Law Librarian Blog

Google CEO Eric Schmidt's Top 10 Reasons Why Mobile Is #1

InformationWeek's Bob Evans lists Google CEO Eric Schmidt's top 10 reasons why "the answer should always be mobile first." Schmidt's top two reasons given are personal carry-with-you connectivity and the information explosion.

1) The Fundamental Connection. "But getting back to this question of information overload: what is fundamentally different now is everybody knows what's going on exactly now: one way to express that is to imagine for a moment—everybody here has a digital device? Turn it off. Turn it off right now. What if I just take it away from you? (Pauses a few seconds while gazing out at audience.) That's something pretty profound—your connectivity to that whole world—your personal world, your professional world, and so forth—that connection is so fundamental to people's lives today, whether it's personal or professional—that's not gonna happen."

2) The Information Explosion. "We want to enable that to be more organized. And so if you think about the information problem—interesting statistics: between sorta the birth of the world and 2003, there were five exabytes of information created—that's the total over that period. In the last bit, we create 5 exabytes every two days. So plot that curve and now you see why it's so painful to operate in these information markets. The information explosion is so profoundly larger than anyone ever thought—I certainly, it's larger than anything I ever thought—but that's what this opportunity creates."

[JH]

PACER News: The Good and the Bad

Two items of note in the most recent PACER Center Newsletter.  The first is this reminder that the courts are not keen to see PACER content out in the wild:

PACER Policy Reminder

Public Access to Court Electronic Records is supported by user fees.  Any attempt to collect data from PACER in a manner which avoids billing is strictly prohibited and may result in in criminal prosecution or civil action.  PACER privileges will be terminated if, in the judgment of judiciary personnel, they are being misused.  Misuse includes, but is not limited to, using an automated process to repeatedly access those portions of the PACER application that do not assess a fee (i.e. calendar events report or case header information) for purposes of collecting case information.

Does this mean that the Firefox Recap plugin that harvests PACER documents for free access is misuse?  If I remember correctly, PACER operates at a hefty profit for selling "Public" documents.

An on the positive side, PACER is replacing its access system with one that will encompass all the federal courts with one login, rather than the current system that only logs in to the local jurisdiction.  The new interface is at http://pcl.uscourts.gov.  A PACER login ID and password is required to get past the first screen.  After all, PACER is supported by user fees.  More details on enhanced features in the new access are available from the April, 2010 PACER Newsletter (free access, he notes with some sarcasm).  [MG]

Friday Fun: It's That Time of the Academic Year, So How Do Law Profs Really Grade Exams?

A scene from LSU Law Assault and Flattery 2009. For crim law exams, here's a video to "help students and profs remember some essential concepts." Hat tip to Dan Markel on PrawfsBlawg. [JH]

Kudos to Hein's President, Kevin M. Marmion

Today marks the 40-year anniversary of President Kevin M. Marmion’s employment with William S. Hein & Co., Inc. Marmion literally worked his way up from the bottom of the Company beginning as a part-time warehouse employee in 1970 while attending high school. In 1996 he was promoted to President and became responsible for all aspects of the day-to-day operation of the company. Under his watch as President, HeinOnline was launched in May 2000, the most successful product in the Company's history. For more see, William S. Hein & Co., Inc. Honors Kevin M. Marmion, President, For 40 Years of Dedicated Service. [JH]

Much Ado About (Almost) Nothing: Criticism of Findlaw Network Blogs

"When Findlaw.com launched 15 hyperlocal, news-based blogs last winter, the legal blogosphere took note—and aim—at the alleged “spam blogs.'" writes  Rachel M. Zahorsky for the ABA Journal in Bad Blogs? Lawyers blast FindLaw offerings as spam. Some snips:

The blogs—which don’t allow reader comments—are presented as local legal news websites and are not intended to serve as a platform for legal discourse, according to Thomson Reuters. But [New York City-based lawyer and author of New York Personal Injury Law Blog Eric]  Turkewitz and fellow bloggers condemn the blogs for regurgitations of local accident reports and cases, followed by calls to action advising readers that an attorney may help them recover personal injury claims, and links to a list of lawyers that pay FindLaw for its marketing services.

