Talk:Copyfraud/Archive 1

I don't think that this is OR needing an RS - more so than the proverbial sky is blue is not OR needing an RS. The revert's summary was, "Not a "case," a likely example. But still based on OR without a RS." "The question is (not whether readers can or can not be expected to have knowledge of a certain fact, but) whether the fact in question is a relevant point of debate in the expert literature on the article topic." - a quote from from WP:NOTBLUE I don't think copyright experts would debate whether this "photograph may not be manipulated in any way" is a copyright claim to content that, as a United States federal government work, is in the public domain. Discuss? I ask someone to revert this revert or suggest a compromise. I'll make a compromise attempt.--Elvey^(t•c) 03:11, 10 July 2015 (UTC)

I agree that the image is acceptable. Copyfraud includes making any claim of copyright to public domain materials, which this does on its face. I agree that this image falls under WP:BLUE. The fact that it was next to the "cases" section is not a reason to complain about it. -- Ssilvers (talk) 03:52, 10 July 2015 (UTC)

While the photo is cool, it's still not an image that should or could be used to give an example of copyfraud. WP editors don't decide what's copyfraud, RSs do. In any case, as the rationale stated, this is still an example of using synthesis OR. If that was acceptable, we could all visit Corbis and pull an unlimited number of images. In fact, if and when Corbis does start selling the photo and adds a copyright notice somewhere on their web page, we still can't claim it's copyfraud since we are not reliable sources. And what we "think copyright experts" would say is actually less than synth.

There's also the issue of personality rights which the government's statement was mostly covering. By "manipulating," they were possibly referring to altering or misusing the image, such as by cropping, or using it in other ways which would misrepresent the purpose of the photo. --Light show (talk) 04:48, 10 July 2015 (UTC)

But neither my original edit nor my second attempt (which you don't indicate having looked at) claim it's an example of copyfraud. Please don't make straw man arguments. Please don't blow off the quote from WP:NOTBLUE -- "The question is (not whether readers can or can not be expected to have knowledge of a certain fact, but) whether the fact in question is a relevant point of debate in the expert literature on the article topic." If what was acceptable?? Corbis - Huh??? Please be clear - do you dispute that the work is PD or accept that it's PD? If you dispute it, why??? What they were possibly trying to say is far less relevant than what they actually said. Cropping it is perfectly legal.

--Elvey^(t•c) 19:26, 10 July 2015 (UTC)

1. Copyfraud is knowingly overstating IPRs. We should not list cases where there are not RS to show that it was knowing, unless we make it clear that this was not established. Especially relating to LPs.
2. The case law in different countries may vary or not be settled over the copyright in derivative works. While, for example, Wikipedia takes the approach that a faithful two dimensional reproduction of a two dimensional PD work is itself PD, and is on fairly firm ground in the US, there is no guarantee in other common law countries that this is or will remain the case. Surprising precedent is being set all the time. Consider this case for example.

All the best: Rich Farmbrough, 22:35, 15 July 2015 (UTC).

Hi, Rich. I disagree with your first point. No legal knowledge is required [Edit add: as I discuss below, legal intent can be inferred from the false claim itself in many instances] -- you commit copyfraud when you state that you have rights that you do not have, even if you are merely mistaken[Edit add: so long as it would not be reasonable for you to believe the claim you are making -- see below, and see Mazzone's article]. In fact, I think, based on what our references say, that the first sentence should use the term Copyright misuse instead of fraud. -- Ssilvers (talk) 23:59, 15 July 2015 (UTC)

"Fraud" and "misuse" have two different meanings. Fraud is always intentional, misuse is not. Copyfraud is just a specific type of fraud. Mazzone makes that very clear. --Light show (talk) 00:35, 16 July 2015 (UTC)

[left]Actually, Mazzone makes it clear that copyfraud does *not* require a specific showing of intent. His article says: "Falsely marking a public domain work undermines expression even if the false marking was not made with any intent to trick somebody into making payment. ... it makes sense to impose liability for copyfraud without requiring plaintiffs to establish all of the elements of the traditional tort of fraud ... plaintiffs should be permitted to establish intent by inference. Furthermore, a cause of action in copyfraud should not require proof of detrimental reliance. Finally, as explored in greater detail below in the discussion of standing, the cause of action should not be limited to individuals who have suffered an actual injury. Instead, any member of the public should be empowered to bring a copyfraud claim."

