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.

  • Chase Hamilton

    Btw this was me if anyone was wondering lol

  • Unbelievable. I’d be shocked anyone’s seriously entertaining this argument, but I know some people will swallow anything.

    First question: How many debaters spend weeks secretly concocting debate cases they think will singularly advance their “economic interests” in this activity? Is this happening? Are high-schoolers escaping to cabins in the woods uni-bomber style to craft these genius achievements of innovation? And if so, when will I get to judge one of these cases… because I haven’t seen a case worth hiding in years. I rather like the image of debaters composing such masterpieces as islands unto themselves, set adrift from the conniving and lecherous community of debate-vampires just waiting to pounce on greatness. I can see it now… as divine inspiration strikes…

    “First, you should presume AFF because I have a structural 7-to-4 time disadvantage. Second, don’t let the 2N run RVIs, because that would make it harder for me to win. Third, necessary but insufficient burdens are also bad because they don’t bring me breakfast in bed and tell me I’m special. Fourth, the 1NC itself is automatically unfair because it didn’t immediately complement my secret 1AC and note the extent to which it will revolutionize human knowledge and make me rich. Now for the unveiling of a position that will make your head explode… Part One is Meta-Ethics. Ripstein writes….”

    And of course, the subsequent list of 20 two-sentence long cards occasionally sandwiched between spurious claims apparently qualifies as intellectual “property”… In reality, there’s a greater risk that secrecy will shield academic dishonesty than any great “trade secret”. You’d think whoever’s writing this is carding the Dead Sea Scrolls. Where do these special cards come from that 1000 other people aren’t also cutting? 

    Second question: does anyone really think a few debaters acting shady constitutes a “reasonable effort to maintain secrecy”? You read the case eventually, don’t you? Seems like the secret’s out at that point. I’d like to see a debater stand up for the 1AC and say, “Sorry I’d rather not read my case, because it’s a trade secret”… I mean, if the case is that good, why even have the debate? We all know how it’s going to end… you open your expando and it’s the last 5 minutes of Indiana Jones Raiders of the Lost Ark all over again. Better keep that thing under wraps.

    Third question: Is there really ANY seriousness to the author’s claim that their position is in line with community norms/values? This is an educational activity, where sharing ideas benefits the least of debaters and the best of debaters alike. Whoever wrote this nonsense was only able to do so because they managed to learn lots and lots of nonsense from coaches, instructors, and other debaters who are all themselves highly specialized in nonsense. The idea that shrouding our positions in mystery is consistent with high-school debate is just twisted. You aren’t Dupont or Pfizer. You don’t have to worry about ‘the Chinese’ stealing your breakthrough discovery. You are students with ideas that no one is trying to steal, trust me.

    Fourth question: If a debater is worried about competition getting the best of him/her because they found some ideas on a leaks website, that debater should be embarrassed. Anyone getting their best ideas from LDLeaks probably isn’t very good. Why are you scared of that debater? Is your case SO good that anyone who happens upon it instantly becomes immortal? Some sad clown desperate enough for ideas to rip you off should be your LAST concern. You should probably be more worried about unearthing your next great position. The rest of the world awaits your discovery.

    Fifth question: Who cares about the “non-economic parallel”? The fact that it’s 100% non-economic suggests to me it’s less of a parallel, and more something entirely different. Do you have trade secrets for all your competitive hobbies? Thumb Wars? Words with Friends? Please.

    Final question: How are there actual or potential economic benefits for a case derived from not being known to people? I’ve never once seen a former debater hired or paid in any form due to a case (nor even a special, secret agent case). If anything, most debaters are hired IN SPITE of the cases they run. True, sometimes good cases make for more successful debaters, but so do a MILLION OTHER THINGS. Are your flow pens a trade secret? How about every strategy and technique you use (after having learned or observed it from someone else, no doubt)?

    I have to believe this article was a practical joke, in which case: well-played! If not a hilarious prank, WOW. smh.

    • Anonymous

      babb, your on-again, off-again relationship with debate is a practical joke. why aren’t you still working at the archer school for girls?

      • Glad you’re following my relationship with debate so closely, “kelly cataldo”. And, as most know, I’m not at Archer because during the little recession a couple years back, they laid-off 10% of faculty and reduced debate to a part-time position. Thanks for your concern!

  • I haven’t read everything on this thread (or even the original post actually — it’s been a busy week), but I figured I should chime in. I know who wrote this article, and s/he knows that I know this, so s/he’s not intimidated of me in particular. I like this person, too, although I think s/he is dead wrong here. One thing I will say is that I don’t know that even s/he believes everything s/he has said here. For example, Author seems to believe that it is wrong to make information about people’s debate material accessible to their competitors, and that it is stealing to use other people’s debate material. But Author used a card from Greenhill’s voluntary disclosure in his/her case. I think that’s free riding, but more importantly, I think that’s against the spirit of the position, because s/he should think that is stealing. 

    Second, I don’t understand Author’s response to the claim that debate material is “readily ascertainable out by your competitors,” and therefore not a trade secret. When I judge you in a debate, your competitors can readily ascertain the information I observe — by asking me or your opponent. Or am I missing some special meaning of the phrase “readily ascertainable” here?

    Third, I would like to hear a clear statement of Author’s view about the level of permissible information sharing in private. What can people share with each other but not on the internet? This question is important because most of us think it’s perfectly fine to share the information on LD Leaks in person and in private. I happen to think it’s only fine if you share it with everyone else. So I want to know: is it *ever* okay, according to Author?

    Fourth, I think DWeeks hits the nail on the head. If everyone’s stuff is on LD Leaks, then it would no longer be a problem according to this argument. Author says that doesn’t mean it’s okay. But it does make it not theft (or equivalent/similar to theft), which is all that’s required to answer the argument we’re considering. 

    Fifth, many of us believe that debaters have an obligation to disclose some information to other competitors when asked. I think debate would be much worse if it were the norm to deny requests for citations, for example. But this view runs against the idea that citations are trade secrets. Which view should we reject?

  • Rebar Niemi

    vote for pedro.

  • Anonymous

    I think its ridiculous that this aspect of LDLeaks (legal mumbo-jumbo about trade secrets) is getting so much attention, even the author (hopefully I am not misinterpreting things) says that the point is more that LDLeaks is wrong in spirit (though he also defends its illegality, we differ at that point). I think an updated thread discussing the more obvious problems of LDleaks will be productive and create more discourse in the community, as I think many people see this odd criticism as laughable and besides the point.

    • Anonymous

      That discussion is here if you’d like to reboot it: http://nsdupdate.com/2012/ld-leaks-and-norms-of-forced-openness-in-debate/

      We bumped it back up last week, but there was a large flood of results that pushed it down.

  • Anonymous

    I think its ridiculous that this aspect of LDLeaks (legal mumbo-jumbo about trade secrets) is getting so much attention, even the author (hopefully I am not misinterpreting things) says that the point is more that LDLeaks is wrong in spirit (though he also defends its illegality, we differ at that point). I think an updated thread discussing the more obvious problems of LDleaks will be productive and create more discourse in the community, as I think many people see this odd criticism as laughable and besides the point. 

  • As a tournament director I have been asked several times over the years to tell a debater or coach that she cannot watch or flow a debate. These requests always strike me as odd. What, after all, is public speaking if the public must be barred from watching it? The motivation behind these requests is invariably a fear of being scouted and coached against. While most circuit debaters would find such requests bizarre, the requests share the logic of the arguments against disclosure, LD Leaks, etc.

  • I am highly skeptical that LD Leaks stands in violation of copyright laws, but I am highly confident that it stands in flagrant violation of several federal anti-douchiness laws. 

