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who owns the copyright, and whether particular uses of found footage infringe copyright, especially in the case of unpublished motion pictures.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

Why does the Copyright Act specifically provide for the protection of “pantomimes”? This Article shows that the Copyright Act of 1976 amended the subject matter of copyright to include pantomimes simply in order to conform it to the Berne Convention for the Protection of Literary and Artistic Works. It further shows that the Berlin Act of 1909 amended the Berne Convention to provide for copyright protection of “les pantomimes” and “entertainments in dumb show” in order to ensure copyright protection of silent motion pictures. Unfortunately, the original purpose of providing copyright protection to \u27“pantomimes” was forgotten. This Article argues that copyright protection of pantomimes is redundant on copyright protection of “motion pictures” and “dramatic works, “ and reflects the carelessness of the drafters of the 1976 Act

Christmas in July: A Response to David Fagundes, Why Less Property is More

A response to David Fagundes, Why Less Property Is More: Inclusion, Dispossession, & Subjective Well-Being, 103 Iowa L. Rev. 1361 (2018)

Deodand

Deodands are a delightful example of a common law doctrine that caused something to happen: the Crown was enabled to tax tortfeasors. But not in a way anyone expected at the time or anyone understands today. Look on their logic and despair. You’ll never figure it out, no matter how hard you try. And that’s what makes them so lyrical. The concept of the deodand is beautiful even though we can’t understand it. Or rather, it’s beautiful because we can’t understand it. If we understood deodands, surely they would be as prosaic as life insurance and conceptual art. In 1964, Yoko Ono self-published the first edition of her iconic book Grapefruit. Grapefruit consisted of about 150 “event scores,” or instructions for realizing a work of conceptual art, which Ono also called “pieces.” Each piece consisted of a brief text, formatted like a blank verse poem, in which Ono described a set of actions, the performance of which constituted a work of conceptual art. Or no, the description of which constituted a work of conceptual art? Or no, the contemplation of which constituted a work of conceptual art? Or, maybe all three? This article is an homage to Ono’s Grapefruit in the genre of legal scholarship. It consists of a number of “pieces” intended to encourage reflection on the nature and practice of legal scholarship. Of course, it reflects my own particular interests, inter alia discussing the concept of plagiarism, especially as articulated in the context of legal scholarship. Notably, this is the first article in which I have (intentionally) plagiarized anything. At a certain point, you just have to jump in. For what it’s worth, a considerable part of the plagiarism in this article is self-plagiarism, which is really just plagiarism for plagiarists without the courage of their convictions. But many of the pieces in this article plagiarize other legal scholars. Like any self-respecting plagiarist, I only plagiarized the legal scholars I love the very most. See if you can spot their work. I hope I added something to it

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

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