March 20, 2010
MAPLight Launches Redesigned WebsiteDetails about the redesigned MAPLight website here. [JH]
Round-Up of Practitioner Blogs
Pennsylvania Nursing Home Abuse Attorney Blog
Reports on nursing home abuse news, reports and cases in Pennsylvania. Published by Rosenbaum & Associates.
San Diego Criminal Defense Lawyer Blog
Reviews criminal defense cases, opinions and legislation in California. Published by the Thomas Hughes Law Offices.
Tennessee Bankruptcy Lawyer Blog
Analyzes bankruptcy law reports, news and matters in Tennessee. Published by the Cain Law Firm.
DC Criminal Lawyer Blog
Covers criminal law cases, opinions and news in Washington, DC. Published by The Law Offices of David Benowitz.
Maryland DUI Lawyers Blog
Provides opinion on DUI reports, matters and cases in Maryland. Published by The Law Offices of David Benowitz.
March 19, 2010
Viacom and Google Ugly Details Emerge in Court Filings
Documents in the $1 billion Viacom suit were unsealed yesterday, and what a tale they tell. Viacom, for its part, alleges that YouTube founders deliberately allowed pirated content on the site and that Google was aware of this and continued the practice for a time after the company bought the site. The evidence comes from emails provided by one of YouTube's founders who had archived them when company copies were "lost" Google says statements in the emails were taken out of context. Viacom is trying to destroy Google's safe harbor defense under 512(c) of the DMCA. That provision requires the provider, Google in this case, not have actual knowledge of the infringement. See the arguments in Viacom's brief in support of its motion for summary judgment beginning at page 5.
Google alleges that Viacom has an agenda with this litigation and that its hands are not exactly clean. In a blog post Google states that Viacom wanted to buy YouTube and is mad a Google for beating them out on the purchase. Moreover, Google states that Viacom actually uploaded videos which it doctored to look as if they were stolen or coming from fans. Viacom's agents would use third party computers to hide the trail to the source. Some of these videos are the subject of the lawsuit. Viacom's motivation to remove videos from YouTube was to lower traffic to that site and drive traffic to Viacom's sites. When that didn't happen, Google says, Viacom sued them.
At first blush it seems as if neither party to the suit has any lock on legal or moral purity. I suspect summary judgments on both sides will be denied and the long hard slag through litigation will continue in earnest. Look for more damning revelations on both sides as the discovery process goes forward. Don't expect blinking any time soon.
How to Cancel the Unsolicited Copies of Federal Civil Procedure Before Trial, National Edition From West
Yes, the loose-leaf set from Rutter Group/Thomson West you did not order is "free," but the update that will be automatically shipped out soon will not be free. Apparently you can't cancel the title by calling your West rep. You need to call Rutter Group Customer Service at 1-800-747-3161, ext. 3, give them the account number listed on the packing slip and tell them you want to cancel the updates.
Thanks to Cindy Bencaz, Jones Walker, for her listserv heads-up. [JH]
Amazon Plays Hardball With Small- and Medium-Sized Publishers Over eBook Pricing Model
In Amazon Threatens Publishers as Apple Looms, Motoko Rich and Brad Stone report on how Amazon.com is trying to pressure publishers ahead of the launch of Apple's iBookstore. According to the New York Times story Amazon is threatening to stop selling small- and medium-sized publishers print books online unless they agree to concessions on the sale of their eBooks by following the Company's wholesale pricing model instead of Apple’s agency model. Amazon apparently is striving to limit participation in the agency model to Kindle editions of the largest publishers, something Amazon "capitulated" to earlier this year. See the following LLB posts for details:
- Amazon Drops, Then Undrops Macmillan eBooks in Pricing Dispute
- More Publishers Balk at Amazon Pricing for e-Books
- Amazon to Consumers: $14.99 is too much to pay for licensed DRM-eBooks
Friday Fun: A (humorous) day in the life of a college president.
We think you'll enjoy this video showing how the President of Macalester College in Minnesota celebrates, um, President's Day.
