Where Credit’s Due?

Dave Hoffman

Dave Hoffman is the Murray Shusterman Professor of Transactional and Business Law at Temple Law School. He specializes in law and psychology, contracts, and quantitative analysis of civil procedure. He currently teaches contracts, civil procedure, corporations, and law and economics.

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27 Responses

  1. Anon says:

    I think some additional context is needed regarding the xo / Prawfs situation. It’s not just about diversion of traffic. Look at footnote 28 in this recent law review article:

    http://www.law.indiana.edu/ilj/volumes/v81/no1/18_Kamin.pdf

    The author claims that LawSchoolDiscussion.org was responsible for leaking the U.S. News rankings last year — however, everyone familiar with the situation knows that xoxohth was responsible for that, and the LSD user just directly copy/pasted from xo (in fact people even say as much in the cited thread). In fact xo has leaked the rankings a week early for the past three years in a row (and its predecessor board, Princeton Review, leaked them three years in a row before that!). In the six years US News rankings have leaked on the internet, LSD was responsible for none of them.

    Yet LSD gets cited in a law review article for its non-accomplishment. Why? I can’t speculate on Kamin’s motivates or knowledges, but given the title of his article it’s not hard to guess how he found out about LSD and not xo: blogs. A few bloggers, rather than attributing the leak to xo, attributed it to LSD, and no one from xo bothered to correct anyone. Obviously people from there decided to be a bit more proactive this year after seeing the same situation repeat itself (with subsequent bloggers crediting Dan Markel and Prawfs for the rankings, and not the original source).

    As for bearing an increased cost due to higher risk of a lawsuit, the only reason the bloggers (particularly Prawfs) are bearing that risk at all is because they uploaded a PDF of the actual rankings to their server (pretty blatant copyright infringement), as opposed to just providing a list.

  2. Dave Hoffman says:

    Anon Student [In this particular discussion, I encourage folks to use their real names in comments. Given Prawfs' experience yesterday, I reserve the right to delete comments that are profane, abusive, silly, or for any other reason. This is not an open forum.]

    I don’t get your argument. A discussion board is not a person: what harm results from a failure to attribute its members’ efforts that *isn’t* traffic diversion? I don’t know Xoxo’s corporate structure, if any. Are there shareholders who experience real harm? I feel somewhat like I’ve wandered into some ancient fight between LSD and Xoxo (both of which I’ve just discovered). I’m sure the fight is relevant to the communities involved, but why should the rest of us care?

  3. Ethan Leib says:

    XO got the attribution they were looking for. For the most part, such attribution would have been easy to clarify in the comments — part of the reason Prawfs usually leaves comments wide open. Accordingly, anyone who cared could have followed the links from the comments to see who had the rankings first. The problem with XO’s “proactive” strategy was that the anonymous persons who participate in the board started spamming Prawfs with abusive invective and inappropriate commentary, forcing us to close comments altogether. Of course, the XO assumption that Dan was lying about where he got the rankings was itself utterly baseless slander and substantially undermined its effort to get credit for leaking the rankings in the first place. Its subsequent effort to take the moral highground because of possible copyright infringement is equally absurd: Dan could never have gotten the material in the first place if XO hadn’t infringed in the first instance (assuming it is right that it is the original source of the leak, a fact I don’t have the time or inclination to fact-check).

  4. Anonanon says:

    Let’s be real. Regardless of whether xoxohth.com was the original source of the leaked rankings or not, the exposure they are now enjoying through the mainstream would never have happened if the act that they are complaining about, i.e., the posting of the rankings on prawfsblawg, had not happened. Methinks the website doth protest too much. They should put prawfs on their holiday card list.

  5. Anon says:

    It all comes down to incentives. The people over there, including the guys who leak the rankings, have loyalty to that board and would like to see the board get credit for the work it does year in and year out. People who leak the rankings don’t receive any monetary benefits; their gains are purely psychological/reputational. If they don’t receive those gains (i.e. because bloggers post their leaked rankings without attribution, or, worse yet, take credit for it themselves) they won’t bear the risks associated with leaking the rankings anymore, and in future years people will just have to wait for the street date. Based on all the bloggers that have posted about the leaked rankings, it’s clear that there is very high demand for fast rankings.