  • Alec Kerrigan

    This is like saying that somebody’s magic the gathering deck is IP, cause 1: Theres a lot of cards so its not known to the public which you will use 2: People generally don’t like their opponents knowing their deck before a game 3: Some tournaments yield cash prizes therefore revealing a deck puts that person at a economic disadvantage. I think the only argument this article has going for it is that analytics are made by kids, but logic isn’t protected by law last time I checked.

    • Anonymous

      First of all, the analogy doesn’t hold. You just buy the cards – they aren’t a product of your thought. It’s not intellectual property… it’s just property. And they aren’t being taken from you forcefully in your scenario.

      More importantly, the 3rd condition for IP under the UTSA hasn’t been met: “this benefit must derive specifically from its not being generally
      known, not just from the value of the information itself”. In your card game, the value comes from the quality of the choice of cards you have made, rather than in the cards making up the deck being secret. Magic is all about HAVING good cards, rather than others not knowing what those cards are.

      But, kind of – perhaps it WOULD be misappropriation for someone to steal the LIST of the cards which make up the deck and use that information to win money IF the list of cards was not public knowledge and you took reasonable means to keep it from becoming public knowledge. If you formulate a game-winning list of cards for the deck, and the primary value to decks in the activity comes from their not being known to others, then it is certainly wrong for someone to steal the list to use for their own benefits. That’s theft. But it would NOT be wrong for them to come up with the list on their own. American Precise Vibrator Co. (not that kind of vibrator) v. National Air Vibrator Co. (1988) is quite applicable here, since it deals with lists specifically:

      Appellants contend that the customer lists,
      blueprints, and drawings did not amount to protected “trade secrets”
      because the information contained therein was readily accessible from other
      sources. […] As the Texas Supreme
      Court has stated in K & G Oil Tool & Serv. Co. v. G & G Fishing
      Tool Serv., 158 Tex. 594, 603, 314 S.W.2d 782, 788 (1958), […] ‘The fact that a trade secret is of such a
      nature that it can be discovered by experimentation or other fair and lawful
      means does not deprive its owner of the right to protection from those who
      would secure possession of it by unfair means.’ […] As to the customer
      cards, the jury heard testimony that even though it would require a lot of
      work, a person who knew the types of industries that vibrators were sold to
      could actually contact the businesses within that industry and develop a
      customer list by inquiring of the purchasing agents and determining what type
      of equipment the business used. […] “The question is not, ‘How could he have
      secured the knowledge?’ but ‘How did he?’ […] The jury therefore
      heard evidence that strongly suggested that American had not exerted its own
      effort to lawfully research and prepare a list of National’s customers, but had
      instead acquired the customer list through unfair means. As previously noted,
      where such a list has been unfairly acquired, it will be afforded protection as
      a trade secret. […] Applying the appropriate standard of review to
      the evidence before us, we hold that the jury’s finding that the customer
      cards, blueprints, and drawings were trade secrets was not so contrary to the
      great weight and preponderance of the evidence as to be clearly wrong. The
      evidence was factually sufficient to support the jury’s findings.

      The only reason this sounds silly is because the harms are far too small
      to prove in court, which is why it can’t be a court case. But that’s
      not bad for my article since I’m proving that it’s still conceptually
      theft to steal the list, and that it’s still technically illegal to expose the contents of the cases.

      • Rebar Niemi

        +1 on magic cards. magic definitely is a game of having the good cards.

        strategic combinations in magic can definitely help swing games, but i’d argue

        a. power of combo is determined by power level of cards involved a lot of the time, even really OP uncommons and commons can become rare, some cards are printed less, and there are many key combo cards that are older/rarer (scarcity and value).

        b. now matter how you slice it, combos involve cards. you gotta have the cards to have the combo. 

        i’ve found that in most casual/FNM play there is interest in cards and seeing specific cards, and knowing the other deck’s info can cause an advantage, but it also might just let you know that you’re about to be hosed. Ulimately the key is in magic you can’t change the cards in your deck that easily. Esp. not in competitive play if at all.

        sidebroad bro. 

        • Brian Hodge

          “Ulimately the key is in magic you can’t change the cards in your deck that easily. Esp. not in competitive play if at all.”

          Get with the times man, transformative sideboards are where it’s at.

        • Martin Sigalow

          Lack of Jace the Mind Sculptor is key to fairness

          • Rebar Niemi

            god planeswalkers really ruined the game. 

      • The vibrator decision you present is interesting, but it presupposes that protected information were attained by unfair means. Where have you established that to be the case for the debaters, judges, or other audience members who re-post information you gave them? 

  • Anonymous

    I’m going to have to stand with anon931 on this one. I dont’ really understand Trade secret law well enough to get into that part of the debate but it seems as though the third argument the article makes is relatively intuitive. We work really hard on cases and when people post those cases we are disadvantaged when coaches have those cases. Also, the idea that analytics and first and last words of each card are posted on the wiki seems to further this because then cases are up to steal and people can take the exact cards without reading or putting any of the initial work involved. 

    Additionally, I think there’s a side of the article that everyone seems to be missing. It’s not just about whether or not it’s actually illegal, it’s also about the principle are forcing someone’s work from them, especially when dishonest/forceful measures have been used as the intro seems to reference. As an academic activity we shouldn’t be forcing people’s academic work from them.

    The response i suppose i ought to preempt is that “it’s an experts work not yours:”
    This claim really pisses me off.  It’s not like you’re just requesting what the cards are from but are taking our interps of those work, the exact paragraphs, taglines, and analytics all of which are the products of the debaters not the professor. This claim would only justify us sharing books and article cites not the paragraphs of those so this argument seems insufficient.

    just some thoughts. 

    • Travis,

      I think where we differ is that I see reading an argument into the round as analogous to academic publication–you’ve put it into an open forum, and you’ve gotten the credit.  At that point, you still have a major advantage over competitors in doing follow on work (future rounds) because you already understand the work and they’re playing catch-up (and trust me, when people read others’ cases without understanding them it’s just terrible).  What you don’t have is ownership over those ideas, other than by attribution.  If a debater really does create a novel combination of argument interactions, I think it’s arguable that they deserve citation if that combination is run.

      Furthermore, I think I value debate quality foremost, and debates are much better when you’re actually forced to respond to case attacks rather than blindsiding someone with an argument they’ve never heard of and/or don’t understand.  

      Finally, it’s hard to see any way you don’t receive a reciprocal benefit to offset any harm.  If you’re putting a lot of effort into research, in an LD-Leaks-world you know what case answers to research, and will benefit from doing so.

      • There’s probably an irresolvable cynicism gap between us, but I’m highly skeptical that ability to prep responsive case attacks will actually result in responsive case attacks instead of lots of bad theory, random neg layering, and cheap non-responsive case attacks.

        • Erik,

          Well it sure seems to work in college policy.  It’s certainly what I focus on when I’m doing prep out.  The reason we see lots of bad theory in LD is really simple:  LDers aren’t disciplined about handling theory.  If camps taught how to handle theory with disciplined shells and kritikal cross-apps, the bad theory would go way down.  Debaters who spend more than 20s answering theory, or don’t answer every part of the shell, are the problem.  Instead, they’re answering with RVIs, which just makes it worse since now the debate has to revolve around the theory.  If you watch some high-level policy rounds, you’ll see a bunch of rich case hits and extremely efficient handling of the cheap stuff.

