Law Librarian Blog

Ning Transforms from Free to $Fee$

According to Wired's article Ning Fails at Free Social Networking, Ning's 2.3 million networks will evaporate into cloud computing heaven unless Ning network administrators pay for the service or migrate the network to another platform. A Ning Blog post confirmed that Ning will be phasing out free Ning networks and will provide information about the phaseout on May 4, 2010. [BA]

CWA Union Officer William J. Boarman Nominated for Public Printer of the United States

On April 15, President Obama announced he was nominating William J. Boarman to be the 26th Public Printer of the United States. Boarman’s nomination will be referred to the Senate Rules Committee and must be confirmed by the U.S. Senate. From the White House press release:

William J. Boarman is President of the Printing, Publishing & Media Workers Sector of the Communications Workers of America (CWA), and the Senior Vice President of CWA. Mr. Boarman has been associated with the printing industry, its labor relations and personnel management for over 40 years starting with his four-year apprenticeship at McArdle Printing in Washington, D.C., succeeding to Journeyman Printer (Practical Printer by Trade) in 1971. In 1974 Mr. Boarman accepted an appointment as Printer to GPO. In 1977, Mr. Boarman took a leave of absence from GPO to serve in various elected posts within the International Typographical Union, which merged with CWA in 1987. He is chairman of the CWA/ITU Negotiated Pension Plan, a multi-employer defined benefit pension plan with assets of $1 billion; President of the International Allied Printing Trades Association; and President of the Union Printers Home, a 122-bed skilled nursing facility in Colorado Springs, CO. Mr. Boarman served three terms as co-chair of the Council of Institutional Investors (CII) and as the first-ever public member of the Maryland Commission on Judicial Disabilities.

[JH]

Should a University Librarian Have Tenure?

Some at Brandeis University don't think so.  More here.  [MG]

NJ Rules Attorney-Client Privilege Trumps Corporate Email Policies for Employees

The New Jersey Supreme Court issued and opinion at the end of March that has implications for workplace privacy, particularly in personal emails.  The case is Stengart v. Loving Care Agency (A-16-09, March 30, 2010).  Marina Stengart filed suit against her employer, Loving Care, on employment discrimination grounds.  Loving Care issued a laptop to Stengart in the course of her employment and maintained a policy on acceptable use and system monitoring.  Stengart also used the machine to access her personal Yahoo email account, which included communications to and from her lawyer concerning the employment discrimination suit. She later left the company and turned in her laptop. 

Loving Care hired a forensic expert to examine the hard drive in anticipation of litigation. They discovered "seven or eight" emails in the browser cache that were part of her communications with her lawyer.  The firm attorneys disclosed the documents and used information from those emails to frame discovery requests.  Stengart and her lawyer filed an action to have the emails returned under the attorney client privilege.  The emails were labeled with the usual confidentiality and privilege.  Loving Care argued that the policy controlled and as such, the confidentiality was waived. 

From the opinion:

The proffered Policy states, in relevant part:

The company reserves and will exercise the right to review, audit, intercept, access, and disclose all matters on the company's media systems and services at any time, with or without notice.

. . . .

E-mail and voice mail messages, internet use and communication and computer files are considered part of the company's business and client records. Such communications are not to be considered private or personal to any individual employee.

The principal purpose of electronic mail (e-mail) is for company business communications. Occasional personal use is permitted; however, the system should not be used to solicit for outside business ventures, charitable organizations, or for any political or religious purpose, unless authorized by the Director of Human Resources.

The Policy also specifically prohibits "[c]ertain uses of the e-mail system" including sending inappropriate sexual, discriminatory, or harassing messages, chain letters, "[m]essages in violation of government laws," or messages relating to job searches, business activities unrelated to Loving Care, or political activities. The Policy concludes with the following warning: "Abuse of the electronic communications system may result in disciplinary action up to and including separation of employment."

