From Wikipedia, the free encyclopedia
Copyfraud is a term used by Jason Mazzone, an
Associate Professor of Law at Brooklyn Law School, to describe
the use of false claims of copyright to attempt to control works not
under one's legal control.:1028
Mazzone describes copyfraud as:
- Claiming copyright ownership of public domain material.:1038
- Imposition by a copyright owner of restrictions beyond what the
- Claiming copyright ownership on the basis of ownership of
copies or archives.:1052
- Claiming copyright ownership by publishing a public domain work
in a different medium.:1044-45
Mazzone argues that copyfraud is usually successful because
there are few and weak laws criminalizing false
statements about copyrights and lax enforcement of such laws
and because few people are competent enough to give legal advice on the
copyright status of commandeered material.:1029-30
In the U.S. Copyright Act, only two sections deal with improper
assertions of copyright on public domain materials: Section 506(c)
criminalizes fraudulent uses of copyright notices and Section
506(e) punishes knowingly making a false representation of a
material fact in the application for copyright registration.:1036 Section
512(f) additionally punishes using the safe
harbor provisions of the Digital Millennium Copyright Act to
remove material the issuer knows is not infringing. But apart from
these two sections, the U.S. Copyright Act does not provide for any
civil penalties for claiming copyrights on public domain materials,
nor does the Act prescribe relief for individuals who refrain from
copying or pay for copying permission to an entity that engages in
Section 202 of the Australian Copyright Act 1968, which imposes
penalties for 'groundless threats of legal proceedings', provides a
cause of action of any false claims of copyright infringement. This
should include false claims of copyright ownership of public domain
material, or claims to impose copyright restrictions beyond those
permitted by the law.
Legal scholar Paul J. Heald, in a 1993 paper published in the
Journal of Intellectual Property Law,
explored the possibility that payment demands for spurious
copyrights might be resisted under a number of commerce-law
theories: (1) Breach of warranty of title; (2) unjust enrichment;
(3) fraud, and (4) false advertising. Heald cited a case in which
the first of these theories was used successfully in a copyright
context: Tams-Witmark Music Library v. New Opera
Company. In this
an opera company purchased the right to perform the opera
The Merry Widow for $50,000 a year. After a little more
than a year of performances, the company discovered that the work
had passed into the public domain several years before due to a
failure on the part of the copyright holder to renew the copyright.
It ceased paying royalties, and after being sued by the owner of
the abandoned copyright, counterclaimed for damages in the amount
paid to the owner on a breach of warranty/failure of consideration
theory. The trial court awarded the opera company $50,500 in
damages, and the court of appeals affirmed the judgement, finding
that The Merry Widow "passed, finally, completely and
forever into the public domain and became freely available to the
unrestricted use of anyone....New Opera's pleas of breach of
warranty and total failure of consideration were established, and
by undisputed proof."
- In 1984, Universal
Studios sued Nintendo to stop them from profiting on their new
Donkey Kong arcade game, on the basis that
Donkey Kong was too similar to King Kong, which they owned. In the end,
Nintendo's lawyers showed that Universal had argued against RKO General in 1975
that King Kong was in the public domain. Nintendo also won the
appeal, a counterclaim, and a further appeal.
- In 2003, electronic voting machine manufacturer Diebold, Inc. threatened two Swarthmore
College students with charges of copyright infringement for
posting some emails from Diebold's archives that discussed problems
with its machines and issued takedown
notices to several ISPs hosting links to the emails. One such
ISP, the Online Policy Group (OPG), asserted on First
Amendment (i.e., free speech) and public interest grounds that
these links were not infringing and sued Diebold for issuing bogus
takedown notices (an offence under DMCA § 512(f)).
Diebold were ordered to pay damages of $125,000 to the students and
- In 2004, the SCO
Group sued Novell, Inc.
claiming that it owned the copyrights to the Unix operating system and Novell had infringed on
its copyrights by adding Unix code to the Linux operating system. In August 2007, a court found that
SCO's copyright claims were false and Novell in fact owned the Unix
- In 2006, Michael Crook filed fraudulent DMCA claims against
sites critical of him. The material he claimed copyright on was
screenshots of his appearance on the Fox News Channel show Hannity
& Colmes. In a March 2007 settlement, Crook agreed to
withdraw the claims, apologize to his victims, and to limit his
future copyright claims to material which he was legally allowed to
file claims for.
- The American Antiquarian
Society web site states that images of its archived printed
materials from the 18th and 19th centuries (now automatically in
the public domain due to age) "must be licensed by the society in
consequence of its proprietary rights.":1053 
- ^ a
Mazzone, Jason (2006). "Copyfraud". New York
University Law Review 81 (3): 1026. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=787244.
Paul J. Heald, "Payment Demands for Spurious Copyrights: Four
Causes of Action", Journal of Intellectual Property Law,
vol. 1, 1993-1994, p. 259.
81 N.E. 2d 70 (NY 1948)
United States Court of Appeals, Second Circuit (October 4, 1984).
Universal City Studios, Inc. v. Nintendo Co., Ltd.
United States Court of Appeals, Second Circuit (July 15, 1986).
Universal City Studios, Inc. v. Nintendo Co., Ltd.
"Online Policy Group v.
Diebold | Electronic Frontier Foundation". Eff.org. http://www.eff.org/legal/ISP_liability/OPG_v_Diebold/. Retrieved
"Novell Wins Right to Unix
Copyrights". Pcworld.com. 2007-08-10.
"Diehl v. Crook | Electronic Frontier
Foundation". Eff.org. http://www.eff.org/cases/diehl-v-crook. Retrieved
"Rights and Reproductions at
the American Antiquarian Society". Americanantiquarian.org.
2009-04-16. http://www.americanantiquarian.org/reproductions.htm. Retrieved
- "Too Quick to Copyright"
Legal Times article by Jason Mazzone vol.26, no.46
- "Throwing More Light on False
Copyright Claims" Hellenic Historical and Genealogical Association
article by James F. Ramaley, PhD
- Carol Ebbinghouse, "The
Sidebar: Copyfraud and Public Domain Works," Searcher: The Magazine
for Database Professionals, vol. 16, no. 1, Jan 2008, page 40-62
article available in hardcopy only
- Copyfraud Electronic Frontier
Foundation blog post by Fred von Lohmann.
- "Copyfraud: Poisoning the
public domain - How web giants are stealing the future of
knowledge" published by The Register 26 June 2009
- Paul J. Heald, "Payment
Demands for Spurious Copyrights: Four Causes of Action", Journal of
Intellectual Property Law, vol. 1, 1993-1994, p. 259