The Sanctions Hearing For ChatGPT Using Lawyers… Did Not Go Well

Legal Issues

from the did-they-get-chatgpt-to-testify? dept

By now you’ve heard of the lawyer who used ChatGPT for his legal research, and it made up fake cases. We’ll again remind you that Joshua Browder, the founder of DoNotPay insisted that this same underlying technology was so sophisticated that he offered $1 million to a lawyer who would let it make arguments in front of the Supreme Court.

Anyway, some stuff has been happening in the underlying case, in which the judge ordered the two lawyers associated with the case, Peter LoDuca and Steven Schwartz, from the law firm of Levidow, Levidow & Oberman to explain what the fuck they were thinking.

First off, both lawyers (smartly) lawyered up with lawyers from outside their own firm. Second, on Wednesday, they filed their required response to Judge Kevin Castel’s order to show cause, which was effectively the two lawyers throwing themselves on the mercy of the court. The shortest summary of the 29 page document is “we may be ignorant and stupid, but we’re not malicious — and sanctions should only be put on malicious lawyers” And also “we’re super duper sorry, and everyone’s mocking that, so isn’t that punishment enough?”

However, even within that filing there were some issues. When filing a legal brief, it normally includes a “Table of Authorities” which includes citations to every other case named in the document. In this case, though, that actually represented a kind of challenge, because (you’ll recall, though whoever created this document did not…) that the whole reason we’re in this mess is that Schwartz (under LoDuca’s signature) included citations to made up cases that ChatGPT had given him. And, this response, in explaining what happened, mentions some of those cases, with the main one being the entirely fictitious: “Varghese v. China Southern Airlines.”

But, because the response includes a discussion of ChatGPT providing that cite (and others) those fake cases are mentioned in the brief… meaning whoever put together the Table of Authorities included the fake cases that were mentioned. Really. The highlighted cases here do not exist:

There was at least one other such fake case in the Table of Authorities as well. On Thursday morning, LoDuca and Schwartz filed an amended reply, and while the docket does not mention the reason for the amendment, I note that the three non-existent cases have disappeared from the Table of Authorities.

Also on Thursday, though, was the courtroom hearing about all this, and Inner City Press’s Matthew Russell Lee covered the hearing in detail. It did not go well for either LoDuca or Schwartz.

My larger takeaway from their response to the OSC was that I’m sure that they’re telling the truth that they were largely ignorant and stupid, rather than malicious, but it’s still horrifically bad lawyering. You can blame “generative AI” all you want, but the real mistake here, for which there is no excuse, was their failure to actually check on the cases they referenced.

There’s a process lawyers are expected to go through whenever they cite cases in a filing, called “Shepardizing” the citations, which is the process of checking to see if the cases are still good citations: i.e., have there been more recent rulings that overrule or reverse the original rulings, or which make the older rulings no longer good law. That process, alone, should show if a case, say, doesn’t even exist. But these lawyers did not do that. And that’s 100% on them, not on ChatGPT or their lack of understanding for how ChatGPT works.

The lawyers’ excuse — that they used a tool called FastCase, but due to a billing snafu only had access to state court cases, not federal — is not particularly convincing. Because there are lots of other ways to find federal cases… including Google. And, on top of that, once they were notified that opposing counsel (and, it appeared, the judge) could not find the cited cases, pretty much anyone would search a little deeper than just going right back to ChatGPT.

And… more or less that’s what the judge was interested in discussing. First, the judge went after LoDuca, whose signature was on the docs, but who has now admitted that he was just signing everything that Schwartz put in front of him without really reviewing it (this was because LoDuca is admitted to the federal courts in the federal district, while Schwartz is not).

Already, this is questionable enough, in that LoDuca was signing stuff without really checking it over, but also the judge got him to admit that he had lied to the court regarding a vacation when asking for an extension of time (Schwartz was the one who was actually going on vacation). From Inner City Press’s transcription:

Judge Castel: Do you recall writing to me you were going on vacation? And the Court giving you until April 25?

LoDuca: Yes.

Judge Castel: Was it true you were going on vacation?

LoDuca: No, judge.

Lying to a judge is super bad. They don’t like that.

The judge also called out the many warning signs as to why LoDuca and Schwartz should have realized how things went wrong, and didn’t seem to be willing to just accept their “we were dumb, but not malicious” reasoning as acceptable.

