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The Problem of IP Overenforcement: Jason Mazzone’s Copyfraud

In my Boston Review piece on SOPA, I mentioned a sad story about a drawn-out copyright lawsuit’s effect on an entrepreneur. I should have also brought up a whole book on the problem of IP overenforcement, Jason Mazzone’s Copyfraud. Important on the day it was published, it’s particularly salient now that Congress is considering expanding the powers of copyright and trademark owners.

Mazzone argues that overenforcement of copyright is rampant:

False copyright notices appear on modern reprints of Shakespeare’s plays, Beethoven’s piano scores, greeting card versions of Monet’s Water Lilies, and even the U.S. Constitution. Archives claim blanket copyright in everything in their collections. Vendors of microfilmed versions of historical newspapers assert copyright ownership. These false copyright claims, which are often accompanied by threatened litigation for reproducing a work without the “owner’s” permission, result in users seeking licenses and paying fees to reproduce works that are free for everyone to use.

Mazzone’s book highlights an underappreciated problem of rights fabrication that threatens to become a form of private legislation. If the intellectual property system is to genuinely promote innovation and creativity, it will need to address the issues he describes. It should certainly do so before adopting the types of intrusive remedies proposed under SOPA/PIPA. Mazzone’s policy recommendations are wise and often original, both recognizing and building on a large law review literature on IP reform. As Mazzone has argued:

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