution. It includes a copyright notice and the admonition “[n]o part of this publication may be reproduced or transmitted in any form or by any means…without permission in writing from the publisher.”

The aggregate cost of copyfraud has probably increased greatly over the past decade. Using small quotes from a copyrighted text to document, illustrate, or advance discussion of a related issue is widely recognized to be fair use. Bloggers do this extensively. Falsely asserting that such use is not permitted probably doesn’t have much effect. Other forms of textual copyfraud may have significant cost. But fair use of copyrighted images, audio, and video is much less legally clear and publicly well-understood than fair use of copyrighted text. Moreover, over the past decade there has been an astonishing expansion of possibilities for creating and sharing non-textual works. The cost of copyfraud with respect to images, audio, and video has increased with this expansion. The cost of this type of copyfraud has probably become larger than the cost of copyfraud with respect to text.

Getting copyright and authors’ rights to serve better the common good requires more attention to the economic and legal implications of false claims.

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