          • Erik Baker

            I don’t dispute that disclosure works well in policy, but I think that there’s simply a culture gap between the two activities. The marginal benefit of research quality and nuance in responses seems to me at least to decrease more rapidly in LD than in policy. Similarly, the marginal cost of stupidity in theory seems to decrease slower in LD than in policy. Maybe I’m just naiive about policy (which would certainly not surprise me) but that’s my impression. It’s also my experience that in general the probability of a theory-centered strategy has a flipped bell curve correlation with familiarity with the position, that is, it’s most likely if you’re opponent has absolutely no ability to respond to what you say substantively or if they have had like two days to prep it. That might be an argument against super obscure positions, but in my experience incomprehensible cases generally solve for themselves by losing.

            I also think a broader issue is that the cost of better arguments is the ability to actually evaluate the relative skill of the debaters in round. Because, let’s be honest, these great new arguments are probably not going to be generated entirely by the debaters. This means that there probably isn’t much new pedagogical value for machine debaters because coaches will write a lot of arguments or for small school debaters because there just aren’t enough hours in the day to come up with good arguments to every case in the database.

          • Erik,

            1.  My freshman year in college, we had a unique policy case that people didn’t know how to address.  At the beginning of the year, we saw lots of crappy theory–mind you this was with disclosure (people don’t need to know your case in advance to run their crappy spikes and theory shells), but since we handled it directly, they’d moved on by half way through the year.  The reason that theory wins in LD is because LDers try to get creative with answering theory.  Just read a good countershell, and stick with it.

            2.  I disagree.  Pre-written answers the debater doesn’t understand aren’t very useful, so I don’t see a problem with who originally does the research.  And with regard to small schools:  (a) having the caselist lets you see what positions are prevalent, and either focus answers on those or figure out answers that apply broadly and (b) big teams do this anyway with scouting, so this equalizes.

          •  could not agree more

          • Anonymous

            Every camp I’ve ever attended or worked at has had multiple lectures and drill sessions on answering theory; could you perhaps elaborate upon these “disciplined shells” and “kritikal cross-apps” so that the curricula could improve? I’m not sure I understand what you’re calling for.

            Also, how do you recommend debaters avoid spending more than 20 seconds answering theory, but also answer every part of the shell? Those two recommendations seem inconsistent to me, but maybe I’m missing something.

            I’m also unsure why you think RVIs make these issues worse. RVIs still require winning offense on the interpretation itself to access, so it isn’t like a debater just reads and RVI and moves on instead of engaging. If anything, these same to make the problems less bad because there’s a disincentive to running bad, beatable theory.

          • Most debaters are terribly inefficient when answering theory. 1ARs spend an inordinate amount of time making repetitive “I meet” arguments and are redundant between reading their counter-interpretation and answering the initial NC shell. If debaters were comparative in reading their counter-interpretation or simply made the reasons to prefer their CI as turns on the original shell, not only would theory debates be cleaner to evaluate for judges, but the amount of time invested in answering theory would also be reduced substantially.
            I do not understand the recent trend towards arguing about every theory-framing questions at the top of the 1AR–e.g. arguing for drop the argument not the debater, reasonability instead of competing interpretations, an RVI, err aff, etc. I think part of this trend can be attributed to the way many judges evaluate theory; unfortunately, many seem to view conceding these kind of framing questions on theory as a sign of weakness. Most theory arguments are silly. 1ARs should be able to accept the NC’s framing for evaluation and still beat theory quickly. If the neg wasted all their time justifying those theory questions in the NC, the aff gains a huge positive time tradeoff by conceding them.
            RVIs make theory worse because they force the debate to become all-theory. If the 1AR efficiently and effectively handles theory, the negative might choose to not go for theory in the 2N, in which case we can have a real debate. But RVIs force the negative’s hand; now they have to debate theory or they lose. Worse, affs rarely actually win an RVI debate (probably because many judges believe, correctly in my opinion, that the arguments against RVIs are decisive); the RVI debate usually just becomes a clash of blippy blocks, and the negative usually comes out on top, so the chilling effect you describe does not occur.

          • Anonymous

            tl;dr–Very little of your post is about what I’m describing. My point is just that Ryan is oversimplifying the solutions to bad theory. I disagree with you about RVIs, but that’s an aside.

            I don’t really care to discuss most of the stuff you just posted about–my point was just that I think Ryan oversimplified a lot of the solutions to the “bad theory.”

            I agree that debaters are inefficient at answering theory. I also agree debaters could gain time-tradeoffs through strategic concessions.

            I disagreement with your assessment of RVIs making things worse, but I think that’s because of irresolvable differences in the way we see the empirical effects of RVIs. 

            I don’t think Neg always does go for theory in the 2NR after an Aff RVI (even if they maybe should)–they sometimes just answer the RVI. Also, I think they abandoned theory even less when it was no-risk because spending a lot of time on theory didn’t give their opponent’s arguments more credence and risk the judge voting for them (if you have a no-risk issue, why not go for it?). I also don’t think whether Aff wins a ton of debates on RVIs is very relevant, since it’s about the possibility of winning.

          • tl;dr means you don’t read the post. like i just did.

          • Anonymous

            The discussion here seems to be getting side-tracked, although I don’t think there is much merit to the original discussion over LDLeaks being legal.

            I think one reason more debaters don’t just go for turns on theory, which I agree is a good idea, is the “competing interps means you need a counter-interp to win” argument which is in my opinion in dumb but takes valuable 2AR time to answer.

            RVIs might force the NR to go for theory after theory is initiated, but that is separate from the pre-round deterrence of preventing the theory debates from being initiated. I find the latter to be more important.

          •  Just when I thought I couldn’t agree more Jeff Liu posts something I in fact agree with more. To sum up/add tips for dealing with theory efficiently-

            1. There is never more than 1 “i meet” either you meet or you don’t
            2. You don’t need to refute every syllable in the other sides shell- you need to win a net degree of offense through comparative arguments (assuming a competing interp fw)
            3. If a theory argument is really silly, reasonability/don’t vote on potential abuse can be explained in <20 seconds.

          • Small thing, but I think multiple I-meets can be strategic in some cases.  The major problem is that an I-meet should take 5s, tops.

          • The way that you answer every part of their shell in 20s is by being disciplined:  just read your shell.  Theory arguments don’t need long sentences or citations or big words or funny proper nouns, so they’re incredibly fast to read.  If you can’t do 300 wpm in a theory debate, you just haven’t practiced or aren’t trying.

            I see a number of otherwise very good, intelligent, and well-prepared LDers spend a bunch of time extemping on theory in the 1AR, which you simply cannot do.  Write out the I-meet during prep, the rest is canned.  If policy 2ACs did this, their partners would kill them and their aff winning percentages would look like LD.  

            In terms of the cross-applications, LDers need to get more serious about establishing a theory of the ballot in AC.  If you construe an aff ballot as a judge affirming a certain socially-important behavioral norm wrt the resolution, then why should theory come first?  A theory ballot is just the judge endorsing some sort of social norm, no?  Neg can say that the rules of the game need to come before its content/object, but that’s no better than the argument that “life” is the most important value premise, which last time I checked was pretty well contested in-round.

          • Anonymous

            If you say so. I remain pretty skeptical though that one can generate the solid offense and comparative analysis Jeff describes below in just 20 seconds, 300 wpm or not (which strikes me as a particularly bad idea if one is going to be so blippy as to make it all fit).

            Also, how does this idea of “discipline” in just reading one’s pre-written shell fit in with substantively engaging every part of the opponent’s shell, as you’ve recommended above? Doesn’t answering their shell require deviating from yours?

            I think plenty of Affs read pre-written counter-interps. I agree that more should. But I don’t understand why this is relevant to any of what we were discussing.