...

FindLaw also found itself under fire for hiring nonlawyers as blog writers, the company says its blogs are just meant to augment the more than 1 million pages of free legal information it offers.

However, the value of the news provided is questioned when, as Turkewitz points out, a post’s author confuses civil and criminal legal terms, which is what one nonlawyer “writing specialist” did in a post on the Philadelphia Personal Injury Law Blog.

OMG, They're Just Blogs. I hope the folks in the land of 10,000 invoices notice that I'm actually, finally, able to write something positive about TR Legal. The Findlaw Network Blogs are just blogs for heaven's sake. The half-life of any given blog post is what, 24 hours? An noted in our analysis of TR's 2009 financial results and 2010 outlook, one bright spot in TR Legal's 2009 financial performance was that Findlaw's full-year revenue was up 13%. If TR wants to use this medium to its advantage, so be it. File under "much ado about (almost) nothing."

Speaking of regurgitations, when was the last time you saw an ABA blog post publish original content? [JH]

Historical U.S. Tax Statistics Now Available in Wolfram|Alpha

Hat tip to ResourceShelf for calling attention to the availability of IRS-sourced historical tax statistics in Wolfram|Alpha. About C. Allan Joyce's Wolfram|Alpha Blog annoucement, the ResourceShelf writes that "the blog post contains what appears to be all the data you need to get a basic understanding of what’s available short of hiring a C.P.A. or finance professor. Make sure to give it a read." [JH]

Amazon Sues North Carolina Over Tax Collection

Amazon isn't giving up without a fight in handling North Carolina's attempts to get the company to collect sales tax.  Amazon filed suit in the Western District of Washington when North Carolina allegedly asked Amazon for state resident information in an attempt to collect taxes directly from them.  Yes, states such as North Carolina are strapped for cash to the point where it comes to something like this.  The first attempt to get Amazon to collect sales tax came when the state enacted a law that manufactured a nexus between the state and Amazon via the affiliates program.  Affiliates are those who advertise Amazon products on their web sites in return for a percentage of sales those ads generate.  Amazon wasted no time in throwing North Carolina affiliates overboard as a way to avoid collecting the sales tax.  If anything, North Carolina lost a little in tax revenue as those in-state sites will now generate a little less income.  Amazon claims the suit violates its and its customer's First Amendment and privacy right.

The Supreme Court held in the Quill v. North Dakota case (Opinion by Justice Stevens) that the only way a state could compel an out-of-state company to collect sales tax is if it had a nexus with the state, such as local brick and mortar stores or sales facilities.  Most Internet sites do not, unless they have a warehouse or other facility located in the state.  This opinion vexed states ever since.  Congress hasn't helped their cause as it declines to pass a law mandating an Internet sales tax collection. 

The Tax Foundation has a short list of similar litigation and the issues these cases present, here.  Coverage is in the Wall Street Journal.  [MG]

Worthless Updates Produced by "Editorial Staff" and the Implied Contract Between Legal Researchers and Publishers

"[W]e are living in dangerous times right now. The ideas of “print is dead” and “algorithms are meaning” seem to be pushing us to accept secondary material as bits of networked content that are influenced by tags, not people. The value of an author—a learned person—cannot be replaced by Wikipedia, Google, Shepards, or KeyCite" writes Jason Wilson in his commentary on the upcoming trial in Rudovsky v. West Publishing Corporation, Give me your money! (A comment on relationships.) More ...

The outcome of the dispute, while largely inconsequential to most practicing attorneys, raises some important issues about the implied contract between legal researchers and the publishers from whom they purchase content. Perhaps even more so with legal publishers who use their own editorial staff to update an existing product.