    The risks also go way beyond copyright infringement. Prawfs might bear some of the risk by hosting a PDF on their server (which, to clarify my earlier post, xo never did — xo itself only stickied a post with the plain text rankings and a link to a PDF someone later uploaded to a neutral unaffiliated file-sharing site to veirfy that the plain text rankings were real). However, prawfs doesn’t bear any of the costs associated with the original leaker (or the leaker’s friends) potentially losing his or her job, or the fines the abetting bookstore might have to pay for “breaking the street date.”

    Whether you find it rational or not, these leakers want their alias and xo to receive credit for this work (hence why they post their leaks on xo instead of LSD, or some other forum, or their own blog). People want their work acknowledged, especially when acknowledgement is the only payment available for this type of service. Orin Kerr, TaxProf Blog, Conglomerate, etc. were quick to acknowledge this and either put direct links to the xo post in their original post or to refer readers to the comments for the original source. Unlike other blogs, the Prawfs bloggers originally refused to include any acknowledgement even after being (politely — angry posts did not appear until later) told of the original source.

    The whole conflict could have been avoided by including something as simple as “Hat Tip: xoxohth.com” at the end of the post. Is that really so much to ask given that this same community has pooled its resources to provide this service three years in a row now (six years if you count the PR era)?

  6. I think that the folks at XO have a decent argument for getting some credit. Assuming that those who posted the USWNR rankings obtained the information from XO, I believe that they should have given XO a hat tip. The blogosphere has developed a strong culture of giving nods to where information was obtained and who got the first scoop on a story. Being acknowledged is a point of pride for bloggers and discussion groups.

    The issue of copyright infringement is a separate issue. I don’t quite understand Ethan’s argument that about XO infringing upon copyright first; it still doesn’t immunize others from copyright violations.

    However, it is not entirely clear that the folks at PrawfsBlawg obtained the information directly from XO. I get email from students, friends, other bloggers, and even strangers with tips for posts. In all fairness, the PrawfsBlawg folks might have received the information without knowing that it came from XO. In fact, someone send me the USWNR rankings today, and there was no indication where they were obtained. So it is not clear that PrawfsBlawg deliberately failed to credit XO.

    Therefore, to the extent that one is aware of the original source for information, an acknowledgement is good etiquette; but if one obtained information independently, then I think it is too onerous to go exploring the blogosphere to see if anybody got to the information first.

  7. Anon says:

    Anonanon, that’s exactly the point: xo should receive this sort of mainstream exposure for the valuable service their users have performed for three years now that has not been duplicated by anyone else. However they never would have received that exposure if their users didn’t complain about PrawfsBlawg’s lack of citation. Prawfs posting the rankings without any link to or mention of xo confers no benefit to xo, and may actually cause harm.

    All these users wanted was acknowledgement. No one was saying Prawfs shouldn’t have posted about the rankings, nor did anyone demand that Prawfs take down its PDF (though some commentators — both xo and non-xo — pointed out that the PDF constituted copyright infringement). Likewise no one attacked Orin Kerr or Paul Caron or any other blogger who wrote about the rankings while attributing the original source. While PrawfsBlawg isn’t exactly being held in high esteem on xo right now, if you read the threads it’s clear due to how Prawfs handled the situation (originally refusing to cite to xo, mass deleting comments, and so on). This wouldn’t have been an issue if Dan Markel just included a link after finding out about the original source (assuming he didn’t know about it earlier).

  8. anonanon says:

    Brother Anon,

    I think you are right that xo should get some credit. It has. But suppose that some itsy bitsy little blog was the first to come up with something and one of your contributors took it without attribution and made it available to you. Would you run yourself ragged trying to give credit to said little blog? I doubt it.