            How does your idea to craft a “theory of the ballot” in the AC fit in the idea of “discipline” you’ve been describing? Having to extend that on top of reading a shell would certainly take over 20 seconds. Plus, isn’t that the exact “creativity” on theory that you criticized on a post below? How would this fit in with just reading one’s own shell and being done with it?

          • 1.  Why is it bad to be fast and blippy in response to crap theory?

            2.  Answering doesn’t mean answering on the line-by-line.  Your I-meet answers the violation, your counter-interp answers the interp, your standards answer their standards, your RVI or not-a-voter answers their voter, your reasonability answers competing-interps.  It’s relevant because the more theory is mishandled, the more it’s run.  If theory is handled well, then disclosure will generate substantive arguments and not crappy theory.

            3.  It’s not relevant to the 20s, because it’s offense you had to extend anyway–why your case warrants a ballot.

          • Anonymous

            1. Because judges can’t follow it whatsoever. Many complain about the blippiness as is.

            2. So you are calling for debaters to read their own standards and concede their opponents’? What happens when the standards aren’t responsive?

            3. Why would they have to extend it anyway? Nobody extends that now but manages to win ballots on substance–you effectively make theory more “creative” and less “disciplined.”

            None of this really matters. I’m going to go get lunch; I just think the issue is far more complicated than you’re giving it credit for.

            Final thing: There are tons of videos on the video hub ( http://www

            seconds. That’s far too little time.

  • Anonymous

    ….but isn’t the point that everyone’s cases end up getting posted eventually?

    • Anonymous

      I don’t think that permitting everyone to cheat equally is better than permitting no one to cheat. A law against theft wouldn’t allow for everyone to steal an equal amount; it would punish everyone who stole.

      I think debaters just put up cases they have access to. For example, getting a case flashed and using that to put cites up. I mean, it makes sense – it doesn’t benefit ME to put a case whose cites I already have up on the wiki. It ONLY disadvantages the person whose case is up.

      What you said at the bottom is probably true, but that doesn’t prove that using an illegal or comparable option to promote it is okay. This is more of an argument for the whole “merits of LD Leaks” discussion which mostly took place 2 months ago, which I think should continue, but faded out.

  • Anonymous

    @Chris Palmer/Ryan Miller

    Generally, I think there is a misunderstanding about what
    I’m saying – my point is that LD Leaks conceptually constitutes theft, even if
    it’s not literally illegal. I do contend that it is also illegal, but people have focused only on that claim. For example, Chris and Ryan’s argument about needing a NDA or contract presumes that the level LD Leaks is harmful is only that of codified law (since it’d
    presumably be consistent with policies to have such a site). But I argue that
    on a non-economic parallel, it is still wrong, because it is stealing hard work
    and skill. People are just missing the point.

    However, you claim that something can only be a trade secret
    if it is established by an NDA or otherwise binding contract. This could not be
    further from the truth! Nowhere in the UTSA does it require a contractual
    agreement of disclosure. You’re not outlining separate criteria. Seriously, that
    is a gross misrepresentation of what a trade secret is, with no evidence in
    support of it. In fact, the vast, VAST majority of case law explicitly points
    out that trade secretes usually don’t have a related contract:

    K&G Oil Serv. & Tool Co. v. G&G Fishing Tool Serv. (1958) held that the misappropriation of trade secrets can be by ANYONE who intentionally seeks to equalize a competitive economic advantage. American Precise Vibrator Co. (not that kind of vibrator) v. National Air Vibrator Co. (1988) confirmed this ruling and added that it didn’t matter who engaged in misappropriation, but that what was relevant was how they did so. Brown v. Fowler (1958) supplied further basis for both rulings, even in a state which hasn’t adopted the UTSA.  And your own state supported a similar ruling in Jet Spray Cooler, Inc. v. Crampton. Perhaps most importantly, Hyde Corp v. Huffines, the “granddaddy” of trade secret cases (and which is still routinely cited by lawyers and Courts as authoritative in this field) contained
    the following:

    It is true that there is no explicit written covenant contained in the contract
    which precludes petitioner [158 Tex. 575] from making use of information
    granted as a result of contract negotiations and disclosures by Huffines after
    the cancellation of the licensing agreement. It is also true that respondent’s pleadings do not use the words ‘in confidence’ by way of stating a conclusion. […] There
    existed between them a confidential relationship […] But whether or not there is a
    breach of contract, the rule stated in this Section subjects the actor to
    liability if his disclosure or use of another’s trade secret is a breach of the
    confidence reposed in him by the other in disclosing the secret to him. […] the injured party is not required to rely upon an express agreement to hold the trade secret in
    confidence, Schreyer v. Casco Products Corp., 2 Cir., 190 F.2d 921, Smith
    v. Dravo Corporation, 7 Cir., 203 F.2d 369, nor should he be deprived of all
    relief because the offending person may have originally entered into the
    particular relationship unaffected by a then existing ulterior or improper
    motive.

    2 things to take away: 1 – a specific contract or agreement
    is unnecessary in the determination of whether or not the action is
    misappropriation, and 2 – even if it was, a mere confidential relationship
    (which the courts rephrase as a relationship in which we attempt to take
    reasonable actions to maintain secrecy of the subject (i.e. section 2 of the
    original post)), such as that between 2 teammates, competitors, judges, or any
    combination of those, is enough of a contract to merit such misappropriation to
    be illegal. The idea is that there are too many ways people could cheat the
    system if it were bound to literal contracts, so the courts decided to enact
    this IP law based on the material and process, rather on the actor.

    Moreover, in the original article, I pointed out that there’s
    a difference between knowledge which is accessible in a public domain, and
    PUBLIC KNOWLEDGE. If not everyone knows what my case says, it’s simply not
    public knowledge. These contracts play no relevant role in that determination.

    Finally though, debaters often agree in round to a kind of
    implicit (or explicit) NDA – such as the agreement that, when I flash you my
    case, you will delete it, rather than posting it online. At least in my and a
    friend’s situations, cites got taken off a flash drive and put online, even
    though we had agreed that the cites wouldn’t leave the room. Failing all else,
    THIS particular situation is still a violation of IP Laws, and is consistent
    with criteria outlined by Ryan (“If the outline contains long extracts, e.g.
    word-for-word definitions of standards or contention tags, then you might have
    a copyright problem”). I think that if there is such a violation of IP law,
    then it doesn’t matter how many instances DIDN’T violate.

    Then you say that many states haven’t ratified the UTSA. That isn’t true at all. As of February 2012, UTSA has been enacted by 46 states and all US districts. Massachusetts, one of the 4 holding out, has recently introduced the bill in MA state legislature. And even MA has it’s OWN trade secret law, as defined in Mass. Gen. Laws. ch. 266, § 30.  Even if
    this is only state level, my original point (that it still counts as stealing) would still be legit, since it’s not necessarily based around what the law should do, but the legitimacy behind the action. Besides, in order for LD Leaks to be considered illegal, it would only need to violate IP law in 1 state, not all 50. And, as Alex showed earlier, it doesn’t matter if UTSA isn’t relevant, since wikispaces still agrees there cannot be trade secret on its pages, so it
    would still merit shutting down the site.

    • Dear Lord, this has me seriously questioning the value of debate to teach research skills.

      On the conceptual level, there’s no such thing as theft in IP.  Knowledge and information is non-rivalrous; me knowing the content of your cases does not deny you that same knowledge. IP therefore is a matter of infringement, not theft.  “Stealing” is just incendiary language.  Infringing means that you’re not receiving the full benefit of a monopoly on that particular piece of information (trade secrets) or expression (copyright).

