Sunday, October 09, 2005

The nexus of J.E.B. Stuart, the Cahill case, and the invention of the transistor

Using the internet to find the truth of J.E.B. Stuart's cavalry attack at Gettysburg on July 3, 1863, or the knowledge of the inventors of the transistor in 1947 can be more difficult than suggested in Delaware's Cahill case.

I. Both sides of a story may not be present in what you read

A. The Delaware Supreme Court suggested that the internet provided that opposing viewpoints could be published in the same place

Besides the legal remedies available to a plaintiff wronged by
internet defamation, the potential plaintiff has available a very powerful form of extra-judicial relief. The internet provides a means of communication where a person wronged by statements of an anonymous poster can respond instantly, can respond to the allegedly defamatory statements on the same site or blog, and
thus, can, almost contemporaneously, respond to the same audience that initially read the allegedly defamatory statements. The plaintiff can thereby easily correct any misstatements or falsehoods, respond to character attacks, and generally set the record straight. This unique feature of internet communications allows a potential plaintiff ready access to mitigate the harm,
if any, he has suffered to his reputation as a result of an anonymous defendant's allegedly defamatory statements made on an internet blog or in a chat room.

from John Doe No. 1 v. Cahill, 2005 Del. LEXIS 381

B. There may be good reasons why opposing viewpoints are not published in the same place

1. Carhart's new view on Day 3 of Gettysburg

After having skimmed Tom Carhart's 2005 book, Lost Triumph: Lee's Real Plan at Gettysburg--and Why It Failed, I had some difficulty with the central premise: that information of J.E.B. Stuart's cavalry engagement on day 3 of Gettysburg (July 3, 1863) had in any way been suppressed or concealed from the public.

a. reviews were favorable

A number of internet sources, including book reviews posted at, were quite favorable. No one addressed the contention that there had been concealed information or that this was anything but a valid, new viewpoint.

b. An issue of suppression?

After I had seen the reviews, I found the following internet posting by
Eric J. Wittenberg

I think that the thing that bothers me the most about this book is that, which seems to be selling the hell out of it, has apparently decided that it is no longer interested in honest and fair critical assessments of the works it sells in its reviews section. There have been multiple negative reviews of this festering pile of garbage, and most--but not all--have been censored by Amazon. I am aware, for instance, that one individual has had three different reviews deleted/censored by Amazon. Of course, any fawning review is kept, but anything that questions or otherwise criticizes this terrible book gets censored, meaning that unknowing or unsuspecting consumers will end up buying this book because they have been intentionally misled. In my mind, this is consumer fraud. Then, when the likes of Keegan and McPherson endorse this garbage, it only adds to the appearance of the legitimacy of what is a lousy piece of work.

This sort of thing would be the flip side of the Cahill case. In Cahill, an anonymous poster said something bad about Cahill on the internet. In Carhart, people who wanted to say something bad about Carhart's book are rendered anonymous by amazon, at least as to the amazon site, where the favorable comments are located.

Amazon, of course, does not have to provide space for people criticizing books Amazon is trying to sell. Mike Madison, on his blog the madisonian, does not have to provide space for people criticizing what he writes. To the extent that the Delaware Supreme Court implied that people could access the same site with criticism, to respond to the same audience, that is clearly not always going to be the case. The marketplace of ideas is not a level playing field, and the internet does not level it (though it does enhance the availability of opposing viewpoints)

2. Rosenberg's view of the transistor, as discussed by Lemley

In footnote 22 of
Foreseeability in Patent Law
, there is a cite to Nathan Rosenberg purporting to detail numerous examples of fundamental inventions that the inventor himself did not fully appreciate. One of the examples is that the inventors of the transistor [who were Bardeen, Brattain, and Shockley, Nobel Laureates in 1956] anticipated the use of the transistor [only] in hearing aids. The implication is that here we have one of the greatest inventions of the 20th century, and the foolish inventors were thinking only about hearing aids. The contents of footnote 22 appear later as footnotes in three different law reviews, including the University of Chicago Law Review. The underlying idea of the footnote is that relying on inventors to commercialize their technologies would miss many improvements and applications.

Bell Labs licensed the transistor patents royalty-free to hearing aid makers. Bell Labs licensed the transistor patents for a flat fee of $25,000 to others. This was in the face of antitrust action against AT&T. The step-out invention of the transistor, with reliance on the inventors/assignee, was probably one of the fastest inventions to be commercialized in many diverse areas.

But try to get this correct version of the transistor onto the internet, or into the law review literature in a place where it will impact the initial readers of the Rosenberg viewpoint? Forget it. The law reviews won't publish a different version for fundamentally the same reason that would not publish criticism of Carhart. The Delaware Supreme Court is incorrect to suggest that internet posting can "generally set the record straight." If one is not posting on the same site, one has to deal with the way internet search engines work, and that is not always friendly to the "solo publisher." But that is a different issue than the Delaware court's assertion about "same site."

II. The one side of the story may not remain

In the Cahill story, the posts of John Doe were removed from the website where they were initially published. Posts of articles on SSRN may come, and go.

Sometimes the posts go somewhere else (SSRN drafts may later materialize as published articles, such as law review articles on LEXIS or Westlaw). Sometimes they go into oblivion, as with the New York Times article on the cars of Hamilton, New Jersey, which ceased existence on all databases, but lives on for those who save paper.

I can't wait to see what happens when a piece of patent prior art gets purged, and see how that one is argued.

Earlier postat IPBiz on Carhart book


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