∞

Plagiarism in Legal Briefs

Plagiarism in Legal Briefs

Gerard Magliocca, writing at Concurring Opinions:

If I cited [someone else’s] brief in an attempt to fairly attribute the source when I made the same point, then I’d look like an uncreative doofus. If I did not cite the brief, though, then that would (or could) be plagiarism.

It would be an interesting bit of research to determine how many sentences are copied without attribution from the briefs of other attorneys. I suspect it happens often.

I don’t think it’s uncreative to cite another lawyer’s brief. Legal writing is a game of cites. If anything, an uncited thought may raise questions rather than project creativity.

The real creativity in legal advocacy, as far as I have learned in law school, working as a litigation paralegal and reading far too much legal writing for “pleasure,” is in the optimal juxtaposition, creatively, of the cited facts and the thoughts of your forbears.

No one wants to see a newly minted physics professor work out the proof for E = MC2. The formula is there as a shortcut so others can build, creatively, upon the concepts for which it provides a shorthand.

After all, what judge prefers your lengthy version of an angle you could just as easily refer to with a short quote and a cite to a previous brief?

Whatever you think of this, a quick search turned up a bit of further reading on the issue and I’ve included a few links below. The question certainly isn’t settled, so I’m as interested as Mr. Magliocca in hearing other opinions.

Further Reading

∞

Government agency NTIS charges for docs you can get online for free, loses money doing it

Government agency NTIS charges for docs you can get online for free, loses money doing it

Good thing a bipartisan bill aims to end that embarrassing situation.

The things the National Technology Information Service does which don’t involve charging hundreds of dollars for free stuff and bleeding money doing it will be absorbed by the Commerce Department under the proposed bill.

But why does Obama want to add $19M to the failed agency’s budget in 2015? I don’t mean to sound like a melodramatic RNC ad, but it seems like a bad idea.

∞

The DATA Act and legislative definitions

The DATA Act and legislative definitions

Andrea Peterson reports1 at The Washington Post the Senate has passed a bill, the DATA Act, which would require federal financial data be published in a common format. It sounds like a great idea and something those nerdy data journalists are going to love. The bill is likely to pass in the House as well, and the President is expected to autograph it.

However, a part of the bill Peterson pointed out makes me nervous.

The version passed by the Senate doesn’t set a specific format for the data standard but does require it to be “a widely-accepted, nonproprietary, searchable, platform-independent computer readable format”

Now, to be clear, it’s probably better not to name a specific file format because those may come and go. But I’m hoping the final version of the law defines every word in that quoted bit, excepting “a” and “format” because if it doesn’t, implementation is going to be even slower than usual and enabling high-volume computerized public scrutiny of federal spending is really a the-sooner-the-better sort of topic.

  1. The WaPo headline reads “The DATA Act just passed the Senate” but it doesn’t look right to me. The Senate is the legislative body, which voted to pass the legislation. Not the other way around. Editorial picking of nits? Yes. But that doesn’t mean it’s not an improvement. ↩

∞

Down the aggregation rabbit hole

This began as a link post pointing to Joel Achenbach’s Washington Post blog entry Journalism is aggregation. But, like more and more link posts lately, it got away from me and merged into its own article.

Achenbach decides journalism is aggregation, and that’s okay. Or maybe he decides it’s not really aggregation, or that it’s at an acceptable point along the continuum between valueless aggregation and value-adding aggregation. I’m not actually sure he settled on a conclusion, and that’s okay, too.

Achenbach had reminded me of my recent post on the topic, which prompted the author of the post I was commenting about to leave me a nice comment of his own. (So meta!)

And then I found this post by Joshua Benton at the Nieman Journalism Lab expressing some disappointment with Achenbach’s aforementioned lack of a conclusion, or more precisely paints his conclusion as a bit of backtracking. I’m not sure I agree with Benton’s take, but both men raise interesting points.

Some journalism is aggregation, but most good and all great journalism is more than mere aggregation. It’s a synthesis of the anecdotes, data, facts and perspectives of as many reliable sources as you can fit into your word limit. Right? That’s an accurate description of much of the best journalism I’ve read in the past year or two.

To me, pure aggregation on the web involves sharing a link and perhaps pairing it with an inflammatory or vapid comment. Sometimes, that’s actually fine with me. Twitter is a good example of that. But no one would call it journalism, even when journalists do it. That’s important to keep in mind, I think: not everything a journalist does online or off is, or is intended as, journalism.

Achenbach wrote about the interview process, which most journalists use to offer different perspectives on a piece of news from experts of different disciplines or schools of thought. Interviews, collecting the commentary of multiple sources, are an aggregation of those opinions. But that’s just one activity in the composite of activities which together compose an act of “journalism.” The result is an article in which, as Achenbach also says near the end of his post, the reporter has drawn on personal knowledge, research and experience beyond the interviews and facts aggregated.

