Friday, June 15, 2007

Gettysburg and KSR v. Teleflex, part 2

As a followup on the interrelationship of KSR v. Teleflex, plagiarism, and the cavalry battle on the third day of Gettysburg, IPBiz includes some text from Brooke-Rawle's 1878 book (nicely preserved courtesy of Google) and some text from JEB Stuart's adjutant, Major H.B. McClellan. [The earlier post on Gettysburg and KSR is "What Gettysburg Teaches Us about KSR v. Teleflex"]

Text from Brooke-Rawle's “The Right Flank…” [1878] of interest, starting at the bottom of page 5:

It has been insinuated by a gallant Confederate officer (Major H.B. McClellan, Assistant Adjutant General on the [page 6] staff of General J.E.B. Stuart), who, if indeed he were present, might be presumed to have been in a position to judge correctly, that the cavalry operations on the right flank of Gettysburg resulted victoriously for his cause. That this was not the case will be shown conclusively.

The text concerning the insinuation may be that from McLellan's "The Life and Campaigns of Major-General JEB Stuart" :

This battle has been described from the Federal stand-point by Colonel William Brooke-Rawle, in an address delivered at the dedication of the monumental shaft which marks the scene of the engagement. This address is characterized by a spirit of fairness and an accuracy of description which are worthy of imitation. It is only in regard to the result of the last mêlée that many surviving Confederate cavalrymen demand that I shall present their testimony. Colonel Brooke-Rawle says:--

As Hart's squadron and other small parties charged in from all sides, the enemy turned. Then there was a pell-mell rush, our men following in close pursuit. Many prisoners were captured, and many of our men, through their impetuosity, were carried away by the overpowering current of the retreat. The pursuit was kept up past Rummel's, and the enemy was driven back into the woods beyond. The line of fences, and the farm-buildings, the key-point of the field, which in the beginning of the fight had been in the possession of the enemy, remained in ours until the end.

I have not been able to find any Confederate who will corroborate this statement: on the contrary, all the testimony on that side indicates a result successful to the Confederates in the last charge. It is not just to say that this arises from a disposition on the part of the Southern cavalrymen to claim uniform victory for themselves; for they have put on record many instances of candid acknowledgment of defeat. Moreover, it is improbable that Federal skirmishers could have held possession of the Rummel barn: for that building was not more than three hundred yards from the woods from which Jenkins' and Chambliss' brigades debouched for the fight, and on the edge of which the Confederate cavalry and artillery held position until the close of the day. And yet it was more than half a mile from the Lott house, which was, perhaps, the nearest point where any Federal cavalry were visible. If Federal skirmishers held the Rummel barn they concealed their presence; otherwise their capture would have been effected before aid could have been sent to them.

Fifteen years after Gettysburg, one did not have agreement as to who held the Rummel barn at the end of the cavalry battle, and thus who was the winner of the last skirmish on the East Cavalry Field. More to the point of the discussion about KSR v. Teleflex and of Carhart's book, there was no agreement about what Stuart's force was attempting to accomplish. To Brooke-Rawle in 1876, it was "obvious" that this was an attack co-ordinated with Pickett's (Longstreet's) attack on Hancock's forces on July 3. To McClellan, who was indeed with Stuart on July 3, 1863, there was no co-ordinated attack, although a diversion was possible. To Carhart, and others, in the 21st century, the idea of a co-ordination of an attack between Stuart and Pickett/Longstreet was a novel, never-before-discussed, concept.

On this last point, Paul Walker had discussed the idea of a co-ordinated attack three years before Carhart's book came out. Carhart did not cite Walker's book. In the copyright business, independent creation is a defense, and we saw it used in the recent Sears homes case in central Illinois. Perhaps Carhart's book was independently created. Assume for a moment that Carhart's book was was not independently created.