For more on the lawsuit, see LLB's 2009 post, Cold Comfort for West in "Sham" Treatise Pocket Part Ruling. [JH]

Crowdsourcing the Obituaries of Independent Legal Publishers (Or How Long Will the Last Remaining Ones Survive in a Duopoly with Oligopolistic Characteristics That at Times Adopts Intensely Competitive Behavior?)

Prompted by reading about Thomson Reuters' decision to close the last brick-and-mortar remnant of what once was the oldest legal publishing house in the US, namely Banks-Baldwin, Sarah Glassmeyer decided to produce a graph showing the shrinking legal publisher market. Here it is. Sarah writes:

I relied heavily on Ken Svengalis’ Legal Information Buyer’s Guide and the CRIV Publisher’s List (originally started by Rob Richards, who also helped point me in the right direction) to piece together the histories of these companies.  This is a beta release, meaning still a work in progress, meaning I hope there are not (but there probably are) some mistakes.  I hope to improve upon it in the future.  If you see any errors or additions that should be made, drop me a comment [to her blog post] or email.

Seeing Sarah's work, Greg Lambert writes "I thought I'd have a little fun and add in some of the other legal products that have also been gobbled up. It was a heck of a project, so I just did the Thomson Reuters mergers and put it out on a Google Docs page." He has since added one for Reed Elsevier mergers. Goggle Doc page for Reed Elsevier. See his accompanying blog post.

Long-time observer and commentator on the state of the commercial legal publishing industry, Ken Svengalis's May 19, 2009 powerpoint presentation to the Association of Legal Administrators, titled Legal Information: Globalization, Conglomerates and Competition--Monopoly or Free Market, lists in tombstone fashion, Thomson/West acquisitions since 1979, Reed Elsevier, 1979-date, and Wolters Kluwer, since 1994, at slides 6, 7, and 8 respectively.

Too bad Ancestry.Com is limited to human beings. Many old friends -- once independent legal publishers -- are listed by Sarah, Greg and Ken. Many titles gobbled up during this acquisitions binge are still alive but some are barely hanging on to existence because of their now poor editorial quality. 

Who's Left and How Long Will the Last Remaining Independent Legal Publishers Survive? I don't have my acquisitions bible at hand, namely the current edition of Ken Svengalis’ Legal Information Buyer’s Guide, so .... it might be an interesting and constructive crowdsourcing project to move behind the past to the present to determine which independent legal publishers remain and whether they offer products that might be as good or better than what we are buying now before their obituaries are written.

The last remaining large independent legal publisher worth noting in BNA. Hein & Company doesn't quite count because we are talking about publishing a large selection of primary and original secondary source titles but the Company could play a role someday. The rest of the market is made up of substantially smaller legal publishers that tend to focus on niche practitioner markets like James Publishing's litigation-oriented titles which largely center on state court trial issues, and Jones McClure Publishing's focus on large-market state jurisdictions (e.g., Texas and California) with some federal titles.

It is very rare indeed, but I can think of one author who left his WEXIS publisher to self-publish a later edition of his work because of the author's dissatisfaction with working with that publisher. Self-publication is probably not the way to go but there may be more WEXIS authors ready to move to a viable independent legal publisher. The question is, under current market conditions, who is viable?

One has to wonder how long many of these smaller legal publishers will survive without banding together into some sort of legal publishing cooperative to pool limited resources, offer one-stop shopping by way of a consolidated sales catalog, attract authors, reduce printing costs, finance innovative technology in an increasing digital text marketplace, and expand marketing and sales. See Open Access in a Closed Universe: Thomson Reuter, Reed Elsevier, Wolters Kluwer and the Monetization Opportunities of Distribution Channels in the Legal Information Marketplace. Perhaps they can call this joint venture, Lawyers Co-op .... oh, wait ... perhaps, NextLawyersCo-op.

Will anyone provide the capital for some sort of joint-venture? BNA? Hein? Or will many of the remaining small publishers finally submit to the overpowering force of repeatedly made buy-out offers from the likes of TR Legal and others large publishers? If they do, then Sarah's and Greg's graphs truly are works-in-progress. [JH]

Delaware Administrative Code Now Published in Authenticated PDF Version

Hat tip to beSpacific for calling attention to the availability of an authenticated PDF version of the Delaware Administrative Code. [JH]

Is social media the new crack?