But the real mess started when Schwartz was put under oath. The judge quizzed him about the tools he uses for research, and got him to admit that he has access to LexisNexis at the local bar association, but has never signed on to use it. He also admits that when he used ChatGPT he wasn’t just asking it for legal research, but he was asking it to effectively make his argument for him.

Judge: Did you prepare the March 1 memo?

Schwartz: Yes. I used Fast Case. But it did not have Federal cases that I needed to find. I tried Google. I had heard of Chat GPT…

Judge Castel: Alright – what did it produce for you?

Schwartz: I asked it questions

Judge Castel: Did you ask Chat GPT what the law was, or only for a case to support you? It wrote a case for you. Do you cite cases without reading them?

Schwartz: No.

Judge Castel: What caused your departure here?

Schwartz: I thought Chat GPT was a search engine

Judge Castel: Did you look for the Varghese case?

Schwartz: Yes. I couldn’t find it.

Judge Castel: And yet you cited it in your filing.

Schwartz: I had no idea Chat GPT made up cases. I was operating under a misperception.

I mean, all of that is problematic, but it’s basically the judge getting Schwartz on record that he didn’t do the most basic work that he should have been doing. So the judge pressed a little deeper, suggesting that any reasonable lawyer would do more to verify the cases:

Judge Castel: Mr. Schwartz, I think you are selling yourself short. You say your verify cases.

Schwartz: I, I, I thought there were cases that could not be found on Google.

Judge Castel: Six cases, none found on Google. This non existent case Varghese, the excerpt you had was inconsistent, even on the first page. Can we agree that’s legal jibberish?

Schwartz: I see that now. I just thought it was excerpts

Judge Castel: When Avianca said you cited non existent cases?

Schwartz: They said they couldn’t find them. I figured I’d go back – but I continued to be duped by Chat GPT. I wanted to be transparent to the court. I went to Chat GPT –

Judge: We’re not up to that.

And then things get really stupid. As the judge is exploring how a lawyer could get things this wrong, there is this ridiculously cringeworthy exchange:

Judge Castel: Avianca put your cases in quotations… You know what F.3d means, right?

Schwartz: Federal district, third department?

Judge Castel: Have you heard of the Federal Reporter?

Schwartz: Yes.

Judge Castel: That’s a book, right?

Schwartz: Correct.

Judge Castel: So how could you say you thought they were unpublished?

Schwartz: My unfamiliarity with Federal cases. The cite [site?] looked legitimate. I looked up the judge.

Judge Castel: Their reply was only 5 pages. What was your reaction?

Schwartz: The same

Okay, so Schwatz doesn’t practice in federal court, but, uh, it’s shocking that he appears unfamiliar with the Federal Reporter, or that “F.3d” means the third series of the Federal Reporter (also meaning that the case, in theory, if it existed, was published in… the third series of the Federal Reporter. It is not the “3rd department of the federal district”).

I’m trying to think of a more common analogy to explain how wrong this is, and it’s kind of like… asking a web developer what HTML stands for, and having them say it’s Hidden Treasure Mapping Logic.

Just saying: it’s bad.

The judge, who isn’t missing much, also called out that Schwartz’s affidavit used different fonts, and wondered how it was prepared such that the fonts changed throughout the document.

After the lawyers, again, begged for mercy, and Avianca reminded the court they just want the case dismissed, the judge closed the hearing and will issue a decision sometime soon.

One other side note: on Wednesday, someone also tried to file an amicus brief, trying to argue that the judge should be careful if he issues sanctions not to do so in a way that cuts off actual beneficial uses of legal AI tech. It’s a reasonable enough request, but district courts tend to hate amicus briefs, and in this case the problem with the lawyers was not their use of AI, but their failure to do basic lawyering around checking their cites.

Filed Under: ai, chatgpt, citations, generative ai, kevin castel, peter loduca, steven schwartz
Companies: avianca, levidow

It's The End Of Citation As We Know It & I Feel Fine

(Mis)Uses of Technology

from the the-ai-can-free-us dept

Legal scholarship sucks. It?s interminably long. It?s relentlessly boring. And it?s confusingly esoteric. But the worst thing about legal scholarship is the footnotes. Every sentence gets one¹. Banal statement of historical fact? Footnote. Recitation of hornbook law? Footnote. General observation about scholarly consensus? Footnote. Original observation? Footnote as well, I guess.

