Three Theories of Copyright in Ratings

It’s my pleasure to announce (slightly belatedly) my most recent paper, Three Theories of Copyright in Ratings. It’s a slightly subversive look at what ratings are, through the unlikely lens of copyright law. Consider it a sidelong way of gaining more insight into the nature of search results by stepping back and asking how law treats other kinds of ratings and rankings. It also, I hope, tells us a bit about how copyright sees the world. Here’s the abstract:

Are ratings copyrightable? The answer depends on what ratings are. As a history of copyright in ratings shows, some courts treat them as unoriginal facts, some treat them as creative opinions, and some treat them as troubling self-fulfilling prophecies. The push and pull among these three theories explains why ratings are such a difficult boundary case for copyright, both doctrinally and theoretically. The fact-opinion tension creates a perverse incentive for raters: the less useful a rating, the more copyrightable it looks. Self-fulfilling ratings are the most troubling of all: copyright’s usual balance between incentives and access becomes indeterminate when ratings shape reality, rather than vice versa. All three theories are necessary for a complete understanding of ratings.