Intellectual Property Law

Something strange is happening in the legal academy. Literally hundreds of law professors are posting their papers on the ssrn website where they can be accessed by the public, but at the same time publicly proclaiming ???DO NOT CITE OR CIRCULATE WITHOUT PERMISSION.??? A quick search of the ssrn website for the expressions locates 2080 occurences of "do not cite" and 840 of "do not cite" + "without permission".

Take for example a recent post by Deven Desai on Concurring Opinions. In his post, Deven offers us preview of his forthcoming article Property, Persona, and Preservation, which addresses questions such as, who owns your emails, blog entries, FaceBook pages when you die? Intrigued by this teaser description I followed the links to download Property, Persona, and Preservation only to find that the all-too-common ???DRAFT ??? DO NOT CITE OR CIRCULATE WITHOUT PERMISSION??? footer staring at me from the bottom of the first page.

Here is my dilemma. Suppose I read the paper and discovered some fact or concept relevant to the paper I am writing at the moment. I would have the option of (1) committing plagiarism by discussing the fact/idea without attribution or (2) ignoring the footer and giving Deven due recognition. (3) I could simply fail to discuss some particular compelling fact or idea, but that hardly seems satisfactory.

Faced with three unappealing alternatives, I chose a fourth. I simply stopped reading the paper when I reached the ???don???t cite me, bro!??? footer. It was, I concluded, better to remain ignorant than to risk obtaining knowledge that would be so encumbered.

The ???don???t cite me??? footer is the academic equivalent of the MBL and NFL warnings instructing us that ???accounts and descriptions of this game may not be disseminated???: i.e. watch the game, but don???t talk about it afterwards, or ever.

If I had been able to read Deven???s article I might now observe some irony between his general theme and the application of the odious footer. However, given that such an observation might be seen as an unauthorized citation, I decided to merely assume the contents of Deven???s paper and write this blog post without the benefit of having read it.

Just to be clear, Deven Desai is a scholar who I both like and respect. I have singled him out quite unfairly in this post because I know that he has a sense of humor. Now that I am done with this post I plan to read Property, Persona, and Preservation, I recomend it (on faith) to you as well.

Please feel free to cite and circulate this post.

Matthew Sag

PS: something very odd happend to the text when I posted initially posted this. Hopefuly it makes more sense now.