Should There Be A Penalty For Falsely Claiming Copyright Over Public Domain Material?
from the happy-birthday... dept
Slashdot and The Register point us to a new paper by Jason Mazzone about “copyfraud” — or the ability of someone to claim copyright on something that is in the public domain. The issue, Mazzone points out, is that there’s no penalty for falsely claiming copyright on something, so there’s plenty of incentive to claim something is still covered even if it’s not. Remember the story of “Happy Birthday”? While the common wisdom is that the copyright is owned by Time Warner, there’s a lot of evidence that this is not the case at all, and the song is in the public domain. Oh, and that could be true of Mickey Mouse as well. But, of course, neither Disney nor Time Warner risks any punishment in claiming that they still hold the copyright to each of those… so who’s going to challenge it?
Filed Under: copyfraud, copyright, false claim, jason mazzone, public domain
Companies: disney, time warner
Comments on “Should There Be A Penalty For Falsely Claiming Copyright Over Public Domain Material?”
Good point, what have they got to lose? If I claimed a patent that someone else owns then I can perhaps get in trouble for trying to enforce it. Likewise people should be punished for trying to enforce intellectual property they do not own, intellectual property in the public domain.
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You are missing the point anyone can, at this point according to the law, claim an Orphan Patent, Work of literature, Sheet music, an old 78 record. Claiming rights even where they have none (rather gray area legally now).
What we should have is what you suggested. That includes Opt-in, and not, we collected this info its ours you need to opt-out and we will ignore you if you try.
The ability to not need to file suit to get your copyright back. The system is broken when groups like RIAA, ASCAP, etc can grab everything in site and claim it belongs to them and not give the artist their fair share.
IMHO ….
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It is almost impossible for there to be an “orphan patent.” Maintenance fees need paid on periodic intervals, or the patent becomes expired. Thus, an “orphan patent” would no longer have its fees paid and it would go abandoned, which is information readily accessible to the public.
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Patent is the wrong work. We’re talking about copyright, so he must’ve meant “orphan work,” meaning a piece who’s author can’t be found/determined. You copyright sheet music, you don’t patent it.
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In the case of a patent you would not be permitted to enforce it. You need exclusive rights to the patent to be able to do so. The risks are high with a patent too. You risk losing the patent altogether if you neglect to follow the rules.
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“The risks are high with a patent too. You risk losing the patent altogether if you neglect to follow the rules.”
Risking to lose a patent one doesn’t have isn’t a high risk. There should be punishment for trying to enforce a patent one does not own.
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“There should be punishment for trying to enforce a patent one does not own.”
Which includes innovations in the public domain.
Should it be any higher or any lower than claiming something is in the public domain when it isn’t?
Two way streets.
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The same. It should be both ways. Why should someone have everything to gain and nothing to lose if they lie to the public and claim that something isn’t in the public domain when it really is. They should have something to lose when they lie.
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So you’re suggesting that we should either punish both those that infringe on copyright (which is already being done) and those who claim copyright? Or that we should stop punishing infringers since we already don’t punish copyfraudsters? Oh wait, I know, what you mean about two-way street is that we should keep the status quo of people owning copyrights suing people that pirate YET let them also lie about copyrights they don’t have. Gotcha.
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“So you’re suggesting that we should … punish … those that … claim copyright?”
We should punish those that FALSELY claim copyright. If something is in the public domain and someone falsely claims copyright/patent on it then they should be punished for lying.
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They would not be able to punish those who infringe on a work that is in the public domain because its in public domain.
Could they not get those who lie about actually owning a copyright that is in the public domain with purgery?
Re: Re:
there are already “penalties” for using copyrighted material.
and yes there should be penalties for Falsely claiming copyright, whether its in public domain or whether some1 is trying to take done work that isn’t his
Mickey Mouse
While a particular work including Mickey Mouse may well be public domain,the character can still be considered a trademark of Disney. Beyond this, I do believe that copyrights shouldn’t last more than 50 years, and shouldn’t last more than 10 years after passed from the original owner, or registered to a non living entity. That’s just me though.