The Court and commented on its vagueness in relation to personal emails generated via a non-company system.  Precedent from New York and Massachusetts suggested no privacy, but these cases involved company systems.  The Court concluded that Stengart had a reasonable expectation of privacy because the policy was ambiguous for the type of use; Stengart never saved her Yahoo password to the machine; there was no notice or suggestion in the policy that the machine could be subject to a forensic examination; and the nature of the the communications.  The Court said that the company could write more explicit language, though any language that attempted to waive the attorney-client privilege would not be enforceable.  The case was sent back to the trial court to determine whether Loving Care's attorneys should be sanctioned. 

The decision is available here and was unanimous.  I imagine scriveners across New Jersey will be pouring over their company employment policies in light of the case.  [MG]

Reminder: Law Librarian Conversations Podcast on Technology Developments and Their Impact on Law Librarians Today

Reserve your seat for this afternoon's Law Librarian Conversations podcast, 2:00 PM - 3:00 PM CDT, at https://www2.gotomeeting.com/register/434480083 Tom Boone, Jason Eiseman and Sarah Glassmeyer will be joining hosts Rich Leiter and Marcia Dority Baker to review news items and technology developments and their impact on law librarians. [JH]

Friday Fun: "There's a sign-post up ahead. Next stop - The Quiet Zone!"

Here's a great video take-off on the classic television show The Twilight Zone (one of my all-time favs) created by The Actors' and Playwrights' Society at Aurora University (Illinois) to promote a newly designated "quiet zone" in the campus library.  The student playing Rod Serling does a pretty good impersonation right down to the cheap, off-the-rack suit Rod used to wear during each episode's prologue.  Noticeably absent, though, is the lit cigarette dangling from Rod's hand. 

Enjoy!

Hat tip to the Chronicle of Higher Ed.

(jbl)

Friday Fun Part II: Using Children's Book Format for Reports (and Instructional Materials) for Lawyers

Greg Lambert uses StoryJumper.com, and a CD-ROM full of clipart to demonstrate how even lawyers can benefit from having their reports formatted as children's books. His topic, the state of BigLaw business based on this report at The BigLaw Firm in Q4 2009. Greg's3 Geeks and a Law Blog post here. Sounds like an excellent format for explaining very expensive online search services licensing terms and costs to your user population. [JH]

Palfrey: "Libraries must perceive our primary function as serving communities rather than building collections."

"Our information environment, now and in the foreseeable future, is best described as a world of 'digital-plus,'" a hybrid era of print and digital legal materials, writes Harvard's John Palfrey in Cornerstones of Law Libraries for an Era of Digital-Plus (LLJ, forthcoming) [SSRN]. More:

The central idea is that new works are, and will continue to be, created and stored in digital formats as a default. The dominant mode of information creation and access will continue its shift from analog to digital. Students and faculty will access almost all legal information, at least as a starting point, through digital means.

But print and other analog formats will not disappear. Some users will continue to print out materials (whether on a personal printer or through a more elaborate print-on-demand system) to read them, to carry them around, and to mark them up by hand. Others will use printed copies of books in the practice of law as a starting point to begin their research, as they have in the past. Others will want to access rare and unique materials found in special collections—to touch the paper, to smell the must, to examine the handwriting in the margins, and more. The paper-based format can facilitate access to legal information in ways that remain critical.

Palfrey proceeds with a series of observations about the transformation underway in the dissemination and use of legal resources as a lead-in to identifying six cornerstones for the role libraries perform in this "digital-plus" era. If I have any nit-pick with this, it is that cornerstones are laid on a foundation and the first cornerstone Palfrey identifies is foundational, namely, law libraries must perceive their primary function as "serving communities rather than building collections." Coming from the head of one of the largest (and fairly well-funded) academic law libraries in the country (read I've worked in law schools whose entire budgets were less than the HLS library budget), this may seem like a controversial statement. But times have changed.

In this "digital-plus" era, the view that the largest academic law libraries have a responsibility to build and maintain a print collection to serve the "greater good," meaning the entire law library community that once viewed the nation's great academic law libraries as libraries of last resort is an antiquated notion because electronic resources has leveled the playing field somewhat. As the Harvard Law School Library's recently revised Collection Development Policy states:

The primary mission of the Harvard Law School Library is to support the research and curricular needs of its current faculty and students. The Library also supports the greater Harvard community and, to a lesser extent, the community of scholars and researchers around the world who are interested in subjects of or related to the law.