Mazzone analogizes to a similar patent cause of action where the the plaintiff may show "by a preponderance of the evidence that the party accused of false marking did not have a reasonable belief that the articles were properly marked ... courts have ... recognized that intent can be established where notice has been provided that a marking is false and the defendant continues to mismark the product." Mazzone concludes that "Relaxing the traditional elements of the tort of fraud in these ways makes sense in light of the important public interest at stake in protecting the public domain." (see pp. 1074-1078)

He gives an example of inferring intent: "because it is impossible to believe that a play by Shakespeare is copyrightable, a publisher who attaches a copyright notice to the play would easily be found to have acted with deceptive intent. While, therefore, liability would not be imposed on the basis of mere negligence, intent could be inferred." Similarly, it is impossible to believe that a photo by the White House photographer is copyrightable. Mazzone makes it clear that "copyfraud" is not simply a kind of fraud. Therefore, I have undone one of the edits made a week or two ago by Light show, in the Lead, to restore the description to copyright misuse, which is a broad enough description to accurately encompass copyfraud. -- Ssilvers (talk) 04:22, 16 July 2015 (UTC)

Good analysis, Ssilvers.--Elvey^(t•c) 18:12, 17 July 2015 (UTC)

Poor definition. Who besides you has used "copyright misuse" as a term to describe copyfraud? Without a good RS, the best being Mazzone, this would be obvious snythesis. Unless I'm missing something, to say that "copyfraud" is not a type of fraud, implies that the word itself is wrong. Is that what you're claiming?

In any case, the copyright misuse cases involve owners of patents or copyrights, not persons falsely claiming ownership, which is the essence of copyfraud. At best we would include "copyright misuse" along with "fraud" in the lead definition. There's no reason to water down the violation as you keep trying to do. The "copyright misuse" issue mostly involves "overreaching," which could possibly be done unintentionally. And "copyright misuse is an equitable defense against copyright infringement," which fraud would not be. The sentence your rewrote to, "Copyfraud is a form of copyright misuse," has therefore been truncated and redefined contrary to the sources. --Light show (talk) 19:52, 17 July 2015 (UTC)

Fair enough, Light show. I've removed the words "copyright misuse" and offered another description that I think is neutral and conforms with Mazzone's article. I think I mostly agree with what you just wrote. Also, to the extent that copyfraud describes a legal principal that is in some ways broader than fraud, then yes, the name "copyfraud" could be considered too narrow. But I don't think that's a problem. Lots of things bear a name that indicates the basic idea without being exactly correct as to the scope of the idea that it names. For example, "copyright" is not just about copying. -- Ssilvers (talk) 21:01, 17 July 2015 (UTC)

I think it is not an issue to say that in certain jurisdictions intent (to mislead) can be inferred. But it far from simple to do so, and the place of a court, not Wikipedia, or indeed journalists. Just to take your two examples, almost every copy of a Shakespeare play published in modern times has linguistic changes from the original(s), and maybe even selections of which version of the early copies to follow - does this pass the bar for creativity? And the White House photographer is not obviously a US Government employee, the entourage of leaders often includes state, party and personal employees, contractors and so forth (though of course some groups of people could be expected to know that they are) - and only photographs taken as part of their duties are public domain. See for example the fuss over the Nelson Mandela picture.

All the best: Rich Farmbrough, 13:38, 4 August 2015 (UTC).

Rich, copyfraud is a concept that has been described in law review articles, other journals and books by Mazzone and other legal commentators, and it describes a group of rights and proscriptions that are partly already scattered around in the law, but that were not previously grouped together formally. It is something that these law professors, journalists and legal commentators are suggesting *should be* adapted and/or acknowledged more formally (and grouped under the umbrella of the term) by the courts and/or legislatures, but which have not, to date, been *widely* defined by courts and considered *together* formally by courts and legislatures. The examples of cases that we give are merely examples to show that some courts have noticed and applied the term in describing one or more of these kinds of wrongful activities. The purpose of this article is to collect, and present in encyclopedia format, what Mazzone and the various commentators, including journalists, have said in fleshing out the concept. As a lawyer, I think the white house photo is a rock solid example of misuse of a public domain photo, but if you have a better example to replace it, that would be fine with me. -- Ssilvers (talk) 16:37, 4 August 2015 (UTC)

Oh I absolutely agree that the claim is misleading, and should have been better worded. And I have no issue with a broader definition of the term, certainly we must be clear about the definition, and use it appropriately.

My concern is that we are very careful, especially with living people, not to make claims of copyfraud that are not at the very least called such by suitable RS, and that we attribute clearly.

The reason I mention the White House photographer is to make it clear that what a reasonable person would believe is dependent on personal context. Imagine, say, a high school student from a far country with limited English calls the White House press office and requests permission to use a photograph in a project, they are told that "Certainly you may use it." Having a basic understanding of copyright law they produce their project, and mark the photograph as "Copyright US Government, all rights reserved" - exactly as they do with other pictures from other sources. They are, I think, undeniably acting as a reasonable and responsible person would in their situation.