Re: Mickey Mouse
Yes, Disney considers Mickey protected by trademark. But think about it – when you see a t-shirt or anything, with Mickey on it, does that indicate that the t-shirt was made by Disney? This is the function of trademark, which is totally inappropriate for protecting a character, as Disney well knew for the first fifty years of Mickey’s life. This is a cheap attempt to extend Mickey monopoly in perpetuity, but one which arguably would never survive a court challenge. Again though, who would pay to launch a fight against Disney’s army just to use the image of Mickey Mouse (and run the risk of losing, given the propensity of courts to bow to anything claiming to be IP). Better just get yourself another mouse and save the bucks/euros/rubles and rupees for a rainy day.
Re: Re: Mickey Mouse
Would a “moron in a hurry” assume that a T-shirt with Mickey Mouse on it must be a Disney product? I would think so. Therefore Disney gets to maintain their monopoly on Mickey Mouse T-shirts (and other merchandise) purely as a matter of Trademark.
Letting the copyright on Steamboat Willy expire would really only give people the right to distribute copies of Steamboat Willie. Even a ‘remix’ might still violate Disney’s trademark. New movies with the same trademark characters would, I’m pretty sure, because every “moron in a hurry” is going to assume that an animated movie with Disney Characters is a Disney Movie even if disclaimers on the packaging clearly says it isn’t.
Actually, I own Mickey Mouse. Sue me.
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And I own Rickey Ratt. Thanks!
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And I own Vickey Vole!
Actually, this really isn’t much of a question. If you intentionally make a false claim to try and get someone’s money, cooperation, etc., then it’s fraud–doesn’t matter if it’s about copyright, business, real estate, etc.
If you unintentionally make a false claim–that is, if you have a good faith belief in your position and you simply turn out to be wrong (which happens all the time in litigation, copyright and otherwise) then it’s not fraud; you’re just wrong, and you lose the case.
In other words, it’s not specific to copyright at all, and you really aren’t raising a new question here–in fact, it’s overwhelmingly basic. It’s sort of like discovering for the first time that the sky is blue or the sun rises in the east.
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How many times can one claim to have unintentionally made the same false claim ?
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“If you unintentionally make a false claim”
Proving intent is hard, the burden of proof should be on the entity making the claim to prove its claim or else it should face penalties if it does not meet that burden.
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It’s kinda like what people say about uploading content: that if you don’t own the copyright, don’t upload it. And they claim that if you don’t know if you own the copyright, you probably don’t. That idea there, is true.
It should be easy to know if you own the copyright. And if you don’t know, FIND OUT. Hopefully before you file against someone claiming infringement.
This should be common sense.
Corbis does this all the time...
There are literally thousands of official U.S. government photos–from NASA and the various branches of the armed forces–in their collection, all of which bear a Corbis watermark until you pay for them, and also bear a Corbis copyright statement. By federal law these are in the public domain. I agree with ASH’s comment above; to claim copyright on material that is not yours is fraudulent.
Re: Corbis does this all the time...
If it’s tax funded it should be in the public domain. PERIOD. That includes pharmaceuticals, medicine, etc… NO PATENTS/Copyrights on things that are tax funded. EVER.
is there a website that lists public domain material?
major crime copyright infringement
There already are legal/monetary repurcusions
US Copyright Act
506(c): “Fraudulent Copyright Notice. — Any person who, with fraudulent intent, places on any article a notice of copyright or words of the same purport that such person knows to be false, or who, with fraudulent intent, publicly distributes or imports for public distribution any article bearing such notice or words that such person knows to be false, shall be fined not more than $2,500.”
From: http://www.copyright.gov/title17/92chap5.html
Re: There already are legal/monetary repurcusions
US Copyright Act
506(c): “Fraudulent Copyright Notice. — Any person who, with fraudulent intent, places on any article a notice of copyright or words of the same purport that such person knows to be false, or who, with fraudulent intent, publicly distributes or imports for public distribution any article bearing such notice or words…
Note that that only applies to fraudulent claims that are actually attached to an article, not false claims in general or unfounded threats of legal action.