Hat tip to the Chronicle of Higher Ed.
Public Equals Online: H.R. 4858, Public Online Information Act (POIA) Mandates Executive Branch Online Publication and Calls Upon Legislative and Judicial Branches To Do the Same
Introduced by Rep. Steve Israel on March 16th to coincide with this year's Sunshine Week events, the purpose of H.R. 4858, Public Online Information Act (POIA) [Thomas] includes the following:
(1) To establish an advisory committee to issue nonbinding guidelines for all three branches of Government regarding making public information available on the Internet, with sufficient flexibility to adapt to changes in technology.
(2) To empower the E-Government Administrator to establish binding rules concerning making publicly available Government information held by Executive agencies to be made available on the Internet; and to empower independent regulatory agencies to do the same.
(3) To express the sense of Congress that publicly available information held by the legislative and judicial branches should be available on the Internet.
(4) To encourage the Government Printing Office to make all of its publications available on the Internet in the formats most useful to the public, after having considered the formats identified by the Public Online Information Advisory Committee.
Section 7 of POIA frees gov docs from their physical manifestation in printed pages by mandating Executive Branch Internet publication as follows:
(a) Online Publication Requirements-
(1) FREE AVAILABILITY-
(A) Except as provided in subparagraph (B), the Government shall make public records available on the Internet at no charge (including a charge for recovery of costs) to the public.
(B) Subparagraph (A) shall not apply in the case of a charge imposed by Federal law before the date of the enactment of this Act.
(2) PERMANENCE- Public records shall be permanently available on the Internet.
(3) CURRENT TECHNOLOGY- Current information technology capabilities shall be applied to the means by which records are made available on the Internet, and the formats in which they are available.
(4) SEARCHABLE LIST- Each agency shall publish on the Internet a comprehensive, searchable, machine processable list of all records it makes publicly available. With respect to those records, the list shall include at least the following information:
(A) Where the records can be found.
(B) Whether the records are available to the public at no cost or for a fee (and the amount of the fee, if applicable).
(C) Brief descriptions of the records.
Does POIA Go Far Enough? On Free Government Information, J.R. Jacobs is concerned that making the federal government a better wholesale distributor of government information may make it easier for private sector publishers to privatize government information as they have in the past. Jacob writes
Federal government information is in the public domain. That's a good thing. However, there's a fundamental issue at stake here. One can't have "permanent free public access" to government information where the private sector is involved. The private sector has been involved in giving access to government information for a long time (see LexisNexis, Thomson West, Readex etc). They do it well but they certainly don't do it for free. Libraries and other organizations have paid many millions of dollars to license access to govt information for the communities they serve. ... For all intents and purposes, these private sector companies take public domain information and privatize it. Any digital govt information accessible on the internet should already be findable, usable and accessible in bulk at minimum.
Jacobs suggests POIA must also include some guarantee that government information remains in the public domain. He writes
What I'd like to see in this bill and in the discussion after it passes (devil's in the details right?!) is not only a requirement that all govt information is online permanently and for free, but that there be the inclusion of a viral GNU General Public License-like piece of the public domain whereby anything IN the public domain (i.e., govt information) has to STAY IN the public domain. There are plenty of folks (I'm looking at you Sunlight, Govtrack.us, OpenCongress, OpenCRS etc) excited about making govt information more available, more usable and more shareable and this would support their public service.
It's an interesting idea. At first glance, one might think that Jacobs is suggesting that so sort of public domain license should prohibit the private sector from using government online resources for private gain. I think, however, in the context of primary legal sources, what Jacobs may be pointing to is that commercial legal publishers should not be the publishers of official government records at any level of government. Those days should and will come to an end. Perhaps some sort of license is needed to ensure that it does.