Not yet, but according to this University of Maryland study, students feel like they're addicted to social media and report addict-like withdrawal symptoms when they can't use.  The premise of the Maryland study was to observe how students reacted when they were deprived of social media for 24 hours.

This new study conducted by the International Center for Media & the Public Agenda (ICMPA) asked 200 students at the University of Maryland, College Park to abstain from using all media for 24 hours.  After their 24 hours of abstinence, the students were then asked to blog on private class websites about their experiences: to report their successes and admit to any failures.

Here's a summary of the study's major findings:

1. Students use literal terms of addiction to characterize their dependence on media.
   “Although I started the day feeling good, I noticed my mood started to change around noon. I started to feel isolated and lonely. I received several phone calls that I could not answer,” wrote one student.  “By 2:00 pm. I began to feel the urgent need to check my email, and even thought of a million ideas of why I had to. I felt like a person on a deserted island…. I noticed physically, that I began to fidget, as if I was addicted to my iPod and other media devices, and maybe I am.” 
2. Students hate going without media.  In their world, going without media, means going without their friends and family.
   “Texting and IM-ing my friends gives me a constant feeling of comfort,” wrote one student. “When I did not have those two luxuries, I felt quite alone and secluded from my life. Although I go to a school with thousands of students, the fact that I was not able to communicate with anyone via technology was almost unbearable.” 
3. Students show no significant loyalty to a news program, news personality or even news platform.  Students have only a casual relationship to the originators of news, and in fact don’t make fine distinctions between news and more personal information. They get news in a disaggregated way, often via friends.
   “Although I will admit I do not actively keep up with breaking news every day I do get a lot of information on a daily basis through social networking, text messaging, and websites such as Gmail, where it does have headlines on the homepage. It is very important to me to have some sense of what is going on in the world on a daily basis, but I also focus in on issues that I do care about, and I keep up with that particular issues progress. For example, the Equal Rights campaign, or local and global environmental organizations, whose progress I follow via Twitter, Facebook or their websites.” 
4. 18-21 year old college students are constantly texting and on Facebook—with calling and email distant seconds as ways of staying in touch, especially with friends.
   Said one student,”Texting and Facebook allow me to make plans to meet up and act socially, whereas without these two devices I had no easy way of making plans unless I happened to run into the person I wanted to do something with.” 
5. Students could live without their TVs and the newspaper, but they can’t survive without their iPods.
   “It was really hard for me to go without listening to my iPod during the day because it’s kind of my way to zone out of everything and everyone when I walk to class. It gets my mind right. Listening to music before I go to class or take an exam is my way of getting amped up like a football player before a game. It sounds weird but music really helps to set my mood or fix my mood and without it I had to rely on other people to keep me in a good mood,” said one student. 

You can read the rest here as well as a synopsis with additional reporting from the Chronicle of Higher Ed, here.

(jbl)

Apple places one iPad buyer on "double-secret probation."

As new iPad buyers may know, Apple only allows you to buy two of the devices.  Whether that means "two at a time" or two in total, is not explicitly clear.  While it's probably the latter, in either case this is probably a temporary policy until the novelty wears off and demand returns to normal.  But that didn't stop this guy- a third year medical student - from trying to push the envelop by buying five iPads; four of which were for his gaming buddies overseas where the iPad had not yet been released. 

After his store sold out of the devices on his second or third trip, he placed an order for one more with a helpful store clerk.  A few days later he got an email from Apple telling him that his iPad had arrived.  Accordingly he went back to the Apple store to pick it up.  But when he handed over his credit card to pay, he was told by a clerk that he'd reached his "lifetime limit" of iPads.  Trying to get further clarification turned what was otherwise a routine trip to the mall into a Kafkaesque nightmare.  Apparently Apple maintains a secret blacklist of customers who have been banned for life from buying another iPad.  Not only is the list secret, but so is Apple's policy for placing names on it and getting them removed.   