…that such person knows to be false,…
That’s the big loophole that they use. You have to prove that they actually “knew”, but all they have to claim in defense is ignorance. This is one of those cases where claimed “ignorance” really is an excuse under the law.
Oh, and “ignorance” is no defense against charges of infringement. That defense only works one way.
shall be fined not more than $2,500
Hey, that’s funny considering the (US) penalty for infringing a copyright can be up to, what, five years in prison and a $250,000 fine? Seems to me that there needs to be a little parity there.
Re: Re: There already are legal/monetary repurcusions
“That’s the big loophole that they use. You have to prove that they actually “knew”, but all they have to claim in defense is ignorance. This is one of those cases where claimed “ignorance” really is an excuse under the law.”
There where the terms “known or SHOULD HAVE known comes in.” If they “should have known” it can be assumed they knew (even if they didn’t) and hence they should be punished just as well.
Re: Re: Re: There already are legal/monetary repurcusions
sp/There where the terms “known or SHOULD HAVE known comes in.” …/That’s where the terms “known or SHOULD HAVE known” should come in …
Re: Re: Re: There already are legal/monetary repurcusions
There where the terms “known or SHOULD HAVE known comes in.”
Except, that’s not what the law says in this case. There is no “SHOULD HAVE”.
Re: Re: Re:2 There already are legal/monetary repurcusions
I know, I said that’s where the terms “SHOULD” come in, not that’s where the terms DO come in. See my correction post.
Fraud?
Last time I checked, intentionally making a false claim in order to secure a financial benefit for oneself is already a crime– it’s called fraud.
Whether it’s about copyright or rolling back the odometer on a car or hiding the presence of termites in the walls of house for sale, it doesn’t matter. It’s all fraud.
Mickey Mouse is a tricky example – while it is many years past the initial appearance, new Mickey Mouse material continues to be made. There really needs to be provisions in copyright to allow the ongoing copyright of active material.
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NO there doesn’t.
Copies of Steamboat Willie – Public domain.
Mickey Mouse when used as a trademark – Still protected.
Used as a trademark would probably include anyone else using a Mickey Mouse character in their own work since there’s a very high chance that a “moron in a hurry” would assume it was a Disney film. Disney could perfectly well protect the mouse as a trademark without perpetually extending copyright.
@ 17
New material can be made from things that are in the public domain all the time….
Re: @ 17
yes, but in the end, as Disney is actively promoting and providing new content, should the copyright not extent?
Stuff should expire when there is no further use, no further developments. Mickey Mouse is as fresh and interesting today as he was 60 years ago, so why would Disney not get protection on something they are working hard to maintain and keep up to date?
Can you imagine what it would be like if there was suddenly a rush of crappy machine made cartoons of “mickey mouse” from all over the world? It would cheapen the content, lower it’s overall value, and possibly the likeness could be used in ways that would not be beneficial to Disney – can you imagine Mickey Mouse Anime Porn?
Sorry,but there are times when extending a copyright doesn’t do anyone harm, except perhaps in very theoretical senses.
Re: Re: @ 17
What you described sounds more like trademark law, which does work as you say, instead of copyright law.
Re: Re: @ 17
Mickey Mouse is as fresh and interesting today as he was 60 years ago
That is to say not at all?
Can you imagine what it would be like if there was suddenly a rush of crappy machine made cartoons of “mickey mouse”
So? Are you claiming the world is full of morons in a hurry who can’t figure out value and assign their spending accordingly? Oh and how are today’s Mickey Mouse Cartoons not ‘machine made’ or “crappy”? I’d ask if you could imagine the new and interesting things “Mickey” could be doing with a “rush” of “new” cartoons – but I’m guessing imagination is not a strong point. Simple number theory and observation however yields that if “mickey copies” were allowed – there would be a few that would not be “crappy” and “mickey” would be ‘doing things’ outside the present ‘vision’ of the IP holders.
