The Chilling Effects Of Copyfraud: Blocking A Researcher From Fair Use... And Scaring Him Into Staying Quiet About It

from the chilling-effects dept

I recently came across yet another story of copyfraud, but due to the nature of our litigious society and the way in which certain companies over-aggressively defend their rights, I need to prevent many of the details from being explained here, and have had to anonymize nearly everything. A family friend recently published a very interesting research paper on a popular topic. To demonstrate a certain point in the paper, he found a perfect image from a book that was published over 50 years ago. Again, to avoid identifying the situation, I cannot provide any more info, other than to say that this the image represented a tiny portion of a much larger work -- and that its usage without a doubt met all of the criteria of a typical fair use defense. The use was for non-profit educational purposes, it was a tiny part of a much larger work (and, in many ways, an inconsequential piece of that larger work, even if it was perfect for the point being demonstrated). The effect on the market for the original work was at worst nil, and at best positive, in that it might cause people to seek out the original work. In my review, it appears that the original work is now long out of print, and it is available only by collectors at an extremely high price. Thus, the use of the work is not for this person's financial benefit, and has absolutely no impact on the original publisher.

Even so, because we unfortunately live in a society where it's been drilled into our heads that you must get permission (even if the entire purpose of the fair use doctrine is for situations like this where no permission is needed), my friend reached out to the very, very large and well known conglomerate that holds the copyright on the original. He explained what he wanted to do and why, very clearly and concisely. The company's response was actually quite friendly, all things considered, and the person who responded appears to reject his request regretfully, noting that she is "in the unenviable position" of having to say no. The reasoning, the letter states, is that the work is protected by intellectual property laws and that the company "must be constantly vigilant and sometimes stringent in exercising control over their use."

There are significant problems with this. The whole point of fair use, again, is that these kinds of uses do not need permission. Furthermore, while trademark law does require some level of "vigilance," the same level of vigilance is not required for copyright law, and it is entirely possible to turn a blind eye to such usage and not lose the powers that copyright grants. Finally, there would be no harm at all in allowing this or even granting the guy a simple license. That would take away nothing from the company's IP rights.

But the bigger issue to me is actually the chilling effects that this situation has had. After sharing all of these details with me, I asked if he would be okay with me publishing the story with the full details. And he refused. Despite recognizing the near certainty of winning any legal dispute (as well as the fact that it is unlikely he would actually get sued), the very small risk alone is too much to bear. The idea that a massive global conglomerate might suddenly choose to sue this guy for some non-profit research he did out of personal interest -- just because of a single graphic to (humorously) illustrate a single point -- just isn't worth it. And that's the classic tale of a chilling effect of copyright law. Scaring people into not speaking up or not presenting their story.

Filed Under: chilling effect, copyfraud, education, fair use, permission

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  1. icon
    Mike Masnick (profile), 26 Apr 2012 @ 7:22am

    A few points

    Hey folks, as some of you know, I'm in NY this week for an event and a bunch of meetings so haven't had a chance to be active in the comments at all. However, it was suggested that I check out this thread, and I wanted to respond quickly to a few of the points raised as I'm waiting for my next meeting to start shortly...

    1. In this case, the company he contacted *absolutely* holds the copyright. It is *not* a case where the copyright is held by a third party. The work was created specifically for the company.

    2. I believe that it is copyfraud because the company has told him that he cannot make use of the image -- when the reality is that he has a fair use right to make use of the image. He was not asking "for a license." He told them how he planned to use the image -- and they told him not to. Telling someone they cannot do something, despite copyright law saying they can is copyfraud. It's an over-claiming of rights under copyright law.

    3. The paper was published in the publication who originally requested it *without* the image. However, my friend put up a copy on his own website *with* the image, and is hoping that the company never notices.

    4. The idea that using an image is not fair use is hogwash. There have been plenty of cases that hold that using an entire image can be fair use, given the context. This is one where the facts match up nicely with the case law in showing that this is fair use.

    I think that's it. Other than that, the only thing I will say is that there are ways to have reasonable discussions where people can disagree -- and there have been many reasonable comments on this thread, often from people who disagree with my analysis. There has also been someone who apparently feels that ad hominem attacks are a legitimate form of argument. I would suggest that, generally speaking, such methods of argument are not particularly effective and do little to advance an argument.

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