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
    G Thompson (profile), 26 Apr 2012 @ 8:56pm

    Zimmerman probably isn't the best analogy on whether the police (or the prosecution.. did you read that affidavit? jeez!) do or do anything wrongful with myself since I'm not in the USA and your criminal system though similar in a lot of ways to ours (Aust) is also weird in a lot of ways.

    Though here the LEO's arrest based on probably cause and then build the foundation of evidence and based on their evidence with either Interview (if undertaken), witness affidavits, physical evidence, etc their is enough in their experience to warrant a charge then the defendant is charged.

    The prosecutor, whether Police for local courts or Govt (DPP) for District/Supreme courts (silks/barristers) will then go through fact sheets and create a full brief that has to look at whether any defenses have been raised or likely to be raised and look at basis on whetehr they are likely to prevail or not and then follow through with trial steps. BUt that's Criminal, we are talking about the tort of fraud here.

    Actually we are really talking about how laypeople see the term fraud, and not the real legal definition.. Like neg, or larceny/theft they know it when they see it, though they don't understand that is the only element to consider. Based on the non legal term of CopyFraud (which your statutes don't even have in.. nor our Acts.. though we have something close - s202 CA1968 & s202a CA1968 for DRM-Fraud [never used yet])

    On TD I try to keep it to concepts that people would understand, They are not lawyers and it isn't a law blog (no matter that some AC's want to make it into one).

    I understand people like to throw legal terms around and they mean different things than what they think they mean. I don't like the the term CopyFraud myself since it basically means nothing and everything dependant on your viewpoint.

    Oh and to your question on "Is the prosecutor committing fraud on the court by prosecuting a case against him without determining the merits of Zimmerman's" ... I know a lot of Defence solicitors would be nodding their heads frantically, and wish the immunity was not there to stop this :)

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