As previously noted the Judicial Conference is launching a pilot program to make federal court opinion accessible and searchable via FDsys. It's a start in the right direction but it is neither systematic nor comprehesive enough. The objective of the LAW.GOV project is to create an "authenticated registry and repository of all primary legal materials in the United States" (read official online documentation) with "detailed technical specifications for markup, authentication, bulk access, and other aspects of a distributed registry" (read metadata-rich documents for wholesale distribution). This can eliminate commercial publishers as official record keepers. It will not result in the demise of fee-based legal search services but it will let the dogs of online legal search competition wage war based on research tools, interface designs and costs (include no cost).
In the coming years, it will be very interesting to see if and if so, how TR Legal and LexisNexis campaigns at the federal level against legislation like POIA and whatever bill is tossed in the hopper after LAW.GOV completes its project, and at the state level, too. They are going to be hard pressed to rationalize maintaining the status quo when asked to explain why federal and state governments should continuing paying the duopolists to access their own information when governments can introduce competition into the marketplace. "Because of our editorial quality" isn't going to be persuasive. [JH]
New Book: Open Government: Collaboration, Transparency, and Participation in Practice
Open Government: Collaboration, Transparency, and Participation in Practice (O'Reilly Media, Feb. 1, 2010) discusses the possible ways government can utilize the power of citizen engagement to become more efficient and transparent. The collection of essays features the following contributors:
- Beth Simone Noveck, U.S. Deputy Chief Technology Officer for open government, "The Single Point of Failure"
- Jerry Brito, senior research fellow at the Mercatus Center at George Mason University, "All Your Data Are Belong to Us: Liberating Government Data"
- Aaron Swartz, cofounder of reddit.com, OpenLibrary.org, and BoldProgressives.org, "When Is Transparency Useful?"
- Ellen S. Miller, executive director of the Sunlight Foundation, "Disrupting Washington's Golden Rule"
- Carl Malamud, founder of Public.Resource.Org, "By the People"
- Douglas Schuler, president of the Public Sphere Project, "Online Deliberation and Civic Intelligence"
- Howard Dierking, program manager on Microsoft's MSDN and TechNet Web platform team, "Engineering Good Government"
- Matthew Burton, Web entrepreneur and former intelligence analyst at the Defense Intelligence Agency, "A Peace Corps for Programmers"
- Gary D. Bass and Sean Moulton, OMB Watch, "Bringing the Web 2.0 Revolution to Government"
- Tim O'Reilly, founder and CEO of O'Reilly Media, "Defining Government 2.0: Lessons Learned from the Success of Computer Platforms"
Sources for Finding Mandated Reports to Congress by U.S. Federal AgenciesLLSDA's great Legislative Source Book has added a new listing, Sources for Finding Mandated Reports to Congress by U.S. Federal Agencies. Written by Rick Mckinney, Assistant Law Librarian, Federal Reserve Board Law Library, the feature describes and links to sources that list or may make available reports from Federal agencies mandated by Congressional statute. Hat tip to beSpacific. [JH]
Opening: Research Librarian, Davis Polk & Wardwell, Menlo Park, CA Office
The Menlo Park office of Davis Polk & Wardwell LLP seeks an energetic and service-oriented Reference Librarian who can manage its on-site legal research collection while participating as part of a team of research librarians worldwide. The Menlo Park office provides sophisticated corporate, litigation and IP transactional and litigation services to its clients. The firm is seeking an experienced librarian with advanced research skills to support its corporate, IP and litigation departments.
Responsibilities include handling ready reference questions in all practice areas, performing Lexis, Westlaw, Internet and other online database searches, handling inter-library loans, supervising filers re local collection, document retrieval, provide in-house training regarding Lexis and Westlaw searches and retrieval, and provide orientation and training of new lawyers/paralegals to our library. At times, the Librarian may be requested to assist in conducting a basic conflict search for the Menlo Park office regarding new business using the Legal Key application (training provided).
Requirements are an MLS degree from an ALA accredited school, ability to work independently, and desire to provide and deliver excellent client services. Strong corporate, California litigation and IP research skills. Good verbal and written communication skills. Service oriented.
Please submit resume to: Sally Downing, Office Administrator, Davis Polk, 1600 El Camino Real, Menlo Park, CA 94025; sdowning (at) davispolk.com. Fax No. 650-752-3642. No phone calls please.
