Should There Be A Penalty For Falsely Claiming Copyright Over Public Domain Material?
from the happy-birthday... dept
Slashdot and The Register point us to a new paper by Jason Mazzone about "copyfraud" -- or the ability of someone to claim copyright on something that is in the public domain. The issue, Mazzone points out, is that there's no penalty for falsely claiming copyright on something, so there's plenty of incentive to claim something is still covered even if it's not. Remember the story of "Happy Birthday"? While the common wisdom is that the copyright is owned by Time Warner, there's a lot of evidence that this is not the case at all, and the song is in the public domain. Oh, and that could be true of Mickey Mouse as well. But, of course, neither Disney nor Time Warner risks any punishment in claiming that they still hold the copyright to each of those... so who's going to challenge it?Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
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Filed Under: copyfraud, copyright, false claim, jason mazzone, public domain
Companies: disney, time warner
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What we should have is what you suggested. That includes Opt-in, and not, we collected this info its ours you need to opt-out and we will ignore you if you try.
The ability to not need to file suit to get your copyright back. The system is broken when groups like RIAA, ASCAP, etc can grab everything in site and claim it belongs to them and not give the artist their fair share.
IMHO ....
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A person cannot take the property of another person without permission, and take the stolen property to the United States Copyright Office and claim the work as their own legally in copyright. The property of a person is not public domain. Much of the current web information on "copyfraud" is an organized attempt to steal the original property of authors.
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Risking to lose a patent one doesn't have isn't a high risk. There should be punishment for trying to enforce a patent one does not own.
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Which includes innovations in the public domain.
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Two way streets.
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We should punish those that FALSELY claim copyright. If something is in the public domain and someone falsely claims copyright/patent on it then they should be punished for lying.
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Could they not get those who lie about actually owning a copyright that is in the public domain with purgery?
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and yes there should be penalties for Falsely claiming copyright, whether its in public domain or whether some1 is trying to take done work that isn't his
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Theft is theft.
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Mickey Mouse
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Letting the copyright on Steamboat Willy expire would really only give people the right to distribute copies of Steamboat Willie. Even a 'remix' might still violate Disney's trademark. New movies with the same trademark characters would, I'm pretty sure, because every "moron in a hurry" is going to assume that an animated movie with Disney Characters is a Disney Movie even if disclaimers on the packaging clearly says it isn't.
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If you unintentionally make a false claim--that is, if you have a good faith belief in your position and you simply turn out to be wrong (which happens all the time in litigation, copyright and otherwise) then it's not fraud; you're just wrong, and you lose the case.
In other words, it's not specific to copyright at all, and you really aren't raising a new question here--in fact, it's overwhelmingly basic. It's sort of like discovering for the first time that the sky is blue or the sun rises in the east.
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Proving intent is hard, the burden of proof should be on the entity making the claim to prove its claim or else it should face penalties if it does not meet that burden.
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It should be easy to know if you own the copyright. And if you don't know, FIND OUT. Hopefully before you file against someone claiming infringement.
This should be common sense.
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Corbis does this all the time...
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There already are legal/monetary repurcusions
506(c): "Fraudulent Copyright Notice. — Any person who, with fraudulent intent, places on any article a notice of copyright or words of the same purport that such person knows to be false, or who, with fraudulent intent, publicly distributes or imports for public distribution any article bearing such notice or words that such person knows to be false, shall be fined not more than $2,500."
From: http://www.copyright.gov/title17/92chap5.html
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Re: There already are legal/monetary repurcusions
506(c): "Fraudulent Copyright Notice. — Any person who, with fraudulent intent, places on any article a notice of copyright or words of the same purport that such person knows to be false, or who, with fraudulent intent, publicly distributes or imports for public distribution any article bearing such notice or words...
Note that that only applies to fraudulent claims that are actually attached to an article, not false claims in general or unfounded threats of legal action.
...that such person knows to be false,...
That's the big loophole that they use. You have to prove that they actually "knew", but all they have to claim in defense is ignorance. This is one of those cases where claimed "ignorance" really is an excuse under the law.
Oh, and "ignorance" is no defense against charges of infringement. That defense only works one way.
shall be fined not more than $2,500
Hey, that's funny considering the (US) penalty for infringing a copyright can be up to, what, five years in prison and a $250,000 fine? Seems to me that there needs to be a little parity there.
