Re: AP Protection of Stories

On 02/16/99, Oliver Seely <oliver[_at_]dhvx20.csudh.edu> wrote:
>
> On 2/15/99, Mark S. Hayes <mark_hayes[_at_]fasken.com> wrote:
> >
> > The information contained in the Name News report may not be
> > published, broadcast, rewritten or redistributed without the
> > prior written authority of Name Inc."
> >
> > I don't see how the last sentence could be effective to create
> > any protection for the contents of the stories beyond the
> > limitations of copyright. Does anyone have any ideas?
>
> Nor do I. I view such a statement as just another extravagant claim.
> One sees many such statements associated with the standard Copyright
> statement. There is nothing in the U.S. Copyright law which prohibits
> such extravagant claims so copyright owners use them all the time.
> What we probably need is some "Truth in Copyright" legislation to rein
> in the zealots.

It is true that there is no such provision in the Copyright Act, but it has been suggested that making and/or trying to enforce such extravagant claims may violate state law, at least in theory. See Paul Heald, Payment Demands for Spurious Copyrights: Four Causes of Action, 1 J. Intell. Prop. L. 259 (1994).

It is also worth noting that the "notice and take-down" provisions of Title II of the Digital Millenium Copyright Act (the OSP liability limitations) take a small step in this direction. New section 512(f) in the DMCA [NOTE: Congress inadvertently enacted two different Sections 512 in separate bills last year] provides:

"Any person who knowingly materially mispresents... that material or activity is infringing, or that material or activity was removed or disabled by mistake or misidentification, shall be liable for any damages, including costs and attorneys' fees, incurred by the alleged infringer, by any copyright owner... or by a service provider who is injured by such misrepresentation, as a result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it."

I suspect the intent requirement will make this nearly impossible to prove [and I have a lot of other problems with the provisions], but at least the statute recognizes that spurious claims are as deserving of punishment as spurious defenses.

Tyler T. Ochoa
Associate Professor
Whittier Law School
<tochoa[_at_]law.whittier.edu> Received on Wed Feb 17 1999 - 22:15:07 GMT