Re: copyright management information?

On Sun, 28 Mar 1999, John R. Allison <allisonj[_at_]mail.utexas.edu> wrote:
>
> On 3/25/99, Mark Lemley <mlemley[_at_]mail.law.utexas.edu> wrote:
> >
> > I just had an article published by the Duke Law Journal (with Eugene
> > Volokh). Despite the fact that we retained copyright, the editors
> > apparently stripped out our copyright notice, and put their own
> > copyright notice on the cover.
> >
> > I have no intention of suing them, but it strikes me that this sort
> > of situation may well violate new section 1202. The act was clearly
> > deliberate, so it seems that liability would depend on whether the
> > editors knew or should have known that doing this would "enable or
> > facilitate" infringement. I don't expect they intended to infringe
> > the copyright themselves, but I would also be willing to bet that
> > they would grant reprint permission to our article without contacting
> > us. Wouldn't this be "enabling infringement"?
>
> I wouldn't let this go. Law review editors, especially at the top
> schools, can be terribly arrogant despite their ignorance. They know
> not and they know not that they know not.

Don't be too hard on the poor student editors. As a fairly recent law review editor myself, remember that the Trustees of the University are usually the ones who demand copyright (Harvard is notorious -- even books claim copyright to the Trustees). Further, that kind of information is usually put in the journal by the permanent staff, who are (again) employees of the University. It took a HUGE effort and repeated corrections for me to get Professor Gorman's copyright notice correct on an article we published in 1995--by my recollection, six rounds of deleting the U of I copyright and putting in Professor Gorman's copyright.

That said, it's still inexcusable. Since there's no compensation (other than the dubious courtesy of contributors' copies) for publishing a law review article, is there adequate consideration for transfer of copyright? As a matter of fairness, etc., I don't believe so. But, since adequacy of consideration is seldom inquired into, that argument won't fly. It is still, however, unethical for an academic publisher to demand copyright in a law review article. Then again, these are the trustees who look the other way at NCAA violations, so long as the team is winning...

C.E. Petit
<cepetit[_at_]usa.net> Received on Tue Mar 30 1999 - 18:51:23 GMT