The Skillful Rejoinder

exclamation_markOne tricky situation faced by many academics is how to respond to criticism of their work that the scholar does not believe is accurate or justified. A lot of scholars, in my opinion, don’t do this very effectively. The less effective responses are those in which the author is clearly indignant or angry. A reader who is not intimately familiar with the details is, I think, moved to conclude that the amount of emotion correlates to the degree to which the criticism has met its mark. I’ve always thought that the more persuasive response is one of faint bemusement—faint, because if the tone is openly mocking, that risks the perception among readers that the target did not take the criticism seriously enough.

This is all a long prelude to a quote I’ve come across today from one of my favorite writers, E.P. Thompson. (I’ve actually used Thompson in a legal writing class before to demonstrate that the rules of good paragraph structure transcend disciplines: IRAC is not just something made out of whole cloth by legal writing professors.) Here’s Thompson responding to criticisms of one of his articles in a book by Mark Harrison:

Harrison also pronounces that my article “has a number of shortcomings, which will be examined more fully in chapter 6.” Since chapter 6 does not mention my article, and the shortcomings are identified nowhere else in the book, I am still waiting for the blow to fall.

Zing!

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2009 Nathan Burkan Memorial Competition Winners

musical_notessvgEvery year, the American Society of Composers, Authors and Publishers (ASCAP) sponsors the Nathan Burkan Memorial Competition, named after the lawyer who founded ASCAP in 1914. The competition awards prizes at accredited law schools across the country for the best one or two papers in any area of copyright law at that law school. I am very pleased to announce this year’s winners of the competition at Marquette:

  • First Prize: William K. Pridemore II, Foul Ball! Why the Digital Millennium Copyright Act Strikes Out on Fair Use
  • Second Prize: Kevin P. Rizzuto, Just Say No (to Injunctions Enjoining Future Sale or Lease of Copyrighted Residential Homes)

First prize carries with it an award of $600, and second prize is awarded $250. Congratulations to Will and Kevin!

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The Pirate Bay Is Keel-Hauled

Pirate FlagThe Pirate Bay verdict was handed down yesterday in Sweden, and the four defendants were found guilty. Like Evan Brown, I don’t see much of significance in the verdict, although Mike Madison does.

However, what I do find interesting about the whole Pirate Bay situation is “Steal This Film II,” a documentary of comments on filesharing and copyright law produced in support of the defendants. Last week, our own IP Law Society here at Marquette organized a showing of the film. What I found particularly intriguing about “Steal This Film II” is its view of how creative content is produced: it’s not produced at all. Rather, content is found, like rabbits in a field; the rabbits then reproduce on their own, while the “author” stands around doing nothing. (See here at 22:46.) This is a view that I think is unconsciously held by a lot of commentators on this issue: there’s no need to ensure that copyright owners are paid for content, because content will continue to get produced in exactly the same quantity and quality as it is today. (Or, as Jessica Litman suggested at the Nies Lecture this year, perhaps we will have to live with a few less special-effects explosions—no big whoop.)

The issue of how to manage the conflict between copyright and digital technologies becomes much easier if you ignore the problem of how to compensate copyright owners. The very reason the problem is difficult is because two seemingly incompatible goals have come into conflict. One is ensuring that expensive works continue to get produced at the same rate they are now. The second is ensuring that digital technologies develop to their full potential. Eliminate one of those goals and—presto!—the problem becomes trivially simple.

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