from the figure-this-one-out dept
As we noted last week, I’m going to be writing a deep dive paper, similar to my Protocols, Not Platforms paper, that explores the ins and outs of NFTs — looking at the legal, cultural, economic, environmental issues related to NFTs. The idea is to explore the ways in which digital scarcity could prove to be different and interesting — and also the many ways in which it may not be interesting at all. If you’re at all interested in supporting this project, our crowdfund to back the paper (and to get a piece of the resulting NFT of the paper) is still going, though not for much longer.
As we’re exploring these issues, however, we’re also going to be doing a bit of experimenting with NFTs ourselves, to better understand how everything works. And the first thing we’re doing is plagiarizing works by law professor/conceptual artist Brian L. Frye. You can now see our Techdirt Plagiarism Collection of eight NFTs, plagiarized (but, if I say so myself, vastly improved) from Brian L. Frye (you can see them all in the iframe below, but it’s better to click through and see the whole thing). Those NFTs are now up for auction in an auction that will run for the next 10 days, ending on October 7th at 6pm PT (9pm ET).
I imagine that some of this will require some level of explanation — though, I’m somewhat wary of killing the frog in the process.
You may also recall that earlier this year, Frye wrote a piece for Techdirt criticizing the process of legal scholarship. Towards the end of that piece, he mentioned and linked to a recent Law Review piece he had written entitled Deodand, which as Frye describes it:
This article is a work of conceptual art reflecting on the concept of doing conceptual art in the medium of legal scholarship. It is also an homage to Yoko Ono’s work Grapefruit.
The paper itself is well worth reading, explaining what “deodand” means, exploring the nature of common law, our understanding of common law, and explaining what Yoko Ono and her book Grapefruit have to do with all of this (I won’t spoil all of it). I will include this tidbit that explains the structure of the paper, however:
As Ono observed, art is everywhere. But there?s still more of it in some places than others. Unfortunately, legal scholarship usually contains very little art. Or at least, legal scholarship has a hard time seeing itself as an art form. It?s a shame because legal scholarship is as good a medium as any for art?especially conceptual art. After all, every genre has aesthetic qualities, even legal scholarship. If it?s a struggle to make legal scholarship aesthetically pleasing, all the better! Artists have always had to struggle, and there?s no own like a self-own. What?s more, legal scholarship is all about concepts. Usually the concepts are boring and scholastic, but they still matter. There are a lot of mediocre genres. Even if legal scholarship is a mediocre genre, it?s entitled to a little representation, isn?t it, and a little chance? We can?t have only painting, sculpture, and music. Conceptual art is promiscuous. It loves the genre that loves it back.
So, this article is an homage to Ono?s Grapefruit in the genre of legal scholarship. It consists of a number of ?pieces? intended to encourage reflection on the nature and practice of legal scholarship. Of course, it reflects my own particular interests, inter alia discussing the concept of plagiarism, especially as articulated in the context of legal scholarship.
Notably, this is the first article in which I have (intentionally) plagiarized anything. At a certain point, you just have to jump in. For what it?s worth, a considerable part of the plagiarism in this article is self-plagiarism, which is really just plagiarism for plagiarists without the courage of their convictions. But many of the pieces in this article plagiarize other legal scholars. Like any self-respecting plagiarist, I only plagiarized the legal scholars I love the very most. See if you can spot their work. I hope I added something to it.
And then, within the piece, are a long list of “instructions” regarding various topics, including eight such instructions regarding plagiarism — a topic that Frye has also written about extensively, calling into question why plagiarism is considered “the ultimate academic crime,” and suggests that we rethink plagiarism entirely. As he writes in that paper:
Plagiarism norms are primarily an extralegal, inefficient, and illegitimate way for academics to claim property rights in the public domain. Copyright cannot and should not protect ideas, and plagiarism norms are simply copyright by other means. Attributing ideas should be voluntary, not mandatory. Academics should provide citations because they are helpful to readers, not because they are an obligatory form of obeisance. We should encourage people to attribute ideas whenever helpful and appropriate, but we should refuse to recognize the self-interested and unreasonable claims of those who seek to enforce plagiarism norms for their own sake and in their own interests.
Earlier this year, Frye began exploring NFTs, and (among other things) how they fit in under existing law — specifically securities law. He has similarly published another paper, entitled an SEC No-Action Letter Request, in which he explores whether or not selling shares of ownership in the No-Action Letter Request itself is an illegal unregistered security. In order to sell those shares, he has created NFTs associated with the No-Action letter.
Separately, Frye created a bunch of NFTs out of the different “instructions” in the Deodand paper, including the Plagiarism Pieces. This resulted in Josh Lamel, from Insight Public Affairs suggesting that someone should sell plagiarized NFTs of Frye’s NFTs. We have now stepped up to do so.
Because it is plagiarism, and a key point that Frye highlights is that you shouldn’t need to ask for permission, we have not done so — though it certainly appears that Frye endorses this plagiarism, that’s really neither here nor there.
We’ve written plenty about how people overreact to plagiarism in the past, and have noted that plagiarism can often lead to even greater creativity. Often, good plagiarism takes one work and does something else to it, to make it better, or more widely known. We believe we have done that with Frye’s work. His paper, and his NFTs, were fairly boring, typical law review typeface of black letters on a white background. While using his text, we have spiced up all eight of the plagiarism pieces, adding color and (most importantly) animation. Each of the eight NFTs is different, but they are currently being auctioned off, so feel free to own a piece of conceptual art / legal scholarship / plagiarized / case study about plagiarism, ownership, digital ownership and more. Again, the auction will remain live through next Thursday evening.