"To a lesser extent" has always been the case but it is now underscored because of the rising cost of print egal materials and current state of library economics, changes in collection development format preferences and  end user research habits. This does not mean that larger academic law libraries don't have a role to play in this "digital-plus" era for the benefit of the larger community. They certainly do, for example, in developing electronic collections by digitizing legal resources in a more coordinated way to maximize the efforts being made, as identified by Palfrey as one of his six cornerstones. Here they are:

The first cornerstone is alignment with the goals of the institutions we are part of, whether schools, firms, or agencies. Libraries must perceive our primary function as serving communities rather than building collections.

A second cornerstone of our libraries needs to be a system for understanding the changing ways in which users are learning—accessing information, performing research, creating new information, and remixing old information.

A third cornerstone is a system to coordinate the digitization of legal materials.

A fourth cornerstone is to agree to put our collection policies in writing and to share them with others publicly.

A fifth cornerstone involves making our own systems more efficient using back-office technology improvements.

A sixth cornerstone must be our process of developing our human resources. Librarians need to be change agents who listen and respond, all the while having a backbone.

If we start with the proposition that libraries must perceive their primary purpose as serving communities rather than building collections, then, as Palfrey observes "each law library is laying cornerstones for its own future." Like it or not, the "digital-plus" era is one where the law library, regardless of type, more narrowly focuses on its more immediate user population. Those law libraries with the sufficient resources available -- financial, technological and staff -- still contribute to the larger community but in substantially different ways now.

Palfrey's six cornerstones are "meant as suggestions, as provocations, as part of a process of articulating a full series of building blocks." His forthcoming LLJ article is best read in the context of Harvard Law School Library's revised collection development policy and it's likely impact on academic law libraries generally. See Digital-Only: The Shed West Era Has Been Officially Institutionalized in the Legal Academy.

Cornerstones of Law Libraries for an Era of Digital-Plus is not the sort of think piece just any old academic law library director might see published in LLJ, if submitted. But Palfrey inherits the mantle of academic law library leadership by virtue of the postion he holds at HLS. It's interesting to watch him grow into his position and apply his expertise to the field of academic law librarianship. 

As stated in a July 2008 post, I doubt Palfrey would meet the requirements of ABA Accredition Standard 603 (c) for law library directors ("A director of a law library should have a law degree and a degree in library or information science and shall have a sound knowledge of and experience in library administration.") but the ABA will not even take notice. It's HLS, after all. See A Standard is a Standard is a Standard Unless It's Not Enforced By the ABA ("As for John's appointment, I don't think our profession is so devoid of talented academic law librarians that HLS couldn't have found and hired one, but I think most academic law librarians would approve his appointment if given an opportunity to review it in [the context of making an appointment under "extraordinary circumstances" like the qualification issues presented in John's appointment]")

As previously stated in Digital-Only: The Shed West Era Has Been Officially Institutionalized in the Legal Academy, Harvard's revised collection development policy is not innovative but it is attention-getting. (Hell, even West stood up and took notice according to private communications I have had with folks in the land of 10,000 invoices.) Several other very innovative academic law librarians have promoted the cause of format neutrality in collection development for years, long before Palfrey's appointment, and many academic law libraries took the digital-only option in this "digit-plus" era in recent years, long before HLS Library's recently revised collection development policy made it "official." Like Harvard's revised collection development policy, Palfrey's forthcoming LLJ article, Cornerstones of Law Libraries for an Era of Digital-Plus {SSRN] is one for the "history books" and is well worth the time to read and think about. [JH]

WestlawNext Embraces the Kindle Platform

From the first issue of the free monthly WestlawNext email newsletter, NEXT.NOTES:

Read WestlawNext documents anywhere—send them to your Amazon Kindle

Documents, KeyCite results, and result lists can now be delivered from WestlawNext directly to your Amazon Kindle. Click the arrow next to the delivery icon and choose Send to Amazon Kindle. Type your Kindle e-mail address in the Kindle Email Address text box, then click Send.