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Re: Re: There already are legal/monetary repurcusions
There where the terms "known or SHOULD HAVE known comes in." If they "should have known" it can be assumed they knew (even if they didn't) and hence they should be punished just as well.
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Except, that's not what the law says in this case. There is no "SHOULD HAVE".
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Re: There already are legal/monetary repurcusions
506(c): "Fraudulent Copyright Notice. — Any person who, with fraudulent intent, places on any article a notice of copyright or words of the same purport that such person knows to be false, or who, with fraudulent intent, publicly distributes or imports for public distribution any article bearing such notice or words that such person knows to be false, shall be fined not more than $2,500."
A fine of $2500 is too wimpy for egregiously misinterpreting copyright law like this.
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Fraud?
Whether it's about copyright or rolling back the odometer on a car or hiding the presence of termites in the walls of house for sale, it doesn't matter. It's all fraud.
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Copies of Steamboat Willie - Public domain.
Mickey Mouse when used as a trademark - Still protected.
Used as a trademark would probably include anyone else using a Mickey Mouse character in their own work since there's a very high chance that a "moron in a hurry" would assume it was a Disney film. Disney could perfectly well protect the mouse as a trademark without perpetually extending copyright.
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Stuff should expire when there is no further use, no further developments. Mickey Mouse is as fresh and interesting today as he was 60 years ago, so why would Disney not get protection on something they are working hard to maintain and keep up to date?
Can you imagine what it would be like if there was suddenly a rush of crappy machine made cartoons of "mickey mouse" from all over the world? It would cheapen the content, lower it's overall value, and possibly the likeness could be used in ways that would not be beneficial to Disney - can you imagine Mickey Mouse Anime Porn?
Sorry,but there are times when extending a copyright doesn't do anyone harm, except perhaps in very theoretical senses.
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That is to say not at all?
Can you imagine what it would be like if there was suddenly a rush of crappy machine made cartoons of "mickey mouse"
So? Are you claiming the world is full of morons in a hurry who can't figure out value and assign their spending accordingly? Oh and how are today's Mickey Mouse Cartoons not 'machine made' or "crappy"? I'd ask if you could imagine the new and interesting things "Mickey" could be doing with a "rush" of "new" cartoons - but I'm guessing imagination is not a strong point. Simple number theory and observation however yields that if "mickey copies" were allowed - there would be a few that would not be "crappy" and "mickey" would be 'doing things' outside the present 'vision' of the IP holders.
Sorry,but there are times when extending a copyright doesn't do anyone harm,
And there are times when it does. The present US Copyright system cases harm in that works before 1919 are OK to copy/use and anything after *MAY* be a legal fight, depending on who "owns" it and what the use of said material may be. The people who created the content in 1918 and 1922 knew the contract they were agreeing to. That contract got changed after the fact. If you are building a business based on IP - you should understand that the IP will eventually become part of the public space. Yet, that does no longer seem to be the case - IP is becoming a 'forever' item.
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How many hundreds, or thousands... or MILLIONS of untold Mickey Mouse stories never existed because the character never passed into public domain?
How does locking up an idea or concept promote creativity? After all... isn't that what the law is for? To promote creativity?
Perhaps, in the deluded ramblings of some wig-wearers, but no longer. The country isn't even a democracy anymore (well, technically republic)... it's a corporacy. Run by big business.
We NEARLY have the motto on the coins right though... we're only missing one character:
"In God We Trust" should be "In GOLD we trust"
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2 issues here
When a work (lets use a book as an example here) is in the PD, that means anyone can use or re-make it, right? Ok, so accepting that, if someone takes a PD story and re-issues it, say as a nice hardcover with foil stamping, a creative title, and adds some commentary or analysis at the end, this new, SPECIFIC expression of that PD work is now copyright. So, the original material is STILL PD, and anyone can use it. The new or different or added stuff (the packaging, title (assuming its different in some way) and commentary in this case is copyright and that starts when its created. Remember, you can only copyright a SPECIFIC expression of something, not an idea.
Ok so here is where this new idea of "copyfraud" comes in, and the confusion most people have when they hear that PD works are being reissued with new copyrights.
So, in our above example, the ORIGINAL story/book/whatever is STILL PD, or should be. The new and added stuff is copyright to the new people.
I just want that idea to be perfectly clear to everyone.
