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who owns the copyright, and whether particular uses of found footage infringe copyright, especially in the case of unpublished motion pictures.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

How to Sell NFTs Without Really Trying

Something is happening and we don’t know what it is. Suddenly last summer, the internet went nuts for “non-fungible tokens” or “NFTs.” In a matter of months, NFT sales swelled from a sleepy slough of the blockchain to a thundering cataract that shows no sign of slaking. Special NFTs sell for millions of dollars, and some are even securitized. It’s a big business that’s only getting bigger. But no one seems to know why. Objectively, NFTs are useless, meaningless, and worthless. So why are people willing to pay millions of dollars for them, even begging for the opportunity? Maybe it doesn’t matter. If themarket says NFTs are valuable, who are we to doubt it? Still, I’m curious. Why are people buying NFTs, and what accounts for their value

A License to Plagiarize

Since time immemorial, authors have wanted to own various kinds of exclusive rights in the works they create. Curiously, the rights authors want to own at any particular point in time tend to reflect the nature of the market for the works they create. The first exclusive right authors wanted was attribution. In classical Greece, philosophers accused each other of copying ideas without attribution. The Roman poet Martial coined the term plagiarius to criticize other poets for passing off his poems as their own. Even medieval Irish poets observed plagiarism norms that prohibited copying without attribution. In all of these cases, authors cared about attribution because it was essential to their livelihood. Many people have argued that authors ought to be able to abandon their copyrights and place their works in the public domain. I agree. Unfortunately, it can be difficult and complicated. Under the Copyright Act, everything copyrightable is automatically copyrighted, and there is no explicit mechanism for abandoning copyright. Accordingly, Creative Commons created the CCO tool, which is intended to help authors place their work in the public domain, to the extent legally possible. I think authors also ought to be able to abandon their attribution right and permit plagiarism of their works. Property is property, whether or not it has economic value. Accordingly, I provide a couple of CC+ tools intended to help authors abandon their attribution right

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