All the best: Rich Farmbrough, 21:44, 4 August 2015 (UTC).

No one is accusing the photographer of anything. The photo was published by the White House, so there is no BLP issue, if that's what worries you. Also, the footnote to the photo caption (currently footnote 10) clearly states who called the image copyfraud. -- Ssilvers (talk) 22:51, 4 August 2015 (UTC)

Not sure how you could have gained that impression! It's more cases like Michael Crook, where it is clear that he did not understand copyright law, if we take our article at face vale. The Holmes case was a reasonable copyright dispute, since some of the work was still copyright, there is a case that derivative work is an infringement. It's by no means clear that terms of use which limit parties ability to re-publish PD work are not enforceable (AAS).

All these cases are about the boundary of the public domain, but they are not necessarily about copyfraud.

On a side note, I just received an email from Google confirming that they have taken down a copyfraud book as I requested.

All the best: Rich Farmbrough, 00:46, 5 August 2015 (UTC).

Just a note to restate a comment about this example that I made a while back, that because it's a case of "overreaching," which is a much more vague form of copyfraud, the image with its lengthy explanation is not a good example. It actually over complicates what's really a simple issue: falsely claiming a copyright over PD material. That's only be implied with this example. I'd suggest finding something more clear cut so more people intuitively understand the problem. --Light show (talk) 23:32, 4 August 2015 (UTC)

Here's a hypothetical question: Imagine that company A appears to be committing copyfraud. Person B wants to use an image that Company A falsely claims copyright over. However, company C, which is unrelated to company A, nonetheless prevents person B from using it because of company A's claim. The question: is company C engaging in or are they an accessory to Copyfraud? --Light show (talk) 21:22, 14 May 2016 (UTC)

Company C cannot assert someone else's copyright unless it (1) has a contractual right to do so; and (2) the copyright being asserted is valid in the first place. Otherwise, Company C could be sued under copyfraud theories. This is sort of like the GEMA case mentioned in the article. -- Ssilvers (talk) 21:41, 14 May 2016 (UTC)

Makes sense. Not long ago, over 100 photos, all pre-1979 originals with no notice front or back, were uploaded to the WP Commons and were subsequently deleted because an editor tagged them. They were tagged since Corbis or Bettman was selling copies and had a copyright notice on their web page. The uploader was blocked from uploading anything else, partly because they claimed that Corbis's notices were a form of copyfraud. What's worse, is that when the blocked editor explained to the tagging editor that Corbis was committing copyfraud, the tagging editor did not disagree, yet refused to restore the images. --Light show (talk) 22:02, 14 May 2016 (UTC)

As one discussion made clear, as with private or small business users, fear of lawsuit was the deciding factor, not legality. --Light show (talk)

Note that when the WP or wikimedia community takes down an image, it is not copyfraud, because the community is not claiming any copyright in the image; it's just saying that our policy is "not to post" anything unless someone proves to us that they hold the copyright, that there is a free license, or that the work is in the public domain. A DMCA notice, on the other hand, states that copyright has been claimed, so that statement can be examined for copyfraud. -- Ssilvers (talk) 22:48, 14 May 2016 (UTC)

However, if they take down an image because of a Corbis claim, would they become an accessory? The original question related to someone preventing an upload, effectively supporting copyfraud. I don't think WP itself ever claims copyright, only uploaders can do that. --Light show (talk) 22:57, 14 May 2016 (UTC)

First of all, the word "accessory" is not helpful – that is a criminal law concept, and you are talking about a civil lawsuit. I don't think that one could prevail in a suit against Wikimedia for failing to display any image, and I think it would be unlikely that one would succeed against an individual or organization who makes a claim resulting in Wikimedia taking down an image. In any case, it would be very expensive and time consuming to bring such a suit. It would be far easier to make a clear and persuasive case to the community as to why you believe that the image is free and can be displayed on Commons. Sometimes, if you go to a project page for a related group of topics you can find other users who can help you to make the case in the discussion at the image Talk page. All the best! -- Ssilvers (talk) 00:29, 15 May 2016 (UTC)

You're right about "accessory." You're also right about any suits, but for another reason: No one will sue a company for committing copyfraud. All you can do is wait till Corbis files suit and defend yourself. Which really means they win by default, since they have in-house attorneys that drive any defender into losing by overwhelming force. Which also implies that Corbis and others have overridden copyright laws, making much of U.S. copyright law a sham, thanks to digitization. As this article states, "Because copyfraud carries little or no oversight by authorities and few legal consequences, it exists on a massive scale, millions of works in the public domain falsely labelled as copyrighted.".--Light show (talk) 01:06, 15 May 2016 (UTC)