Well, it's not (yet) the iPad but it might be a start down a "trail of breadcumbs" (to quote TR CEO Tom Glocer) that leads to a moderized user interface for electronic legal resources. See Is the iPad Setting the Stage for the Wider Adoption of the Touch-Screen Interface? and The Window of Opportunity for UI Development is Open: Who Will Create the Better Mouse-Trap for Using Secondary Legal Resources Online? [JH]

2011 US News Law School Rankings Officially Published

Leaked two days ago, the 2011 US News Law School Rankings are now officially published. Law prof office hours officially canceled for the rest of the week.

Meanwhile Northwestern Dean David Van Zandt, one of the most well-known proponents of law school rankings, offered the following about the US News rankings in an Above the Law post, Rankings Are Valuable (And Here to Stay); So Let’s Focus on Making Them Better:

We need to keep in mind that our applicants are sophisticated and have the ability to give the rankings the appropriate weight in their decisions. For many prospective students, the rankings offer a starting point to begin the extensive process of researching undergraduate or graduate/professional programs. But serious applicants are not going to rely solely on rankings as a basis for their decision. They likely will use the rankings information in tandem with information gained through campus visits and individual research.

But, is the US News ranking methodology too simple? (WSJ Law Blog post on Dan Solove questioning the peer assessment ranking method at How to Fill Out the US News Law School Rankings Form.See also Solove's follow-up post, Robert Morse’s Response on the US News Law School Rankings.)

Dean Van Zandt, by the way, was ranked one of the three most influential legal educators of the decade by the National Law Journal recently. [JH]

What Would You Like to See Added to HeinOnline?

Hein invites your opinions about the level of priority you would assign for seeing the following resources included in HeinOnline

• State Attorney General Reports & Opinions
• Congressional Serial Set
• Census Historical File
• Social Security and Health Care Reform
• British Statutes
• Native American
• Case Law
• Intellectual Property
• International Trade

The Company also invites any additional feedback about adding new collections or adding new material to collections already available. Click here to take the brief survey. [JH]

Top 10 Moot Court Rankings for 2009

As compilied by Brian Koppen's Law School Advocacy, here's the Top 10 Moot Court Rankings for 2009:

1. South Texas
2. Texas Tech
3. Loyola - Chicago
4. John Marshall - Chicago
5. California - Hastings
6. Seton Hall
7. Columbia
8. Chicago-Kent
9. WUSTL
10. Michigan State

Reported here along with the top ten rankings for 2007 and 2008. The complete 2009 rankings are here. Ranking methodology here. Congratulations to all and particularly to South Texas which has earned the top ranking three years in a row now.

Hat tip to Legal Writing Prof Blog. [JH]

LOC Acquires the Twitter Archive

The Library of Congress has announced that it has acquired the entire Twitter archive.  Then again, they have Jacqueline Susann and Harold Robbins novels in the collection, so who is to question Twitter.  That's something like 50 million tweets per day back to whenever.  It's a good thing server space is cheap.  The information is from the Library of Congress blog, here.  [MG]

NYLS and Harvard Sponsor Conference on the Future of Law Schools: Some Thoughts

There are a number of stories in the press lately about the place of law schools in society, some driven by reports on the law school conference held last week at New York Law School, co-sponsored with Harvard, called Future Ed: New Business Models for U.S. and Global Legal Education.  The major theme, at least as reported in the National Law Journal, revolved around the disconnect between a law school education and the practical skills a newly minted lawyer needs to serve their client's needs and make their way through the court system.  It's one thing to know the legal requirements for a will to be valid.  It's another thing to write a document that will withstand a challenge in probate court. 