It?s a mess. In theory, legal scholarship should be free as a bird. After all, it?s one of the only academic disciplines to have avoided peer review. But in practice, it?s every bit as formalistic as any other academic discipline, just in a slightly different way. You can check out of Hotel Academia, but you can?t leave.

Most academic disciplines use peer review to evaluate the quality of articles submitted for publication. In a nutshell, anonymous scholars working in the same area read the article and decide whether it?s good enough to publish. Sounds great, except for the fact that the people reviewing an article have a slew of perverse incentives. After all, what if the article makes arguments you dislike? Even worse, what if it criticizes you? And if you are going to recommend publication, why not insist on citations to your own work? After all, it?s obviously relevant and important.

But the problems with peer review run even deeper. For better or worse, it does a pretty good job of ensuring that articles don?t jump the shark and conform to the conventional wisdom of the discipline. Of course, conformity can be a virtue. But it can also help camouflage flaws. Peer review is good at catching outliers, but not so good at catching liars. As documented by websites like Retraction Watch, plenty of scholars have sailed through the peer review process by just fabricating data to support appealing conclusions. Diederik Stapel, eat your heart out!

Anyway, legal scholarship is an outlier, because there?s no peer review. Of course, it still has gatekeepers. But unusually, the people deciding which articles to publish are students, not professors. Why? Historical accident. Law was a profession long before it became an academic discipline, and law schools are a relatively recent invention. Law students invented the law review in the late 19th century, and legal scholars just ran with it.

Asking law students to evaluate the quality of legal scholarship and decide what to publish isn?t ideal. They don?t know anything about legal scholarship. They don?t even know all that much about the law yet. But they aren?t stupid! After all, they?re in law school. So they rely on heuristics to help them decide what to publish. One important heuristic is prestige. The more impressive the author?s credentials, the more promising the article. Or at least, chasing prestige is always a safe choice, a lesson well-observed by many practicing lawyers as well.

Another key heuristic is footnotes. Indeed, footnotes are almost the raison d?etre of legal scholarship. An article with no footnotes is a non-starter. An article with only a few footnotes is suspect. But an article with a whole slew of footnotes is enticing, especially if they?re already properly Bluebooked. After all, much of the labor of the law review editor is checking footnotes, correcting footnotes, adding footnotes, and adding to footnotes. So many footnotes!

Most law review articles have hundreds of footnotes. Indeed, the footnotes often overwhelm the text. It?s not uncommon for law review articles to have entire pages that consist of nothing but a footnote.

It?s a struggle. Footnotes can be immensely helpful. They bolster the author?s credibility by signaling expertise and point readers to useful sources of additional information. What?s more, they implicitly endorse the scholarship they cite and elevate the profile of its author. Every citation matters, every citation is good. But how to know what to cite? And even more vexing, how to know when a citation is missing? So much scholarship gets published, it?s impossible to read it all, let alone remember what you?ve read. It?s easy to miss or forget something relevant and important. Legal scholars tend to cite anything that comes to mind and hope for the best.

There?s gotta be a better way. Thankfully, in 2020, Rob Anderson and Trent Wenzel created ScholarSift, a computer program that uses machine learning to analyze legal scholarship and identify the most relevant articles. Anderson is a law professor at Pepperdine University Caruso School of Law and Wenzel is a software developer. They teamed up to produce a platform intended to make legal scholarship more efficient. Essentially, ScholarSift tells authors which articles they should be citing, and tells editors whether an article is novel.

It works really well. As far as I can tell, ScholarSift is kind of like Turnitin in reverse. It compares the text of a law review article to a huge database of law review articles and tells you which ones are similar. Unsurprisingly, it turns out that machine learning is really good at identifying relevant scholarship. And ScholarSift seems to do a better job at identifying relevant scholarship than pricey legacy platforms like Westlaw and Lexis.

One of the many cool things about ScholarSift is its potential to make legal scholarship more equitable. In legal scholarship, as everywhere, fame begets fame. All too often, fame means the usual suspects get all the attention, and it?s a struggle for marginalized scholars to get the attention they deserve. Unlike other kinds of machine learning programs, which seem almost designed to reinforce unfortunate prejudices, ScholarSift seems to do the opposite, highlighting authors who might otherwise be overlooked. That?s important and valuable. I think Anderson and Wenzel are on to something, and I agree that ScholarSift could improve citation practices in legal scholarship.