Aggregation, then, is the collection and presentation of opinions or facts, adding little or no context. Journalism, I think, is an equation like this:

Journalism = aggregation + context

I want to know what you would add to, or remove from, that equation. I realize that aggregation on the web generally, and as an issue in digital journalism and publishing specifically, predates my humble blog posts on the topic, but I want to explore it with other interested folks.

∞

Margaret Sullivan takes her NYT colleagues to task like it's her job, because it is

Margaret Sullivan takes her NYT colleagues to task like it’s her job, because it is

Margaret Sullivan is Public Editor at the New York Times. She is tasked with taking the Times to task when it falls short, overreaches or otherwise misses the mark.

And sometimes it does miss the mark, like when it failed to mention successful litigation by the Wall Street Journal which resulted in publication of Medicare data the Times used in crafting a recent feature story.

Sullivan’s candor and diligence are a service to the paper’s readers and reporters alike. Subscribe to her RSS feed here.

∞

Heartbleed: When no encryption is better than bad encryption

Heartbleed: When no encryption is better than bad encryption

Alex Hern reports for The Guardian this disturbing fact about the recently disclosed OpenSSL bug, now two years old and pervasive:

servers vulnerable to Heartbleed are less secure than they would be if they simply had no encryption at all.

How? The bug allows access even to information the encryption wasn’t protecting.

∞

“Notable toupee”

“Notable toupee”

I wanted to share this because it’s a funny phrase, and I think it’s important to keep an eye out for humor, intentional or otherwise, in civil litigation filings.

Film studio Paramount Pictures, in its motion to dismiss a defamation suit by a plaintiff alleging the film The Wolf of Wall Street, via the book on which it’s apparently based, defamed him:

The Book did not have only one dishonest executive with a notable toupee.

That’s a sentence that only lives its best, strangest life outside its original context. But, if you’re okay with dispelling some of the magic, read the rest of the motion at Scribd, or embedded below.

∞

NPEs planning patent litigation may be safer as private companies

Note: I’m not your lawyer, you’re not my client, and nothing in this article is, or should be construed as, legal advice.

Companies that don’t sell anything and exist only to enforce patent rights, sometimes purchased from the original patent holder solely for the value of enforcement, are known as non-practicing entities (NPEs) or, pejoratively by defendant companies and their attorneys, “patent trolls.”1

The NPE will sue claiming infringement of one or more patents, and may not actually have any intent to litigate. Many companies and inventors of all sizes regard NPEs scornfully, but are often forced to play ball because settlement is almost always cheaper than litigation. For smaller startups, the cost of litigation may even pose an existential threat.

Allow me to play devil’s advocate for a bit. I consider most NPEs parasites, siphoning money out of the market in return for nothing at all. But here are some thoughts on what some of them may be doing wrong from their own perspective. After all, what good is an attorney who can’t think like his enemy?

Let me explain some basic corporate law, as much for my recollection as for your edification. A corporation is subject to the law of the state in which it incorporates, and corporate law differs from state to state. The cases I cite below only illustrate the foundational principles of corporate statutory and common law.

A company’s board directors and officers owe several fiduciary duties to shareholders and the company itself. One of those is the duty of care, which says that responsibility for “the financial interests of others imposes on a director an affirmative duty to protect those interests.”2

However, courts realize businesspersons are in a better position than judges and attorneys to make sound decisions for their companies. For that reason, courts often defer to the judgment of a company’s leadership absent some gross negligence.3

The business judgment rule, as it is called, is at its core :

a presumption that in making a business decision the directors of a corporation acted on an informed basis, in good faith and in the honest belief that the action taken was in the best interests of the company.4

Thus, the fiduciary duty of care owed to shareholders by directors and officers requires them to make a “good faith effort to be informed and exercise judgment.”5

So, now back to the NPEs. When a company faces suit by an NPE, its leaders are obligated to compare the costs of litigation and settlement and choose the path most protective of the company’s and shareholders’ interests, which is usually the less costly path. And that, of course, is almost always settlement.

Joe Mullin, writing for Ars Technica, explains the financial position of an NPE recently vanquished by web-based tech retailer Newegg:

MacroSolve had about $800,000 on hand and looked to be burning through about $50,000 a month, not including payments to its lawyers.

That $50,000 happens to match the low-end of the amount MacroSolve demanded of companies against which it brought patent infringement lawsuits. In other words, it matched its settlement demands to its burn rate.6

It was actually surviving only, or primarily, by threatening to go to trial on patent claims of dubious validity. MacroSolve is a public company, so much of their financial and operational information is openly available. Newegg realized after reviewing that information that MacroSolve’s burn rate matched the settlement demands, and built a strategy around it: call the MacroSolve bluff, revealed by their public financials, by refusing to settle, causing their burn rate to deplete cash-on-hand and substantially reduce or totally eliminate the company’s ability to press on with any outstanding litigation.

