BNA reports that, at a Sept. 18 Pike & Fischer event, "Legal Risk Management in a Web 2.0 World," Matt Schruers, senior counsel for the Computer & Communications Industry Association, said something very interesting: the technological solutions being implemented by many sites to screen for content posters do not have authorization to post may be reinstating formalities sub rosa.
These technological measures compare submissions to a central database, for example of songs, but only a small fraction of copyright-protected performances are in the database. "We thought that abolishing formalities would protect the little guys," Schruers said. "Instead, we've seen the large content providers drift back towards a form of private-sector protection of content that may end up leaving the smaller players by the wayside."
Separately, Patrick Ross, the executive director of the Copyright Alliance, spoke at the conference. I found one remark particularly telling: "Whether the DRM is on a service sponsored by a rights holder, or is used by an upload service to ensure copyrighted works are treated differently than user-generated-content, there will always be a role for DRM" (emphasis added).
We tell our students that all works are born copyrighted now, that copyright is no longer a verb. (As the Copyright Alliance site puts it, "In fact, every time a child takes crayon to paper, he or she has created a copyrighted work ....") But the fact that even Mr. Ross, whose organization defends strong and ever-increasing copyright rights, thinks in terms of works that are really copyrighted versus those that aren't is evidence that an affirmative desire to claim rights is still important in our moral and practical evaluations of various copying practices.
Copyright minimalists like me are fond of formalities. We have talked a bit about lack of notice as unfair surprise; perhaps, following on Schruers's observations, we should also talk about the importance of public regulation rather than informal formalities created by private parties.