But I also wonder whether the implications of ScholarSift are even more radical than they imagine? The primary point of footnotes is to identify relevant sources that readers will find helpful. That?s great. And yet, it can also be overwhelming. Often, people would rather just read the article, and ignore the sources, which can become distracting, even overwhelming. Anderson and Wenzel argue that ScholarSift can tell authors which articles to cite. I wonder if it couldn?t also make citations pointless. After all, readers can use ScholarSift, just as well as authors.

Maybe ScholarSift could free legal scholarship from the burden of oppressive footnotes? Why bother including a litany of relevant sources when a computer program can generate it automatically? Maybe legal scholarship could adopt a new norm in which authors only cite works a computer wouldn?t flag as relevant? Apparently, it?s still possible. I recently published an essay titled ?Deodand.? I?m told that ScholarSift generated no suggestions about what it should cite. But I still thought of some. The citation is dead; long live the citation.

Brian L. Frye is Spears-Gilbert Professor of Law at the University of Kentucky College of Law

^{1. Orin S. Kerr, A Theory of Law, 16 Green Bag 2d 111 (2012). (?It is a common practice among law review editors to demand that authors support every claim with a citation. These demands can cause major headaches for legal scholars. Some claims are so obvious or obscure that they have not been made before. Other claims are made up or false, making them more difficult to support using references to the existing literature.?).?}

Filed Under: ai, citations, legal scholarship

Sci-Hub Downloads Boost Article Citations — And Help Academic Publishers

Studies

from the time-to-drop-the-legal-threats dept

Techdirt readers know that Sci-Hub is a site offering free online access to a large proportion of all the scientific research papers that have been published — at the time of writing, it claims to hold 82,605,245 of them. It’s an incredible resource, used by millions around the world. Those include students whose institutions can’t afford the often pricey journal subscriptions, but also many academics in well-funded universities, who do have institutional access to the papers. The latter group often prefer Sci-Hub because it provides what traditional academic publishers don’t: rapid, frictionless access to the world’s knowledge. Given that Sci-Hub does the job far better than most publishers, it’s no wonder that the copyright industry wants to shut down the service, for example by getting related domains blocked, or encouraging the FBI to investigate Sci-Hub’s founder, Alexandra Elbakyan, for alleged links to Russian intelligence.

These legal battles are likely to continue for some time — the copyright industry rarely gives up, even when its actions are ineffective or counterproductive. Academics don’t care: ultimately what they want is for people to read — and, crucially, to cite — their work. So irrespective of the legal situation, an interesting question is: what effect do Sci-Hub downloads have on article citations? That’s precisely what a new preprint, published on arXiv, seeks to answer. Here’s the abstract:

Citations are often used as a metric of the impact of scientific publications. Here, we examine how the number of downloads from Sci-hub as well as various characteristics of publications and their authors predicts future citations. Using data from 12 leading journals in economics, consumer research, neuroscience, and multidisciplinary research, we found that articles downloaded from Sci-hub were cited 1.72 times more than papers not downloaded from Sci-hub and that the number of downloads from Sci-hub was a robust predictor of future citations.

The paper explains which journals were selected, and the various analytical approaches that were applied in order to obtain this result. In all, the researchers compared 4,646 articles that were downloaded from Sci-Hub to 4,015 from the same titles that were not downloaded. Assuming that those are representative, and that the statistical calculations are correct, the end result is important. It suggests that articles that are downloaded from Sci-Hub are nearly twice as likely to be cited as those that aren’t — a big boost that will doubtless be of great interest to academics, whose careers are greatly affected by how widely they are cited. It seems to confirm that Sci-Hub does indeed help spread knowledge, not just in terms of the free downloads it offers, but also by virtue of leading to more citations for downloaded papers, and thus a wider audience for them.

The new paper notes a rather paradoxical implication of the result. Alongside Sci-Hub, which is happy to operate outside copyright law, there are alternatives like open access journals, and preprints, which are fully within it. However, as a result of Sci-Hub’s ability to boost citations:

[it] may help preserve the current publishing system because the lack of access to publications, which preprints and open access journals are trying to solve, may no longer be felt so strongly to find required increasing support.

In other words, according to this latest analysis, it turns out that the copyright industry is attacking a site whose success might be seen as a reason for not changing the current academic publishing system.

