OH SNAPSKI

Wikipedia as a Resource for Legal Research

In a recent court opinion, Judge Statsinger of the Criminal Court of the City of New York, cites to my definition of “revenge porn” in Footnote 1. To get technical, Judge Statsinger cites to the Wikipedia article about revenge porn, which I wrote last fall.

It’s exciting to see something that I wrote cited in a legal opinion, but it’s more exciting that Judge Statsinger (or at least, one of his clerks) recognized how Wikipedia operates as a valuable resource for legal research.

To be clear: there is an important difference between “resource for legal research” and “legal resource.” And I’m talking about the former.

Judge Richard A. Posner, of the United States Court of Appeals for the Seventh Circuit, has described Wikipedia as “a terrific resource.” He isn’t alone in his thinking: Nearly 1,000 cases have cited to Wikipedia, including cases in every federal circuit court. It’s regularly referred to in motions, briefs, and law review articles. And despite continued skepticism about Wikipedia’s reliability, Wikipedia frequently serves as the starting point for legal research.

Even Judge Posner, in all his enthusiasm, added an obvious caveat: “It wouldn’t be right to use [Wikipedia] in a critical issue. If the safety of a product is at issue, you wouldn’t look it up in Wikipedia.”

As the encyclopedia anyone can edit, it’s understandable that people have an immediate (mostly negative) reaction to courts of law citing to a resource like Wikipedia. Even though the information in Wikipedia articles can be audited, either by reviewing who made edits to an article or analyzing the sources it cites, there is a generally impression that Wikipedia has no place in scholarship – legal, or otherwise. (If you’re curious about the accuracy of Wikipedia, I strongly recommend the Wikipedia article on the topic.)

Wikipedia is not a substitute for citations to case law or legal treatises. But Judge Statsinger’s decision is a great example of how Wikipedia can effectively be used in a legal decision.

I’ve seen this trend more and more, which is why I’ve proposed a Wikimania 2014 Workshop about “Wikipedia for Lawyers.” My proposal focuses on two issues: best practices and contribution  values.

The short version of my pitch is that legal researchers should be educated about what happens behind the screens at Wikipedia – about how articles’ histories can be viewed, how to cite to specific versions of articles, and how reliability can be audited. And, as NYU Law’s inaugural Innovation Law and Policy Editathon demonstrated, lawyers are excited to contribute to and improve Wikipedia once they have a deeper understanding of how it works.

The full proposal is available here.

Revenge is a Kind of Wild Justice

A snippet from my article in The Atlantic, Our Best Weapon Against Revenge Porn: Copyright Law?:

“When On The Media’s Bob Garfield asked Hunter Moore whether IsAnyoneUp violated copyright laws, Moore offered this ridiculous gem of a reply:

“[B]ut when you take a picture of yourself in the mirror, it was intended for somebody else so, actually, the person you sent the picture to actually owns that picture, because it was intended as a gift. So whatever the—that person does with the picture, you don’t even own the nude picture of yourself anymore … So that’s how I’m protected.”

Moore is dead wrong.

More than 80 percent of revenge porn photos are selfies, meaning that, as the “authors” of their selfies, the majority of victims own the copyright in their photos. Victims can use the takedown provisions Digital Millennium Copyright Act (“DMCA”) to de-index websites with their photos from search engines like Google and ask the websites themselves to remove the photos, all without having to hire a lawyer.”

My student Note, Using Copyright to Combat Revenge Porn, explores how the majority of revenge porn victims can use copyright law to protect themselves.

Plagiarism Is The New Original, Man

The word law is against my principles. [1]

The problem begins with the legal fact that authorship is inextricably bound up in the idea of ownership and the idea of language as Intellectual property. Language and ideas flow freely between people Despite the law. [2]

It’s not plagiarism in the digital age – it’s repurposing.[3]

Copyright law has to give up on its obsession with “the copy.” The law should not regulate “copy’s” or “reproductions” on there own. It should instead regulate uses – like public distributions of copyrighted work – That connect directly to the economic incentive copyright law was intended to foster. [4]

The above are excerpts from actor Shia LeBouf’s e-mail interview with Bleeding Cool

After being accused of plagiarism and copyright infringement, LeBeouf produced this apology. Bleeding Cool mistakenly stated that the exchange “appear[s] to be in Shia’s own words,” but every line is lifted from another source – even LeBeouf’s idea of commenting on plagiarism using lifted quotes has been done before (and far better) by Jonathan Lethem. The grammatical errors make sourcing LeBeouf’s statement difficult, but not impossible:

[1] Marcel Duchamp, commenting on Dada.
[2] Gregory Betts, Poets Against Authorship.
[3] Kenneth Goldsmith, article by the same name.
[4] Larry Lessig, Remix: Making Art and Commerce Thrive in the Hybrid Economy.

Update 1/3/13: The final line is ripped from Steve Jobs.

You Make Me Want to GIRLS!

The continuing irony surrounding  BeastieBlox (that’s what I’m calling it now). The Beastie Boys’ “Girls’” bears an uncanny similarity to the Isley Brothers’ “Shout!” Listen for yourself:

Rhymin’ & Stealin’: Beastie Boys and GoldieBlox II

“[T]he GoldieBlox ad is not primarily aimed at “advertis[ing] a product.” While there is a glimpse of a GoldieBlox toy at the very end, the video is really meant to garner publicity for GoldieBlox itself while spreading the company’s message that traditional girl toys aren’t all that great for modern girls. GoldieBlox’s reboot of “Girls” is a sort of “superparody.” It’s poking fun at the Beasties’ song. But it’s also linking the song to a specific and important social critique—that today’s girls’ toys reflect the same retrograde attitude toward girls that the song represents. If anything, parodies like GoldieBlox’s—which provide broad-based social commentary wrapped in a parody of a popular song—ought to be entitled to more deference than conventional parody sold “for its own sake.” GoldieBlox’s parody communicates a broad critical message—precisely what the fair use doctrine seeks to protect.”

