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Copyfraud: Poisoning the public domain

How web giants are stealing the future of knowledge

Enter Obama, bearing Web 2.0 gifts

All works of the US Government are in the public domain. It's a condition of Federal Law. Recently, Yahoo's Flickr photo service was granted exclusive access to the Official White House Flickr Photostream.

But because Flickr is ideologically committed to Creative Commons licensing, it offered no licensing tags for public domain material, claiming it had no way to check every submission was truly public domain. This forced the White House photos to be licensed under a CC license. But CC relies on copyright. It is merely a waiver of rights granted by copyright, and these public domain works could never be assigned copyright. Users objected to Flickr assigning licensing restrictions where none could legally be imposed. Flickr initially refused to change its licensing terms, defending their use of CC licenses. They have since relented, creating an exclusive new category of "United States Government Work," linking to a document describing their public domain status, rather than just assigning a public domain tag. Now Creative Commons seeks expanded authority to administer the Public Domain, by issuing a "Creative Commons Public Domain License," as if it was a sublicense of its own invention. Creative Commons is trying to expand its licensing authority over not just newly created works, but all public domain works.

Public domain licensing is still not available to any Flickr user. This forces everyone, from individuals to large public institutions, to contribute their works to the "Flickr Commons" under a CC license, even if the works are clearly in the public domain. Flicker is enacting a blatant power grab on behalf of Creative Commons. They are establishing an extra-legal licensing monopoly, imposing an illegal copyright license structure on free works. And this is the most pernicious effect of copyfraud: it exploits the public domain to aggregate monopoly power for private interests.

Creative Commons seeks to become the arbiter of public domain licensing, yet it has no governmental authority and cannot enforce its licenses. Nor is it subject to Congressional oversight like the Copyright Office.

Google's land grab

Google is engaged in a similar power struggle. Under the Google Books settlement with publishers, the company has already negotiated expanded authority to administer copyrights on "orphan books," legitimately copyrighted books that are out of print. Google wants to become an alternate registrar for the public domain, keeping a registry of American books that publishers have failed to renew copyrights. This database was scraped from government online records, but Google says this list is not authoritative or exhaustive, even conceding that errors are likely. So Google is unofficially performing official governmental regulatory powers on copyrights. This should be prevented, handled only by the true governmental authority: The Library of Congress. Eventually Google will collect payments and distribute royalties for orphan books, giving Google truly monopolistic control of both copyright and the profits from copyrighted books.

Google's public domain book scanning project has enhanced its authority as the primary internet source for the world's written knowledge, giving Google a powerful bargaining position when it negotiated the orphan books settlement. Once Google drove out rival book scanning projects like Microsoft Live Search, publishers had little ability to resist Google's monopoly, forcing them to settle for less.

Google has usurped governmental functions that protect the public interest with a failed bureaucracy that serves only private profit. And Google is well positioned to continue their power grab, there are now three ex-Google executives on the White House staff. Google's chief policy executive will become the government's Deputy Chief Technology Officer. And now Google has announced its intention to sell ebooks through Google Books, directly competing with Amazon and other booksellers. Google has leveraged its power to become a publishing monopoly.

A plan to beat Copyfraud

What can be done to protect the public domain from such opportunism?

As Professor Mazzone says, "Copyright law suffers from a basic defect: the law's strong protections for copyrights are not balanced by explicit protections for the public domain." The balance must be restored. There is nobody devoted to protecting the public trust against the forces who would exploit it. Only governmental authority can protect this public resource, and governments must act to protect our common rights.

Dominant corporate interests like Google can easily create systemic abuses against the public trust. They must be restrained. Copyright law should be enhanced to protect the public interest, but existing law has enough regulatory power - if the government has the will to use it. Allowing these abuses to continue will only lead to new monopolies.

Government should act to secure its authority over copyrights, stopping the self-interested meddlers like Creative Commons and their Public Domain licensing, and Google's registry of lapsed copyrights.

Private interests should be prohibited from exerting pseudo-regulatory powers, as well as the means to profit from their own regulation. Anti-trust actions could break up the newly forming publishing cartel before it becomes entrenched. At a minimum, Google's orphan books settlement should be given further judicial review and invalidated. Google and Amazon should be prohibited from offering books with false copyrights, the public should be empowered to flag copyfraud books and issue a take-down notice.

Publishing should not be permitted to become a Google-Amazon oligarchy. Let us not forget what happened when a single portal to the entirety of the world's books was assembled: the ancient Library of Alexandria burned to the ground, taking everything with it. Nobody should be allowed to become a single portal to the world's knowledge. ®

Charles Eicher is an artist and multimedia producer in the American Midwest. He has a special interest in intellectual property rights in the Arts and Humanities. He writes at the Disinfotainment weblog.

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