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IN a well argued and thought-provoking new article, Gideon Parchomovsky and Alex Stein attempt to give copyright’s requirement of originality real meaning, by connecting it to the system’s avowed institutional goals. To this end, they focus on disaggregating originality into three tiers and providing creative works within each tier with a different set of rights and liabilities. Parchomovsky and Stein are indeed correct to lament the meaninglessness of originality under current copyright doctrine. Yet their proposal does not quite fully explore the incentive effects of differentiated originality, especially as between upstream and downstream creators. Nor does it tell us why some of copyright’s more recent innovations are not the right place to give effect to their ideas and principles.
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By David E. Graham
AS a graduate student attending George Washington University in the late sixties, I attended a debate between John Norton Moore and Richard Falk concerning both the wisdom and validity of the ongoing war in Vietnam. As John Moore rose to respond to Professor Falk’s critique of the Vietnam conflict, he uttered this very memorable line: "Dick, I disagree with but two of your points—your premise and your conclusion." After all of these years, I can offer this same assessment regarding Ganesh Sitaraman’s article stating his perceived need for revision of the existing Law of War (LOW) in order for the United States to successfully implement a modern counterinsurgency strategy.
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