Follow me @glynmoody on Twitter, Diaspora, or Mastodon.

Filed Under: academic journals, citations, copyright, information sharing, research, sharing
Companies: sci-hub

Law Students Line Up Behind 'Baby Blue' — Will Harvard Law Review Sue?

Copyright

from the law-student-on-law-student-legal-action dept

Back in 2014, we wrote about a crazy story, where the Harvard Law Review was claiming copyright over legal citation standards. It’s true that the Harvard Law Review Association has published the famous “Bluebook” of legal citation standards for many years, but the idea that such citations are copyrightable is crazy. In response to this, law professor Chris Sprigman and open records guru Carl Malamud alerted the world of their intention to publish “Baby Blue” — a competing legal citations publication. They noted that the 10th edition of the Bluebook, which as published in 1958, had clearly fallen into the public domain, and they were going to use that as the starting point for their competing product. Late in December, we pointed out that Harvard Law Review freaked out after its expensive Ropes & Gray lawyers saw a few tweets from Malamud suggesting Baby Blue was almost ready for publication. On Christmas Eve, a pricey lawyer sent off a nastygram, threatening a copyright infringement lawsuit if Baby Blue were published.

It took another month and a half or so, but Baby Blue is now available — and it appears that law students are lining up behind it, rather than the Bluebook. A bunch of folks at Yale Law School and NYU Law School have come out in support of Baby Blue. It appears other law schools are jumping on board as well — including Harvard Law School, Stanford and more.

Meanwhile, law professor David Post has provided a bit of free legal advice for the Harvard Law Review:

Here?s a bit of free legal advice: If you want to assert copyright protection over something, don?t call it ?A Uniform System of Citation? ?  because systems are, by definition, unprotected by copyright. Section 102(b) of the Copyright Act couldn?t be clearer:

In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, [or] method of operation, ? regardless of the form in which it is described, explained, illustrated, or embodied in such work.

And now… everyone gets to wait and see what the Harvard Law Review Association decides to do.

Filed Under: baby blue, bluebook, carl malamud, chris sprigman, citations, copyright, legal citations, public domain
Companies: harvard, harvard law review, harvard law review association, nyu, stanford, yale

Reagan Biographer Claims 'Copyright Infringement' Because Another Biographer Used The Same Facts

Copyright

from the facts-in-evidence dept

It’s kind of crazy how often it seems biographies, theoretically personal tales made of facts, breed copyright disputes. In most cases, the aggressors in these cases somehow think that a factual representation of what the subject of a book said in the past can somehow be owned and/or controlled. Facts, of course, cannot be copyrighted, nor can history itself, which is essentially all a quotation is. That very simple distinction seems to be lost on a great many people, unfortunately.

Joining their unfortunate ranks is Craig Shirely, an author who has produced books in the past on Ronald Reagan and is presently threatening to sue Rick Perlstein for copyright infringement in his new Reagan book, The Invisible Bridge. Shirley’s demands are, um, heavy.

Shirley’s attorney is demanding that the publisher pulp Perlstein’s book, pay $25 million in damages, and take out ads apologizing to Shirley in The New York Times, The Washington Post, Newsweek, The Nation, The New Republic, Slate, and Salon.

A book burning, twenty-five mil-do, and paid apologetic ads in seven different publications? Well, okay then. You’re probably thinking that Shirley has some kind of open and shut case with those kinds of demands. He doesn’t. What he does have is the ability to point out where Perlstein relayed the same facts Shirley had previously recounted and a few minor sections which use Shirley’s previous work as source material and paraphrase it. There are a couple of rather specific words retained in the paraphrasing, but that’s about it, and most of those sections are recounting a setting or happening in history.

In the first item on the latter list, the two books do sound alike: Describing the red-light district in Kansas City, Perlstein echoes not just the info in Shirley’s text but Shirley’s words “festooned” and “smut peddlers.” After that, though, we essentially get a list of places where the two writers cited the same facts. Facts are not copyrightable, and one pair of similar sentences does not an infringement make. I don’t see a dollar’s worth of damages here, let alone 25 million.

And it’s not as though Perlstein is attempting to hide his use of Shirley’s books as source material. The book-in-print directs those interested in the source material to Perlstein’s website where he lists them out, including several of Shirley’s books. He further credits Shirley’s work in his source notes, talking about how useful it was. He further had reached out to Shirley to discuss some of his sources earlier.