Some of this dovetailed off into the usual discussion that newly-hired associates are not capable of handling a firm's business.  It's sort of the bar review in reverse:  students take law school classes for three or four years as a prerequisite to bar review which teaches them how to take the bar exam.  Once past that hurdle, associates spend nearly as much time apprenticing at a firm before being let loose with a client's matters.  The academic librarians are aware of this from anecdotal comments from their firm counterparts, that new hires don't have a clue on efficient research techniques.  It's one thing to research in an academic environment where time is not of the essence, and another to bring an awareness and skill set to an environment where time is literally money.  And not just that, but a lot of money.

One of the fears I have with WestlawNext, for all of its shiny goodness at organization, helpful tracking and storage features and thesaurus is that students will be fooled by the Google-like interface into believing that the machine will produce the answer with little effort.  One thing I see in a lot of electronic training is the emphasis on technique and awareness of database features and hardly any on analysis of the actual legal problem at hand in the results, except to show that they are related in one form or another to the search.  It's as if we expect the students to make that obvious connection on their own based on their substantive legal training.  I'm not sure they always make that jump.  If WestlawNext (or Lexis) hands me 106 cases, it still hurts my head to scan 106 cases for the answer or a synthesis thereof.

Getting past that side note, the basic idea is to get law schools to take on the cost of bridging the gap between an understanding of the law and the implementation of it as a business practice.  The law firms understand the economics of on the job training and are starting to reject it, what with deferred hirings and layoffs.  Just recently Mayer Brown tersely announced a third round of layoffs with 28 associates and 47 staff let go.  Times may change as the economy improves, but the likelihood of firms wanting to assume the costs of training law graduates to be lawyers will be smaller after the current experience. 

So what to do?  NYLS Law Dean Richard Matasar wants the conference, one of a series of events to designed to attack the problem, to start a dialog that will produce concrete solutions.  Good luck with that.  Students take 90 hours of classes before they can qualify for the bar examination.  Imagine adding time to that, or forcing faculty to teach a practice component.  There is the difference between teaching the lofty ideals of the legal profession compared to the trade practices of the law business.  The legal academy simply doesn't operate that way, even with law clinics and trial advocacy classes as part of the mix.  I've worked at law schools where practitioners on the faculty were at war with the theorists over what should be taught in the curriculum.  It's an unpleasant experience for everyone.

The X-factor in all of this is the viability of a law career compared to the costs of law school.  There is a point where potential law students will accurately assess their chances of landing a job out of law school that will actually cover their ability to pay for it.  If law school applications start to drop, and that doesn't seem to be the case for now, that may motivate schools to reform where they compete on a combination of skills training and placement.  Maybe the economic upheaval in the law trade (yes, I'm calling it that) may force the change in professional training.  It may not be ideals that killed the beast, it may be the need for a paycheck.  [MG]

Your WestlawNext License Can Be Just Like Your Westlaw License. Part III: Is That Enough?

Unfortunately the West rep is a bit of a marked man or woman. In addition to the substantially less than "rock-solid and sharp" WLN pricing information generated by TR Legal's marketing debacle, the backlash from the unrelenting 12-13-14% nominal annual price increases from the print side of the business during this economy can make WLN a very tough sell for that so-called "modest premium." Institutional buyers are asking some tough "what does WLN really cost" questions. 

Getting on the Same Page. About these earlier days of WLN, one has to wonder, as Greg Lambert did in a comment to one of his posts, "It would seem that either the local reps are "making it up as they go" or the overall goal for pushing out WestlawNext is to be vague and confusing on pricing, but rock-solid and sharp on the presentation of the product."  I'm sure all account reps will be on the same page eventually.

Our job as institutional buyers, of course, is to also be on the same page. While TR Legal might like that page to be hand delivered to law librarians by their sales force with price quotes in hand, having clear, precise, information for WLN negotiations with your rep is the responsible way to conduct business, particularly with a company that wants to be your business "partner."

Can TR Legal provide a reasonable and rational estimate for the WLN premium based on your existing contract that is supported by providing complete usage data for the past 12 months should you ask? I don't see why not. Because you can craft licensing agreements for WLN similar to your existing Westlaw ones, the Company has a wealth of usage information to base WLN cost estimates on. Another way to state this is: if TR Legal can bill you, they should be able to provide good estimates for you under a WLN license that's similar to your Westlaw plan, and they should be able to do that whether your institution blocks or does not block access to out-of-plan resources because out-of-plan WLN pricing has been established.

