Thursday, December 19, 2013
Judging by what is on the internet and things with which I am personally familiar, the issue of what professors may copy from the works of others is a controversial issue. The past insensitivity to the copyrights of others seems to be gradually waning as schools and organizations struggle with guidelines when the Copyright Act itself in not that much help.
While faculty have generally been careless about using the protected works of others, the story changes when it is their own work. Consistent with typical law professor hubris, copyright notices abound on everything including a vast array or works that are not copyrightable at all. Evidently, if you write it down and you are a law professor you can claim copyright. But, if someone else writes it down, it's yours to use as you please.
One basic thing should be understood. Putting a copyright notice on something does not mean it is protected by copyright. Obvious lists, facts, dates, and many other things just are not copyrightable. The 5 points to remember about promissory estoppel. No chance. But what is the harm? Just go ahead and slap a copyright notice on it and if you are wrong, who cares?
Think of it this way. You drive out to a public park and put up a big no trespassing sign to keep people off property that is not yours. Probably should not do that, right? The same is true with copyright. Claiming copyright when you have none can result in trouble. Jason Mazzone is the leading expert on the notion of Copyfraud and, although liability is rare right now it promises to grow. And, as law professors, don't we all want to act in a manner that is consistent with the law? Ok, sorry for the note of optimism.