    On the other hand, this was very much a story with exploding relevance. To wit, in a couple of days, no one will care. As it is, you get some deserved exposure. Were I you, I’d take it and be gracious about it. There are such things as phyriac victories.

    Sincerely,

    Anonanon

  9. Bruce says:

    This is a culture clash. The XO people are in a race for a scoop — and they presume everyone else is too. Posting without attribution is therefore evidence of malicious intent. The profs could care less about who scooped who, they want to know what’s actually in the rankings — and they presume that’s what everyone else wants too. Concern over credit for the “scoop” therefore strikes profs as bizarre at best.

  10. Anon says:

    There’s a difference between spending hours trying to locate an original source that may or may not exist and refusing to credit an original source after finding out about it. No one would fault Prawfs if they were completely ignorant about xo and no one informed them of its existence, or informed them days or weeks after the original blog post.

    However, if multiple individuals point out the original source less than an hour after the post is made, the only fair thing to do is to credit that original source, whether it’s the New York Times or xo or some itsy bitsy little blog. It’s not hard to add “Hat Tip: xoxohth” to the bottom of the initial blog post, and it will prevent hard feelings down the road. If Prawfs responded the way Orin Kerr, TaxProf, Conglomerate, etc. did (immediately crediting xo in the post after being made aware of it, or at least referring people to the comments) it wouldn’t have received any of the abuse it did from offended xo posters.

  11. Dan Markel says:

    I think it’s a bit absurd for some to claim that anyone at Prawfs (really Ethan and I in this case) was operating in bad faith. I mentioned in my post where I got the document from. I found out later from that student that there had been discussion on xoxo about the document but he also gave me another link as well, and in truth I didn’t know where he got the document from–I didn’t go poring over the xoxo threads to find out. There’s no one at Prawfs claiming that we’re scooping anything. The copyright claim some are raising is a bit of a stretch too — there’s something called fair use: the doc we posted was only a part of the overall USNews coverage on the law schools and rankings and it’s for non-commercial usage. We’re not selling competing newsmagazines with the same content. If anything, there’s also a transformative use as well, one that redounds to USNews’ benefit–they’ll be happy that there’s a buzz being generated by law professors about their product. Of course, if they send me a cease and desist letter because they think it’s in their interest not to have this sent around, we’ll take it down. So far we haven’t received anything like that. And from what I hear, USNews sent around the document and full story to all sorts of law school offices around the country already, and they wouldn’t have done that if they didn’t want people to talk about it in advance…So that’s my view of the situation. As to the merits of “to cite or not” in this particular case, I don’t think there’s much to the claim that because a student sent me a document that I have go backward in time to ferret out where that document might have come from, especially if I’m not making any claims about being the first to report on it. The fact that the xoxo site has been chastized as a free-for-all for racists and antisemites of all sorts furthers any reluctance to mention them. That said, the post contains an update that notes that there was discussion of the rankings on the xoxo site.

  12. Dan Markel says:

    The Prawfs controversy is now mooted. We’ve received a cease and desist from USNews and because we think Mort Zuckerman’s a swell guy, we’re complying…so you’ll have to go elsewhere to find the document.

  13. Bruce says:

    I don’t think the fair use argument was all that good, actually. The situation seems very similar to Harper & Row v. Nation Enterprises.

  14. Dan Markel says:

    Bruce, I really don’t want to get into a point by point on this, but I just took another quick look at Harper and Row, and I think the cases can be readily distinguished. The impact of Prawfs’ posting on the market for USNews’s copyrighted work is de minimus; the document was available on other sites, etc. In any event, I got a “make-nice” call from USNews’ executive editor and I doubt they’re interested in pursuing this academic matter further, so time for all of us to move on, except to consider the merits of Dave’s interesting netiquette question.

  15. Bruce says:

    I assume good faith. Very short on time.

