Copyfraud: making the case for actual copyright enforcement

Jason Mazzone's Copyfraud and Other Abuses of Intellectual Property Law isn't just another book about how the expansion of copyright and trademark law has harmed innovation, free speech and creativity. Instead, Mazzone -- the youngest faculty member in Brooklyn law school's history to hold an endowed chair -- argues that the real problem is that copyright law isn't enforced enough. Mazzone persuasively argues that the room that copyright makes for public expression and innovation -- through fair use and other defenses -- offer exactly the kind of safety valve that copyright's monopoly on expression demands.

However, as Mazzone points out, there is virtually no penalty for unjustly claiming that these public freedoms don't exist. The entertainment industry can slather its products in dire warnings that ignore fair use and make misleading threats for users who lend, re-use or sample the media they buy. They can demand licenses for minimal uses, for works in the public domain, and for fair uses. They can assert absurd trademark claims. They can threaten baseless lawsuits by the bushel-load -- and all without any risk to them.

Mazzone's point is that without a robust set of regulations and punishments for companies that claim to own what rightfully belongs to the public, this will only expand. After all, falsely claiming that your public domain sheet music can't be copied by a choir means that you get to sell a lot of copies of your sheet music -- absent a penalty for such a fraudulent claim, who would abstain from it?

Mazzone writes with the clarity of Lessig, Samuelson and Boyle -- the gold standards for public, lay-friendly copyright writing -- and uses infamous cases to make his point, from the scam that cost George Clinton his copyrights to the fraudulent claims made by Mattel against artists who make fun of Barbie. He unpicks the intricate tangle of state and federal law, precedent and norms, and sets out a series of problems and then proposes a set of sane, implementable solutions that could be turned into law today.

By offering simple solutions to these problems, Mazzone shows that the theft of the public domain isn't due to the impossibility of getting the law right. Rather, it is a combination of depraved indifference by lawmakers and unchecked greed by corporations. Reading Mazzone gives you the idea that the technical question of solving copyright is actually rather simple -- though finding the political will may prove much harder.

Copyfraud and Other Abuses of Intellectual Property Law


  1. Name one federal regulatory agency that hasn’t been corrupted by a revolving employment door between the agency and the regulated businesses.

    And I also have no faith in the “Justice” Dept.

    But it’s a nice idea in theory.

  2. The summary makes reference to “…the fraudulent claims made by Mattel against artists who make fun of Barbie.”

    At one time, my sister was one of the biggest dealers of vintage Barbie in the U.S.A.  Thus, I have some first-hand knowledge of this topic.  Mattel has hurt some good people who did harmless things, has been uneven in their actions (you should see some of the stuff people got away with back in the 1960s that Mattel would go bonkers about if it happened today), and has managed to directly threaten my sister (to her economic detriment) twice.  It’s nice to hear that someone may have done a decent job of documenting Mattels bad actions and putting them into a larger context.  I’ll buy the book just to read those parts then pass it along to sis. 

  3. Note that fair use and other lienient “concessions” of copyright aren’t “rights”, they’re allowances. Tolerated non persecuted uses. This apparent paradox is because copyright is the defined “right” in this case, the “right” is to restrict, and fair use is the exemption of this right. Therefore, there is no such thing as a “right to fair use”, only a “right to restrict copies with exceptions”.

    The main problem is that we indeed have not gotten the law right, and do not have the exceptions of the restriction of copying known as “copyright” be a right onto themselves.

    Copyright, as the right to restrict copies, is also not concerned with peting out punishment for falsely claiming it. It leaves the regulation of this aspect up to the civil courts in case anybody complains. The decisions of this court will not “change” copyright, because the complaint being resolved isn’t about copyright, but about improper use of the law, therefore copyright remains “untarnished” by any decision of its improper application.

    Furthermore, since fair use is not a right, it cannot be enforced. This means that people who exercise copyright (the restricting of copying) are not required to respect fair use when they choose how to distribute their content. Which is why DRM is not illegal, because it does not violate any existing right.

    We’ve gotten the law so badly ass backwards it’s not even funny anymore. In my opinion copyright is so borked, and unfixable and damned to eternal development hell, that it’s not worth the bother. Either we give it up voluntarily, or it’ll auto-self-destruct in due course. Either way, copyright is a dead-end back alley of law destined to go nowhere useful anymore.

    1. Enforcing the rules is apparently vastly more palatable to the human psyche than thinking about the rules.

  4. “Reading Mazzone gives you the idea that the technical question of solving copyright is actually rather simple — though finding the political will may prove much harder.”

    This is true of almost every broken system that we come up against today. The problem is almost never an insurmountable technical obstacle. Rather, it is nearly always a problem of political will, entrenched social dynamics, and greed.

    The issue isn’t how to fix copyright (though I’m sure Mazzone has some clever ideas), or patents, or healthcare, or banking, or even how to prevent starvation. There are all kinds of innovative ideas for fixing these problems. The issue is that nobody in power wants to change, because those in power directly benefit from the (increasingly blatant) corruption.

    The only issue that matters is how to replace corrupt systems with healthy ones.

  5. The public and common good are sinking fast. It’s all about money, money, money. YouTube has automated false rights claims of audio material. I have had several videos using the same audio (Sousa’s “Stars & Stripes Forever” by the U.S. Army Band), claimed by an outfit called “rumblefish”. They always relinquish claims after I dispute this, but YOuTube continues to allow them to make these same false claims. But of course, youtube and rumblefish are colluding to make money from this scam. Helloooo0O Class Action lawsuit?

  6. I would actually argue that human nature means it is impossible for it to be balanced. Even if you bring the copyright-handcuffs down to unmalignant levels, the next generation will forget what their previous generation  had fought for through tears & blood,  and then, sooner than u realize, the corporations will hijack policy-making (again) and cause copyright to become the tyranny it has now become.

    The only solution is to just kill it.

    History shows that human beings don’t deserve to have this kind of power. Everytime they get it, the media lobbies put their grubby hands on congress and then just fuck it up. You can’t balance it because the Human Condition is just THIS shit.

    Human beings don’t deserve to be beneficiaries of this set of economic laws known as copyright.

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