March 18, 2010
State Department Thinks Net Neutrality Could Give Other Countries the Wrong Idea
A long time reader pointed me in the direction of this article in Broadcast & Cable, which is an account of a speech by Ambassador Philip Verveer, Assistant Secretary of State and U.S. coordinator for international communications and information policy. Verveer expressed concern that the FCC's net neutrality proposals, should they take effect, give foreign regimes an excuse to meddle with the operation of the Internet in their country. Verveer is quoted in the article as saying that the FCC's net neutrality initiative "is one that could be employed by regimes that don't agree with our perspectives about essentially avoiding regulation of the Internet and trying to be sure not to do anything to damage its dynamism and its organic development. It could be employed as a pretext or as an excuse for undertaking public policy activities that we would disagree with pretty profoundly."
With all due respect to the Ambassador's concerns, regimes that disagree with us have their own agendas and regulate access and content on the Internet within their countries as per that agenda. That China censors search results against references to political or social content not to its liking does not need citation anymore. During the so-called "Green Revolution" in Iran, the Islamic Republic routinely blocked access to certain social sites to keep the population from forming and coordinating demonstrations that protested election results, with varying success. Some of that blocking remains in place. Venezuela is considering regulations that extend existing media laws to the Internet, and it does not appear that Venezuela is motivated by egalitarian principles in this respect. Sure, these are, at best, countries the United States deems adversarial within the international community. What about our friends?
Let's see. Italy just convicted Google executives for violating a disabled child's privacy rights over a video uploaded to YouTube showing bullies hurting the child. The Google execs received 6-month suspended sentences. The actual perpetrators and uploaders got community service. That's just a minor blip informing multinational corporations how they should operate in Italy. No? Our friends in France last year placed a three strikes disconnection law on the books that's invoked by charges of piracy of intellectual property. The first attempt to pass that law was marred by the French Constitutional Court striking it down because the disconnection had to be ordered by a judge. Due process, after all. The U.K. is attempting to pass a similar law that not only disconnects individuals from the Internet, but gives the High Court the power to disconnect sites that offer substantial infringing content. I wonder what standard the High Court will use to make that determination, especially with an off-shore site. I'm sure Viacom would love to try and get YouTube disconnected in the United Kingdom under such a law.
Note that the European Union has some quaint notion that access to the Internet is a human right and has concerns that its member states are moving in this direction. Not to worry, however. The United States is pushing the Secret ACTA Treaty(TM) that will impose DMCA style regulation on to the rest of the world, including its warm embrace of a three strikes requirement on signatories. The U.S. has nothing like that now, but the treaty, negotiated as an executive agreement may be an excuse to get Congress to pass something like this here. Whether that is politically viable in the U.S. is another matter. Lobbyists, start your checkbooks. The European Parliament is on record in a lopsided vote as opposing any three strike requirement in the ACTA treaty, among other provisions, and the treaty's secrecy.
So, to summarize, Internet regulation is bad when countries we don't like want to suppress their people, and any regulation we impose, such as net neutrality (which business doesn't like) will give those countries ideas and an excuse to go forward. However, Internet regulation is good when it protects intellectual property interests (which business does like) and that won't give other country ideas about restricting the Internet? I'm not trying to justify content piracy, just trying to understand Ambassador Verveer's logic. Maybe the Ambassador should have a chat with the U.S. Trade Representative as well as his friends at the FCC. [MG]
C-SPAN Launches Searchable Video Archive: New Source for Legislative History Research
Earlier this week, C-SPAN launched the C-SPAN Archives containing every C-SPAN program aired since 1987 for historical, educational, research, and archival uses. All C-SPAN programs since 1993 are digital and can be viewed online for free. From the announcement:
The Archives records all three C-SPAN networks seven days a week, twenty-four hours a day. Programs are extensively indexed making the database of C-SPAN programming an unparalleled chronological resource. Programs are indexed by subject, speaker names, titles, affiliations, sponsors, committees, categories, formats, policy groups, keywords, and location. The congressional sessions and committee hearings are indexed by person with full-text.