  16. Ethan Leib says:

    To clarify, Dan Solove: The people at XO suggested that part of the proof that we were in bad faith in our “dispute” with XO (on credit) was that we were engaging in copyright infringement. My only point was that that was an absurd argument: the breach of a copyright with a third party (if it was that) has nothing to do with the merits of whether we needed to give them attribution — and even if it did, XO itself engaged in the very same infringement (assuming Dan got it from them), so it was weird to see a party without clean hands invoking such an argument.

    In any case, Dan DID NOT get it from them — which he made 100% clear in the first place in the original post. He was given the rankings by a student. Whether that student got it from XO or from a friend who got it from XO is really not important: in either case, Dan owes XO nothing. He credited his source. End of story. If people at XO want the credit, we were happy for them to take it through comments (one of the function of comments). But then XO put us in an extremely irritating position by bombarding us with bad faith, profane, and off-topic commentary. We concluded that the best way to handle it was to give them what they wanted and close all comments.

    Nevertheless, I stand by the position that there is no obligation for a blogger to start searching out original sources when the purpose is merely wider distribution. Anyone who wanted to take credit for the scoop (a feature of the matter in which Prawfs had no interest) was free to do so through comments.

  17. Anon says:

    “The people at XO suggested that part of the proof that we were in bad faith in our “dispute” with XO (on credit) was that we were engaging in copyright infringement.”

    No one — xo poster or non-xo poster — made that claim. All people did was point out that hosting that PDF on the Prawfs server was copyright infringement, and thus it was strange that Prawfs was trying to claim a moral highground.

    Keep in mind that xo did not host the PDF on its own servers (the plain text rankings were posted on xo, and another individual on the site uploaded a PDF to a free file sharing site to confirm those rankings); thus, you can’t even say xo and Prawfs committed the same act.

    “If people at XO want the credit, we were happy for them to take it through comments (one of the function of comments).”

    And xo posters were perfectly happy to do that — until you posted that they deserve absolutely no recognition and began to delete every comment making any reference to xo, regardless of its content.

    “But then XO put us in an extremely irritating position by bombarding us with bad faith, profane, and off-topic commentary.”

    I’m sorry, but what did you expect? A Prawfs blogger took someone else’s work, refused to credit that person, and then not only explicitly stated that they did not deserve any credit but deleted every reference to the original source in the comments. Does it truly surprise you that these actions would get people very, very angry, especially when every single other blogger confronted with the exact same situation (Orin Kerr, Conglomerate, TaxProf, etc.) gave credit where credit was due?

    “Nevertheless, I stand by the position that there is no obligation for a blogger to start searching out original sources when the purpose is merely wider distribution.”

    This is another strawman. No one ever said Prawfs or any other blog should “start searching out original sources.” Here, multiple people explicitly informed PrawfsBlawg about the original source less than an hour after the post was made and, instead of crediting the original source like every other blogger did when similar comments were posted, Prawfs refused. Like I said above, if no one told Prawfs about xo, or if people contacted Prawfs days or weeks after the fact, no one would blame Prawfs for not making an acknowledgement. However that’s not what happened here.

    I also don’t understand why “wider distribution” has anything to do with it. You could’ve brought about wider distribution simply by providing a link to the xo thread, which is what every other blogger does in these situations. When InstaPundit wants wider distribution of a news story, he doesn’t copy/paste the story into a blog post without providing attribution, or uplooad a PDF to his server without providing a link to the original. Every other blog does this; Prawfs should have also instead of treating xo so harshly.

  18. Ethan says:

    Your chronology is off — and makes much of a delay of a few minutes as we were trying to figure out how to handle the increasingly annoying comments. The first comment suggested that the XO deserved credit. Then another came in; then another. These comments were up for a long period of time and went undisturbed.

    After a few hours, I responded in the comments saying that I didn’t understand what the big deal was — Dan DIDN’T get the thing from XO so he owed you nothing. This isn’t harsh treatment; it was just my opinion. And this is the critical fact you keep omitting: Dan acknowledged his source, which just turned out not to be XO. More, you got the credit for scooping that you wanted in the comments. We weren’t taking credit for the scoop, only passing along what a student gave Dan. No one took any comments down; we were at first having a civil discussion about the merits of whether Dan owed you a Hat-tip even though he didn’t get the thing from you.

