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Levi King
Levi King

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The humanities are perhaps the last place we would expect to [End Page 563] encounter this art of the barely legal approximation, but the past few years have witnessed the growing phenomenon of design-around scholarship. As copyrights grow longer and their owners become more chary of permissions, as publishers retreat from the exercise of fair use and take refuge in parsimonious word counts and rigid permissions policies, copyrights are coming to resemble closely guarded patents.3 This is a perverse development, and one that courts have historically frowned upon. In one well-known case, a copyright owner who had authored a set of simple rules for running a sweepstakes contest tried to prevent another promoter from using the same basic rules in its own contest materials. A panel of federal judges rejected this attempt to turn a copyright claim into a de facto patent: "We cannot recognize copyright as a game of chess in which the public can be checkmated."4

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