NPEs registered as private companies and considering the MacroSolve strategy may be safer staying private. Public companies may want to consider taking the company private before using litigation or threat of litigation, on the assumption that some percentage of defendants will settle, to fund the company’s survival.

In conclusion, patent litigation by non-practicing entities is even more a game of poker than most litigation, to the extent the defendant isn’t really infringing or the patent’s validity is assailable, and public companies show too much of their hand too much of the time to play safely under most corporate law regimes.7

  1. Read the canonical story of the birth of the phrase “patent troll,” in spring of 1999, here. ↩
  2. Smith v. Van Gorkom, 488 A.2d 858, 872 (Del. 1985) (Opinion) ↩
  3. Aronson v. Lewis, Del.Supr., 473 A.2d 805, 812-13 (1984) (Opinion) ↩
  4. Id. at 812 (Opinion) ↩
  5. In re Caremark Int’l Inc. Derivative Litigation, 698 A.2d 959, 968 (Del. Ch. 1996) ↩
  6. Successful venture capitalist Fred Wilson defines burn rate as “the speed at which your cash balance is going down.” Read his article on the topic here. ↩
  7. Of course, putting the devil’s advocate thing aside for a moment, which I do in a footnote in keeping with the spirit of the article, it’s probably best to innovate in some meaningful way and get a new or improved product to market instead of looking for the most defensible way to monetize patents which may not be valid and probably aren’t being infringed anyway. ↩
∞

Aggregation is plagiarism

Aggregation is plagiarism

Aggregation is plagiarism:

I couldn’t help but aggregate (though not plagiarize) this link Jim Dalrymple aggregated to a post by a Mr. Joe Wilcox about how aggregation is, well, plagiarism.

It’s true, now that you’ve read this you don’t need to read the original to know what it’s about. However, my guess is you’ll miss out on the personal reasons and nuanced perspective Mr. Wilcox offers if you don’t go and read his post.

I certainly agree with his position, not an uncommon one, that word-for-word copies or close paraphrases are plagiarism plain and simple. But I would term that behavior, well, plagiarism. Aggregation, done right, will collect interesting material to which the collector wants to point his own readers, adding context or perspective or opinion lacking in the original.

John Gruber’s Daring Fireball is a great example of that: it’s comprised almost entirely of links to the work of others, often including quotes from the linked-to article. But it’s as far from plagiarism as you can get. People read Gruber’s site specifically for his opinion on the news of the day. Most of his readers probably find the newsy bits elsewhere, be it on Twitter or another news site. But Gruber’s take adds value, and that’s why they’re there.

I like to think that’s what I’m doing here, but I suppose only readers like you can decide that.

∞

Listen: 99% Invisible

Listen: 99% Invisible

This week’s featured podcast is 99% Invisible is “a tiny radio show about design,” by Roman Mars.

If you think often about design, you’ll love every episode of this one. If you don’t think often about design, 99% Invisible will make you think often about design. Mars doesn’t just talk about graphic design every week. He finds design everywhere.

This week’s episode is Call Now! and it is all about that magnificent corner of the advertising industry that is lawyer marketing. Whether you’re a law student lawyer, or client, it’s a must-listen. I’ve embedded it below the subscription links.

Subscribe to 99% Invisible:

iTunes | Pocket Casts | RSS

Listen:

∞

Reading List: Law reviews, loans, novels and Crimea

Here’s what I’ve been reading lately. The Crimea story is easily the most important one in terms of knowing some stuff about what’s going on in the world, but it’s all worth a look.

The fellow who put together that Crimea reading list (at the bottom of the list below) is Om Malik, founder of GigaOm and a great writer in his own right.

∞

Listen: CMD + Space

I want to tell you about one great podcast every week. This shouldn’t be a problem for at least a and a half or so because I am currently subscribed to about 80 podcasts. The first Podcast of the Week is CMD + Space.

An interview show by Myke Hurley, CMD + Space typically features a wide-ranging conversation between he and a guest from the Apple world. App makers, pundits and others talk about how they approach app development on Mac and iOS.

Find out more about the show at its homepage on the 5by5 podcast network. If you need a podcast player, I highly recommend the one made by the guest on this week’s episode, Russell Ivanovic. His app Pocket Casts is available on Android and iOS and can sync subscriptions and played position across multiple devices.