There is of course one big assumption here, namely can you compare Westlaw apples to WestlawNext apples or has TR Legal changed the offerings to such an extent that this is impossible? Offerings may have changed but my hunch is there will be enough apples to compare. If so, the big question is, will TR Legal provide the usage data with the specificity needed to make informed WLN decisions so both vendor and institutional buyer are on the same page?

Instead of cost projection modeling to decide what you want in your WLN plan, whether you want to increase or reduce your plan's scope based on past database usage, and whether you want to block or not block out-of-plan resources, I expect one is more likely to hear from West reps something along the lines of "it's probably going to cost you X percent more (or between $X and $Y more per user account) for WLN and here's a couple of options to consider -- add this to your plan, subtract that from your plan, etc." In other words, the hand-delivered, one-sided page from TR Legal that doesn't really take into account the feature that makes WLN most interesting, namely its new search engine and whether it has any potential utility for end users at the institutional level without having to pay an arm and leg to find out.

If I was a law firm librarian working in a firm where there was absolutely no client-push back on online cost recovery, I might say, "hey, no problem, here's a blank check, give me all of WLN based on our current plan and we will see what happens with out-of-plan charges." But those days are waning. More likely I would be saying "we've got a problem here because our clients have wised up to fact that we have been TR Legal's retail outlet by passing on online search charges to them."

Wouldn't It Be More Beneficial IF. I've seen WestlawNext. I like it's across-all-resources feature (OK, like some others, I'm really disappointed that there has been no substantial improvement in secondary source usability ...). I would like to know if our library's current Westlaw plan which blocks access to out-of-plan resources could someday be replaced with one that takes advantage of WLN's search engine. I would like to expand or reduce in-plan resources to reflect database usage based on a cost-benefit analysis and budgetary contracts in a timely manner. So here's my WLN checklist (and in some instances, wishlist) for conducting business in a way that may be more beneficial for everyone -- vendor, buyer and end user -- before, during and after WLN negotiations have concluded:

1. Let WLN loose for a reasonable temporary access fee and time period -- all 40,000 databases with institutional buyers having ready online access to usage-by-database and by login during this period.

2. As this trial period is coming to a close, let institutional buyers select plan components and pricing scenarios for some cost modeling estimates. Eventually, vendor and buyer will reach some agreement on in-plan resources with or without out-of-plan blocking based on institutional usage of WLN's search engine.

3. Let there be near real-time usage-by-database and login reporting online during the term of the agreement so buyers can make informed evaluations on the decisions they have made.

4. If out-of-plan resources are made available, let the buyer have the option to select which ones - some or all. Most definitely West will offer deep discounting off its listed pricing schedules for out-of-plan resources but some buyers still may want to exclude some out-of-plan resources.

5. Let there be real-time cost messaging for accessing out-of-plan resources under the terms of the license so a researcher can make a cost-benefit decision before deciding to view a document based on what it will actually cost, not just that it will be an additional cost

6. Let there be an itemized expense statement at the conclusion of the search session so the researcher is informed what his or her WLN search session cost.

7. Let the institutional buyer decide at the user account level who has and who does not have privileges to access out-of-plan resources.

8. Let the institutional buyer decide whether a one year license or a multi-year license with or without optional second and third years is most suitable for the instiution.

My bottom line is maybe your WestlawNext license should be something much more than what your current Westlaw license is and WLN negotiations should proceed in a substantially more constructive manner than Westlaw negotiations have in the past. [JH]

Earlier posts in this three-part series entitled "Your WestlawNext License Can Be Just Like Your Westlaw License:"

Part 1: You Can Block Out-of-Plan Resources for WestlawNext

Part II: Downplaying the Ability to Block Out-of-Plan Resources for a Cross-Database Search Engine in WLN Marketing

2011 US News Rankings Allegedly Leaked

Abovethelaw.com is reporting a leak in the 2011 US News law school rankings.  The leaked rankings have not been confirmed by US News yet, so you need to take them with a grain of salt.  According to the post, the overall top five law schools are listed as:

