purple motes

False or excessively broad claims to rights, if taken seriously, could have devastating effects on content businesses. For example, U.S. National Football League (NFL) broadcasts include the following statement:

This telecast is copyrighted by the NFL for the private use of our audience. Any other use of this telecast or of any pictures, descriptions, or accounts of the game without the NFL's consent, is prohibited.

The claim, "This telecast is copyrighted by the NFL for the private use of our audience," is absurd. Copyrighting a telecast is not necessary for the private use of it, nor is advancing that use a credible explanation for the NFL's copyright action. The problem is not just that the NFL has not expressed a credible business justification for its copyright. The second sentence of the NFL's statement seems to imply that football fans need permission from the NFL to discuss games ("accounts of the game") that they watch on television. That's an impressive anti-social business-destroying effort.

The NFL has not yet succeeded in destroying its business. Perhaps that's because because football fans recognize copyfraud. The NFL recently has shown no respect for copyright law. The RIAA has executed astonishing initiatives to destroy the music business. If the NFL is serious about destroying the football business, it might run a few plays from the RIAA's playbook.

Shrewd and successful new media businesses seek to become platforms for users to share and discuss users' works. YouTube's terms of service state:

For clarity, you retain all of your ownership rights in your User Submissions. However, by submitting the User Submissions to YouTube, you hereby grant YouTube a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the User Submissions in connection with the YouTube Website and YouTube's (and its successor's) business, including without limitation for promoting and redistributing part or all of the YouTube Website (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each user of the YouTube Website a non-exclusive license to access your User Submissions through the Website, and to use, reproduce, distribute, prepare derivative works of, display and perform such User Submissions as permitted through the functionality of the Website and under these Terms of Service. The foregoing license granted by you terminates once you remove or delete a User Submission from the YouTube Website. [first bold type in original; second, added here]

Google and BSkyB (Sky) have teamed up to produce SkyCast. This video service offers users a much different deal:

If you send us videos, messages or other content, we will be able to use your content in any way we like. So, we might decide to put your content on one of our other services, like TV, or give it to someone else to put on one of their services. We might even decide not to use it at all! If you decide to take your content off the Service, Sky can still use it in any way we like.

In addition:

You waive all moral rights in relation to your Content.

Moral rights, such as Article 6bis of the Berne Convention, apparently can be waived in some jurisdictions. While SkyCast filters submitted content, its terms of service declares "thou shalt not submit content" that:

1.1 is in breach or promotes the breach of any third party rights (including third party intellectual property rights);
1.2 is defamatory, offensive or libellous;
1.3 promotes racism, bigotry, hatred or harm of any kind against any group or individual or would subject any person to ridicule or cause other people to shun or avoid such an individual;
1.4 harasses or advocates the harassment of another person or persons;
1.5 promotes conduct that is abusive, threatening, obscene or distasteful;
...
1.24 refers to any arrest of an individuals [sic] or any active court proceedings.

Moreover, in conjunction with the opportunity to offer their work to SkyCast, users are required to accept liability to SkyCast and third parties:

5.5 You will reimburse Sky and any third party who provides services to you as part of the Service for any losses, costs or damages incurred by Sky and/or any third party, on demand, arising out of:
5.5.1 your use of the Service, or anybody else that your [sic] allow to use the Service using your SkyCast Profile; and/or
5.5.2 your breach of these Terms of Use.

How would one assess the financial risk of this liability given the terms of service?

I cannot imagine that any rational, informed users would actual agree to submit work to SkyCast. Put different, if users take seriously their rights as currently set forth in SkyCast's terms of service, I think SkyCast's business is worthless.

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The Internet enables sharing the intelligence and creativity of persons around the globe. Along with this exciting new set of possibilities is a little recognized shadow: the increased opportunity cost of false copyright and false authors’ rights claims.

In his insightful article, Jason Mazzone examines the problem of false copyright claims with respect to U.S. copyright law. He observes:

Copyright law itself creates strong incentives for copyfraud [false copyright claims]. The limited penalties for copyfraud under the [U.S.] Copyright Act, coupled with weak enforcement of these provisions, give publishers an incentive to claim ownership, however spurious, in everything. Although falsely claiming copyright is technically a criminal offense under the Act, prosecutions are extremely rare. Moreover, the Copyright Act provides no civil penalties for claiming copyrights in public domain materials. [Mazzone, pp. 1029-30]

Mazzone cites numerous examples of what he considers to be copyfraud. One gross, but not unusual, example that he cites is a popular pocket version of the U.S. Constitution. It includes a copyright notice and the admonition “[n]o part of this publication may be reproduced or transmitted in any form or by any means…without permission in writing from the publisher.”

The aggregate cost of copyfraud has probably more than doubled over the past decade. Using small quotes from a copyrighted text to document, illustrate, or advance discussion of a related issue is widely recognized to be fair use. Bloggers do this extensively. Falsely asserting that such use is not permitted probably doesn’t have much effect. Other forms of textual copyfraud may have significant cost. But fair use of copyrighted images, audio, and video is much less legally clear and publicly well-understood than fair use of copyrighted text. Moreover, over the past decade there has been an astonishing expansion of possibilities for creating and sharing non-textual works. The cost of copyfraud with respect to images, audio, and video has increased with this expansion. The cost of this type of copyfraud has probably become larger than the cost of copyfraud with respect to text.

Getting copyright and authors’ rights to serve better the common good requires more attention to the economic and legal implications of false claims.

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