Copyrighted Works Must Be Novel and Nonobvious

To anyone who knows IP law, the title of this post looks like either ignorance or craziness. I assure you, it’s not ignorance. Everyone knows that one of the distinguishing features between copyrights and patents is that patents require novelty and nonobviousness, and copyrights don’t. All you need to get a copyright is to have an “original” work of authorship — and “originality” is an extremely low threshold. It doesn’t require that the content be new, and it certainly doesn’t require that it be nonobvious; it only requires that it be yours (that is, “original” to you).

That’s the theory, but I don’t think that’s the practice. I was struck by this thought (ow!) over the weekend as I was reading materials on substantial similarity and the idea-expression distinction. (Perhaps this thought occurs to all copyright lawyers at some point; maybe it’s just my week.) There are certain famous passages that get intoned by copyright scholars and practitioners to explain such concepts, a bit like the missal in a Catholic mass. Originality is sometimes explained with this reading from the book of Learned Hand:

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If U.S. News Goes Under, What Will Law Professors Complain About?

Law professors, and particularly law school deans, love to complain about the law school rankings done every year by U.S. News & World Report. (Unless their school rises in the rankings, in which case they are an objective measure of merit.) It’s been pretty well demonstrated that, more than a decade into the rankings project, the primary thing the U.S. News rankings measure is how well the school did on previous years’ rankings. In other words, there’s a massive feedback loop going on that is difficult for any one school to break out of. Nevertheless, schools try, because students and even professors, despite their complaints, rely on the rankings to evaluate the worth of various schools.

People have been wondering how to change this dynamic for a long time. Some, like Brian Leiter, have set up their own rankings, although Leiter’s system only measures the top 40 schools or so, where rankings are arguably less important. But what if U.S. News folded? The company seems to be in deep trouble. It’s recently given up on competing with Time and Newsweek in the weekly magazine market, becoming biweekly instead. Today’s New York Times reports that it’s giving up on that plan, too, even before it went into effect: now USN&WR will become a monthly magazine instead. A monthly news magazine? I think the likely next step will be for USN&WR to announce that it’s becoming a magazine with an infinitely long publication cycle, i.e., folding up shop.

If that happens, who will law professors have to kick around anymore?

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The Long March

In November, 1868, the newly freed slaves in South Carolina turned out to vote in the first presidential election they had ever been allowed to participate in. It was a momentous occasion; hundreds of thousands of persons who had been deprived of their rights for centuries were now finally able to enjoy all of the privileges of citizenship, including the right of suffrage. Voting in the 1860s meant travelling long distances to the county seat to cast a ballot, often requiring an overnight stay; it was an arduous process, but they were eager to make the attempt.

But many in 1868 found that they had made the trip for nothing. Armed militias of whites, determined to prevent blacks from voting, arose all across the South, particularly in South Carolina. Acting at the direction of Democratic party leaders, these bands of vigilantes, sometimes calling themselves Ku Klux Klans, confiscated Republican ballots, threatened prospective voters, and assassinated Republican candidates for office. On the two days of the November election, hundreds of armed whites rode all over upcountry South Carolina, surrounding polling stations and preventing blacks from entering. The tactic was a success; blacks were denied the right to vote in several South Carolina counties, and the local Democratic ticket was elected by large majorities in all of them.

And so, it is a measure of the distance we have come in 140 years, that yesterday an African-American man was elected as President of the United States, on the Democratic Party ticket, in an election that was almost entirely peaceful.

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