Author: Deven Desai


Student Notes R.I.P. or Survive on SSRN?

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A student asked me what happens to notes that are not accepted for publication on a law review. When I mentioned that they may be submitted to other journals but often they are not published, she seemed a little down about the work not being seen.

As I thought about the topic, I came to a few questions. Does anyone know whether students are putting notes on SSRN or assuming some are posting how many do so? Is there a policy about who can post? Furthermore, is it fair to ask whether they should be “allowed”, as it were, to put work on SSRN? On one hand, the amount of information (some good and some perhaps not so good) would increase but I could see arguments about too much noise or information overload being raised. Then again, one already has to wade through volumes of information using search strings and the like so perhaps adding more narrow but hopefully well done pieces to that pool will allow scholars to focus on large implications of their research and use the increased access to notes as a way to more efficiently see what work has been done on a particular topic that is a footnote or small part of the scholar’s work. So although I would suggest one should be careful using such information because it has not been screened, I think accuracy and quality issues are always in play and a researcher must continually use his or her own judgment regarding how much to trust any piece.

So what do people think? Should unaccepted notes R.I.P. or should they survive on SSRN?


IP Wars

YouTube has a good but not great take on Darth Vader’s little known brother, Chad. I wouldn’t watch all the way to the end but the first three minutes are solid and for any fan of the Star Wars films there are some good plays on the dialogue and scenes. Which leads me to a perhaps sad yet currently inevitable note. The IP Wars drone on and YouTube faces a copyright lawsuit.


Perhaps someday a young attorney or scholar will ask an aging IP attorney “You fought in the IP Wars?” with awe because we will have unraveled how to develop, and let’s face it, make money on information yet manage to keep the information free-flowing so that expression and education can flourish. In a sense I think that conundrum is what Professor Yochai Benkler highlights in his book the Wealth of Networks. As someone wrestling with these questions, I anticipate and welcome your thoughts on the big question but here are the details of the YouTube suit to give some context of one slice of the IP Wars and perhaps offer facts with which to test the possible solutions. In addition, thanks to Bruce’s entry Don’t Write Angry for noting when arguments become more yelling matches rather than explorations of what to do to fix the problem. Now on with the current episode of IP Wars.

Apparently someone posted the video of the Reginald Denny beating during the 1992 riot in Los Angeles. According to the article, Robert Tur, the man who made the film, has sued claiming that the posting hurts his ability to license the video and that YouTube has profited from more than 1,000 viewings of the film. It seems that rather than ask YouTube to take down the clip under DMCA provisions, Mr. Tur filed suit. YouTube removed the clip after it knew about the lawsuit.

Whether Mr.Tur really makes that much money from licensing would be interesting to know. I frankly had not thought of the video until the lawsuit and would not want to pay to see it. Furthermore, it seems that historians should be allowed to show the clip in its entirety but of course that position runs smack into fair use problems. Nonetheless, consider that a Saturday Night Live clip was a hit on YouTube. It had at least 5 million downloads (assumedly from many who did not see the show which in 2004 seemed pleased with peaks of around seven million viewers) but NBC asked that it be removed. NBC does sell the clip on iTunes but it also allowed the clip to be seen on its Web site in an embedded player. I wonder whether NBC just hates great, free advertising or whether it really believes it can make more money by aggressive policing of its IP.


Cruel and Unusual?

A British appellate court has ordered a lower court to watch Jerry Springer so that it can resolve a dispute between the distributors of the “Jerry Springer Show” in Britain and a British television company.


The television company claimed that “By 2001… the ‘vast majority’ of episodes contained content which was unsuitable for daytime viewing and which did not comply with the Independent Television Commission code” and terminated the deal. The distributors claimed breach of contract.

Assuming the article is correct about the content of the order, Lord Justice David Neuberger was not insensitive to the torturous nature of the order:

It must be necessary for the judge who determines such issues to see at least some of the episodes of the two series (although I would strongly encourage the parties to agree a sensible basis upon which the trial judge can reach a conclusion on the two ultimate issues without having to view anything like the totality of all the episodes of both series).

