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