Note the last sentence above -- another, albeit unofficial, source for legislative history research. [JH]
WestlawNext User Guides, Monthly Email Newsletter and WestSearch for Dummies Brochure
A sampling of WestlawNext user guides now available here include:
- Getting Started on WestlawNext
- Checking Citations in KeyCite
- Retrieving Cases on WestlawNext
- Retrieving Statutes on WestlawNext
- Your WestlawNext Registration Key
- Using Folders to Organize Your Research
- Comparing Westlaw and WestlawNext
Intended to "introduce Westlaw users to the evolving WestlawNext product," Next.Notes is West's new monthly email newsletter. According to the announcement, the next few issues will cover:
- What you need to know about the Search box
- KeyCite citation research on WestlawNext
- Retracing your steps on WestlawNext
- “Under the hood” of the search engine
- How to use folders.
Subscribe here.Finally, here's a WestSearch for Dummies brochure. [JH]
Reminder: Law Librarian Conversations, Friday, March 19: A Conversation with Roberta Shaffer, Law Librarian of Congress
Roberta Shaffer, Law Librarian of Congress, will join Keith Ann Stiverson, Roger Skallbeck, Marcia Dority Baker, and Richard Leiter to discuss her vision for the Law Library.
Friday, March 19, 2010
2:00 PM - 3:00 PM CDT
Space is limited. Reserve your Webinar seat now at: https://www2.gotomeeting.com/register/133865826
March 17, 2010
Social networking guidelines for judges and attorneys
Here's a short, helpful article that compiles recent ethics advisory opinions on the efficacy of attorneys "friending" judges and vice versa.
The unforeseen perils of online communication and participation [in social networking] by judges and lawyers have been revealed in several scenarios that will highlight what happens when social networking sites and ethical boundaries intersect.
Attorneys with profiles that can be seen by judges run risks ranging from professional embarrassment to potentially unethical behavior.
At last year's American Bar Association program called Courts and Media in the 21st Century, a Texas judge related the story of a lawyer who requested a continuance in court due to the death of a family member, but whose status updates on Facebook revealed she had been drinking and partying all week.
The South Carolina Advisory Committee on Standards of Judicial Conduct in opinion No. 17-2009concluded that a magistrate judge could have law enforcement personnel and court employees as "friends" on the magistrate judge's Facebook page. The proviso was that the magistrate judge did not "discuss anything related to the judge's position as magistrate." They even went so far as to underscore on the value of public education that was possible through a social networking profile.
The Florida Supreme Court scrutinized the entanglements arising from the use of contact lists that appear on a judge's profile. In Judicial Ethics Advisory Committee opinion No. 2009-20, they responded to questions raised by four types of social networking communications: (1) judge's posting of comments or other materials on judge's profile within limits of Judicial Code (yes); (2) friending lawyers who appear before the court (no); (3) judge's election campaign committee posting information on their separate profile (yes); and (4) option to allow lawyers appearing in the judge's court to list themselves as fans on the campaign profile (yes).
You can read more here.
Hat tip to Law.com
U New Hampshire and Franklin Pierce Law Center to Merge
Forget the University of Massachusetts Dartmouth and Southern New England School of Law. The next law school merger is coming right next store between the University of New Hampshire and the Franklin Pierce Law Center. The Boards of both institutions approved the affiliation, which will be considered by the American Bar Association later this year. Franklin Pierce is the only law school in New Hampshire and it makes sense for the University to merge with the only fully accredited law school in the state rather than establishing a competitive law program. Franklin Pierce will change its name to the University of New Hampshire School of Law and will remain in Concord for the time being. Pierce is best known for its intellectual property program. The two institutions are looking for ways to keep the branding on that program intact, even with the formal name change. Coverage of the merger is in the Boston Globe and Above the Law.
