That’s why my blawg has the following notice on it:
“All material © 2003–07 C.E. Petit except where otherwise indicated. All rights reserved. N.B. This blawg does not use the Creative Commons License, although I’m usually pretty good-natured about permissions for attributed reuse.”
In short, if I’m going to give a purported legal notice, I’m not going to rely upon a fundamentally flawed and/or deceptively misnamed one.

Here’s a link to my response to Grimmelmann.

Jon

Is this the copyright law equivalent of the Epimenides paradox (i.e., Epimenides the Cretan asserted “All Cretans are liars”)?

You own the copyright in the comment (sentence one is true).

The proprietors of madisonian.net necessarily have an implied license to reproduce it, distribute it, and publicly display it (sentence two is not true). (The readers of the blog may have an implied license to do the same, but that statement isn’t necessary to the paradox.)

The implied license must exist, because if it didn’t, the act of submitting the comment (into a mechanism that posted it without human review) would ipso facto trigger liability for infringement. Copyright law does many strange things, but it can’t make me an involuntary infringer. Cf. Diamond v. Am-Law Pub. Corp., 745 F.2d 142 (2d Cir. 1984).

In theory, I suppose, I might avoid liability for infringement by refusing to accept comments except under a policy that appropriated commenters’ copyrights to myself — but such a policy would likely be ineffective to transfer commenter copyright under Section 204. So to avoid involuntary infringement liability, I would have to refuse to allow the posting of comments altogether. Or set up some kind of royalty mechanism: You comment, I pay.

Since all blogging platforms that I’m aware of contain an option that permit comments, and since the norms of the blogosphere lean heavily toward indulging comments by default, I might conclude (moreover) that Six Apart and Google (as owner of Blogger) and whoever distributes WordPress are all liable, to a class of commenters, for inducing copyright infringement.

Maybe that scenario isn’t all that fanciful.

Uh-oh.

Mike

I own this comment. It is not licensed under a Creative Commons license. No one may reproduce or distribute it without my express permission in writing.

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=885466

“The legal strategy which empowers owners to govern their creative works facilitates a far-reaching coalition among libertarians and anarchists, anti-market activists and free-market advocates. While such an ideological diversity might serve the political goals of a social movement, it may compromise the long term goal of making creative works more accessible. The lack of a core perception of ‘freedom in information’, may lead to ideological fuzziness that would weaken the prospects for constructing a workable and sustainable alternative to copyright. Furthermore, absent a commitment to a comprehensive standard of ‘freedom in information’, Creative Commons’s defining principles are reduced to empowering authors to govern their own work. The paper predicts that this strategy may strengthen the proprietary regime in information. “