1. Yale (no change from last year)
2. Harvard (no change from last year)
3. Stanford (no change from last year)
4. Columbia (no change from last year)
5. U of Chicago (up from number 6 to replace NYU in the number 5 spot)

The unconfirmed rankings can be found on a flikr stream at http://www.flickr.com/photos/49285543@N07.(VS)

GAO Report Says Economic Effects Piracy of Goods and Files Can't Be Measured

The Government Accountability Office issued a report yesterday that will likely shock the content industry.  The report is called Observations on Efforts to Quantify the Economic Effects of Counterfeit and Pirated Goods (GAO-10-423).  The shock comes from two points in the report.  One is that because piracy of goods is illegal, the actual costs to industry are hard to measure.  There is no doubt that industry suffers when someone buys a counterfeit expensive watch.  The circumstances of that transaction, however, have some effect on how much industry would suffer.  For example, if the fake Rolex is sold at a pittance of the cost of the real thing and the consumer knows it is a fake, it's not likely industry should count that as a lost sale opportunity.  The problem is that industry tends to do exactly that when compiling sales statistics for the government. 

A lot of mis-information has found its way into industry documents that were handed to Congress and executive agencies, who then use that information depending on what the agenda happened to be.  GAO did the study as mandated by the PRO-IP Act passed in 2008, and attempted to find real figures.  The problem was so complex that the GAO basically said the economy-wide impact of counterfeiting and piracy is unknown.  The office reviewed past studies, examined their assumptions, talked to agencies and departments who cited data, and industry sources.  The GAO found that studies conflicted with each other regularly, that agencies (though not all) abandoned using bogus figures derived from industry sources for lack of verification, and that even industry sources couldn't verify the figures.  Whether true or an act of kindness, the GAO said that some industry participants were reluctant to talk about the problem for fear of identifying how big it actually was.  I'll just respond to that by suggesting these same participants seem not to have difficulty with scope and numbers when trying to influence legislation.

The second shock came when the report identified some positive aspects of piracy.  Sometimes, a pirated movie, for example, creates a buzz for the real thing and may spur sales of tickets or DVDs.  Some industries benefit because certain aspects of piracy spur demand.  The study suggested that ISPs and equipment manufacturers would get more business due to a need for larger and faster digital download opportunities.  While that may not soothe those who run the RIAA and the MPAA, it may explain some of the reluctance of AT&T and some of the other telecoms to perform deep packet inspection of content over the wires or send along infringement letters to customers on behalf of content creators.  If one of the complaints against Google is that it makes money from piracy by displaying ads against books it has scanned, what about the connections that content travels over?  I don't think that is the message some industry members want to hear.

There were even notes of positive effects on consumers.  One industry concern was the loss of intellectual property more than sales.  An offending party may actually improve on the counterfeit goods and compete legitimately in the after market. 

The report is candid in the how it described the effort to pin down the costs of counterfeit goods and digital piracy.  copies are available here.  Anyone interested in how the content and consumer goods industries represents themselves in efforts to get governments to aid them against illegal goods will find the report fascinating.  A copy of it is here.  Bill Gates reportedly said this ""Although about three million computers get sold every year in China, people don't pay for the software,  Someday they will, though. And as long as they're going to steal it, we want them to steal ours. They'll get sort of addicted, and then we'll somehow figure out how to collect sometime in the next decade."  Maybe Bill was on to something.  [MG]

The Constitutional Issues of Cloud Computing

There is an interesting read on The Red Tape Chronicles blog about groups who are trying to lobby changes to the Electronic Privacy Communications Act of 1986 so that the law is

"technologically neutral," meaning that search and seizure requirement would apply uniformly, regardless of the technology involved. That would mean a private communication -- be it handwritten or electronic -- would be governed by the same rules of evidence gathering.  They also want to clear up inconsistencies in the application of federal law. Currently, in some cases, there's a lower legal standard for law enforcement to intercept an e-mail in transit than for that same agencies to read an e-mail stored on a recipient's computer.  In other words, a single e-mail can be governed by various different legal standards during its life-cycle.

