Copyright is a central protection of the music industry. The right protects the financial interests of an artist as well as verifies the originality of their creative works. In the digital age, the number of outlets that disseminate copyright material has grown exponentially. Today musicians can publish their content via a myriad of platforms and channels. Similarly, the definition of creation and creator has expanded to embrace consumer-created content methods such as fan art, memes, and spin-off streams. The sheer number of music now being created on platforms such as YouTube and protecting legitimate works has become overwhelming. For the most part, companies such as YouTube are protecting the rights of creators using their products. There has been a trend of fraudulent copyright claims that have become prevalent on the internet. These false claims are often not by the originator of a work, but by those who wish to harass, extort, or file claims to monetize someone else’s work.
The act of fraudulent intellectual property claims is not new. The practice has been widespread in other industrial sectors, notably concerning patent trolling. Patent trolling is the litigation of patents against companies with robust products. For example, a troll will often purchase a patent from a company that has filed for bankruptcy or is monetizing its patents to remain solvent. The troll will take the patent, however vague or unrelated to another patent of greater value, and file suit against a company for infringement. With the patent in hand, the troll will seek legal action unless the infringer agrees to pay a licensing fee. In most cases, the infringer will settle these accusations rather than risk expensive litigation.
Individuals that troll copyrights use a similar approach by those who troll patents. In some cases, fraud occurs when individuals claim copyright infringement on public domain works. In these cases, an individual will take the public domain work and change a small amount of the work to claim an original copyright. In other cases, virtually nothing has changed, yet the “new owner” will claim ownership of the work by placing a false copyright notice on the new work. This practice has been common in printed music. Works that are in the public domain are often sold by publishers who assert copyright ownership over them.
In the music industry, a prevalent method of false intellectual property claims is to threaten or file litigation via an intermediary, such as YouTube. With the rate of claims so great, organizations such as YouTube cannot examine the legitimacy of these accusations, leaving the burden of proof to the work’s creator. The creator has limited options in dealing with such situations. They can request organizations, such as YouTube, to reinstate their works, thereby fulfilling all rights associated with the original posting. The creator could take the case to court. This represents an immense amount of time, effort, and cost with little chance of receiving returns on their effort. Finally, the creator could just pay the claimant and move on with their work. This is akin to situations associated with ransomware, where payment is often made to eliminate the claim.
The reasons why individuals can file such frivolous claims are two-fold. The Copyright Act has limited penalties for claiming copyright fraud. Even though filing false copyright claims is a criminal offense, prosecutions are rare. Added to this is that the copyright provision does not provide civil penalties for fraudulent claims. What is required is a major change in the Copyright Act that imposes liabilities against those who make false copyright claims and those affected by these false claims to collect damages. Given that copyrights have a constitutional dimension (i.e., creativity and free expression) a more robust enforcement approach should be taken by congress. Congress does have a template that could be adopted for copyfraud. The Patent Act prohibits the false use of the term “patent” or any other similar words or markings. Infringement within the Patent Act results in a monetary fine for mismarking. A similar approach to protecting the rights of individuals from fraudulent claims would be the first step in protecting the rights of creators.
The Analytical Musician 