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, 27 Apr 2012 @ 1:21pm

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

    Exactly. It's the same as when people ask me for a "license" to copy Techdirt posts. I tell them that we've put the content into the public domain, and while I can declare that, to issue a license on work that is public domain isn't really in my power since the material is unlicenseable. I consider this the same thing. It would be the duty of the copyright provider to at least acknowledge that fair use would dictate that they can make such a use of the work without a license.

    Ignoring that there is fair use at all is a form of copyfraud.

    Copyright owners have no duty to acknowledge the existence of fair use when someone asks them for a license. This is nothing like Lenz (which is a dubious case to begin with) since the copyright owner here has not filed suit or a DMCA takedown notice--there is no affirmative act where you could argue good faith was needed. Someone asking a copyright owner for a license does not trigger a duty in the owner to consider fair use. That makes no sense, does not follow from Lenz, and frankly, is silly on its face.

    You can point to nothing whatsoever that stands for the proposition that there is a "duty of the copyright provider to at least acknowledge that fair use would dictate that they can make such a use of the work without a license." If someone asks to use my property, I don't then have a duty to consider whatever affirmative defenses that would-be user might have should I decide not to give him permission and he use the property anyway. At least in Lenz you have an affirmative act of the copyright holder in sending the takedown notice. Here, you've only got the copyright owner being asked for a favor, and him saying "Get off my lawn!"

    It is not "fraud" to refuse to license one's property, even if in theory the would-be licensee has a viable affirmative defense in a hypothetical suit for infringement. You're just trying to see "fraud" where none exists. Again, copyright means the right to exclude. The owner of the right has no duty whatsoever to entertain offers from would-be licensees. Furthermore, your analysis presupposes that this was unequivocally fair use, which, as the professor's article on copyfraud indicates, is usually rather equivocal.

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