Sorry,but there are times when extending a copyright doesn’t do anyone harm,
And there are times when it does. The present US Copyright system cases harm in that works before 1919 are OK to copy/use and anything after *MAY* be a legal fight, depending on who “owns” it and what the use of said material may be. The people who created the content in 1918 and 1922 knew the contract they were agreeing to. That contract got changed after the fact. If you are building a business based on IP – you should understand that the IP will eventually become part of the public space. Yet, that does no longer seem to be the case – IP is becoming a ‘forever’ item.
Re: Re: @ 17
Really?
How many hundreds, or thousands… or MILLIONS of untold Mickey Mouse stories never existed because the character never passed into public domain?
How does locking up an idea or concept promote creativity? After all… isn’t that what the law is for? To promote creativity?
Perhaps, in the deluded ramblings of some wig-wearers, but no longer. The country isn’t even a democracy anymore (well, technically republic)… it’s a corporacy. Run by big business.
We NEARLY have the motto on the coins right though… we’re only missing one character:
“In God We Trust” should be “In GOLD we trust”
its perectly legit, it just happends to be the reason someone made millons (or was it billons) nothing differnt form all other cases like this
It seem there needs to be the equivalent of prior art for copyright.
2 issues here
I think there are actually 2 separate (but related) issues here that people are mixing up.
When a work (lets use a book as an example here) is in the PD, that means anyone can use or re-make it, right? Ok, so accepting that, if someone takes a PD story and re-issues it, say as a nice hardcover with foil stamping, a creative title, and adds some commentary or analysis at the end, this new, SPECIFIC expression of that PD work is now copyright. So, the original material is STILL PD, and anyone can use it. The new or different or added stuff (the packaging, title (assuming its different in some way) and commentary in this case is copyright and that starts when its created. Remember, you can only copyright a SPECIFIC expression of something, not an idea.
Ok so here is where this new idea of “copyfraud” comes in, and the confusion most people have when they hear that PD works are being reissued with new copyrights.
So, in our above example, the ORIGINAL story/book/whatever is STILL PD, or should be. The new and added stuff is copyright to the new people.
I just want that idea to be perfectly clear to everyone.
In cases of “Copyfraud”, what happens is, the creator of the new/revised work mistakenly believes that he now has copyright over the ORIGINAL material and tries to “lock up” the stuff so no one else can use it.
This is a false viewpoint, and a deceptive business practice at the least, out and out fraud and illegal under copyright law at the worst.
Sometimes, its not a “mistake” as they are purposely trying to make claims knowing most people wont know the difference (and wont want to run the risk of being sued) and will step aside while they lock up previously PD works. They can always say “ooops, our bad, it was our sincere belief that this was a new copyright on the old material”, and at worst (as noted by poster #15 above) pay a measly $2500 fine and thats that. Meanwhile, the common perception becomes that this stuff is now locked up and cant be used and everyone lives under FUD about it because no one will risk challenging it in court, and there is little disincentive for them to be honest about it because the potential gains are so much, and the punishment is so little.
RD–keep in mind, that $2500 fine is only for putting a false copyright notice on the work. The rest of the process of fraud (making false claims in letters, inducing people to pay you for something you don’t own, etc.) is a separate claim of fraud that doesn’t have the $2500 limitation.
In other words, if you put on a false copyright notice, and that’s all you do, it’s a $2500 fine; if you do as what has been described above in previous posts, it’s a general fraud claim with damages set under the appropriate laws.
One way street
“That’s the big loophole that they use. You have to prove that they actually “knew”, but all they have to claim in defense is ignorance. This is one of those cases where claimed “ignorance” really is an excuse under the law.
Oh, and “ignorance” is no defense against charges of infringement. That defense only works one way.
shall be fined not more than $2,500
Hey, that’s funny considering the (US) penalty for infringing a copyright can be up to, what, five years in prison and a $250,000 fine? Seems to me that there needs to be a little parity there.”