      So does a claim to that monopoly exist?   Well, no.You’re right in that there need not be an explicit contract to claim a trade secret. However, to rise to a level of a trade secret, information must not be generally known by or readily ascertainable out by your competitors. You have to take reasonable steps to ensure the physical and informational security of the secret.  Ordinarily then, anyone misappropriating a trade secret would break other laws in doing so (trespassing, employment contracts, and so on).  There was one case where someone took aerial photos of another company’s physical plant, which was somehow significant to a competitive advantage; however, the court ruled that no trade secret misappropriation existed because the company had a duty to put a roof over their plant to make it clear that the products were secret.

      Here, you’re claiming potential economic harm because you might lose out on camp jobs to other debaters.  That makes them your economic competitors.  They also happen to be the people to whom you read your cases, out loud, at least six times per tournament.  If a given debater doesn’t happen to hit you, they can still wander into the room and listen. Debate cases cannot be both secret and win rounds.  If Coke shares its recipe with an employee or someone they’re dealing with in contract negotiations as a vendor, then it can argue a trade secret.  But if they decide to read it outloud in a meeting with the Pepsi board of directors, well, not so much.

      There’s no magical implicit contract between you and your opponent, or you and your judge, or you and the six people who may or may not be listening at the back of the room.  The sum total of my responsibility to you as a judge is to listen and render as fair a decision as possible when I’m done.  Hell, I don’t even really have to do that, legally speaking. You don’t employ me and we have no other relationship besides being at the same tournament. You do not have a trade secret claim to the material you read to me, and cannot exercise control over what I do with my flow afterwards. You likewise do not have a copyright claim to the words you read aloud; copyright is explicitly limited to material disseminated in written or published form.

      You *do* have a copyright claim on the cases you jump to your opponent, but only the parts you have written yourself, and only on the substantial expression, not the ideas therein. That limits your opponent from doing exactly one thing: copying your verbatim work again. Thus, I can tell you that Moby Dick is a book about a whale without infringing any copyright (if Moby Dick weren’t in the public domain) and likewise I can tell others your case is a EU relations disad or whatever.

      And lastly, trying to claim a copyright or trade secret on a cite, ie, a reference to someone else’s published work, literally boggles my mind.

      It is considered polite in debate to agree to restrictions on jumped material, and to delete the exact content when it’s done.  But there’s no legal requirement to do so.  

      I have misgivings about case disclosure as it is practiced, though I support it as an educational practice for debate, and we disclose our cases voluntarily.  I haven’t thought a lot about whether I support LD Leaks or not.  But you’d have to stretch IP law beyond recognition to make this line of argument stand up.I can’t believe I just spent that much time answering this claim.  Sigh.

      • Anonymous

        Sec. 31.05 of the Texas Penal Code is entitled “Theft
        of Trade Secrets,” which is a felony – emphasis on word “theft”.
        See http://law.onecle.com/texas/penal/31.05.00.html.
        The Economic Espionage Act of 1996 makes
        the THEFT of trade secret a federal crime. It outlines several cases in which people were punished up to $250,000 for “stealing” trade secrets. 18 U.S.C. § 1831(a) prohibits the THEFT of trade secrets to other countries. 18 U.S.C. § 1832 prohibits the THEFT of trade secret for economic benefits.

        “However, to rise to a level of a trade secret, information
        must not be generally known by or readily ascertainable out by your
        competitors.”

        I think an LD Case meets both. As previously forwarded, the combinations
        of cards which make up a case are not generally known. Your Pepsi/Coke example (and EU DA) is one of knowledge accessible in the public realm, much like my case when I read it. But that doesn’t make it public knowledge, i.e. other debaters GENERALLY don’t know how many/which justifications there are for what standard, which books you’re reading from and which excerpts you use, ect. In my mind, this criterion for “trade secret” is simply like inherency – it’s not public knowledge now, so there CAN be a unique harm to permitting its dissemination.

        More importantly, though, when it says “readily accessible”,
        that’s specific to the knowledge of the secret, rather than the substance of the secret. It’s a question of how the knowledge was obtained, rather than who did it or how they COULD have done it. I’m going to rehash a judgment I brought up on a different chain of comments rendered during American Precise Vibrator Co. (not that kind of vibrator) v. National Air Vibrator Co. (1988):

        Appellants contend that the
        customer lists, blueprints, and drawings did not amount to protected
        “trade secrets” because the information contained therein was readily
        accessible from other sources. […] As the Texas Supreme Court has stated in K
        & G Oil Tool & Serv. Co. v. G & G Fishing Tool Serv., 158 Tex. 594,
        603, 314 S.W.2d 782, 788 (1958), […] ‘The fact that a trade secret is of such
        a nature that it can be discovered by experimentation or other fair and lawful means
        does not deprive its owner of the right to protection from those who would
        secure possession of it by unfair means.’ […] As to the customer cards, the
        jury heard testimony that even though it would require a lot of work, a person
        who knew the types of industries that vibrators were sold to could actually
        contact the businesses within that industry and develop a customer list by
        inquiring of the purchasing agents and determining what type of equipment the
        business used. […] “The question is not, ‘How could he have secured the
        knowledge?’ but ‘How did he?’

        So, “readily accessible”
        means NOT that other debaters COULD have walked into my round to hear the AC –
        it means they can ONLY know it by watching the AC, rather than by obtaining its
        details (i.e. cards segments, cites, and tags) on LD Leaks. Therefore, it is
        misappropriation to PUT LD cases’ details on a website which facilitates their
        distribution.

        I don’t think this necessarily excludes
        scouting (i.e. watching rounds and telling about it) since that’s never
        obtaining the details of a case (card excerpts, cites, ect), which is what is
        valuable being a secret. Furthermore, the text of the case, written cites, and card excerpts are the parts that debaters put their time, effort, and skill into creating – the speech act is one thing, but the case is another. To phrase it differently, a spectator’s flow is THEIR trade secret (or IP or whatever), to do with as they wish. But for them to obtain the citations, tags, card excerpts, ect. from YOU isn’t okay. This means that the case against LD Leaks is STRONGEST against any written citations taken
        from your document. But I think that the above points specify why all of LD Leaks is pretty harmful, and in such a way that probably outweighs the benefits to scouting.  But if it does exclude
        scouting, oh well?

        You then say that “You *do*
        have a copyright claim on the cases you jump to your opponent, but only the
        parts you have written yourself, and only on the substantial expression, not
        the ideas therein.”

        My point is that protecting those ideas is important. The reason is that the case takes time and effort to establish, and if those ideas can be distributed en masse online, then the advantage to producing that particular case has been nullified. That’s my whole argument behind the principle of IP law – we should value the work put into
        casing. You say that it boggles your mind that there can be trade secret on a cite, but the WHOLE POINT is that it’s not the cite itself, but the specific combination of cites (which books/articles), excerpts from those cites (cards), in what order, organized in what way, and put together as one document(/argument) which constitutes a unique CASE, and it is that case which should be considered IP.

        The argument is just this: STEALING CASES IS STEALING. Cases are something that can be stolen (and should be considered as such (because of the time, effort, and skill it takes to make one)). It just
        so happens to mean that, if that’s true, then LD Leaks is illegal (asides from just being theft, which is bad enough).

        Reflecting on it, I think this argument would be stronger when related to “work product” (perhaps primarily, “attorney work product) (a. They can’t take a shortcut to get at your cites, b. there are usually unread parts of a case (i.e. minimized parts of cards, emphasis/italics, “optional” cards/add-ons, ect.) c. work product for the same reason I called it trade secret (took time/skill to create it)). I haven’t done as much research in that area, but it could be more applicable than trade secret. Thoughts?

