Where Credit's Due?

posted by Dave Hoffman

In recent months, in widely varied contexts, bloggers have expended a non-trivial number of words trying to divine a proper citation policy for writing on the ‘net. It's the kind of activity that ought to set law review articles editors' hearts-a-flutter, were they not engaged in the project of footnote generation editing and studying. See, e.g., the Domenech controversy (instigation; synthesis; resolution; Malkin's moral: "the determined moonbat hordes . . . painfully . . . are right."); the AP-citation brouhaha; the Ribstein-Baude discussion on citation as a norm/quality warranty; and yesterday's discussions about Prawfs'/OrinKerr's "need" to credit Xoxohth for their early posting of the '07 USNews Rankings

Are all of these situations the same? What distinguishes them?

Categorically, we're talking here about four different types of nonattribution: (1) amateur v. professional direct copying (Domenech); (2) professional-amateur non-attribution of story ideas (the AP problem); (3) amateur-amateur traffic diversion (the USNews problem); and (4) amateur-amateur non-attribution of story ideas (Ribstein-Baude). In each of these areas, the primary enforcement mechanism of a pro-citation norm is reputational/shaming, which can range from severe (1) to mild (4).

In terms of "wrongfulness," I find the fourth category the most intuitively troublesome. But further reflection suggests that my reaction is related to thinking of blogging as a form of scholarship, i.e., contribution to generalizable knowledge. Since I don't want ordinary blogging to require IRB approval, I probably ought to reconsider my intuition. I find the third category - diversion of traffic - to be almost entirely benign. The USNews context in particular is an easy case: Prawfs and OrinKerr both are "paying" for the diversion by taking on a greater (but still negligible) risk of action by USNews, a risk that is clearly higher for the blog than it is for the distributed discussion board. The first case is also easy, the other way, because it is akin to a misappropriation problem. The second case is the hardest. I don't know exactly why the AP should have to credit the sources of its ideas. Doing so would impose substantial costs on news gatherers. Would they have to disclose when a cab driver suggested an article about the rising prevalence of potholes? A tip from the barber that the President's hairstyle has changed? There has to be some latitude for journalists to synthesize others' work without believing that credit is due. The extent of that latitude is, I suppose, a question for journalist ethics courses.

Posted by Dave Hoffman at March 29, 2006 12:00 PM

(http://www.autoadmit.com/thread.php?thread_id=389505&forum_id=2#5456534)

http://www.law.temple.edu/servlet/RetrievePage?site=TempleLaw&page=Faculty_Hoffman

(http://www.autoadmit.com/thread.php?thread_id=389505&forum_id=2#5456702)

Bottom line: Kerr is a decent guy for giving credit where it's due. Leiter and other TTT profs are assholes for not citing XO for breaking the news.

(http://www.autoadmit.com/thread.php?thread_id=389505&forum_id=2#5456551)

What does the risk associated with hosting the image have to do with the normative question of whether proper attribution should be expected?

(http://www.autoadmit.com/thread.php?thread_id=389505&forum_id=2#5456587)

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.

Posted by: Anon at March 29, 2006 01:42 PM

(http://www.autoadmit.com/thread.php?thread_id=389505&forum_id=2#5456696)