Copyright is to the Public Domain as . . .

The semester is over, and I have to get into the right frame of mind to read seminar papers and final exams. In the ridiculous copyright dispute of the moment, The College Board has egg on its face over a clumsy attempt to use copyright to knock around Fairtest, a critic of standardized testing. James Grimmelman at LawMeme hits the legal nails on their heads.

The real fun here, though, is in the College Board’s cease-and-desist letter itself. Joe Gratz’s coverage includes some gentle criticism of the syntax of the letter’s author. Joe writes, “Why don’t I think the College Board’s higher-ups are involved? Because if you saw the sentence ‘You should not presume permission, it must be formally granted’ on the SAT, you’d replace the comma with a semicolon.” Joe links to a NYTimes story on the controversy.

But if the story had broken today, then Joe could have linked to this story in the Times, headlined, “What Corporate America Can’t Build: A Sentence,” and he could have really taken apart the C&D letter:

“This letter is to inform you that your organization’s use of the aforementioned copyrighted material requires the expressed permission of the College Board.”

Expressed? We hammer this home in first-year law school courses: It’s “express” (the opposite of “implied”), not “expressed.” “Aforementioned”? A high school grammarian will see the ambiguous antecedent problem. The letter gives two URLs, both to material at the website. Fairtest may own copyrights to that material, if anyone does.

“The College Board owns all right, title, and interest in the featured works. Unfortunately, your misuse overtly bypasses our ownership and significantly impacts the perceptions of students, parents, and educators regarding the services we provide.”

Besides the fact that Fairtest probably agrees with the last phrase, the entire thing is objectionable as excessively, needlessly, and recklessly florid. But when I teach copyright law next semester, I’m going to remember the phrase “your misuse overtly bypasses our ownership.” It’s far more colorful than “you are infringing our copyright.”

“We recognize that you are a formidable organization within a community which has often authored dialogue concerning College Board offerings, such as the SAT Reasoning Test, as such we ask that you a) cease displaying any and all College Board copyrighted materials until you have submitted a permission request to our organization and a response has been given to you, and b) submit your permission request via our online permissions request form, found here:”

What’s the maxim? “Floridity compounds itself”? But this is more: a crude and obvious run-on sentence, wholly lacking in logic. Suppose Fairtest goes to the listed website, submits its permission request, and gets an unambiguous “NO!” in response. According to this letter, Fairtest can go ahead and post what it wants! Be careful what you wish for. You may get it.

Based on the Scoring Guide that the College Board is using to train readers of SAT I essays, I’d give this letter a “1” on a scale where the top score is “6”: “very poor organization; very thin development; usage and syntactical errors so severe that meaning is somewhat obscured.”

Bring on those bluebooks.