Professor Jason Mazzone at Brooklyn Law School has just published an interesting article on "copyfraud"--the common practice of putting false copyright notices on public domain materials.

Copyfraud is everywhere. False copyright notices appear on modern reprints of Shakespeare's plays, Beethoven's piano scores, greeting card versions of Monet's Water Lilies, and even the U.S. Constitution. Archives claim blanket copyright in everything in their collections. Vendors of microfilmed versions of historical newspapers assert copyright ownership. These false copyright claims, which are often accompanied by threatened litigation for reproducing a work without the owner's permission, result in users seeking licenses and paying fees to reproduce works that are free for everyone to use.

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.

We at EFF have some firsthand experience with the copyfraud problem. In 2004, music publisher Ludlow Music threatened JibJab with a lawsuit over their use of Woody Guthrie's "This Land is Your Land" in JibJab's "This Land" parody. After EFF got involved, our research revealed that the song has been in the public domain since 1973. That fact, however, didn't stop Ludlow from falsely asserting ownership rights more than 30 years later.

So what can be done about the pervasive mislabeling of copyrighted works?

Congress should amend the Copyright Act to allow private parties to bring civil causes of action for false copyright claims. Courts should extend the availability of the copyright misuse defense to prevent copyright owners from enforcing an otherwise valid copyright if they have engaged in past copyfraud. In addition, Congress should further protect the public domain by creating a national registry listing public domain works and a symbol to designate those works. Failing a congressional response, there may exist remedies under state law and through the efforts of private parties to achieve these ends.

Sadly, signs indicate that our elected representatives are headed precisely the other way, extending the term of copyright and allowing the Smithsonian to lock up public domain materials, rather than making them more publicly accessible.

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