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Links: Policy Proposals for Over-Broad Copyright Claims |
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Posted by Steven Wu on Thursday, November 20 @ 12:44:57 EST
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An editorial by Jason Mazzone in Legal Times criticizes over-reaching claims of copyright and makes some interesting policy proposals:
Recent surveys suggest that Americans have lost respect for copyright laws and believe they are free to use the original work of others without proper credit or payment. But teen-agers who illegally down-load music or who cut and paste term-paper material from Web sites are not the worst copyright cheats. Corporations routinely flout copyright laws when they claim ownership of works that are free for everyone to use. These false claims undermine free speech, weaken copyright protections, and fuel cavalier attitudes toward intellectual property. . . .
Copyright law gives corporations an irresistible urge to claim ownership, however spurious, in everything. The Copyright Act provides no penalty for falsely claiming ownership in public domain materials, and there is no reward for catching this form of cheating. So corporations stick copyright notices everywhere. And while the U.S. Copyright Office registers copyrighted works, there is no official registry for works belonging to the public. . . .
Congress should amend the Copyright Act to make actionable false claims to copyright in the same way that consumers may sue businesses for false advertising. . . .
Congress should also create a searchable online public domain registry that lists works that can be freely used and that adds new works once their copyrights expire. . . . The public should also be encouraged to submit titles for inclusion in the registry. If it is not clear whether a work is in fact protected by copyright, the registry should post the work provisionally and allow it to fall into the public domain if no copy-right claim is asserted within six months.
I like the idea of subjecting publishers to liability for false or over-broad copyright claims, since it partially reverses the effects potential litigation has under the present system. As Prof. Mazzone points out, the fear of litigation leads many people to compulsively request copyright or get permission for everything, even works that are in the public domain. Prof. Mazzone's proposal would enlist the coercive effects of potential litigation to force more accurate information about copyright from publishers. (Link from How Appealing.)
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Re: Policy Proposals for Over-Broad Copyright Claims (Score: 0) by Anonymous on Friday, November 21 @ 15:25:47 EST | Three real problems with this:
(1) In the patent context there is already a statute for private prosecution against a person who falsely marks a product as patented or marks a product with a false patent number. 35 U.S.C. 292. However, damages are capped at $500 per act (not $500 per product falsely marked, mind you) and the statute is rarely used.
(2) There are penalties in the copyright act for falsly claiming copyright to uncopyrighted works. 35 U.S.C. 506(c). However, only the DOJ can prosecute these claims, and unsurprisingly, the rarely if ever do.
The logical conclusions are either that these prohibitions don't work, or that they should be much more severe and more stringently enforced.
Economically, I don't know how effective such a remedy would be, because in most cases copyright law is ambiguous enough that one can put forward a tenable copyright claim, even if its not a strong copyright claim. Even Diabold (while I disagree with them) puts forward a prima facie claim that they do in fact own the works for hire created by their employees on their internal mailing lists. So its difficult to imagine these remedies being used against Diabold, because they aren't really putting forward a false copyright claim, just a really really really weak one.
And if you don't think there's a difference between outright falsity and really really weak claims, just ask GWB's speechwriters. They'll tell you.
-doogieh |
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