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.

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.

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).

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.

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.

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.

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.

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.

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.

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