Copyfraud Is Stealing the Public Domain

malkavian writes "This community has complained long and loudly about the very one-sided approach to copyright, and the not-so-slow erosion of the public domain. On top of the corporate lobbying to remove increasingly larger parts of the public domain, there is now an growing pattern whereby works are directly taken from the public domain and effectively stolen by a single company leveraging protections provided under copyright law. The Register's article is based on a paper by Jason Mazzone at the Brooklyn Law School, which starkly details the problems that are now becoming evident as entities grab control over public domain works. The paper proposes some possible solutions, such as amending the Copyright Act. From the abstract: 'Copyright law itself creates strong incentives for copyfraud. The Copyright Act provides for no civil penalty for falsely claiming ownership of public domain materials. There is also no remedy under the Act for individuals who wrongly refrain from legal copying or who make payment for permission to copy something they are in fact entitled to use for free. While falsely claiming copyright is technically a criminal offense under the Act, prosecutions are extremely rare. These circumstances have produced fraud on an untold scale, with millions of works in the public domain deemed copyrighted, and countless dollars paid out every year in licensing fees to make copies that could be made for free.'"

Comments

I'm glad someone's pointing out this fraud

[Anonymous Coward]

I requested a paper via interlibrary loan, and attached was the standard boilerplate that it is copyrighted work, a licensing fee had been paid for the copy to be used only for the purposes of scholarly research, additional copies were $1.25 each to be paid to XXXXXX, ... blah, blah blah.

The paper was written in 1869.

Idiots. To use copyright maximalist terminology: they're *stealing* from the public domain.

Re:Combating Cyberfraud

[TooMuchToDo]

Project Gutenberg has an *excellent* clearance team to determine the copyright constraints of work. I know because I use to be a PG volunteer until I ran out of free time =(

Simple, market-based solution

[wtansill]

The RIAA, MPAA, etc. all claim insanely high valuations for copyrighted content; witness the latest verdic against now-convicted "pirate" Jamie Thomas-Rasset who is now on the hook for 1.92 million. Fine. Let them copyright to their heart's content.

But let's also update the tax code to capture the full monetary value of these copyrighted works. Oh, and since "intellectual property" does not deteriorate over time as would a piece of real property, the tax code should explicitly disallow depreciation.

I suggest we start collecting back taxes on all of those old "Steamboat Willie" cartoons that Disney started putting out in the early part of the 20th century, along with old music catalogs and so forth. Let's see how truly valuable these IP assets are, and how many are suddenly not worth keeping copyrighted.

Some Nasty Pop Culture Examples

[fm6]

Remember how the movie It's a Wonderful Life used to be played in the afternoon on every single station with air time to fill leading up to Christmas? This happened because the movie bombed in the box office, and the studio didn't bother to renew the copyright.

Then Aaron Spelling bought up various IP rights relating to the movie, such as ownership of a song used in one scene. He assumed control over distribution of the movie, based on a complicated legal theory that a lot of IP lawyers consider totally bogus. But this theory has never been challenged in court, and never will be — nobody's going to start an expensive legal battle over their right to show a movie without paying a fee.

Another one that really bothers me: the documentary Mad Hot Ballroom, about NYC elementary school kids learning ballroom dancing. Lots of music, of course, and that ended up costing them lots of money in "clearance fees" for the right to use it. How much? By the time it went to DVD, $140,000, almost half the cost of making the movie.

People who make this kind of movie don't have a lot of cash to throw around, so they did what they could to minimize it. At first, they only paid for the rights for a couple of weeks, so they could show the film on the festival circuit, and get some investors to cover the rest. They also dubbed over any music that they thought wasn't important to the movie, such as a scene where some kids are playing a video game.

One particular outrageous case: there's a scene where a woman is walking down the street, and her cell phone rings for 6 seconds before she answers it. The ring tone is the theme from Rocky, and the director decided she had to have that little bit of music to make the scene work. For that she needed clearance from Sprint (ring tone rights) and EMI (publishing rights). Sprint saw it as product placement and let her have clearance for free. But EMI wanted $10K! She finally bargained them down to $2K. Even so, she winces every time she see that scene, and has to tell herself that that six seconds was worth that much.

She told an interviewer that if had known what a big hassle music clearance was going to be, she probably wouldn't have made the movie.

Now, all you amateur lawyers are screaming FAIR USE! FAIR USE! . And for once you're right. Every lawyer I've heard talk about the subject agrees that music that happens to be overheard while making a documentary is fair use; only music performed for the film requires clearance. This is not just pro-electronic-free types. This includes pro-industry lawyers with a very narrow definition of fair use!

But despite the unanimity of legal opinion, this hasn't really been tested in court. Insurance companies that bond productions prefer to err on the side of caution, and the entertainment conglomerates that control facilities and distribution networks have an interest in keeping things narrow. Everybody agrees that if there's ever a test case, the documentary-use-is-fair-use doctrine will almost certainly prevail.

But will there ever be a test case? Again, money is an issue. When you're struggling to raise a hundred K or two to get your indie documentary made, an expensive court battle is just not an option.

Legal joke: "Sir, I've examined the evidence, and you have an extremely good case. The only question I have for you is this: How much justice can you afford?"

Re:Combating Cyberfraud

[PopeRatzo]

works are directly taken from the public domain and effectively stolen by a single company

It would have been nice if the summary had named this "single company". Apparenly, if I read the article correctly, they are called "Kessinger Publishing".

Bringing public attention to corporate misdeeds is a very effective way to encourage better behavior on their part. Here's some possibly useful information:

Kessinger Publishing
PO Box 1404, Whitefish, MT 59937, United States
(605)892-0560, (605)892-0561 fax, http://www.kessinger.net/

Kessinger Publishing appears to be a privately held corporation and I didn't find any names of owners or management. I'm betting someone with Lexis access could find that info.