Über die Autorin bzw. den Autor

Jason Mazzone has taught intellectual property law and constitutional law at Brooklyn Law School since 2003; he is the youngest faculty member in the school's history to hold an endowed chair. A renowned legal scholar, Mazzone has written about legal issues for the New York Times and other national newspapers, and he is a regular media commentator and a blogger at the popular legal blog, Balkinization. He received his undergraduate and law degrees from Harvard University, a master's degree from Stanford University, and a master's and doctorate from Yale University. Before entering academia, he was a law clerk to two federal judges and he practiced intellectual property law in New York City.

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COPYFRAUD and OTHER ABUSES of INTELLECTUAL PROPERTY LAW

Stanford University Press

Contents

Preface...........................................................vii1 Copyfraud.......................................................12 Vanishing Fair Use..............................................263 Samples and Mash-Ups............................................514 Takedowns and Lockups...........................................695 From Copyright to Contract......................................956 The Ownerless Society...........................................1187 Trademarks Unbound..............................................1418 Copyfraud Liability.............................................1689 Defending Copyright Fair Use....................................18510 Putting Intellectual Property in Its Place.....................211Afterword.........................................................227Notes.............................................................233Acknowledgments...................................................275Index.............................................................277

Chapter One

A pocket version of the U.S. Constitution popular among law students contains a copyright notice along with this warning: "No part of this publication may be reproduced or transmitted in any form or by any means ... without permission in writing from the publisher." The notice and warning are obviously absurd. Whatever the Constitution's framers and ratifiers had in mind when they authorized Congress to create laws protecting copyright, they did not expect that somebody would one day claim a copyright in the Constitution itself. Imagine for a moment, though, a world in which the U.S. Constitution is copyrighted. Lawyers would need permission to quote the provisions of the Constitution that help their clients' causes. Newspaper columnists discussing freedom of speech would need to license the text of the first amendment. Lawsuits would be filed to remove unauthorized copies of the Constitution from high school classrooms. Reproducing the text of the Constitution in a book or on a website would require advance clearance. Government agents would raid warehouses and stores and seize unauthorized "We the people" coffee mugs, tote bags, and T-shirts.

There is a good reason nobody owns a copyright in the U.S. Constitution. The Constitution belongs to everyone. Along with millions of other works, the Constitution is part of the public domain. The public domain is the collection of works that are not protected by copyrights. A work becomes part of the public domain when the copyright on it expires, because the work did not qualify for copyright protection in the first place, or because the creator of the work has given the work to the public. Public domain works are free for anybody to use and reproduce because nobody has the right to control their use.

Under the law, the word fraud is used to describe a false claim by one person to another. Copyfraud is therefore the term I use to refer to the act of falsely claiming a copyright in a public domain work. In the typology I use in this book to classify forms of overreaching, copyfraud entails a false claim to intellectual property where none exists.

Examples of copyfraud abound. In general, copyright belongs to the author of a published work and expires seventy years after the author's death. Yet copyright notices appear on modern reprints of poems by William Cullen Bryant (who died in 1878) and on the piano scores of Ludwig van Beethoven (who died in 1827). There is no basis for claiming copyright in reproductions of two-dimensional public domain artworks. Yet modern publishers hawk greeting card versions of Monet's water lilies, Van Gogh's sunflowers, and Cézanne's apples—each bearing a copyright mark. Poster-sized reproductions of works by Vermeer and Da Vinci, each embossed with a false copyright notice, brighten the walls of college dorm rooms across the country. Archives claim blanket copyrights in everything in their collections, including historical works as to which copyright, which probably never belonged to the archive in the first place, has long expired. The publishers of school textbooks do not explain that their copyright notices apply only to the authors' own words and original arrangements and not to the books' reproductions of the declaration of Independence, the Gettysburg address, supreme Court cases, or George Washington Crossing the Delaware. Corporate websites include blanket copyright notices even when they feature the U.S. flag, list stock reports, contain a calendar, or rely on other materials squarely in the public domain.

Copyfraud has serious consequences. In addition to enriching publishers who assert false copyright claims at the expense of legitimate users, copyfraud stifles valid forms of reproduction and creativity and undermines free speech. False copyright claims, which are often accompanied by the threat of litigation for reproduction of a work without the putative owner's permission, result in users seeking licenses and paying fees to reproduce works that are free for everyone to use, or altering their creative projects to excise the un-copyrighted material. Copyfraud also fosters misunderstanding concerning the scope of intellectual property law, which further emboldens publishers and other content providers to claim rights beyond those they actually possess.

SOME COPYRIGHT LAW BASICS

The point of copyright is to promote creativity. Under the Constitution, Congress has power "[t]o promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." The Constitution therefore empowers Congress to create copyright protections in order to encourage creative production by allowing authors to monopolize, for a limited period, revenues from their own works. As the supreme Court has explained, copyright law is thus instrumental. The monopoly that a copyright confers "is intended to motivate the creative activity of authors." The ultimate goal is an enrichment of publicly accessible works: "[p]rivate motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts."

Congress enacted the first federal copyright statute in 179?. Our modern copyright statute is the Copyright act of 1976, which took effect in 1978, and which itself has subsequently been revised and updated. Its granting of monopolistic rights to authors gives copyright an uneasy relationship with the first amendment, which, in general, prohibits government from conferring exclusive rights in speech. The Constitution strikes a delicate balance between supporting authorship and suppressing speech by permitting copyrights only "for limited times." Accordingly, under federal statutory law, the term of copyright protection is limited. Once a copyright expires, the work falls into the public domain, where anybody is free to use it.

The Copyright act provides that for works created on or after January 1, 1978, the copyright in the work lasts until seventy years following the author's death. For works with multiple authors, the term is seventy years after the death of the last surviving author. The duration of copyright protection for pre-1978 works is more complicated; other writers have usefully...