In cases of "Copyfraud", what happens is, the creator of the new/revised work mistakenly believes that he now has copyright over the ORIGINAL material and tries to "lock up" the stuff so no one else can use it.
This is a false viewpoint, and a deceptive business practice at the least, out and out fraud and illegal under copyright law at the worst.
Sometimes, its not a "mistake" as they are purposely trying to make claims knowing most people wont know the difference (and wont want to run the risk of being sued) and will step aside while they lock up previously PD works. They can always say "ooops, our bad, it was our sincere belief that this was a new copyright on the old material", and at worst (as noted by poster #15 above) pay a measly $2500 fine and thats that. Meanwhile, the common perception becomes that this stuff is now locked up and cant be used and everyone lives under FUD about it because no one will risk challenging it in court, and there is little disincentive for them to be honest about it because the potential gains are so much, and the punishment is so little.
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In other words, if you put on a false copyright notice, and that's all you do, it's a $2500 fine; if you do as what has been described above in previous posts, it's a general fraud claim with damages set under the appropriate laws.
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One way street
Oh, and "ignorance" is no defense against charges of infringement. That defense only works one way.
shall be fined not more than $2,500
Hey, that's funny considering the (US) penalty for infringing a copyright can be up to, what, five years in prison and a $250,000 fine? Seems to me that there needs to be a little parity there."
Yep. Remember kids, Copyright was created to help the LITTLE guy, but that has been perverted so it ONLY helps big business and rights holders. The contract with the public is now null and void, and the laws ONLY protect incumbents, the rich and those with influence.
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Unfortunately, in my view this is not one of them. The constitutional limits of federal power under Article 1, Section 8, Clause 8 is largely given short shrift, while the reservation of rights to the states and the people specified under the Bill of Rights is virtually ignored.
The relationship between the rights/powers of the states and of the federal government, a cornerstone of our republic embraced within the metes and bound of the U.S. Constitution, is barely even noted and its significance expounded upon.
For one represented as being a constitutional scholar, I am disappointed that his article misses the mark by so wide a margin.
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http://twitter.com/youngbillymays
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a bit off topic ?
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"Consider this: Of the 20 patent lawsuits filed against Google since late 2007, all but two have been filed by plaintiffs who don’t make or sell any real product or service — in other words, by non-practicing entities or “patent trolls.” Most of these cases seem to feature the same small set of contingent fee plaintiff's lawyers asserting patent claims against the same small set of companies. We've also noticed a more disturbing trend: in many of these cases, the patents being asserted against us are owned by — and in a surprising number of cases, are even “invented” by — patent lawyers themselves."
http://googlepublicpolicy.blogspot.com/2009/03/patent-reform-needed-more-than-ever.h tml
Very troubling.
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What about...
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Likewise, tax dollars belong to taxpayers. The government should not be allowed to purchase something, with tax payer money, that doesn't belong to taxpayers against their will.
How would you like it if I was allowed to take money from you, against your will, and then buy things for myself?
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It depends on the deal. If the gov't buys the copyright, then it becomes public property. If not, then not. Simple enough?
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Website for Public Domain Material
There was a great website, but unfortunately it was shut down due to potential copyright infringement claims by big media companies. Apparently all the big media companies claimed they owned the various pieces of public domain material, and to prevent the pending lawsuit, the website listing of all public domain material was taken out of the public domain.
/sarcasm off
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Yes
The penalty should be as severe as it is for copyright infringement.
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Such a system wouldn't t scare people from enforcing intellectual property they actually own anymore than the intellectual property system would scare people into not using something that's in the public domain. If people are to be given incentive to sue for intellectual property they own then there should be just as much incentive to sue for intellectual property in the public domain (it should work BOTH ways) and hence people should be given just as much incentive to sue an entity falsely claiming intellectual property in the public domain.
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That is (to be more clear what I meant) "people should be given just as much incentive to sue an entity falsely claiming intellectual property as their own when that IP is in fact in the public domain."
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Nice work, thanks again for sharing such an informative ideas. I appreciate the information, well thought out and written.
Thank you
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copyright
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copyright
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so many good articles
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Ownership of unpublished work vs. ownership of copyright
See article:
Unification: A Cheerful Requiem for Common Law Copyright
204(a), a general dictate that "a transfer of copyright ownership, other than by operation of law, is not valid unless" it is in writing.
Question:
If an unpublished work was acquired before the current copyright law went into effect, does the custodian own the copyright under the old Common Law?
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