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. identicon
    Anonymous Coward, 26 Apr 2012 @ 8:04am

    Re: A few points

    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.

    Now you're changing the facts. In the article, you did not say that they affirmatively told him he cannot use the image. You said that he approached them, asking them for permission to use the image (which is exactly the same thing as asking for a license, by the way), and they said no. Let's assume these new facts (and you and I both know you'll just keep adding "facts" as needed to better your argument) are true. It's not fraud to refuse to give someone permission to use your copyrighted work. Even if that person has a great argument that their use is fair, the copyright owner has no duty whatsoever to license that use, and it is absolutely not fraud to refuse to do so.

    You can find no case law backing up your argument because none exists. I can find tons of case law to prove my points. I'd love to go through the case law on fraud and get into all the nuances, but you and I both know that now that you've made your appearance in this thread, you'll not come back and debate any of the nuances. You're simply incapable of making legitimate legal arguments. If this guy went into court claiming it was fraud to refuse to license to him, he'd be looking at getting sanctioned.

    The fact is, you are making a ridiculous claim--one that even your supporters think is baseless--and you'll continue to make the claim, even after people have pointed out that it's false. Back up the claim and win the debate, or else admit that you got it wrong and don't repeat the lie. As it is, we ALL know that you'll never admit that you're wrong, and you'll continue to call a refusal to license fraud, even though it absolutely is not. In other words, you're an incorrigible joke. Ad hominem? You betcha. You deserve to be attacked at a very personal level, Mike, because you're such a disgusting monster of a human being who only knows how to manipulate and lie to his readers. Prove me wrong. Prove this is fraud.

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