Vanderbilt Law Review

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In 1953, a twenty-seven year old man underwent brain surgery to treat the severe epilepsy that had plagued him during his youth. The surgeon, Dr. William Scoville, removed portions of the young man's brain that were involved in memory processing. Most notably, Dr. Scoville removed most of his patient's hippocampus. The surgery left the young man, now known to psychologists as H.M., with anterograde amnesia: he still had a short-term memory, but he was unable to convert any of his short-term memories into new long-term memories. Although H.M. could not form new long-term memories, psychologists found that he still could learn some new skills. For instance, researchers had H.M. complete repeated trials of the Tower of Hanoi puzzle, which challenges participants to rearrange three to five blocks of increasing size on vertical pegs according to certain rules. H.M. had no conscious recollection of completing the Tower of Hanoi puzzle in earlier trials, but his performance nevertheless improved with practice. H.M.'s mystifying improvement can be explained by the influence of "implicit memory," and a wealth of subsequent research with nonamnesiac participants demonstrates that implicit memory influences the actions of everyday people. Implicit memories are memories that influence an individual's behavior even though the individual is not aware of their influence.

For example, imagine that you attend a summer camp as a child and develop a secret handshake with your roommate at the camp. The next summer, you return to the camp. When you see your roommate from the previous summer, he extends his hand. At this point, you may consciously recognize that he wants to do the secret handshake, recall when and how you developed the handshake, and then perform the handshake step by step with reference to your memory. This is an example of explicit memory: you are aware that you are reconstructing the handshake with reference to an episodic memory from the previous summer. However, you may reach out and perform the handshake without thinking about the previous summer at all. This is an example of implicit memory: you are able to perform the handshake correctly, but you do not consciously refer to any memory of the previous summer. Implicit memory is relevant to copyright law because, just as an implicit memory of a handshake might influence future handshakes, implicit memories of songs, pictures, and phrases might influence a creator as she produces her own music, painting, or story.

Implicit memory "is likely involved in instances of unintentional plagiarism,"" or unconscious copying. Unconscious copying occurs when a creator is familiar with an original, copyrighted work, and this familiarity leads the creator to produce a work similar to the original without ever recognizing the influence or its source. Presently, copyright law treats unconscious copying no differently than conscious copying-both deliberate and inadvertent copiers are liable for copyright infringement. This Note argues that, in light of the empirical research establishing that implicit memory influences human behavior, the present approach to unconscious copying is at odds with psychological realities and is inconsistent with the fundamental purposes of copyright law.