[BA]

Twitter Launches "Promoted Tweets" to Generate Ad Revenue

Twitter has answered the question about how the Company is going to earn money. Twitter is selling keywords to advertisers to produce "promoted tweets" (read ads). Promoted tweets will launch today to about 2 percent to 10 percent of Twitter users. Initially, promoted tweets will appear only on searches conducted on Twitter's website but this appears to be just the first phase of Twitter’s revenue plan. From Twitter co-founder Biz Stone's blog post:

Before we roll out more phases, we want to get a better understanding of the resonance of Promoted Tweets, user experience and advertiser value. Once this is done, we plan to allow Promoted Tweets to be shown by Twitter clients and other ecosystem partners and to expand beyond Twitter search, including displaying relevant Promoted Tweets in your timelines in a way that is useful to you.

Sounds like tweet spam to me if promoted tweets will be appearing in a user’s Twitter stream, even if a user did not perform a search and does not follow the advertiser. Read more about it: Twitter Unveils Plans to Draw Money From Ads (New York Times), Full Details On Twitter’s Long-Awaited Ad Platform: Promoted Tweets (TechCruch) and Twitter Has a Business Model: 'Promoted Tweets' (Ad Age). [JH]

Is the iPad Setting the Stage for the Wider Adoption of the Touch-Screen Interface?

TR CEO Tom Glocer does not discuss the iPad in the context of legal publishing but does have this to say about his new iPad generally in his recent iPad and Beyond post:

What the iPad represents for me is a trail of breadcrumbs along a path to the future of media.  Sure, even the Day 1 version out of the box is cool, functional and performant. But what is really exciting to me is the direction that Apple is pointing. What will the son or grandson of iPad be like?

Like Glocer, another albeit a wee bit smaller legal publisher, Jason Wilson, has some initial thoughts about his new iPad. See And now a brief word about the iPad.

So where may the iPad's trail of breadcumbs lead? In her contribution to the New York Time's blog post entitled The iPad in the Eyes of the Digerat, "Reading in More Dimensions," Liza Daly, a software engineer who specializes in applications for the publishing industry, writes:

A truly modern e-reader is one that is intimately connected to the Web and allows a user to make queries as a series of asides, while reading or after immersive reading has ended.

The shape and size of the iPad is appropriately personal, and its uni-tasking connectivity allows for the cacophony of the Web to be just slightly dampened. It’s an attractive platform. No e-reader software fulfills this vision just yet, but the stage is set.

Davide Gelernter, a computer scientist who focuses on iPad's touch sceen functionality in his contribution to the New York Time's Room for Debate Blog post titled "The Future Beyond the iPad" writes "The iPad (though it’s beautifully designed and lots of fun) is transitional, like vinyl LPs (but likely to be much shorter lived)."

When a Pad becomes the standard desktop screen, you’ll buy a desktop computer and grab the screen whenever you happen to need a Pad. Which, in the long run, is never — except as a remote control for an entirely different sort of computer. ... Touch-screens will ... be optimized to a different set of finger-motions.

Tim O'Reilly writes "If the iPhone didn’t tell us that the 25-year reign of the mouse and windows user interface popularized by that original Macintosh was soon to be over, the iPad shouts it loud and clear" See his "The End of the PC Era," contribution to The iPad in the Eyes of the Digerati.

Will eReaders be combined with Search as Daly suggests? Will the touch-screen be optimized for a form changing functionality for large-screen computing as Gelerner forecasts? Is an interface evolution in computing underway as O'Reilly believes? If this is the potential of touch-screen computing, it just might be the way legal resources will be delivered electronically in the future. In the context of legal publishing and database searching, particularly with respect to secondary source material, it most definitely has the potential of improving usability. Will very large legal publishers or much smaller ones lead the way? 

BTW, refer a friend to TR Legal's final WestlawNext Preview Breakfast in Los Angeles on April 20 and you may win an iPad (or Kindle). [JH]