        • 1.  If you’re actually giving the competitor your citation information with the reasonable expectation that they won’t share it (and the very existence of LD Leaks makes that expectation unreasonable unless confirmed), then I can be convinced that posting them is a form of theft, since they hadn’t been “published.”  The problem, from my perspective, is that refusing to unconditionally provide full citations (including page number) would be a violation of academic integrity in debate.  If you read evidence, you’re responsible to provide full citations, independent of anything your opponent may or may not do later.  That’s the nature of an academic forum.  You don’t have a responsibility to disclose citations for things you haven’t read, but that’s on you to take reasonable efforts to protect.

          2.  In copyright, the only thing that wouldn’t be covered under (transformative) fair use would be actually running the case.  If somebody runs your own case against you, I think a copyright violation theory shell would be very winnable.

          3.  Work-product beyond copyright only applies to explicit protected professional relationships.

    • I realize I’m just Palmer’s echo, but my point wasn’t that trade secrets needed to be explicitly protected by NDA, but rather that they were voided by intentional disclosure to someone who doesn’t have some kind of implicit contractual relationship with you.  Your opponent and judge do not have this relationship, let alone random observers.  The very principle that rounds are open, even if no one attends, would indicate there’s no reasonable expectation of secrecy about what you say in them.  Otherwise your opponent couldn’t even show his ballot (with notes about your case) to his coach.

      As for the moral argument, as Palmer notes in the United States there’s no generally recognized moral right of authorship–IP legislation is only for the good of the whole (which in this case is precisely what’s in dispute, so there’s no new leverage here).  

      Now the line-by line:

      1.  Public knowledge is about expectation–if you read something in a debate round, you’ve never had any legitimate expectation (vice desire) that the other people in the room would not share it with others with whom you had no relationship (like teammates and coaches).  The mere words on an invitation or packet “rounds are open” would make this crystal clear.

      2.  In cases where you had created a reasonable expectation via methods to obtain secrecy (e.g. your competitor had agreed not to post to LD Leaks as a condition of you flashing over evidence) then you would indeed have some kind of moral claim–but the rhetoric of trade secrets doesn’t really add anything to “promise breaking” in this case.

      3.  In cases where user-uploaded material violates your copyrights, the DMCA is the governing legislation.  Under Safe Harbor, send LD Leaks (or wikispaces) a cease & desist order explicitly naming the infringing material, and they have to take it down.  Only if they don’t comply with the C&D does the site as a whole have liability.

  • Alec Kerrigan

    I agree. Students who paid money for camps and coaches who teach them to stretch authors’ words without permission, to recycle old backfiles, and to regurgitate 5 year old analytics should have THEIR TRADE SECRET protected.

  • Quinn Olivarez

    The important thing to take away from this is:

    No matter how much you dislike something in debate, people are going to continue to do it anyway, so why even bother complaining about it or having a rational discussion over ____’s merits (in this case the leaks site)?

  • Really? There are so many better arguments for why LD Leaks is shitty. IP Law, seriously?

    • Anonymous

      Those arguments got nowhere, even though I agree with them – discussions died off 2 months ago.. Why not try from another perspective?

    •  If you’ll notice the argument was that LD leaks goes against the “principles” of IP law not the law itself. Although I agree it’s not the best line of argumentation.

  • How does one get an anonymous article posted on this site? It seems like every other article of this nature has an author attached to it. In my opinion we should either take this down or attach the author’s name to it.

    • Alex Kramer

      Probably through the Commentary –> Submit your articles link up at the top of the page.

      It also seems ridiculous to say that an opinion is valid or should be discussed only if a name is attached to it, since who articulates an opinion is absolutely irrelevant unless specialized knowledge is required to substantiate that opinion. I guess one could argue that in the case of this article, background in intellectual property statute would be required for credibility, but that’s a different claim from what you’re articulating. The fact that the writer is identified as a “student” should be enough to give relevant background, their name is unnecessary.

      Besides, the ability for persons to submit anonymous articles for publication here makes a lot of sense. Surely students (or other individuals in the debate community) shouldn’t have to feel as if their potential for discourse is limited because of competitive backlash stemming from their opinions on debate. It makes some sense that there should be a higher threshold for anonymity, but excluding the possibility of anonymity itself seems more problematic.

      • Alex,

        1. I am an admin on the site so I know who posted the article, thanks for that helpful bit of information about the functionality of the site though. In the spirit of being helpful I’ll point out to you that when you go through that process on the site you have to leave you name.

        2. Your post is entirely non-responsive. Anyone can comment anonymously on whatever they like, why should that status be extended to articles and not just comments? Are we supposed to let anyone be able to post anonymous feature articles on the website?

        Steven,

        That is a valid desire, I would tell that person to go write an anonymous comment if that is the way they feel. There is no compelling reason in my mind to allow them to have an article.

        • Anonymous

          I agree that a comment is a good option when available, but the length in this case seemed to justify a more substantive forum. It also seems like a significantly different bent from previous discussions on LD Leaks (which also died down around late-November, save for two or three comments last week); there really wasn’t anywhere relevant for the comment. 

          I don’t think that anonymous articles are that problematic when a comment might not serve the purpose, but I agree that in general anonymous comments are probably preferable.

          • So is it the policy of this website that any student with an article can post it anonymously? Why this one and not others? Who decides what does and does not deserve a more substantive forum? It seems like common sense to me that if you want an article you should have to attach your name to it. In my opinion this article should be taken down.

          • Anonymous

            I see no problem with others posting anonymous articles as well if the issue itself is important enough to justify an article (particularly when the author is a student). I grant that this is a subjective evaluation, but I don’t think it’s one that the admins are incapable of making: issues like length, whether an appropriate forum already exists, etc., can be considered and weighed.

          • I would think from the slew of comments suggesting that this argument is neither legally tenable nor useful as an analogy, that it should have been filtered out by administrative discretion. Not one comment seems to support the view of the article. There is one post that says if the article is true then we are violating the terms of service of the wiki, that is not the same thing as agreeing with the article.

            Additionally I think your suggestion that we should allow anonymous articles in the future is not a productive one. All the articles with names behind them advance reasonable positions. Do you think that it is a coincidence that the first one without a name is being universally hated on?

            Edit: There is one anonymous post in support that I missed. It doesn’t actually make any arguments though, so my point is still the same.

          • Anonymous

            I don’t think the argument is entirely untenable; I disagree with it, but I think it deserved to have been heard out. I have also heard from the author that they have relevant caselaw that answers a lot of the “hating” once they’re home from school, so I think lots of the discussion remains to be seen.

            I’m not sure whether it’s a coincidence that the anonymous one is being hated on, but not because anonymous would be a synonym for ‘bad’; I think it’s being hated on because people tend to be more callous when they don’t see the face of the face/name of the person they’re targeting (i.e. why road rage, anonymous trolling, etc., can be so bad). If people choose to name themselves instead of deal with the hate, then that’s fine, but I think it’s also their right to bring that ‘hate’ upon themselves anonymously.

            Even if lots of anonymous articles were bad and all named ones are good, that shouldn’t be a reason to exclude the anonymous ones that are good. It’s fine if you disagree with me on this, but I think this article was fine to post.

          • Look–I’m not in principle opposed to anonymous articles, but this one is just dumb.

          • Anonymous

            To quote the late Wade Houston, “lol wut” Mr. Adler championing anonymous posting.

            -PM

          • Anonymous

            I told Valentin you’re still posting as Plaza Mexico, he’s not happy.

          • Anonymous

            Does this mean I won’t be allowed back?!?!

          • Anonymous

            He said I get to decide whether you’re welcome back.

