Candidate Sued By Fox Notes That Much Of The Content Is Public Domain

from the keystone-copyright-cops dept

We recently wrote about News Corp.’s slightly odd decision to sue a political candidate, Robin Carnahan, who used a clip from Fox News (of Chris Wallace attacking Carnhan’s opponent, Roy Blunt). Carnahan has hit back, and beyond just arguing the obvious fair use defense (which seems like it should win), Carnahan points out that, first, Fox failed to register the copyright on the 2006 program until after it filed the lawsuit. As has been discussed here many times, while you get copyright automatically, if you want to sue over it, you generally have to have registered the copyright (the law is a little hazy here). Even worse, Carnahan’s lawyers point out that a large segment of the clip that was used actually comes from C-SPAN, whose works are automatically put into the public domain. In other words, Carnahan’s lawyers appear to be accusing Fox of copyfraud, in claiming copyright over public domain materials. If this gets anywhere, Fox and News Corp. may end up regretting filing this lawsuit quite a bit…

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Companies: news corp

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Comments on “Candidate Sued By Fox Notes That Much Of The Content Is Public Domain”

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21 Comments
Bill W (profile) says:

+1

@Pixelation your comment echoes my own but you beat me to it.

One additional thought, though … to the the supporters of never ending copyright, May your wishes be granted and come back to bite you in the ass!

Unfortunately, there are too many incidences of “collateral damage” that would occur (there are enough already!) to have that wish be a True Wish.

Anonymous Coward says:

Re: What's hazy?

Copyright is granted at the time of fixation. To my knowledge registration has never been a condition of copyright enforcement.

True, the work is copyrighted, but to bring an action for infringement you need to register the copyright first:

Section 411. Registration and civil infringement actions (a) Except for an action brought for a violation of the rights of the author under section 106A(a), and subject to the provisions of subsection (b), no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title.

http://www.copyright.gov/title17/92chap4.html#411

That exception in Section 106A(a) has to do with attribution and integrity, and it doesn’t apply here.

Another thing to keep in mind is that whether or not statutory damages and attorneys’ fees are available depends on when the work was registered.

This is explained in Section 412: http://www.copyright.gov/title17/92chap4.html#412

Chris-Mouse (profile) says:

What's the cost of copyfraud?

What exactly would be the punishment of someone found to be falsely claiming a copyright on material that’s in the public domain? I live in Canada, and a quick search of the Canadian Copyright Act does not turn up any mention of ‘public domain’, ‘false’ or ‘mistake’ anywhere in the text. This leads me to think that the worst the legal system here would do to a false copyright claim would be to dismiss the case.
If that really is true, then there really isn’t much of an incentive for companies to check carefully before accusing someone of copyright infringement.

Anonymous Coward says:

Re: What's the cost of copyfraud?

The justice department is only concerned in enforcing the law in a specific way, so there will be no consequences for people doing copyfraud even though it is a crime under the law and can get people in jail.

Selective enforcement of the law is bad because it minimizes the bad on those laws creating a system ripe for abuse.

Karl (profile) says:

Unregistered copyrights

To be clear: copyright is automatic. However, copyrights that are unregistered are severely limited.

You can only sue for two things: an injunction against future use, and actual damages (to be proven in court). You are ineligible for statutory damages, and you aren’t awarded legal fees.

Obviously this only applies to the Fox News footage (which is probably fair use anyway). It doesn’t apply to the C-SPAN footage.

If they are trying to sue over the C-SPAN footage, that would indeed be copyfraud. Unfortunately, the penalties for copyfraud are far less than the penalties for copyright infringement (which doesn’t make any sense at all).

Anonymous Coward says:

Re: Unregistered copyrights

To be clear: copyright is automatic. However, copyrights that are unregistered are severely limited. You can only sue for two things: an injunction against future use, and actual damages (to be proven in court). You are ineligible for statutory damages, and you aren’t awarded legal fees.

True, but you still need to register the copyright before you can file suit. See: http://www.copyright.gov/title17/92chap4.html#411

shutslar (profile) says:

Time for the old fashion process

I have pretty much tired of the ease of suing in a court of law when you feel you have been cheated, slandered, or slighted in any way. There is just so little to lose if you fail. I want to bring back the old fashion duel. By using the duel, you have to really think if what you feel slighted, offended, or cheated over, is really that important. If it is, then go for it. If you win, Congratulations! If you lose, we don’t have to worry about your issues any further. And all of this can be accomplished with very little cost to society at large.

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