Shirley and his lawyers try to twist nearly all of this. They also show a fairly weak understanding of copyright law, often confusing plagiarism and copyright infringement. The two may be related, but are not the same thing. Again, copyright covers the specific expression, but not the idea or the facts. And yet, Shirley’s lawyers argue that Perlstein’s use of the same facts where he expresses them differently is merely evidence of Perlstein trying to “hide” his actions. Yes, that’s right. The act of rewriting the same factual information is being used as evidence of infringement because it’s different. But that’s not how copyright law works.

Perlstein’s publisher, Simon and Schuster hit back strongly, explaining the basics of copyright to Shirley’s lawyers:

Your claim ignores the most basic principal of copyright law: copyright only protects an author’s original expression. It is therefore important in any copyright analysis to distinguish between original expression and the unprotected elements of a work. Certain well-settled principles govern that analysis and nothing you have drawn to our attention supports a I conclusion that Mr. Perlstein has appropriated Mr. Shirley’s protected expression.

First, copyright does not protect facts, ideas or theories…. This is true even if the author is the first to have discovered the facts or formulated the ideas. Contrary to your assertion in your letter, copyright does not protect “facts and ideas Mr. Shirley first discovered an developed.”….

[….]

All of the examples you cite consist of historical facts from the life of Ronald Reagan, which are unprotected by copyright. Thus, for example, you cite to page 770 of Invisible Bridge, but the historical fact that the manager threatened to cancel the delegation’s reservation derives from Time magazine, where Mr. Shirley obtained this information. Mr. Perlstein read the same Time article, but nonetheless chose to credit your client’s secondary use of the work. Similarly, Mr. Shirley cannot possibly own a copyright in the fact that the major presidential candidates released their medical records and the information those records contained or that CBS News reported on the number of delegates Ford had accrued. These historical facts were widely reported in contemporaneous news reports. To the extent there can be said to be any similarity of phrasing in the way the two books convey these facts, the similarities consist of commonly-used expressions that cannot be the basis for a claim.

There’s a lot more in those letters which you can read below. This includes an attempt by Shirley to twist an email from Perlstein into saying something it did not. Apparently in angrily discussing the citations (which Perlstein put online, rather than directly in the book), Perlstein trotted out the (overly abused) line “information wants to be free.” Shirley’s lawyers attempt to portray that as evidence of copyright infringement by Perlstein. However, as Perlstein’s lawyers point out, this is not even remotely accurate. The point Perlstein was making was about “open sourcing” his sources by putting them online, making them much easier to use for research purposes, rather than having them locked up in a book. These are the very same sources in which Perlstein regularly cites Shirley.

Mr. Perlstein’s use of electronic source notes, with links to the actual source materials, is an innovative and dramatic means of full disclosure. As the “Note on Sources” explains, Mr. Perlstein made the sources available electronically, rather than in hard copy form, to make it easier for readers to access the sources directly and engage with them. In the Internet age, readers are far more likely to actually view the source material when it is presented this way then they ever would be to seek it out in paper form at a library. Indeed, Mr. Perlstein’s comments about “open sourcing” in his correspondence with your client cannot be twisted as your letter suggests; but instead serve to underscore his ultimate purpose to provide ready access to and openness concerning his sources. To that end, when your client contacted him with a question about how his book was sourced, Mr. Perlstein provided him with a link to his source notes and his Note on Sources, all before publication.

It should also be noted that Mr. Perlstein’s electronic notes serve another purpose that ultimately may well help your client’s presumed goal to sell books. As can be seen on Mr. Perlstein’s site, a reader who clicks on one of the citations to Reagan’s Revolution is automatically linked to a Google Books page where he or she can not only read the cited page from Mr, Shirley’s book but is also given the opportunity to purchase the book, This is hardly the design of an author’s intent to “steal” another’s work.

Completely destroying the entire book, handing over $25 million and issuing a public apology for no actual infringement? That’s not going to happen. And, perhaps Shirley’s lawyers are recognizing this. While the letters promise a pre-publication lawsuit would be filed on July 30th, the book was published on August 5th and as far as we can tell, no actual lawsuit has yet been filed.