Think Patrick McGoohan from the TV show the Prisoner and you've got the right idea about the conversation that ensued: 

Apple clerk:  “I’m sorry sir, but you have reached your lifetime limit of iPad purchases and will not be allowed to buy any more.”

Customer:  "Is the iPad limit per person? Per credit card? Per household?”

Apple clerk:  “All I can say is that you have reached your lifetime limit.”

Customer:  "What does that mean? Can I use a different credit card to buy it? I’m buying this for a friend.”

Apple clerk:  “You are not allowed to buy this iPad.”

Customer:  "Uhh… is it ok if I have a family member or friend come to buy it for me? My reservation doesn’t expire until 6:00 PM.”

Apple clerk:  “All I can say is that you have reached your lifetime limit.”

Customer:  (suddenly realizing what he’s saying) — “Wait, what? Lifetime? What does that mean?”

Apple clerk:  “All I can say is that you have reached your lifetime limit of iPads and will not be allowed to buy any more.”

Customer:  “I’m banned from buying iPads? I know there’s a shortage right now, but I can’t buy any more once there’s plenty of stock?”

Apple clerk — “All I can say is that you have reached your lifetime limit.”

You can read the rest of the story here.

A big hat tip to my student Corey Friedman.

(jbl)

New Industry Report Shows Fair Use Worth Trillions to the Economy

The Computer and Communication Industry Association (CCIA) issued its own report on copyright, this time focusing on the value of fair use to the economy.  The figures show that as of 2007, fair use generated $4.7 trillion (yes, trillion) in revenue.  Fair use industry value added came in at 2.2 trillion, or 16.2% of GDP.  As described in the report, "value added equals a firm’s total output minus its purchases of intermediate inputs and is the best measurement of an industry’s economic contribution to national GDP."  Other figures highlighted is the number of jobs retained or created in an industry, some 17.5 million. 

The report uses statistics from WIPO, the Bureau of Labor Statistics, and the Economic Census from the Department of Commerce.  The appendices break out type of fair use by core and non-core industries and listed by NAICS codes and descriptions.  The value of fair use is further broken down by industry in tables.  Fair use in legal services, for example, generates some $254 billion in revenue.  How it does, I don't know and the report does not break down the figure.  It can't all be court reporters and copying services

There is licensed use for intellectual property, and piracy.  The middle is that grey area which is either fair use or unauthorized use.  Fair use may appear in §107, but the four factors listed are applied to determine what is and is not fair use.  They don't define fair use as much as guide a court in determining whether the defense is available.  Intellectual property rights holders tend to diminish fair use through digital rights management and got anti-circumvention rules written into law.  Think of MC Hammer's Can't Touch Me, best done on Family Guy.  The link here goes to YouTube, which have limited versions of the clip due, of course, to copyright restrictions.  Can't touch me indeed!

The report is interesting as it presents figures and breakdowns justifying fair use as an economic stimulus.  The numbers may be out there, but no more out there than what the content industry presents to Congress as losses justifying stricter content protection laws.  It's nice to see other industry heavyweights (Google and Microsoft are members) doing some lobbying on copyright.  It's not that the content industry doesn't have a problem with piracy.  They do.  However, Congress shouldn't deal with the problem in a way that benefits only the content holders.  There was supposed to be a balance in there somewhere.  If I remember the terms in the Constitution, the purpose of copyright is "To promote the Progress of Science and useful Arts," not to promote the progress of Disney or Viacom. 

The report is here.  [MG]

HouseLive.gov Launched: Video Feeds from the House of Representatives Floor Proceedings

The House of Representatives has launched HouseLive.gov Beta, offering streaming video feeds of the legislative floor proceedings. The site also hosts searchable and downloadable video archives going back to the start of the 111th Congress. The video archives are cross-referenced with the legislative floor proceeding summary so you can skip ahead in the video archive on any given day by clicking the part of the debate you are interested in according to the Speaker's announcement.. You can also subscribe to the audio or video feeds or create your own RSS feed by keyword. Hat tip to Sunlight Foundation.