    Then, more and more comments came in. We didn’t refuse you credit; you took it in the comments section. We maintained only that we have no obligation to “cite” you in the original post since we didn’t get it from you. You doubted that as a matter of fact — but that was only wishful thinking on your part.

    Eventually, your petulence and increasingly profane and absurd accusations — all for a Hat-tip in the original post — became overwhelming. Accordingly, we began deleting comments one by one until they were all gone. We felt bad about removing some of the substantive ones; but we thought that was the best strategy, since we have a general policy against anonymous comments (which we admittedly enforce only when we think someone is being obnoxious). There may have been 5 minutes delay between when the comments came down and when the update acknowledging XO went up.

    We never claimed “moral” highground; we simply differed on etiquette. XO — an entity which I only learned about yesterday — is not well known for its politeness.

    And we couldn’t have brought wider distribution by providing an XO link for the very simple reason that Dan didn’t have that link; all Dan got were the rankings themselves! Your basic factual premise from which all else follows — that Dan got the rankings from XO — is false. More, you seem to be assuming that Dan is checking your comments throughout the day — as if he doesn’t have a real job. It took a few hours to decide what to do. During all that time, your self-congratulatory comments were up. I thought your self-congratulation was bizarre and said as much. But that isn’t a refusal to acknowledge credit; I was entitled to my position that taking credit wasn’t the point of Dan’s post, so your complaints rang hollow to me.

  19. Joao Gutierrez says:

    This is a bit off topic, but in my opinion it is a bad idea to have discussions with people from the XOXO blog. Spend five minutes reading some of the threads- it is very disturbing. Obsession with rankings is the least of it. The amount of racism, anti-semitism, and extreme aggression borders on psychotic. Unless you want to have your comments section clogged by people (always anonymous) who are willing to write mean, vicious things because they did not get their ‘hat-tip’ (which alone should serve as sufficient warning) then I would drop the issue.

  20. Anon says:

    xo isn’t a “blog,” it’s a message board. In any case this feigned “outrage” is getting very old. Yes, some morons post idiotic things, and, yes, sometimes some of those morons will use racist words (the horror!).

    But, most people post extremely valuable information that isn’t reproduced anywhere else on the internet. Condemning everyone on that site (which was founded by a Jew and a black guy, by the way) because of a few morons is like telling people to ignore PrawfsBlawg, UTR, etc. because some of the blogs hosted on blogs.com have offensive content.

  21. Dave Hoffman says:

    I tend to think that Joao is correct, and that a reorientation of this particular thread away from a single-minded focus on Xoxo to the larger question of when it is necessary or prudent to cite other folks’ work. Whether a discussion forum can be fairly called racist based on the tolerance of inappropriate comments is a question, I think, for another blog post (where a focused conversation can happen).

    The fair use argument also seems sort of misplaced here, although since Dan kindly linked to us, perhaps this is the best place to continue it. I wonder whether US News’ interest here really is to preserve the “news” of the rankings, or rather to preserve its secondary market, as students & professors in the coming year pore over the “details” of the rankings (particularly, academic reputation) as support for various theories. I do think that Dan M. rightly points out (in an Amy Adler type way) that simply talking about the USNews so much tends to reinforce the hold they have over academic life.

    Anon (at 3:44 – what is wrong with using names? at least that comment was pretty astute) says that ” the guys who leak the rankings, have loyalty to that board and would like to see the board get credit for the work it does year in and year out. People who leak the rankings don’t receive any monetary benefits; their gains are purely sychological/reputational.” I don’t get this. Reputational benefits for anonymous folks are weak benefits. And it is not clear to me why we should run an attribution policy on “psychological” grounds – is the idea here that we’ve got to make people feel good? That isn’t why, in the scholarship context, footnotes are encouraged. If we isolate out your “incentives” argument, I think it reduces to an intuition that we should encourage citation to incent the underlying behavior of getting the rankings “leaked” before their publish date. This goal is not one supported by copyright law.

