'Copyfraud' and public domain works.(THE SIDEBAR)

You find a PDF version of the Federalist Papers on the internet that is just what you need, but it carries a copyright date of 2001. Now that's odd, considering that the last Federalist paper was written and published in 1788. Cautious, you find an ASCII text version, but it has a copyright date of 1999. Can you download this one? Does the fact that one is an image and the other plain text make any difference? And how the heck does anything written in the 18th century end up with post-1923 copyright dates?

Can someone legitimately move public domain text into copyright? What about when you go to an archive, only to find open source and nonpublic domain titles mixed in with public domain items, but the archive seems to put restrictions on your subsequent use of everything (no copying without permission; no commercial re-use, etc.)? Perhaps you turn to a digital library--such as the one that Emory University, among other libraries, is building in collaboration with the Kirtas Technologies (an Open Content Alliance ally) and Amazon. This private archive may charge a fee for a print-on-demand hard copy of one of its public domain titles. But, hey, you wonder--the university doesn't own the copyright to the title (it is public domain, after all), it just has a copy in its collection that has been scanned and now is being sold in hard copy in conjunction with Amazon. Print-on-demand (POD) services have become the new reprint houses, but fortunately, Emory still plans to offer fully searchable, browsable, and downloadable PDF files of its public domain content. At least, those are the current plans, according to Martin Halbert, director of library systems and the Metascholar Initiative.

[ILLUSTRATION OMITTED]

Finally, you turn to Project Gutenberg, the original source for public domain works, because it won't load a title unless it is certain of the work's public domain status. Here you can download the Federalist Papers, copy it, put it on your webpage, whatever.

What gives? Doesn't public domain status mean free of restrictions on copying, saving to file, sharing with friends, uploading to the internet, even using for commercial and other reproduction purposes, etc.? How can all these "ownership" claims apply to works clearly in the public domain? Law school professor Jason Mazzone has coined the term "copyfraud" (1) to describe "false assertions of copyright" that he has found on such items as modern reprints of Shakespeare's plays, Beethoven's piano scores, etc. Mazzone indicted archives claiming "blanket copyright to everything in their collections, including historical works as to which copyright, which likely never belonged to the archive in the first place, has long expired."

Can people do that? Well, as Professor Mazzone points out, people can put a "for sale" sign on the Brooklyn Bridge and collect money from the gullible, and people can claim copyright in public domain works and insist on payments for downloading, reproductions, etc. In fact, because of the well-publicized lawsuits relating to academic "course packs," most universities and copy services insist on paying for permission or a license to some document service or the Copyright Clearance Center--even for works in the public domain! This needlessly drives up costs for students and unduly enriches copyright claimant (since there is no copyright owner).

Is it legal? No. Can claims be enforced? Claimants can try. If you post what you believe to be a public domain work on your web site, the copyright claimant may have an attorney send you a cease and desist letter or tell you that you owe money. Or claimants might just notify your ISP that the work potentially infringes on their copyright and the ISP will take it down--BOOM--to protect the ISP's immunity. The ISP must take any allegedly infringing material down whenever it gets notification or it too would become potentially liable.

As Jason Mazzone points out, "Copyright law suffers from a basic defect: The law's strong protections for copyrights are not balanced by explicit protections for the public domain. Accordingly, copyright law itself creates strong incentives for copyfraud. The limited penalties for copyfraud under the Copyright Act, coupled with weak enforcement ... give publishers an incentive to claim ownership, however spurious, in everything. Although falsely claiming copyright is technically a criminal offense under the Act [17 U.S.C. [section]506(c)] prosecutions are extremely rare. Moreover, the Copyright Act provides no civil penalty for claiming copyrights in public domain materials.... [and] no federal agency is specially charged with safeguarding the public domain."

Copyfraud, according to Mazzone, "refers to claiming falsely a copyright in a public domain work. These false copyright claims, which are often accompanied by threatened litigation for reproducing 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…