In his recent book on plagiarism, Judge Posner approached plagiarism from a consumer-viewpoint, not from a creator-viewpoint. Thus, as discussed by Wendy ­Kaminer, Posner centered his definition of plagiarism on harm to the con­sumer, not the creator, asserting that copying becomes plagiarism when the reader relies on the plagiarist’s deceit: “The reader has to care about being deceived about authorial identity in order for the deceit to cross the line to fraud and thus constitute plagiarism.” Here, it is doubtful that any reader of Carhart's book cared about being deceived by authorial identity. Most of the people who knew about Walker's book probably thought both the Walker book and the Carhart book were inaccurate, and any "deception" pertained to the underlying facts, not to authorial identity. Most of the people who read Carhart's book, but not Walker's, probably thought it was a good read, by a West Point graduate (class of 1966) and endorsed by a famous Civil War historian at Princeton University. It is doubtful that they cared about being deceived about authorial identity. Is Posner's approach the right take on plagiarism? Absolutely not. Although trademark law is designed to protect the consumer (tho you might not know this from some of the court cases), copyright and patent laws are designed to give an exchange between the author/inventor and the public at large. Plagiarism is an issue distinct from copyright infringement (and from trademark law, see DaStar) and concerns a failure to attribute, period.

See also McGrath reviews Posner on the subject of plagiarism , including the text: McGrath's take on Posner's definition: Mr. Posner insists on two main criteria: not just deceit but fraudulence, in the sense that the reader is tricked into behaving differently — into buying a book, say, that he would have ignored had he known it was copied.

**Now switch to the viewpoint of "KSR v. Teleflex is about telling an extremely cool story," as expressed on June 10, 2007 at "Spring Seminar 2007" (LAIPLA/SDIPLA). As between Brooke-Rawle and McClellan, who were both at the East Cavalry Field on July 3, 1863, who told the "cooler" story? Who knows, or cares about, something that happened in 1878? As between Walker and Carhart, who were theorizing about something that happened 140 years earlier, and who were not at East Cavalry Field on July 3, 1863, the verdict of the marketplace is that Carhart told the cooler story. Cooler perhaps because Carhart had better credentials (West Point degree, J.D., and a Ph.D.), a better publisher of the story, and higher profile friends. If that's what KSR v. Teleflex is bringing us, there are a lot of people who ought to be worried.

Curiously, one of the videoclips used on June 10 was of the South Park episode involving the Johnny Cochran Chewbacca defense concerning a copyright issue involving Chef and a record label (Capitalist Records). [from Wikipedia: The Chewbacca defense is a fictional legal strategy used in the South Park episode "Chef Aid", which premiered on October 7, 1998 as the fourteenth episode of the second season. The concept satirized attorney Johnnie Cochran's closing argument defending O.J. Simpson in his murder trial. "Chewbacca Defense", meaning a defense consisting solely of nonsensical arguments meant to confuse a jury, has since been occasionally applied outside of references to South Park.] The script from "Chef Aid" is available.

As a footnote to the above, google has also preserved the text of Edward Everett's Gettysburg speech. Substantially longer than Lincoln's Gettysburg Address of the same day, Everett gets into some interesting details of the battle but does not mention the East Cavalry Field fighting on July 3, 1863. [Look also here
and here

Separately, note page 109 of Carl Smith's "Gettysburg 1863: High Tide of the Confederacy" which states: Gregg's troopers thwarted Lee's plan for a diversion in the Union rear while Pickett assailed the Union line on Cemetery Ridge. On page 111, one has: Stuart knew he had to act quickly, and decided a cavalry charge might carry the day and allow him to ride through the Union horsemen and continue his mission. Smith's book was published in 1998, before the book of Walker or of Carhart.

Separately, page 317 of a book published in 1905 ("History of 3rd Pa. Cavalry," published long before Smith's book, and 100 years before Carhart's book) has the text: "The right rear of the Federal army was to be struck by the cavalry in cooperation with Pickett's grand attack on the center."

See also another account of East Cavalry Field fighting.


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