Last month, 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. The congressional sessions and committee hearings are indexed by person with full-text. See the C-SPAN Archives About Page. [JH]

Thinking Ahead to LAW.GOV: On the Current Status of FDsys

James Jacobs, Government Documents Librarian, Stanford has posted his letter to US Deputy Chief Technology Office for Open Government Beth Simone Noveck on Free Government Information. The letter explains the need for and outlines a distributed system for the storage of digital content, or publications.gov, that would incorporate collaborative cataloging/metadata creation and a P2P technical infrastructure. Jacob writes

The ecosystem requires participation from all government agencies -- specially GPO and NARA -- FDLP libraries and the public. If this is achieved, this ecosystem will provide widespread access -- including to those on the other side of the digital divide -- long-term preservation, redundancy, information assurance and a robust mash-up environment to facilitate ongoing open government initiative.

For context, see the Inspector General's report on the status of FDsys at FDsys Status Report: Over Budget, Behind Schedule, Scope of Migration Reduced and GPO Focused on Fixing Deployed System. The GPO's own recently released FDsys Program Review offers "a much more sanguine view of the state of FDsys than the Inspector General report gives," writes James Jacobs in his Free Government Information blog post.. "Nevertheless, it does a good job of pointing out what GPO has accomplished, which is significant." The GPO report as noted by Jacobs, also identifies one critical risk to FDsys:

[T]here is risk associated with a delayed completion of the core system. Mitigation steps include maintaining sufficient investment to complete the core system and preventing loss of key resources resulting in more cost and time.

Thinking Ahead to LAW.GOV. With the latest Inspector General FDsys status report calling attention to the current status of GPO's FDsys deployment, Jacob's proposal has merit and deserves serious consideration. See his The State of FDsys and the Future of the FDLP blog post. Opponents of the LAW.GOV project could use the current status of the FDsys roll-out to illustrate in Congressional hearings why the federal government ought to stay get out of the digital document creation business and leave the electronic distribution of primary legal materials to the private sector unless advances are made in a timely and financially responsible manner. Being mindful that some major legal publishers may not want the federal government to become a better wholesale distributor of digital government information, let's remember the fundament purpose of FDsys and the far-reaching scope of the task at hand.

The purpose of FDsys is not to serve as a portal, but instead to provide access to official and authentic content from all three branches of the U.S. government on our site, and through links to official agency and partnering web sites. Our main system functions encompass publishing information, enabling searching for information, preserving the information, and providing version control.

Quoting from the GPO's FDsys Program Review. [JH]

Gavin on New and Free Federal Regulations Trackers

There's no need to try to keep track of on-going government domain developments when you can always rely on Peggy Garvin to do the work for you, accurately and in a timely manner. Her latest regular LRRX column reviews free, non-government resources that have recently come online to complement the official U.S. government regulatory information sites, RegInfo.gov and Regulations.gov. See The Government Domain: New & Free Regulations Trackers.

Some of the resources of special interest identified by Garvin include:

• OpenRegs.com,one of the first free online alternatives for tracking federal regulations, it offers RSS feeds of proposed rules with comment periods ending soon; recently opened comment periods; recently published final regulations; and recently published "significant" regulations;
• FedThread.org which allows collaborative annotation, advance full-text search features for the Federal Register (back to 2000) and customized feeds; and

Garvin also reports on the Cornell e-Rulemaking Initiative (CeRI)'s recently launched, RegulationRoom.org. a pilot project to test the online environment for public input in rulemaking. Check out the site's About Page. [JH]

Opening: Reference Librarian/Legal Research Instructor, Villanova Univ. School of Law Library

To provide reference assistance to faculty, students and the University community, Villanova Law School is seeking a Reference Librarian with particular interest and expertise in electronic information resources and service delivery. This Reference Librarian will be responsible for supplying sophisticated reference services incorporating both electronic and print sources. In addition, the Reference Librarian will be responsible for teaching in the Legal Research Techniques program for first year students and possibly teaching portions of the elective Advanced Legal Research course, as well as for conducting training sessions and miscellaneous class lectures, as needed. This librarian will join four other reference librarians in providing evening and weekend reference service and will participate in collection development.
 
