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Is A Volokh Conspirator Conspiring to Violate Copyright Law?

Last week, I considered the question of whether blogging could jeopardize a law professor's chances for tenure.  The jury's still out on that question, but as this recent post by Orin Kerr at Volokh shows, blogging can get even a law professor accused of copyright violations and hypocrisy.

As Kerr describes, a reader at his site posted a comment that Kerr's links to copyright-protected YouTube videos "violate copyright law; are hypocritical; undermine the credibility of the blog; and even undermine our commitment to the United States Constitution."  The commenter also argued that as a practical matter (if not a legal one), Kerr was effectively immunized from suit because "it's much too expensive to litigate against a bunch of lawyers." 

Kerr asks whether his commenter is correct in claiming that he is guilty of copyright infringement by linking to protected videos, or that he's a hypocrite by trying to profit from these copyrighted materials.  And by violating copyright law, is Kerr undermining his commitment to the United States Constitution?

Kerr patiently examines the substance of each of the charges; visit his post for his full analysis.  Ultimately, Kerr concludes that his links to YouTube aren't "materially contributing" to infringement (since the videos are widely known to the public via their publication on YouTube) and in any event, he lacks the knowledge required for contributory infringement.  And Kerr also explains that compliance with copyright law doesn't raise any constitutional questions either. 

Though Kerr acquits himself with his analysis, I wonder whether other law professors, or lawyers for that matter, will have the stomach to take on criticism from commenters.  After all, isn't it much easier or safer  to simply delete critical comments, or refrain from the kind of provocative analysis that might generate negative or unflattering commentary to begin with?  By responding to the commenter's post, Kerr will forever link his name in the search engines to "copyright violations," perhaps causing some residual (albeit superficial) damage to his reputation.  And yet at the same time, by responding to the commeter, Kerr has educated the public about what copyright violations and the standard for proving them.  Isn't that exactly what law professors, and lawyers generally are supposed to do?

Posted by Carolyn Elefant on November 26, 2007 at 06:30 PM | Permalink | Comments (0)

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