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 @ 9:05pm

    Re: Re: Re: Re: Re: RE: but is it copyfraud

    I think the confusion (being spread on purpose by a couple of the commenters above) is the false assertion that I am asserting that this is *legal fraud*. I am not. I used the term "copyfraud" specifically and carefully as it was defined by Jason Mazzone, the law professor who coined the term. It is an overclaiming of the rights provided by copyright. I am not saying it is an actionable thing under any sort of fraud statute. That's just a commenter making stuff up.

    I am saying that it is an overclaiming of control via copyright, which has become commonly (within these circles) known as copyfraud thanks to Prof. Mazzone's definition.


    There you go! Now you're CwF'ing!

    I assumed "copyfraud" was a portmanteau of "copyright" and "fraud," i.e., fraud involving someone's copyright. I get that you're adopting Prof. M's meaning of the phrase, but, unless it's actually fraud, I think it's inherently misleading to call it "copyfraud." Kind of like how you don't want people to call infringement things like "piracy" and "theft." Unless it's actually fraud, don't call it copyfraud. And, no, the professor's good paper doesn't give you a license to deceive people. Unless you want to explain to people that copyfraud is not in fact actionable fraud, then you're misrepresenting the issue to your readers.

    Looking at his paper, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=787244, p. 1028, Prof. M. says: "Copyfraud, as the term is used in this Article, refers to claiming falsely a copyright in a public domain work." That is not how you're using the word. What's the public domain got to do with the publisher denying your friend a license? Nothing. You are not using the word copyfraud correctly, as Prof. M. defined it.

    Page 1047, the part about fair use, demonstrates your misunderstanding: "Copyfraud involves false ownership claims to the public domain, but the problem is not entirely removed from the behavior of legitimate copyright holders. Copyfraud is exacerbated when owners of valid copyrights interfere with lawful de minimis copying and fair use and thereby impose restrictions beyond what the law allows."

    It's only copyfraud when claiming false ownership of the public domain. The practice of publishers imposing restrictions beyond what the law allows is not itself copyfraud, it is merely behavior that exacerbates copyfraud.

    In other words, you're not using the word "copyfraud" to mean the same thing the professor is using it to mean. See the point? Either way, you're wrong about this being copyfraud, and you're wrong to lead people to believe it's fraud. It's neither.

    And for fuck's sake, you don't have to be so dramatic. Somebody has a property right. Somebody tried to negotiate the use of that property. They didn't like the answer they got. Is it totally fair? No. Fair use is inherently wishy-washy, and rights holders, especially professional ones, are going to err on the side of fuck you. People are not super-generous with their property rights. They are in the business of licensing the rights to those works, not in giving them away.

    While a work is under copyright, Mike, that's the way it works--by design. Your time-frame is that copyright must promote the progress at the maximum amount possible during all possible time-frames. That's not what the Constitution envisages. You can make anything look dumb if you look at it too closely, and with copyright, that's all you ever do.

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