I Go To Skool With Smart People

Two interesting cyberlaw/IP things on the interweb from my classmates:

  1. Alice Goldmann has written an interesting paper about community-based Internet governance. Alice’s paper, which was inspired by Craigslist’s governance model, was even mentioned on Craig Newmark’s blog. It’s worth noting that trying to run the Internet from the bottom up is a very kind of Interwebby idea.
  2. Renaissance man Patrick Runkle (writer, journalist, musician, soon-to-be-lawyer and general all-around suave dude) muses about the copyright implications of services that automatically check term papers for plagiarism. I’d argue that first, these services are a non-infringing fair use[1], and second, even if they are infringing, what are the damages?

Patrick’s point raises something that I’ve been thinking about. Prior to 1976, to secure a copyrightin the United States, you needed to register it with the Copyright Office. However, the Copyright Act of 1976 changed that completely; now, whenever an expressive work is fixed in a tangible medium, a copyright automatically attaches to the fixed work. For example, a dance performance can’t be copyrighted; however, choreographer’s notes that describe how the dance is performed are copyrighted, as would be any video recordings of the dance. Note, however, that the copyright of the video recording extends only to the tape itself and not the actual dance.

Anyway, this automatic copyright provision greatly expanded the reach of what’s copyrighted and what is copyrightable. A letter from your aunt is now copyrighted, for example. There are, however, some unforseen side effects from this very broad expansion of IP rights; for one thing, it makes doing things in the public commons much more difficult. Going back to Patrick’s example of the plagerism services; prior to the 1976 Act, there would be no copyright problem, in part becase copyright wasn’t originally intended to cover things like school papers. Indeed, one could ask if the drafters of the 1976 Act really thought about the applicability of a lifetime+50 year copyright term for term papers.

[1] The four fair use factors are
1. The purpose and character of the use [e.g. how transformative is the use and to what purpose is the use put; educational and research purposes get a very broad pass here] 2. The nature of the copyrighted work [e.g. fact-based works get less protection than wholly fictional works] 3. The amount and substantiality taken [or, in English, how much of the work did you take? While as a general rule, the more you take, the less likely your use will pass muster with the courts, it’s quite possible to take the entirety of a work and still have it pass as a fair use] 4. And finally, what is the effect of the use on the potential market for the work?

It is left as an excercise to the reader to apply the four fair use factors to the case of the plagerism services.


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This page contains a single entry by Paul published on October 17, 2006 12:52 AM.

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