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
    dwg (profile), 27 Apr 2012 @ 8:09am

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

    "This is not a law blog. This is only a tangentially legal discussion."

    Right: and cookbooks are really about the science of heat and how it acts upon organic matter depending on the mixture. Look: this may be "techdirt," but it covers so many legal issues that it's impossible to disclaim the legal nature of many of its posts and comment threads. SOPA? PIPA? Fair Use? Come on. Saying that this is "only a tangentially legal discussion" is just a copout when you don't want to examine the aptness of what's being said about the law, or do any real research of your own.

    If you remove the legal portions of this conversation, for example, you're left with "A professor really wanted to do something and a mean lady said no!" Is that the conversation we want to be having?

    And, again, maybe if you want to stop someone from doing something, you might want to choose your words more carefully. Maybe a legal mechanism already exists that approximates what's being called "copyfraud," like "copyright misuse," and maybe, if you were less attached to rhetoric and posturing and more interested in results, you'd scale back on the rhetoric and try to figure out whether this actual legal defense could apply here.

    It's like when you're discussing the relative merits of Affirmative Action, and there's someone in favor of extending it who, every time someone criticizes the program, screams "RACIST!" Yea, so that's not so effective. People against Affirmative Action don't wake up in the morning saying "Ahhhh--beautiful day. Wonder how I can be racist today?" And that publisher didn't wake up wondering how she could deny someone legitimate rights to use work in an academic setting--so calling her behavior "fraud," whether you mean that in a legal sense or not--does not move the needle in the direction I think you want.

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