False copyright claims are a lucrative business for sleazoids

Boing Boing reader Sibyl alerted us to this 75-page article on "copyfraud," by Jason Mazzone. Assistant Professor of Law, Brooklyn Law School.

From the abstract:

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.

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.

Link

• [misadventures714]

  A bit of off-point gentle humor…

  This document, by way of it’s extremely generous footnotes, looks almost like a parody of itself…and numerous other “whitepapers” and RAND reports, etc.

  Three lines of text — and the rest of the page taken up by foootnotes.

• [Dorange_08]

  I’m an MLIS student in archives, and here’s the basic idea behind archival copyright. I apologize if I’m not more clear, but cold medication does not do a whole lot for coherence.

  Because of the nature of the items contained in archives, copyright remains a huge deal. It is related to the manner in which the materials are passed into the archive’s care. Because the creator of the material held the copyright, it is partially given to the archive when the creator signs a donor agreement. The archive is then charged with the care and keeping of those materials, and must do what they can to protect their donors, and protect their donors rights.

  It is easier for archives, many of which do not have the funds to hire a lawyer to survey their collections in great detail, to simply issue the blanket copyright and not get in trouble because of their copyrighted materials.

• [Halloween Jack]

  I think that the whole premise behind copyrighting editions of public domain works is that the publishers need to be able to recoup the costs of typesetting and error checking Beowulf or Beethoven’s 9th. This leads, unfortunately, to some publishers (map publishers, particularly) deliberately introducing errors into their publications as a sort of low-tech watermarking. In other words, if you wanted to make your own map, which is a representation of something that exists, you can be sued for including something that doesn’t exist.

• [Anonymous]

  interesting article, author was my con law prof, really smart guy…

• [BubbleDragon]

  This is one of my pet peeves. In fact, one website in particular has been getting under my skin with a similar copyfraud note:

  http://snowflakebentley.com/

• [bukuman]

  IANAL but I don’t think spell checking, or spell correcting, or even miss-spelling is enough to make a new ‘work’ from a copyright perspective regardless of the ‘effort’ it took. I believe there has to be substantial creative transformation before you can legitimately claim a copyright.

  If you make a new translation that is copyrightable. Another strategy is to add ‘indroductions’ or background material, or add lots of footnotes and annotations. All that new material is copyrightable but not the original public domain ‘core’ of the work – but they just claim the whole thing.

• [Michael R. Bernstein]

  Is there a DMCA exception for removing DRM on otherwise public domain works?

  Although Amazon does not seem to be claiming copyright on the public domain works it gets from Project Gutenberg, they *are* wrapped in noxious DRM.

• [bukuman]

  This is a good FAQ http://www.chillingeffects.org/anticircumvention/faq.cgi

  They list 7 exceptions to the anit-circumvention laws:

  * Libraries, archives, and educational institutions for acquisition purposes; [1201(d)]

  * Law enforcement and intelligence gathering activities; [1201(e)]

  * Reverse engineering in order to develop interoperable programs; [1201(f)]

  * Encryption Research; [1201(g)]

  * Protecting minors from material on the Internet; [1201(h)]

  * Protecting the privacy of personally identifying information; [1201(i)]

  * Security Testing [1201(j)]

  Somehow the lawmakers left out ‘gaining access to works you would otherwise have the rights to’. Breaking the anit-circumvention laws have some pretty heavy penalties.