The Case Against LD Leaks: The Relevance of Intellectual Property Law

NSD Update has previously hosted discussion of LD Leaks, an information-sharing website designed by Jake Nebel where interested parties can post the details of debaters’ cases and rebuttal strategies for other competitors to access. Although much discourse to this point has focused on how such a site might affect the dynamics of large schools versus “lone wolf” debaters, very little has touched upon whether such a site has the right to exist under intellectual property principles. The following article, penned by a prominent Class of 2012 debater, discusses that issue and concludes that LD Leaks constitutes a violation of intellectual property principles.

Here is the article:

Recently, one of my case’s full citations was posted on LD Leaks without my permission. A major proponent of the site told me that since the text of the books and articles aren’t my own words, they cannot have been “taken” from me. This claim seemed dubious, since even though I did not write the books my case cited, I had spent weeks reading, cutting, and organizing the cards contained therein. It seemed wrong that it could simply be snatched up and treated as anyone else’s to use to their advantage, given that it was I who had put the hard work into its production. It is on this basis that I hold LD Leaks to be contrary to the principles of intellectual property law.

In the United States, the Uniform Trade Secrets Act defines a “trade secret” as (available here):

information, including a formula, pattern, compilation, program device, method, technique, or process, that: (i) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

It goes on to explain that the “misappropriation” of trade secrets can be subject to several fines and incarceration. The UTSA defines “misappropriation” as the “(i) acquisition of a trade secret of another by a person who knows that the trade secret was acquired by improper means; or (ii) disclosure or use of a trade secret of another without express or implied consent…” If a debater’s case does turn out to be a trade secret (or a non-economically relevant parallel), then I think there is little question that LD Leaks (and the posting of cases on it) can be considered misappropriation.

While there is ongoing speculation amongst jurisdictions as to what criteria information needs to meet in order to be a trade secret, there are three (more or less) universal conditions. The remainder of this article will attempt to prove that a debater’s case can be considered a trade secret.

1. Information which is not generally known to the public

A debater’s case, which is itself often unknown to the rest of the debate community, contains several parts which are not public knowledge, including which books/articles are cited, which excerpts from said literature are read, and the order/organization of those excerpts. Furthermore, while there are often “stock” positions commonly run and which often contain similar authors, it is unclear who is running those positions, and in which rounds. And none of this speaks to the taglines and analytic spikes debaters write themselves, which, when posted on a wiki, is arguably plagiarism (given that taglines are debaters’ own way of paraphrasing and making comprehensible what can often be dense literature).

Proponents of the site may very well claim that what occurs in a debate round is “public knowledge”, but there’s a difference in IP between knowledge which is dispersed in a public setting and knowledge which is publically known. Even if the substance of a case is no longer private material once read in a round, it is not widely known what exactly the case contained, such as each particular card and their order, and so it’s unnecessary and mandatory disclosure is still the misappropriation of information.

2. Information which is the subject of reasonable efforts to maintain its secrecy

Debaters generally don’t disclose their cases online voluntarily, and often delete them immediately after tournaments which mandate disclosure. And rather than handing their opponents a paper-copy while waiting for the preceding flight to finish, debaters tend to discuss the nuances of their position discretely, and exclusively with their teammates. I don’t think there will be much disagreement on this point, unlike with the next.

3. Information which confers some sort of economic benefit on its holder (where this benefit must derive specifically from its not being generally known, not just from the value of the information itself)
There are 2 levels of analysis to be had: first, that, while the secrecy of LD cases may not confer economic benefits onto its holders, it still gives them a competitive advantage in a non-economic parallel; and second, that there is an argument to be made that the secrecy of LD cases does confer some sort of economic benefit onto its holders, in which case the site would actually be illegal.

To be clear, my argument is not that LD Leaks is illegal and should be removed for that reason, but that it does violate the very principles of intellectual property, and that an activity which values such academic honesty should seek to be consistent with these principles.

In a non-economic parallel, the secrecy of LD cases offers many competitive advantages to its holders. A case available to the public can be prepared for even before the opponent has heard the debater read it in their constructive, which disproportionately expands their prep time. A debater whose cases are publically known will often confront many line-by-line “prep-outs”, created either before the round or even in the weeks preceding a tournament. These case-files confer many benefits to their owners – namely, a variety of efficiently-stated responses which strategically layer the round in a way which is likely difficult to overcome. Often, these files are more prominently utilized by debaters with more coaches, who have comparatively more time to prepare for specific debaters’ cases, which can be an even greater advantage given that coaches usually have more debate experience (perhaps even more debate success) than their students. If anything, debaters will be forced off of their preferred positions and made to run more non-“first choice” cases for predictability, which they will be less familiar with, or will be lower quality (given that they’re not their first choice).

Moreover, a public case can be accessed by any debater who, upon review, may decide to write a case based off of similar ideas, or, even, with the same cards. The originator will have marginally increased the skill of a debater who they may still be competing with for years, given that they have essentially and indirectly coached them. This hijacking of a case will also increase the likelihood that its originator will hit a prep-out, since debaters often prepare blocks for cases proportional to their being used.

And it doesn’t matter if “all people” are subject to exposure on the site, since even if everyone is at an equal disadvantage, it’s still individual work being disclosed en masse, thereby decreasing individualization, which is exactly what IP law exists to stop. Besides, there will always be more debaters whose cases aren’t on the wiki.

However, even if we don’t value the principle of IP law, there is something to be said for the economic benefit that secrecy provides. Debaters spend large amounts of money on camp, coaching, and travel, which is rendered useless if they’re significantly less likely to succeed, since many times the only reason they pay for such activities is for debate success. Moreover, when debaters work harder but succeed less, then they are unduly deprived from opportunities to receive money coaching and teaching at summer institutes. And none of this speaks to the opportunity cost of time wasted when a private case is developed, but publically dispersed. If this is the level on which LD Leaks is harmful, then it actually could be illegal. But my main point is merely that the site is inconsistent with norms we otherwise hold to be important.

Thus, there seem to be reasonable grounds for attacking the legitimacy of LD Leaks in areas other than its fairness and/or educational value, which is where most of the debate seems to have headed. In my opinion, posting other debaters’ cases and cites is theft. I believe that removing the site and its content is the best option, both to maintain virtuous principles and to keep the activity legal.