NYU Law Professor Chris Sprigman and UCLA Law Professor Kal Raustiala explaining  why the Beastie Boys are going to get bench-slapped in Slate

Give Me Your Tired, Your Infringers

FOREVERRRYou know that USPS stamp, the one with Lady Liberty?

Turns out that’s not the Statute of Liberty – just statute of liberty.

The stamp became the subject of a bizarre copyright infringement battle this week when Las Vegas-based sculptor, Robert S. Davidson, filed a lawsuit against the United States Postal Service. The New York-New York casino commissioned Davidson to design a Lady Liberty to grace its imitative skyline, but Davidson never visited New York during the design process. The result, Davidson  alleges, is a “softer, more feminine, and realistic silhouette” for Lady Liberty, including a “fuller chin, a friendlier expression and pronounced cupid’s bow shape of the upper lip.” Those changes resulted in a “‘fresh-faced,’ ‘sultry’ and ‘even sexier” rendition of the statute.

Davidson claims that his changes “brought a new face to the iconic statue.” That must be what appealed to USPS when looking through a Getty Images lineup: USPS wanted a “distinctive and different” version of the iconic statute – what better than a version that was not the statute at all?

USPS apparently assumed the rendition they chose was the New York original, which is in the public domain.

A few folks have speculated that Section 120 of the Copyright Act should allow USPS to use a picture of this publicly visible work, but Section 120 only applies to representations – like photographs or paintings – of architectural works. (It’s the reason artists can sell pictures of the New York City skyline without being sued by the designers of the Chrystler Building.) Sculptures, however, are not “architectural works” for purposes of Section 120.

And just in case your mind is wandering to Section 107, more commonly known as “fair use,” Davidson has some strong precedent on his side.

USPS was bench-slapped earlier this year for using the Korean War Memorial on a commemorative stamp without permission from its creator, Frank Gaylord. The Federal Circuit reversed the lower court’s finding of fair use, noting that “allowing the government to commercially exploit a creative and expressive work will not advance the purposes of copyright in this case.”

Fight For Your Right (to fair use)

UPDATE 12-10-13: The Beastie Boys filed a counterclaim for copyright infringement and, presumably, rhymin’ and stealin’.

Start-up toy company GoldieBlox recently filed a lawsuit seeking declaratory judgment that its ‘Girls’ video does not infringe on the Beastie Boys’ copyright.

Goldieblox is a start-up toy company that encourages women to go into STEM fields by making toys that “get girls building.” The company’s ‘Girls’ video went viral last week.  The video features a parody of the Beastie Boys’ License to Ill hit track, ‘Girls.’

Let’s compare the two after the jump . . . Read the rest of this entry »

We’re Worried About Another Kind of War

PEWstats

For the first time in Pew Research Center polling history, more Americans are worried about restrictions of civil liberties than about protection from terrorism. Pew also released in-depth statistics about Americans’ response to NSA surveillance and civil liberties in July.

Google Books Is The Best Ever

“In my view, Google Books provides significant public benefits. It advances the progress of the arts and sciences, while maintaining respectful consideration for the rights of authors and other creative individuals, and without adversely impacting the rights of copyright holders. It has become an invaluable research tool that permits students, teachers, librarians, and others to more efficiently identify and locate books. It has given scholars the ability, for the first time, to conduct full-text searches of tens of millions of books. It preserves books, in particular out-of-print and old books that have been forgotten in the bowels of libraries, and it gives them new life. It facilitates access to books for print-disabled and remote or underserved populations. It generates new audiences and creates new sources of income for authors and publishers. Indeed, all society benefits.” 

from Judge Chin’s decision granting Google summary judgment and dismissing the complaint in the Google Books case

Why Law Journals Matter

This New York Times article bemoaning the “lackluster scholarship” of law journals (largely because the editors are students) ignores why law journals are valuable. Notably, the Times doesn’t mention that nearly every person quoted in the article – all men, by the way – participated in this “incompetent”, irrelevant, unhelpful and biased system.  These men likely would not have risen to their positions of prominence had it not been for their participation on a journal.

The list speaks for itself:

Not only were these men on law journals, they were on the most prestigious journal at their respective institutions.

Many of these men joined law journals for the reasons many students do: it’s expected and it opens doors. Law journal membership is often an unspoken prerequisite for prestigious scholarships, clerkships and professorships and the three frequently come hand-in-hand. Some have  hired – or not hired – research assistants, summer associates or clerks based on journal membership. Even as these jurists, professors and practitioners criticize law journals, many received well-deserved opportunities because of their experience on law journals.

We can argue about whether the scholarship in law journals is helpful to the legal practice.  What’s beyond debate is that law students can benefit immensely from membership on a journal.  There is a reason that journal membership is so often used as a metric of qualification.

Journals are the best places to learn how to effectively write in a legal setting and how to efficiently edit legal work. It’s how we, as law students, build communities and friendships. We network with alumnae and peers, judges and practitioners. We produce a final product. We foster mentorships with advisors and professors. We work on tight, often high-pressure deadlines. We explore fascinating issues of law. We vastly improve our research, writing and editing skills. In short, it prepares us to be lawyers.

Updated: Adam Liptak,  author of the article, was also on a law journal. He was an editor of the Yale Law and Policy Review.

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