Plagiarism is Not a Crime

Copyright infringement and plagiarism are related but distinct concepts. Copyright prohibits certain uses of original works of authorship without permission. Plagiarism norms prohibit copying certain expressions, facts, and ideas without attribution. The prevailing theory of copyright is the economic theory, which holds that copyright is justified because it is economically efficient. This article considers whether academic plagiarism norms are economically efficient. It concludes that academic plagiarism norms prohibiting non-copyright infringing plagiarism are not efficient and should be ignored

Copyright in a Nutshell for Found Footage Filmmakers

Found footage is an existing motion picture that is used as an element of a new motion picture. Found footage filmmaking dates back to the origins of cinema. Filmmakers are practical and frugal, and happy to reuse materials when they can. But found footage filmmaking gradually developed into a rough genre of films that included documentaries, parodies, and collages. And found footage became a familiar element of many other genres, which used found footage to illustrate a historical point or evoke an aesthetic response. It can be difficult to determine whether found footage is protected by copyright, who owns the copyright, and whether particular uses of found footage infringe copyright, especially in the case of unpublished motion pictures. This article argues that copyright doctrine is unacceptably indeterminate and effectively restrictive in relation to the use of found footage

Machiavellian Intellectual Property

In his controversial essay, “Faith-Based Intellectual Property,” Mark Lemley argues that moral theories of intellectual property are wrong because they are based on faith, rather than evidence. This article suggests that Lemley’s argument is controversial at least in part because it explicitly acknowledges that consequentialist and deontological theories of intellectual property rely on incompatible normative premises: consequentialist theories hold that intellectual property is justified only if it increases social welfare; deontological theories hold that intellectual property is justified even if it decreases social welfare. According to Berlin, the genius of Machiavelli was to recognize that when two moral theories have incompatible normative premises, societies may be forced to choose between the theories. But Berlin observed that it is possible to adopt different moral theories in different contexts. This article suggests that we can reconcile consequentialist and deontological theories of intellectual property by adopting a consequentialist public theory and deontological private theories

Copyright As Charity

Copyright and charity law are generally considered distinct and unrelated bodies of law. But they are actually quite similar and complement each othe

Three Great Phonographers: Warhol, Nixon & Kaufman

Journalists record in order to produce an article and substantiate factual assertions, but phonographers record in order to produce an audio recording. In other words, for a journalist, phonography is a means to an end, but for a phonographer, it is an end in itself. Warhol, Nixon, and Kaufman exemplify three modes of phonography: anthropological, historical, and psychological. Warhol documented the language and self-perception of a subculture that was ignored or pathologized by mass culture. Nixon created the most comprehensive record of a presidential administration that will ever exist. And Kaufman captured moments in which ordinary people responded to violations of social order. The original phonographers had to choose what to preserve and laboriously record it in shorthand. Unsurprisingly, few recordings of everyday life were preserved. By contrast, modern phonographers can use audio recording equipment to easily record whatever they choose. But few choose to record their conversations, and fewer still choose to preserve them. Warhol, Nixon, and Kaufman are great phonographers because they chose to create and preserve the mundane conversations of their everyday lives. In so doing, they enabled us to better understand the societies in which they lived, even while remaining enigmas themselves

Against Deaccessioning Rules

Art museums are the aristocrats of the charitable sector, with all the virtues and vices of the aristocracy. In their prime, they are glorious exemplars of the finest in cultural expression. But in their dotage, they are weak and vulnerable, constitutionally incapable of avoiding financial ruin. Some art museums have even gone bankrupt and dissolved, despite owning large collections of extremely valuable objects. What explains this paradox? Deaccessioning rules: professional rules governing art museums and art museum directors that prohibit the sale of works of art for the purpose of generating capital. When art museums find themselves in financial distress, deaccessioning rules can effectively prevent them from saving themselves. For want of a sale, an institution is lost. I find it tragic and tragically unnecessary. I question the enforceability, justification, and legitimacy of deaccessioning rules. But even if you think such rules reflect best practices for museum collection management, they should not require the unnecessary sacrifice of a museum. When faced with the decision of either violating deaccessioning rules or dissolving a museum, directors should almost always choose the former. Ironically, as I was editing this article, the deaccessioning police seem to have reached the same conclusion, albeit with considerable reluctance. On April 16, 2020, in response to the coronavirus pandemic, the Association of Art Museum Directors announced that it was temporarily relaxing its deaccessioning rules. Specifically, it provided that for the next two years, member museums can use deaccessioning proceeds for the direct care of collections, a substantial shift from its standard policy prohibiting the use of deaccessioning proceeds for the purpose of anything other than purchasing artwork. Perhaps things are finally about to change, no matter how much the AAMD and its beneficiaries want them to remain the same

Toxic Public Goods

Everybody loves public goods. After all, they are a perpetual utility machine. Obviously, we want as many of them as possible. But what if the consumption of a public good actually decreases net social welfare? I refer to this kind of public good as a toxic public good. In this essay, I discuss three kinds of potential toxic public goods: trolling, pornography, and ideology, and I reflect on how we might make the production of toxic public goods more efficient

Court Packing Is a Chimera

The dream of the 1930s is alive in Washington. Democrats see Republicans hemorrhaging voters as Trump struggles with the economy and the pandemic and are salivating at the prospect of retaking not only the White House, but also the Senate. Of course, you should never sell a bearskin until you\u27ve caught the bear. But even a blowout victory can\u27t get Democrats the prize they really want, a Supreme Court majority. So, in back-to-the-future fashion, many progressives are pushing the idea of court packing. After all, in politics, rules are made to be broken

Justifying Academic Freedom

While academic freedom can only be described in relation to academic norms, its justification can and should depend on its contribution to the common good. Academics contribute to the common good by producing scholarship. But scholarship is a means to an end, not an end in itself. Academic freedom is justified not only because enables academics to produce more and better scholarship, but also because it enables academics to challenge academic norms that diminish the quantity or quality of scholarship they produce

Deodand

Law is a funny thing. Nobody really knows what it is. And there’s so much of it! If you started reading the United States Code out loud today, you’d be hoarse before you got to Title 17. Even still, you’d barely be getting started. The Library of Babel has nothing on the mountain of laws we’ve already got or the avalanche we keep creating. No one could possibly read them all, let alone remember what they say. What a conundrum! And yet, as a practical matter, we still seem to have a pretty good idea of what the law expects and requires. Most people live their entire lives without reading a single law but somehow manage to stay out of trouble. It’s a mystery how they manage. Or is it