Curbing Copyblight

Curbing Copyblight

John Tehranian · 14 Vand. J. Ent. & Tech. L. 993

Abstract

This Article identifies and analyzes the growing problem of “copyblight”—the use of overreaching claims by putative copyright holders to ownership of public domain works, and, more broadly, to exclusive rights which they do not hold in copyrighted works. Despite the fact that copyblight circumscribes political and social discourse, stifles creativity, and constricts the dissemination of information, present law provides few, if any, disincentives against the practice. Building on the groundbreaking work of Paul Heald and Jason Mazzone, this Article advances three proposals to temper the problems of overreach in order to restore a needed balance in our copyright system: (1) strengthening section 512(f) of the Digital Millennium Copyright Act to provide a more viable claim against those who make false representations to force the removal of allegedly infringing content online; (2) forcing the adoption of an evenhanded approach to the assessment of fees in copyright cases—something that many trial courts have failed to do despite the explicit exhortations of the Supreme Court and the significant policy interest at stake; and (3) resurrecting a qui tam civil cause of action for false “markings” under the Copyright Act in order to disincentivize the presently ubiquitous use of fraudulent legal language that erodes and chills protected user activities. As a society, we rightfully offer meaningful remedies for the infringement of legitimate owner rights. It only makes sense to offer meaningful remedies for the infringement of legitimate user rights.