Coming up on the horizon is the proposed merger between UC San Diego (corrected, ed.) and and California Western. That potential hook-up has its own dynamics in the backdrop of the California state budget crisis. Some coverage on that appears in Inside Higher Ed.
Judicial Conference Launches Pilot Program to Make Federal Court Opinions Accessible via FDsysWhile the press release headline reads "Judiciary Approves PACER Innovations To Enhance Public Access" because the Judicial Conference has increased the number of documents members of the public can obtain free through PACER and, after its two-year pilot project, approved allowing federal courts to make digital audio recordings of court hearings available through PACER (for $2.40 per audio file), the most noteworthy development is this -- the Conference's approval of a pilot program to allow up to 12 courts to publish federal district and bankruptcy court opinions via the GPO's FDsys "so members of the public can more easily search across opinions and across courts." [JH]
Dear God, Not Another Law School Ranking Metric: Top 10 Law School Home Pages of 2009
The ranking is based on "a tabulation of fourteen objective design criteria." including some truly significant ones, like:
Favicon – 7 points: A favorites icon (or “favicon”) is a small graphic associated with a website, which appears in places such as the browser location bar or in your bookmarks or favorites file. The favicon is probably the most important tiny graphic any site can have, and it is a simple way to help identify a law school brand or image.
Smiles – 5 points: Somebody is smiling in at least one picture on the site.
God help me -- here's the Top 10 Law School Home Pages of 2009.
1. George Mason University School of Law
2. University of Virginia School of Law
3. Wayne State University Law School
4. University of Washington School of Law
5. Harvard Law School and Regent University School of Law
7. Loyola University of Chicago School of Law and University of Notre Dame Law School
9. University of Illinois College of Law and Washburn University School of Law
195 Law Schools Ranked. But wait, the ranking of all 195 ABA accredited law school home pages starts at 17 here [SSRN]. Because I know someone in the extreme southwestern corner of the Buckeye State is going to want to know how their school fared after spending over $100K to redesign and maintain its website, here's the home page ranking for Ohio law schools.
|Ohio Law Schools Home Page Ranking|
The study was performed by ... ah ... an academic law librarian, Roger Skalbeck, Associate Law Librarian, Georgetown University Law Center. Roger, if you decide to do this again, it might be more interesting if you added another metric to this ranking: the design and maintenance costs for each law school's website. That's a metric that has to be worth at least 10 times the number of points (subjectively) assigned to both favicons and "shiny happy people."
Hat tip to Dan Filler's post on Brian Leiter's Law School Reports for this little tidbit on info antics, not metrics. [JH]
Gay and Lesbian Hate Crimes Being Committed at Idaho Law
In Hate Abounds at University of Idaho College of Law, ATL's Elie Mystal is reporting a series of distrubing actions against the gay and lesbian community in the College of Law building, including defacing pictures and placing threaten flyers on bulletin boards that quote individuals advocating violence against gays and lesbians. The College of Law administration is taking action, including, according to Mystal's report, alerting federal authorities to the potentially dangerous situation.
No one knows who the perpetrators are so there is no evidence to conclude that it involves Idaho law school students but, as Mystral writes, "If the perpetrators are actual law students, I think Idaho has a moral obligation to try to find these people — before they leave school with a J.D. and clean character and fitness marks. Details in Mystal's ATL post. [JH]
FCC Launches Tools for Consumers to Test and Report Their Broadband Service
The FCC's Consumer Broadband Test and the Broadband Dead Zone Report allow consumers to test their broadband service and report areas where broadband is not available. Snips from the press release:
The Consumer Broadband Test measures broadband quality indicators such as speed and latency, and reports that information to consumers and the FCC. The mobile version -- the FCC’s first mobile app -- is available through the Apple and Android app stores. The fixed version is available at www.broadband.gov.
The Broadband Dead Zone Report enables Americans to submit the street address location of a broadband “Dead Zone” where broadband is unavailable for purchase. The Broadband Dead Zone Report form is available on www.broadband.gov. Consumers can also submit availability information by e-mail to email@example.com.