Requirements for this position include a J.D. and M.L.S. from accredited institutions, in addition to a minimum of 2 years of law library reference and teaching experience, preferably in an academic setting, along with a strong service orientation, excellent oral and written communication skills and an ability to take initiative as well as to work collaboratively. Extensive computer experience is required, including facility with Westlaw, Lexis and Internet searching. Some knowledge of international and tax law is desirable.
 
Villanova Law School librarians are administrative employees with competitive benefits including annual and sick leave, medical and dental insurance, retirement programs, and tuition remission for employees.  Salary is competitive, based on experience.
 
Villanova University is an Augustinian Catholic liberal arts institution with liberal arts and graduate programs in the western suburbs of Philadelphia.  It is an equal-opportunity employer and invites applications from all interested persons.  Please submit resume, cover letter and contact information for three references electronically to: https://jobs.villanova.edu.

Supreme Court to Hear Violent Games Case

Making the news is the announcement from the U.S. Supreme Court on Monday that it will hear the challenge to the California law that bans the sale of violent video games to children.  The law never went into effect because its enforcement, as all others like it, was enjoined by a judge.  Federal courts around the country threw out cases filed by Illinois, Michigan, Louisiana, Indianapolis, and others on the basis that the games were protected by the First Amendment, that they come with ratings to alert parents, and that studies cited by proponents of the law were not conclusive in proving a link to aggressive behavior in children and the games.  The Supreme Court never reviewed these cases until now.

There is a lot of attention to the Court's recent decision that overturned a ban on animal cruelty videos as suggesting that the the ESA's track record would stand.  After all, if one can display cruelty to actual living things, how can one ban pixel-on-pixel violence?  But of course, the cases are not identical, especially when children are involved.  Movies have a rating system that keep underage individuals from seeing them, in theaters at least. That system, of course, is voluntary and not enforceable by law.  Professor Margaret Russell of Santa Clara University is quoted in the San Francisco Chronicle warning against a comparison of the animal cruelty video case and the game case.  The former was "really focused on how overly broad the law was, rather than the core content."  She goes on to say, though, "I regard the court's decision to examine the California violent video game law as another indication of its concern with the constitutional constraints on limiting expression, even if that expression is disturbing and controversial."

In many of the cases courts have rejected arguments that game violence is just like obscenity and should be regulated in a similar fashion.  There has been civil litigation and/or outcry when sexual content appears in games.  Grand Theft Auto: San Andreas had an explicit sex scene that was accessible through a hack known as the Hot Coffee mod.  What made that situation so egregious was the rating allowed teens to buy the game.  The game publisher, Rockstar, ultimately removed the scene from the game and issued a patch that disabled access in the first copies of the game.  That move preserved the original rating for the game.  Grand Theft Auto has appeared in criminal litigation via attempts by disbarred attorney Jack Thompson to link it to violent crimes and criminal defendants.  Despite garnering publicity for his position, he was not successful in getting a court to accept such a link.  More here from his entry in Wikipedia.  

The case will be heard next term, when a new Justice will likely have joined the Court.  Pundits suggest that the Court will side with the Entertainment Software Association, the gaming trade association that has litigated each of the game laws.  One never knows.  The Court has not riddled the First Amendment with exceptions similar to their treatment of, say, the Fourth Amendment.  I could see a rationale for games with explicit sexual content, but that would not account for games with purely violent content, the general target of legislation.  The danger with this thinking is violence is not limited to games.  Start here and who knows where this could lead?  Maybe Brian De Palma and Quentin Tarantino should file amicus briefs.  The First Amendment Center has a nice overview of law concerning violence and media, here, and ratings and labeling entertainment, here.  [MG]