        • Alex Kramer

          John, 

          Regarding (2), my argument is specifically responsive; I claim that it makes little sense to say that articles must have a name attached to them to be worthy of consideration. Since as far as I know, there is not some implicit exclusive policy that only things written by NSDUpdate writers (like Dave, Steven, you, me, etc) can be posted, there is nothing structurally prohibiting articles by others being posted in so far as those pieces get the approval of someone who has the authority to post on this site. If that’s the case, then the relevant question becomes whether there ought to be a unique requirement that all articles posted on this site have an author attached. That potential requirement is what I’m criticizing. If somebody writes a stellar piece, has that work approved by an admin, but wishes to remain anonymous (and especially in cases where they provide good reasons for remaining anonymous), to prevent that work from being published would only eliminate potentially valuable discourse. It’s a mischaracterization to assume that this would result in anyone being able to post feature articles anonymously, as they would still have to go through an approval mechanism to get their work published. There may be reasons that this article specifically should have been posted as a long comment rather than an article in of itself, but that does not mean that as a general principle anonymously-published articles are illegitimate.

    • Anonymous

      I agree with a lot of what Alex says below, but I think another important distinction is that this was written by a student who is still competing in the activity. When you or I sign our names to something, we don’t have to worry about the potential repercussions of getting Jake Nebel as a judge. While I wish the community weren’t so political (or perceived to be that way), I understand the author’s desires.

    • John—clearly their identity is a trade secret.

  • Anonymous

    its unfortunate that the political nature of this activity has lead to a state where those who incite discourse on subjects relevant to the debate community are named as “prominent class of 2012 members” and not their real names.

  • Rebar Niemi

    taking things seriously for serious sake

  • Wade Houston

    lol wut 

    • Rebar Niemi

      exactly

  • Anonymous

    Everyone should check out this excellent post by Chris Palmer about privacy concerns related to caselists: http://www.azuen.net/2010/08/09/caselists-and-privacy/

    I think these concerns are particularly relevant for people to read up on when it is one person involuntarily disclosing another’s positions, as is often the case with LD Leaks. A debater cannot simply opt out of attending Greenhill or Meadows in fear of their Cap K resurfacing 20 years down the line. Instead, these involuntary disclosures can happen to anyone and anytime, and I think there needs to be serious discussion about safety nets to implement. 

    I think it’s good that some of the pages don’t have names associated with them, but some of them do (Henry Zhang, Tom Cameron, Geoffrey Kristof, etc.) I think that, minimally, these names should be removed, and that the Wiki should probably be wiped of any identifying information at the end of a season.

  • In addition to all of the reasons why a written case isn’t a trade secret and isn’t protected under copyright (or the reporting of it is fair use), it might be useful to remember that nobody cares about the written case. All that matters is the speech in the round, which has been delivered in a public forum and is thus fair game to be reported about. Jake Nebel and his affiliates can post case cites (or even a whole case) without permission for the same reason the New York Times can quote or summarize a speech without permission.

    I think what Jake is doing is a little crass, but that’s between him and whoever is hiring him these days (still Greenhill/Timmons?).

    • Anonymous

      There are a few key differences – namely, that a political speech doesn’t meet the 2nd or 3rd criteria for what makes information a trade secret. Politicians don’t take reasonable measures to hide their speeches (they try to get MORE press coverage), and the proliferation of their speeches is often a large advantage to them. But debate is a competitive activity, and as I explained in the original article, the secrecy of LD cases confers both economic and non-economically parallel advantages to the holders.

      • That may be true, but as pointed out over and over, that doesn’t make them trade secrets or plausibly analogous thereto.

  • Palmer is 100% right.  The idea that cases are trade secrets is laughable–a single willful disclosure to a non-contractually-bound party destroys all trade secret protection.  They are subject to copyright, but a case outline and cites is pretty analogous to a recipe–it’s a method for an argument, not an expression of one.  If the outline contains long extracts, e.g. word-for-word definitions of standards or contention tags, then you might have a copyright problem.  Even then, however, while running that case might then be a violation, LD leaks on its own would probably be a transformative use protected by fair use, since research/counter-argumentation isn’t infringing.

  • This argument does not apply.  Trade secrets, to remain as such, generally cannot be disclosed at all beyond a circle of people who are contractually obligated to keep them private, such as employees who sign a non-disclosure agreement.  Unless you’re going around making everyone in a debate round sign an NDA (good luck with that), as soon as you read a case in a round, any claim to a trade secret is null, even if it’s just you, your opponent and your judge. 

    Further, trade secrets are not entrenched in federal law; and many states, including my own Massachusetts, have not passed the Uniform Trade Secrets Act.  Therefore any trade secrets in those states is purely a matter of what’s contained in contract law, and has no standing as a category of IP.

    You’d have a better case under copyright, not trade secrets, but even there it’s thin; copyright protects expression, not ideas.  Thus someone posting a word-for-word copy of cases, especially if they were substantially your own analytic arguments and not cut cards, might infringe a copyright.  But listing the arguments and ideas therein is not covered by copyright, and a case that was more of an arrangement of cut evidence would likely not cross that threshold.

    Plagiarism also does not apply; the folks posting disclosure are not claiming the work as their own, but are attributing it properly to the debater who ran the position.

    More generally, “respect for intellectual property” is a red herring.  The purpose of intellectual property is to encourage work and discovery that would not otherwise occur.  LD cases are created regardless of their protection; if anything disclosure encourages more diversity of arguments.

    • Anonymous

       Sorry, my response was a separate comment, rather than a reply. Look for the long one.

  • Anonymous

    I’m no expert on the issue, but it doesn’t make a whole lot of sense to compare one’s debate case to a “trade secret” when really it only gives you a competitive and not economic advantage. And I think you’re basically conceding that… “To be clear, my argument is not that LD Leaks is illegal and should be removed for that reason…” 

    The breakdown of what you say is this: you assume that debate is (or should be) based on the “very principles of intellectual property,” and that is just never justified. I would argue, and I think most would agree, that debate’s primary value is other than its economic benefits. While some do it “to receive money coaching and teaching at summer institutes,” that’s not why most (if anybody) does debate. We do it for its educational and social, not economic, benefits. 

    If that’s the case, then the issue is not one of intellectual property and the misappropriation of trade secrets, but if mandatory disclosure is a norm we want to promote in debate. And then the issue just becomes whether LD Leaks is educational, promotes disparities between large and small schools, etc. And those issues have already been discussed at length. 

    Also, really, does secrecy even provide an economic benefit or greater likelihood of success? It seems like Greenhill (who discloses on the NDCA wiki) has been doing pretty good lately… Barkley Forum, Colleyville?

    • Anonymous

      I tried to clarify this in the big long reply – if LD Leaks puts you at an ECONOMIC disadvantage, then the site is technically illegal. But if it puts you at a NON-ECONOMICALLY RELEVANT disadvantage, then it seems to run counter to the principles of competition and honesty (i.e. it is conceptually theft).

      And the argument doesn’t address what peoples’ main reasons for debating are – rather, I just say that there is coincidentally ALSO an economic harm. I do debate for fun. But that has no bearing on whether or not there is an economic disadvantage, and whether or not a case is by definition a trade secret.

      And I don’t think these arguments devolve into “edu&fairness”, I think that legality, honesty, virtues, ect. are distinct. Besides, even if they did, I don’t think it’s wrong to provide a new take on whether or not LD Leaks is fair or educational. Those issues weren’t exactly decided last time…

      The point at the bottom makes no sense – just because 1 school (with a fair number of coaches and teammates, too) succeeds in the midst of disclosure, doesn’t meat disclosure helps you win. In fact, they may have won by a larger margin if they HADN’T disclosed. I made a lot of arguments in the original post for why most people are less likely to succeed when forced to disclose.