Apparently being downhill has its perils in Britain too.


Coulter a Plagiarist?

TPMmuckraker is running an article called “Complete” List of Coulter Plagiarism Allegations. I bring this point up because the question of plagarism seems to come up fairly often of late not just because of this instance of the allegation.

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For example, professors must keep an eye out for it, recent articles note apparent plagiarism by a young Harvard author, millions of dollars and another law suit is at hand over The DaVinci Code, and one article found that educators had reduced assigning term papers because of the time required to police the copying. As for this specific question, Josh Marshall of Talking Points Memo put it well:

To me personally, some of the examples/accusations seem strained — simply similar statements of the same basic facts. And sometimes there are only so many ways to describe one set of facts. In other cases the similarities of the wording strike me as hard to see as a coincidence. Especially when there seem to be multiple instances of similarities in the same column coming from the same source.

In any case, we’re not making judgments one way or another. But if you’re interested in this story. Here’s the evidence. Make your own judgment.

So what is plagiarism? Of course obvious cuts and pastes qualify but there may be something more at work when students and others are in that “strained” zone. In short, could it be that Internet behaviors and uses have fostered belief that authorship is less about originality and more about gathering collective information, sorting it, and then recasting it?

On a related note, in its June 10, 2006 issue The Economist ran an article entitled “Sounds Good?” That article noted the growth of music intelligence software. The software purports to reveal the relationship between songs and can determine based on that information whether the song will be a hit or not. The article also pointed out that an attorney at Brown Raysman thinks the software can be used in plagiarism suits to show that a song was copied. Yet, the concept behind the software “spectral deconvolution” seems to show that, “Songs conform to a limited number mathematical equations” at least so says Mike McCreedy, a purveyor of music intelligence services.

If music intelligence can predict what will be a hit, reveal that “a number of hit songs by U2 have a close kinship to some of Beethoven’s compositions,” and is correct that despite what we hear songs are really only variations on a limited number of mathematical equations, the Brown Raysman lawyer is making a mistake. His clients simply dip into the well of limited equations, reconfigure them, and offer them to the world just as arguably all musicians do under this understanding. How his clients are not “guilty” of the same copying is unclear.

So again, what is plagiarism and what isn’t when technology facilitates so much sharing and copying of information? Thoughts?

DISCLOSURE: Josh Marshall of Talking Points Memo is a friend of mine from high school.


The Political Wikipedia

Confused about the latest Propositions on the ballot? Wonder who the heck is on Team America? What is the One America Committee? And to what the Center for Responsive Politics responds?

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Jimmy Wales has come to the rescue and declared independence from the hurly-burly of FoxNews, CNN, talk radio, and the like by launching Campaigns Wikia.

He declares: “I am launching today a new Wikia website aimed at being a central meeting ground for people on all sides of the political spectrum who think that it is time for politics to become more participatory, and more intelligent.”

And in what strikes me as a Yocahi Benkler-evoking moment Wales writes:

This website, Campaigns Wikia, has the goal of bringing together people from diverse political perspectives who may not share much else, but who share the idea that they would rather see democratic politics be about engaging with the serious ideas of intelligent opponents, about activating and motivating ordinary people to get involved and really care about politics beyond the television soundbites.

Together, we will start to work on educating and engaging the political campaigns about how to stop being broadcast politicians, and how to start being community and participatory politicians.

So what do you all think? Can a Wiki or Wiki approach change the way politics runs in the U.S.? While you formulate your answer note there is an irony here. Remember that a little while back Wikipedia changed its anyone can edit policy to have protected and semi-protected pages. Furthermore, Wikipedia had to investigate and block edits from certain Congressional IP addresses precisely because the politicians has been editing content with spin and the like.

There is also the question of just how well Wikipedia and the Wiki method work. I will get to that after I have read some articles I have found that tackle the question in an engaged way and I think merit some reflection.