  22. Anon says:

    The U.S. News numerical rankings themselves do not have copyright protection — they’re just ideas. There are many benefits to having the U.S. News rankings appear sooner rather than later. For one thing, whether you like it or not, a great deal of students do think U.S. News rank is important, and the sooner they obtain this information the sooner they can start making decisions (not to mention that several schools have April 1 deadlines for scholarship acceptances, etc.). Another benefit includes giving deans / admissions officers more of a heads up so they can formulate responses (if they wish). And, of course, there clearly is a high demand for this information, since within six hours of the rankings appearing on xo many of the top law bloggers were on the story.

    Now of course copyright law does not encourage uploading a PDF of the actual magazine pages, which are copyrighted. However xo wasn’t promoting or encouraging that sort of behavior, which is probably why Prawfs got a cease and desist from US News and xo did not, even though xo has much more traffic than Prawfs and has prelaw and law students as its target audience.

    As for psychological/reputation benefits being weak benefits, yes, they are for some people, but they are very common online. The xo community has a high retention rate; people tend to stick around for months, sometimes years. While posters may be anonymous, people recognize monikors, and grant certain monikors more respect than others based on reputations those monikors have developed (for instance, people who break important news or post consistently helpful things, e.g. rk982 and Fiver, tend to develop very good reputations while those who post racist spam are viewed very negatively, e.g. Neoconned). This isn’t an xo-only trend; it’s how most internet communities work. And sometimes reputational benefits conferred on internet pseudonymns translate into real life benefits (just look at A3G).

  23. Lex Aquila says:

    “Wheels must turn steadily, but cannot turn untended. There must be men to tend them, men as steady as the wheels upon their axles, sane men, obedient men, stable in contentment.” For those wondering, the original credit for this quote is due Aldous Huxley. It truly is a brave new world that we live in.

  24. Justin P. says:

    My two cents: it was highly improper for law faculty members to host and link to scanned versions of the USNEWS rankings, as they knew the work was copyrighted and that the hosting most likely amounted to infringement. Am I alone in this sentiment?

  25. Ethan says:

    Orin Kerr has a nice string going with reputable people debating whether the post would have constituted copyright infringment. http://www.orinkerr.com/2006/03/29/us-news-rankings-and-copryight-law/#comments

    It seems — surprise, surprise — there is some difference of opinion on the matter. Thankfully, in exchange for Dan’s agreeing to take down the page, US News has agreed not to pursue Prawfs.

  26. Lex Aquila says:

    Someone should study how great the “some difference of opinion on the matter” really is. My reading of the OrinKerr.com string, as well as many others, suggests that there is an overwhelming majority standing on the view that posting a PDF of a yet-unreleased USNews ranking is likely copyright infringement. People have presented arguments for it not being so, but, by and large, the clear strength and sympathy has been towards a finding of infringement. As to fair use, it’s less clear from my readings and maybe more of a “some difference.” I am no expert on this stuff, but I submit that typing the ranking into a blog post would be more likely fair use than posting a scan of 2 unreleased magazine pages. Therefore, as one said at OrinKerr.com, I would not have posted the scan on my blog–but I think I would have posted a list I typed up based on the scan. (This might still be infringement, I’m just pointing out that even a non-IP person like me would have questioned deeply the posting of a scanned article in a proprietary magazine before its release.)

    Further to the xoxoth controversy, Prawfs can now claim to be the first to get a cease and desist from USNews. Apparently, xoxoth is dissed by not only the online Legal Academy, but also Mr. Zuckermann and the USNews counsel’s office.

  27. Thomas says:

    This raises another question. What motivated Prawfs to post the rankings in the first place? I can think of no other explanation than the rankings were posted in an attempt to drum up traffic to their blog, and this is perhaps what is most disheartening.