Came across this article claiming that it is. While they let users download low-res images of, for example, William Shakespeare, Richard III, Queen Elizabeth 1, King John and King Henry V, they claim copyrights over the high-res image, which they sell licenses to use. Should this be an example for the article? --Light show (talk) 19:45, 15 July 2016 (UTC)

It is copyfraud to claim copyright in a photograph of a public domain artwork. Yes, please add an example for this! -- Ssilvers (talk) 20:56, 15 July 2016 (UTC)

I also posted the question at Commons to get their feedback, since it's also a commons issue. We can give it some time. --Light show (talk) 21:16, 15 July 2016 (UTC)

I hope you don't wait for Commons. The folks at Commons are required to comply with Wikimedia's rules; they are not required to be copyright law experts. Maybe someone there will be helpful here, but you should not count on it. -- Ssilvers (talk) 21:22, 15 July 2016 (UTC)

en:National Portrait Gallery and Wikimedia Foundation copyright dispute. Blue Rasberry (talk) 21:30, 15 July 2016 (UTC)

Sort of reminds me of some questions I once posted. And I still don't understand why WP, of all organizations, doesn't rely on having its own dedicated copyright attorneys. --Light show (talk) 22:19, 15 July 2016 (UTC)

Light show -- It would be copyfraud in the United States where Bridgeman Art Library v. Corel Corp. applies, but things are not quite as clear in the UK. AnonMoos (talk) 14:54, 17 July 2016 (UTC)

The laws appear similar: In the UK, Copyright automatically exists under law whenever an individual creates any type of work listed above provided it is original (not directly copied or adapted from an existing work) .... And copying a work requires an owner's permission. For older materials, When the term of copyright protection has expired, the work falls into the public domain. This means that the work, has effectively become public property and may be used freely. --Light show (talk) 17:20, 17 July 2016 (UTC)

I agree with Lightshow. There seem to be some good refs for Lightshow to use in the example here, as Blue Rasberry pointed out. Besides, the question is a US law question, since US law governs what is displayed on Commons. -- Ssilvers (talk) 17:24, 17 July 2016 (UTC)

However, claiming "fraud" requires some very good reliable sources. The TechDirt source first noted is probably not one, as the writer does not claim to be an expert or even lawyer. For a WP editor to use it, or any other cases as an example, would otherwise be a synthesis IMO. --Light show (talk) 17:35, 17 July 2016 (UTC)

Exactly. The purpose of this article is not to debate Commons policy, but to report in a neutral and objective way what reliable sources have said about copyfraud (and no, I don't think a blog post from "the wtf? dept" counts as a reliable source). The law certainly is different in the UK (or, at least, works differently in practice). It is standard UK practice for institutional repositories (museums, galleries and libraries) to insist that their permission is obtained for publishing images of two-dimensional artwork in their collections, and to charge reproduction fees (though they may, and often do, waive the fees where the publication is not-for-profit, or allow free publication of low-resolution images). Arguments about older work, expiration of copyright, and the work entering the public domain don't apply because the 70-year rule on copyright only kicks in once the work is published in the first place (in other words, Shakespeare's plays, or an engraved portrait of Shakespeare, having once been published, and 70 years having elapsed since the author's or engraver's death, are now in the public domain; but a painted portrait of Shakespeare, unpublished at the time, is still potentially the intellectual property of the artist's heirs). The question of whether the "added value" contributed by a skilled photographer making a high-quality image of an old work is sufficient to create a new copyrightable work – the issue at the heart of Bridgeman Art Library v. Corel Corp. – is one that still hasn't really been fully debated or settled in the English (or Scottish) courts, and given that it also involves UK compliance with EU law is something that I doubt will be settled definitively any time soon. I suggested over a year ago (above) that this article should take a more global perspective, and I'd welcome more on the situation in the UK and elsewhere, bur we need reliable sources (preferably secondary sources) first. GrindtXX (talk) 18:45, 17 July 2016 (UTC)

I added some clarifying details to the article noting that it's as yet only a U.S. legal concept, not a global one. Other places in the commentary could also be clarified. --Light show (talk) 19:48, 17 July 2016 (UTC)

We cite Australian law in the article. Also, Cory Doctorow is a Canadian-British journalist, and the Boing Boing site, which is used in the article, does not rely only on US law. So I think it is wrong to say that the article is about US law. Here is a German book about Copyfraud. Here are French sources and . The problem is not that copyfraud is a U.S. concept; the problem is that we have not added the foreign sources. I don't speak French or German. Can anyone help add foreign sources? There appear to be lots of book sources, if anyone wanted to look at them. -- Ssilvers (talk) 21:30, 17 July 2016 (UTC)