Yep. Remember kids, Copyright was created to help the LITTLE guy, but that has been perverted so it ONLY helps big business and rights holders. The contract with the public is now null and void, and the laws ONLY protect incumbents, the rich and those with influence.
I have read over the years many legal articles published in respected professional journals that strike resonant chords with academics and practitioners alike, even though some of these articles can be the subject of reasonable and thoughful debate supporting or rejecting the premises of such articles.
Unfortunately, in my view this is not one of them. The constitutional limits of federal power under Article 1, Section 8, Clause 8 is largely given short shrift, while the reservation of rights to the states and the people specified under the Bill of Rights is virtually ignored.
The relationship between the rights/powers of the states and of the federal government, a cornerstone of our republic embraced within the metes and bound of the U.S. Constitution, is barely even noted and its significance expounded upon.
For one represented as being a constitutional scholar, I am disappointed that his article misses the mark by so wide a margin.
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I’m sorry, I’m not exactly sure who you are responding to or what you are trying to say.
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Mine was a comment to Mr. Masnick and in the most general terms noted what I believe to be some of the infirmities associated with the author’s legal analysis of “copyfraud”.
Come on Mike… You know very well that copyright law is very complex and that it is often not unreasonable for people to wrongly believe they own the copyright on something. What really needs to change is the following: Courts need to be able to slap a fine/damages on anyone who brings a lawsuit which has little to no chance of success. Basically, if you have no claim, you are just abusing the legal system to shake somebody down, and I think it’s reasonable to make you pay for it to deter you. It’s a rule in many countries and it does deter people from filing lawsuits when they don’t have a claim.
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What about huge companies who threaten individuals and get them to pay up for “infringements”. Or threatening a small business and getting them to settle?
The punishment has to extend outside of lawsuits somehow. Many businesses and individuals fold before a lawsuit is ever filed because they don’t have the money to even begin to defend themselves. Even when they know for certain they aren’t infringing, they don’t have the money to go to court to prove it.
RIP Billy Mays
http://twitter.com/youngbillymays
a bit off topic ?
This whole discussion is so mickey mouse
I found this very interesting.
“Consider this: Of the 20 patent lawsuits filed against Google since late 2007, all but two have been filed by plaintiffs who don’t make or sell any real product or service — in other words, by non-practicing entities or “patent trolls.” Most of these cases seem to feature the same small set of contingent fee plaintiff’s lawyers asserting patent claims against the same small set of companies. We’ve also noticed a more disturbing trend: in many of these cases, the patents being asserted against us are owned by — and in a surprising number of cases, are even “invented” by — patent lawyers themselves.”
http://googlepublicpolicy.blogspot.com/2009/03/patent-reform-needed-more-than-ever.html
Very troubling.
What about...
So let’s say as a government agency, you purchase images from a private company. Images you are not legally allowed to use unless you purchase them. So you buy that license and use it in materials (Internet, print, etc..) according to the license agrements set forth by the private company. Are you then suggesting that because the license was purchased using taxpayers’ monies, that those images should now be PD? I believe they are still copyrighted and in order to keep persons from getting sued by the private company, for using images they didn’t pay for, it is perfectly okay to place a copyright notice/warning on a site or material…at least the image, no?
Re: What about...
The government should not generally purchase copyright material on taxpayer dollars if that material is not for the public benefit/use.
Re: Re: What about...
Really? What law states that?
Re: Re: Re: What about...
You must have a reading comprehension problem. I didn’t say there “is” a law that states that, just that this is how it “should” be.
Re: Re: Re:2 What about...
and the reasons for this are obvious. You shouldn’t be allowed to purchase something, with my money, that doesn’t belong to me against my will.
Likewise, tax dollars belong to taxpayers. The government should not be allowed to purchase something, with tax payer money, that doesn’t belong to taxpayers against their will.
How would you like it if I was allowed to take money from you, against your will, and then buy things for myself?