∞

Popcorn Time streams movie torrents, but maybe it’s more than that

The image above is the first screen you see when you open Popcorn Time. The app, available on Mac, Windows and Linux, streams movies from the peer-to-peer file sharing protocol BitTorrent. The technology is similar to what old school music swapping service Napster used from about 1999 to 2001, before being shut down.1

It’s getting a lot of attention this week, much of which focuses on its copyright infringement implications. And for good reason, because according to the FAQ, while you’re watching a movie, the app is using your computer and internet connection to seed the same movie to other viewers. That means you’re sharing what you’re watching, and if what you’re watching is copyrighted or otherwise protected by your country’s intellectual property laws, you may be committing a civil violation or a crime.

Yeah, it’s like that.

I messaged the Buenos Aires-based developers of Popcorn Time on Facebook asking whether they would consider adding a Creative Commons / Public Domain channel to the app. It couldn’t hurt to include some non-infringing content, and it may be a cool new way for indie filmmakers to distribute their work.

But while copyright infringement is the easy story (and the one I would usually focus on here), there’s a more interesting angle to Popcorn Time.

It has the potential to introduce “normals” to the concept of peer-to-peer file sharing. This is similar to what BitCoin has done to the idea of digital currency. While it is the first cryptocurrency, using cryptography to secure transactions, it was not the first digital currency. Several video games allow players to trade items for virtual money and have done so for a long time.

But BitCoin brought the concept to the forefront of an international conversation. I’m not sure Popcorn Time is going to be that big or game-changing (it’s still in beta; only the third movie I tried to play, American Hustle, actually began to play. I turned it off right away, because it’s good policy for would-be attorneys not to, you know, break laws).

I do think there is real value to a proof of concept when it gets a technology usually limited to geeks into the hands of a larger audience.

And the infringement potential doesn’t have to be a deal-breaker. A quick Google search for legitimate uses of BitTorrent turns up about 146,000 results.

Some totally legal uses of BitTorrent include game updates and downloads, distributing your own music, and (take note, Popcorn Time developers) public domain movie trading.

So the question is whether the extra attention Popcorn Time is getting can be turned toward the lawful uses of peer-to-peer protocols. If so, it could be the boost the system needs to become a permanent fixture in the national conversation. In other words, the interest in Popcorn Time could be peer-to-peer’s BitCoin moment.

  1. If the copyright geekery force is strong with you, consider as further reading Copyright and Peer-To-Peer Music File Sharing: The Napster Case and the Argument Against Legislative Reform, available here. ↩
∞

An update on 'Reading List'

A daily post of links I read that day feels too spammy now that I’ve done it a few times. I’ll make it a weekly thing where I highlight the best of what I read that week.

∞

Reading list: Hari Kondabolu, Tim Cook, and magazine covers

My favorites among today’s reads are the Hari Kondabolu piece, which is actually a video of few minutes of his hilarious standup, and the Tim Cook article, which I posted about earlier.

∞

Tim Cook and the same question

Tim Cook and the same question

When Cook turned the spotlight on someone, he hammered them with questions until he was satisfied. “Why is that?” “What do you mean?” “I don’t understand. Why are you not making it clear?” He was known to ask the same exact question 10 times in a row.

Once upon a time I had a boss who was verbally abusive of everyone he met, loose with the law and prone to what can only be called temper tantrums.

He was also a genius.

And one of his staples in a meeting was the same thing that quote above explains about Tim Cook. Eventually I was ready for it every time, and it’s a valuable lesson.

∞

Introducing 'Reading List'

I’m a huge fan of apps and services like Instapaper and Pocket, which allow you to save web pages, articles and even videos for later. Whether I’m in line at a coffee shop or sitting in a waiting room, I often turn to tools like Twitter and Feedly to see what’s worth reading on any given day. The combination of all of those apps leaves me with far more content than I can read in a day, but I’m going to start sharing what I get to in a daily post over here.

This will serve two purposes. First, it will give you a sense of what I look at every day. Second, it will give me a convenient way to look for patterns in what I’m actually choosing to read versus the much larger bucket of things I’m saving. In other words, some of the stuff I save I will never, ever read. And maybe I’m repetitive or restricting myself to an echo-chamber of similar perspectives. This exercise will help me look for those things and then change them.

Most will be far shorter than this one, but in the spirit of getting off to a good start, here’s a list from the last couple of days:

∞

Disgraced Scientist Granted U.S. Patent for Work Found to be Fraudulent

Disgraced Scientist Granted U.S. Patent for Work Found to be Fraudulent

It’s hard to believe this patent should ever have been approved by a patent examiner acting in good faith, especially considering the criminal convictions standing in stark contradiction of the purported “inventor’s” affidavit of lies, but let’s assume the USPTO did, as they claim, handle this one by the book.

Even the appearance of such ridiculous impropriety as granting a patent for fake research is enough to signal the extent to which the system is flawed.