Filed Under: citations, copyright, craig shirley, facts, ideas, plagiarism, rick perlstein, ronald reagan
Companies: simon & schuster

DailyDirt: Measuring Scientific Impact Is Far From Simple

Studies

How do you measure the impact of a scientist’s research? Some common metrics include the number of publications in peer-reviewed and high-impact journals, the number of citations, etc. But it’s more complicated than just using the quantity and quality of a scientist’s peer-reviewed publications to determine their significance in the scientific community. Here are a few more things to consider.

• Researchers interested in an academic career, beware! Apparently, in recent years, it’s become popular for universities to evaluate prospective hires based on their “h-index,” which reflects both the number of publications and the number of citations per publication. However, a recent study has shown that current mathematical models that predict a scientist’s future performance based on their past performance aren’t reliable and shouldn’t be used in career advancement decision processes. [url]
• Getting depressed because you can’t get funding? Don’t Despair… A study has found that grant size doesn’t strongly predict a researcher’s scientific impact. [url]
• Traditional metrics used to gauge a researcher’s scientific impact are inadequate, since they typically assume that all co-authors of a paper contribute equally to the work. Now researchers are proposing a new metric that takes into account the relative contributions of all co-authors to establish a more rational way of determining a researcher’s scientific impact. [url]
• This takes the cake: A new study has found that scientists are terrible at judging the importance of other researchers’ publications. Apparently, scientists rarely agree on the importance of a paper and are strongly biased by what journal the paper is published in. Also, the number of times a paper is cited has little relation to its actual scientific merit. [url]

If you’d like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.

Filed Under: academics, citations, co-authors, h-index, merit, metrics, peer review, publication, science, scientific impact, tenure

Citations & Sarcasm: How Gizmodo Got A Defamation Lawsuit SLAPPed Down

Defamation

from the an-opinion-is-not-defamation dept

Gizmodo.com published an article, Smoke & Mirrors: The Greatest Scam in Tech, about Redmond’s venture, Peep Telephony. In addition to using the word “scam” in the title, the article had lots of denigrating things to say about Peep and about Redmond’s prior initiatives. (The opinion lays out the beefs, although some of the hot spots are apparent from a quick review of the initial article). Gizmodo subsequently published Redmond’s rebuttals. Later, Redmond apparently decided the rebuttal wasn’t enough and asked Gizmodo to remove both articles, which Gizmodo declined to do. Redmond then sued Gizmodo’s parent Gawker Media for defamation. The court dismissed the case on anti-SLAPP grounds, and that means Redmond will owe a check to Gawker for his lawsuit.

The court has no problem finding that Peep Telephony’s activities were a matter of public interest, as Peep Telephony had received some high-profile coverage from technology reporters before Gizmodo’s story, and Redmond apparently had been trying to stir up press coverage in advance of the 2011 CES conference. The court summarizes that the “Gizmodo article was a warning to a segment of the public–consumers and investors in the tech community–that Redmond’s claims about his latest technology were not credible.”

The court also says that Redmond’s beefs relate to statements of opinion, not fact. The court notes that the word “scam” as not a factual assertion (a dicey outcome), the article was written in a “casual” and “sarcastic” first-person style (“the article’s general tenor and language would give a reasonable reader the impression the authors were expressing subjective opinions, not reporting facts”), and the article used weasel words, such as “seems,” “arguably,” “looks like,” etc., to qualify key fact-like assertions.

The most interesting part of the opinion is where the court talks about the article’s “transparency.” The court says (emphasis added):

The sources upon which the authors rely for their conclusions are specified, and the article incorporates active links to many of the original sources–mainly Web sites and promotional material created and maintained by Redmond and his ventures….Having ready access to the same facts as the authors, readers were put in a position to draw their own conclusions about Redmond and his ventures and technologies….Statements are generally considered to be nonactionable opinion when the facts supporting the opinion are disclosed.

This is true, of course, but a point often lost when defamation plaintiffs are breathing fire. A properly-cited article, filled with hyperlinks to original source materials, should be extra-resistant to defamation claims–even if written with typical blogger snark. Readers can easily inspect the source materials themselves and make their own judgments about the article’s veracity. Thus, either the citations provide proper factual support for the article’s opinion, or the links should eliminate any problems with the author’s knowledge (where that matters to the prima facie defamation claim, which would have been the situation here). Either way, the defamation claim should fail, as it did here.