Re: What about...
So let’s say as a government agency, blah blah blah…
It depends on the deal. If the gov’t buys the copyright, then it becomes public property. If not, then not. Simple enough?
Website for Public Domain Material
“is there a website that lists public domain material?”
There was a great website, but unfortunately it was shut down due to potential copyright infringement claims by big media companies. Apparently all the big media companies claimed they owned the various pieces of public domain material, and to prevent the pending lawsuit, the website listing of all public domain material was taken out of the public domain.
/sarcasm off
Yes
I laugh when I see copyright notices on copies of the US Constitution and other old things.
The penalty should be as severe as it is for copyright infringement.
If something is in the public domain then any entity should be allowed to sue (on behalf of the public domain) if someone falsely claims it and, if won, the entity suing receives the award and an injunction is put to stop any entity from falsely claiming the IP as their own from that point on. Then you’ll have “anti patent trolls” where a bunch of entities sue anyone claiming to own something in the public domain. These companies will have huge incentive to search for and store document and keep records of prior art and to store proof of various prior art (and to hopefully document it online for others to see?). This will discourage anyone from falsely claiming something that’s in the public domain and if they claim intellectual property they own then they shouldn’t have to worry about being sued because they’ll just win. Just like someone can be punished for unknowingly infringing on or claiming intellectual property that someone else owns (ie: patents) people should also be punished for unknowingly claiming intellectual property that’s in the public domain. To the extent that it is too burdensome for an entity to know what’s in the public domain it is just as difficult for an entity to know what designs are patented by others so that the entity can avoid utilizing that design.
Such a system wouldn’t t scare people from enforcing intellectual property they actually own anymore than the intellectual property system would scare people into not using something that’s in the public domain. If people are to be given incentive to sue for intellectual property they own then there should be just as much incentive to sue for intellectual property in the public domain (it should work BOTH ways) and hence people should be given just as much incentive to sue an entity falsely claiming intellectual property in the public domain.
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“and hence people should be given just as much incentive to sue an entity falsely claiming intellectual property in the public domain.”
That is (to be more clear what I meant) “people should be given just as much incentive to sue an entity falsely claiming intellectual property as their own when that IP is in fact in the public domain.”
Re:
Hi,
Nice work, thanks again for sharing such an informative ideas. I appreciate the information, well thought out and written.
Thank you
copyright
These are big multinationals out there , even if they falsely claim the copyright , who is going to challenge it , a public petition may be the solution.
copyright
we should work for it.
so many good articles
I am the first time on this site and am really enthusiastic about and so many good articles. I think it’s just very good.
I have been reading out some of your posts and i can claim pretty good stuff. I will definitely bookmark your site.
Ownership of unpublished work vs. ownership of copyright
Pushman v. New York Graphic Society (1942) was abrogated by ? 202 of the Copyright Act of 1976, which establishes that the transfer of a tangible embodiment of a copyrighted work does not of itself transfer the copyright.
See article:
Unification: A Cheerful Requiem for Common Law Copyright
204(a), a general dictate that “a transfer of copyright ownership, other than by operation of law, is not valid unless” it is in writing.
Question:
If an unpublished work was acquired before the current copyright law went into effect, does the custodian own the copyright under the old Common Law?
There already are legal/monetary repurcusions
US Copyright Act
506(c): “Fraudulent Copyright Notice. — Any person who, with fraudulent intent, places on any article a notice of copyright or words of the same purport that such person knows to be false, or who, with fraudulent intent, publicly distributes or imports for public distribution any article bearing such notice or words that such person knows to be false, shall be fined not more than $2,500.”
A fine of $2500 is too wimpy for egregiously misinterpreting copyright law like this.
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Theft is theft.
Re:
A person cannot take the property of another person without permission, and take the stolen property to the United States Copyright Office and claim the work as their own legally in copyright. The property of a person is not public domain. Much of the current web information on "copyfraud" is an organized attempt to steal the original property of authors.