      • Anonymous

        I don’t disagree that mandatory disclosure “runs counter to the principles of competition and honesty…” I didn’t say if I supported LD Leaks or if it’s good, so I don’t necessarily disagree about the non-economically relevant virtues you talk about.

        My ONLY point is that the comparison of one’s debate case to a “trade secret” is inappropriate, especially for an activity that’s value is primarily non-economic. Does debate provide a coincidental economic benefit? Maybe. But my point, and I think you agree, is that most do debate not because of its economic benefits. If LD Leaks is in fact educational and makes debate better, wouldn’t its worth in debate outweigh the very coincidental and minor economic disadvantage it (might) put you in? Thus, unlike you said, the issue of mandatory disclosure really does just collapse into questions of fairness and education. I don’t fault you for providing a new take on the issue – I just think that that perspective is wrong in debate. 

        Also, the link between disclosing and being put at an economic disadvantage is too tenuous. Even if it puts you at a COMPETITIVE disadvantage, that doesn’t necessarily translate into an ECONOMIC disadvantage (which means it doesn’t meet the third criterion for misappropriating a trade secret). And again, I don’t even know if disclosing puts you at a competitive disadvantage – that’s the point about Greenhill. Even if disclosing doesn’t “help you win,” there’s no proof it puts you at a significant competitive disadvantage, and it especially doesn’t have an economic effect. Do you really think, that because LD Leaks posted your cites, you will no longer be hired to teach at a camp? 

        LD Leaks might be bad for a myriad of reasons, but the comparison to IP Law is nonsensical. 

        • Anonymous

          So, your line of thought is that if debate is not focused around economic  benefits, then any economic disadvantage is irrelevant. While I disagree, even if that were true, it still doesn’t prove that the economic disadvantage is legal. It’s educational to kill and dissect human beings, the overriding legal ruling is just that – overriding. I don’t think that it is possible to weigh between “LD Leaks increases education” and “LD Leaks is economically harmful”, because they can both be true, but if the latter is true, then the site is illegal, in violation of the wikispaces terms of agreement, and probably immoral. It very well may be  just a “coincidental and minor disadvantage”, but it’s impact to being that extends beyond the economic repercussions.

          I also think that even if proven literally legal but conceptually stealing, then we still shouldn’t endorse it for benefits to education. It’s not okay to have a really good debate if you read the AC from a better opponent’s expando and then threw away their blocks. That’s not in the spirit of competition – it’d be like running a race, but since someone is slow, giving them a bike just to keep it close. If they win… great job, you can ride faster than they can run. But that’s not what a race is.

          As for the connection between competitive and economic advantage, refer to the original post – it’s easy to make your claim, but I spelled out that undue debate failure is a) likely to decrease hiring chances and b) is a waste of money – otherwise we’d go to tournaments and be happy with failure, or go to camp and never do debate work. I don’t know how much of your traveling you pay for, but it is seriously expensive, and when it comes out of your own pocket, you want some kind of reinforcement justifying that spending. That reinforcement, however harmful this stigma may be, is usually a bid or a trophy. You feel like total crap if you blow $800 on a trip and have nothing to show for it.

          I think that if I lose to a prep-out in, say, the bubble round at the TOC, yes, my chances of teaching at my camp of choice have been spoiled (or at least mitigated).

          I’m not sure you read the bottom of the post I replied with, but really – just because Greenhill has success doesn’t mean disclosure is the cause. Generally that will not be the case, because when people have more time to prepare answers to cases, they will do comparatively better than with no time to prepare answers to cases. That’s why people use prep time. Greenhill’s coach/teammate/talent advantage may have just outweighed the disclosure disadvantage. That doesn’t make disclosure helpful in winning.

          • Anonymous

            “I also think that even if proven literally legal but conceptually stealing, then we still shouldn’t endorse it for benefits to education. It’s not okay to have a really good debate if you read the AC from a better opponent’s expando and then threw away their blocks. That’s not in the spirit of competition – it’d be like running a race, but since someone is slow, giving them a bike just to keep it close. If they win… great job, you can ride faster than they can run. But that’s not what a race is.”

            THIS is the type of arguments you need to be making against mandatory disclosure. My ONLY point is that it doesn’t, logically or legally, follow from this that LD Leaks is illegal.

            I also disagree with the way you phrase the conflict between “overriding legal rulings” and debate norms like education. Yes – the law is overriding, but there is also a long precedent of relaxing legal standards in educational settings. The right to freedom of expression can be legally limited in schools, for instance, if it disrupts other students. My point then, is you have to put the legality of LD Leaks into perspective of competing values – like education. If IP Law always trumps the educational values of practices (like possibly mandatory disclosure), then why does “fair use” allow for the use of copyrighted material for nonprofit educational purposes? So, I disagree with this assumption that the law is always overriding. It really does come down to this: Is mandatory disclosure fair and educational? And that’s a separate discussion from whether or not LD Leaks misappropriates “trade secrets.” 

            I went to a small high school and had to pay for traveling myself, so I understand your frustration with wasting money and feeling like your cases were stolen, but that doesn’t make mandatory disclosure illegal. That just means that mandatory disclosure is bad and shouldn’t be a norm we promote in debate. 

            If you really think that LD Leaks is illegal, then I don’t know enough about trade secrets to argue otherwise. My only point is that it makes a lot more sense to make arguments like the one quoted above, not about IP Law. Simply, “There are so many better arguments for why LD Leaks is shitty. IP Law, seriously?”

          • Anonymous

            Oh. See, that’s where there’s misunderstanding with the article – I meant that posting cases on LD leaks is equivalent to stealing, and the only way to prove that it’s stealing is to prove the cases are trade secrets – i.e. something which isn’t everyone else’s – but if cases are indeed trade secrets, then it just so happens to mean that the site is also illegal. I think that if you understand that my goal was to prove that cases are intellectual property, and let all other implications fall into place, the rest of your post and my article agree.

  • Rebar Niemi

    my main argument against disclosure theory was on economic grounds as well. its hard not to see this website, like that argument, as a method of coercion to either extract trade secrets or “steal” them. interesting perspective here – but i will say that absent contacting wikispaces and explaining the problem it seems unlikely jake et al. will remove the website. 

  • Alex Teiche

    Ever since the WikiLeaks discussion started I’ve wondered what the Wikispaces terms of service says about content like cites and outlines of debate cases when posted without permission.  The terms of service can be found at 
    http://www.wikispaces.com/terms and contain a few clauses potentially relevant to this article specifically.

    “You agree to not use the Service to:
    […]
    c. upload, post, email, transmit or otherwise make available any Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights (“Rights”) of any party; 

    If this article is correct in that debate cases could be considered trade secrets, then wikileaks technically violates the terms of service of its host.

    Also interesting:

    “e. harm minors in any way;”

    Many debaters are minors, and while this clause is incredibly broad and probably not intended to have anything to do with what wikileaks does, could be applied to posting debater’s cases without their permission.  Unduly deprivation of money to minors does seem like it would constitute a “harm” to them, however.

    Potentially applicable:

    “b. upload, post, email, transmit or otherwise make available any Content that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);”

    But I’m not sure what would constitute a contractual or fiduciary agreement within the debate community regarding case disclosure.

    • Anonymous

       Good catch; especially the subpoint c – it specifies trade secret. It makes me wonder how the website staff would evaluate it given some relevant info. Also, in the unlikely scenario that the staff did pursue some kind of charge, would that implicate everyone who posted?