So this decision is a great ruling for bloggers. Unfortunately, it’s unpublished (like far too many California appellate court opinions), which limits its precedential effect. To fix this, my RA and I are planning to request that the court publish it. Even if it remains unpublished, perhaps the ultimate takeaway–that defamation claims against well-cited blog posts will be quickly dismissed by anti-SLAPP laws and lead to the plaintiff paying money to the defense–will help dissuade similar lawsuits nonetheless. Especially in a situation like this, where the potential plaintiff already had gotten an on-the-spot rebuttal, suing over a blog post like Gizmodo’s rarely makes sense.

Filed Under: citations, defamation, gizmodo, sarcasm
Companies: gawker, peep technology

Murdoch's NY Post Continues To Source Articles From Bloggers With No Credit

News You Could Do Without

from the what's-stealing,-Rupert? dept

Rupert Murdoch and his minions at News Corp. have been going around banging the drum that Google and others are “stealing” from News Corp. newspapers by linking to their stories and sending them traffic. But at the same time, they seem to have no problem totally taking credit for stories that they source from elsewhere. Late last year, the Times (of London), which is a News Corp. paper was caught publishing someone’s blog post without their permission at all. And then there’s the News Corp.-owned NY Post, which last year had a reporter admit that it was the paper’s “policy” not to credit bloggers as the sources for stories. After that story came out, the NY Post insisted that wasn’t true, but it appears the paper has been caught doing it again.

Andrew Fine alerted us to the news that suggests the NY Post used one of his posts as inspiration for a story. Fine had written about the rather disconcerting sign in a Chuck E. Cheese in Harlem. That blog post got some attention on various other blogs… and then just a couple of days later, the NY Post had an article about the very same sign (apparently, it took two reporters to write that article), with nary a mention of Fine’s original blog post (or even any of the other blog posts that promoted Fine’s original story).

Now, to be clear, while I do think it’s good manners to cite where you sourced a story, it’s certainly not required (legally or otherwise) by any means. But where it gets hypocritical is for this to come from an organization that claims that other sites merely linking to its articles are somehow “stealing.” But when the NY Post comes in and blatantly borrows an idea from someone else, and does so without credit, that’s perfectly fine? It seems like Murdoch and News Corp. have quite the double standard going.

Filed Under: citations, ny post, rupert murdoch, sources, stories
Companies: news corp

NY Post Reporter Admits That It's Company Policy Not To Credit Blogs Or Other Sources

News You Could Do Without

from the parasites? dept

Remember that Washington Post reporter last month who got all sorts of attention for claiming that a Gawker writer “ripped off” his story, despite linking to it multiple times? Many mainstream press folks sided with Shapira, in using this as an example of how blogs “parasite” newspapers. Yet, as the actual numbers show, the real relationship is quite symbiotic, with stories moving back and forth across alternative media and traditional media. And… it seems pretty clear that alternative media is a lot more likely to give credit and/or link to an original story. We’ve highlighted a few different cases of those traditional newspapers taking stories from bloggers without credit.

Charles Vestal points us to another such case, but in this one, the reporter confessed and noted that it was company policy not to credit bloggers. In this case, it involved a local New York City blog that goes by the charming name NewYorkShitty.com. Last month, it reported on an illegal gym in the neighborhood. A little over a week later, the big News Corp/Rubert Murdoch-owned NY Post wrote an article covering just that story that seemed pretty obviously taken straight from the original.

So, the author of the blog post, one “Miss Heather” contacted one of the NY Post reporters, who quite openly admitted to using the blog post for his story, and then said it’s against corporate policy to credit bloggers with scoops. Apparently, the same applies at the NY Daily News as well:

Post policy prevented me from crediting you in print. Allow me to do so now. You did a fantastic reporting job. All I had to do was follow your steps (and make a few extra phone calls).

I won’t discuss at length the policy of not crediting blogs (or anyone else). I’ll just briefly explain that as long as we can independently verify every bit of info, we don’t credit.

Now, this isn’t a surprise, but how come that Washington Post reporter’s claims of blogs being “parasites” got so much attention a few weeks ago, when it involved a clear case where the blog quite deliberately cited and linked to the original — but a situation like this, where the NY Post blatantly got the story from a blog and admits it, doesn’t get any attention at all?

Filed Under: bloggers, citations, credit, journalism, ny post, parasites
Companies: news corp