Open Access in a Closed Universe: Thomson Reuter, Reed Elsevier, Wolters Kluwer and the Monetization Opportunities of Distribution Channels in the Legal Information Marketplace

While a bit dated in the reported financial data for legal publishers, Olufunmilayo Arewa's Open Access in a Closed Universe: Lexis, Westlaw, Law Schools, and the Legal Information Market, 10 Lewis & Clark Law Review 797 (2006) [SSRN] presents a still timely analysis of open access issues in the context of the structure of legal publishing industry as a whole, particularly, with respect to the increased pricing of commercial products since the consolidation in the legal information industry. Arewa writes:

[T]he online legal information industry can be characterized as a duopoly in which Lexis and Westlaw are the most important players. The organization of the legal information industry more generally has certain oligopolistic characteristics, including industry concentration and interdependence among several firms in which members have at times adopted intensely competitive behavior. Consideration of the print market does not alter the significant concentration that exists among legal publishers. The legal publishing industry is characterized by three major players: the Thomson Corporation, which owns Westlaw, Reed Elsevier, which owns Lexis, and Wolters Kluwer.

Industry concentration poses significant questions, according to Arewa, particularly in the current (that is to say mid-2000's)  environment of increasing electronic dissemination of legal information. Consumers of legal information, including commercial users, law school users, and the general public are considered in this article. This commercially-based digital era can be characterized as a "closed universe" when compared to the once open universe of print-based law library collections where anyone who wanted to access legal information could pull needed primary and secondary sources off the shelves after using readily accessible print-based research tools.

Arewa writes

The dominance of commercial publishers in the legal information industry has significant implications for questions of access. This is particularly true with respect to consumers who are not able to pay the prices charged by commercial publishers for their services. Concerns about pricing and access have become heightened in the digital era, at least in part as a result of the lack of an effective library through which information in digital databases might be accessed by the public in the manner of the public library during the print era. Consequently, access to legal information is a critical question in the current era in which digital information is becoming increasingly prevalent.

At the time Arewa was researching and writing her highly recommended article, the digital-only trend was clearly seen. The current economic climate has escalated its advance in this Shed West Era, perhaps more rapidly than some anticipated even five years ago. Today's hybrid era of print and digital legal materials in law libraries, outlined by Harvard's John Palfrey in Cornerstones of Law Libraries for an Era of Digital-Plus (LLJ, forthcoming) [SSRN] can be viewed in significant respects as a digital-closed - print-open universe today.

"Our information environment, now and in the foreseeable future, is best described as a world of 'digital-plus,'" writes Palfrey. The emphasis on acquiring monographic works in print remains but the foreseeable future also includes the distinct possibility of moving to an eBook licensing model driven by library economics and the need to serve a law library's primary, that is to say, institutional users first. Arewa's article was written before the marketing of DRM-eBooks had advanced to the stage it is now, so we might add that this latest development could substantially close the once widely open universe even more.

Expanding the Closed Universe by eBook Distribution Channels. Given the dominance of commercial legal publishers and the transition from the ownership to licensing model with its restrictive access requirements by law libraries, open access advocacy must also tackle the DRM-eBook issue because many users simply may not be able to afford to buy eReaders and pay the prices charged by commercial publishers for legal eBooks. As revenue for print sales declines and law students and legal practitioners start asking why they cannot read more law titles on their Kindles, iPads, etc., no doubt TR Legal, LexisNexis and Wolters Kluwer will maximize the monetization opportunities these device-based distribution channels offer.

In The iPad isn't a computer, it's a distribution channel, O'Reilly Radar's Jim Stogdill writes

the "content creating" laptop may go the way of the desktop PC, reduced to serving niche developers and content creators, while mobile and task-specific devices (with all of their constraints and beholden to a few large companies with contingent power over anything deployed to them) become the primary way people interact online.

"Anything deployed" includes eBooks and applies equally to ones sold by either Apple or Amazon. Essentially the eBook is on the web but without a URL. It is an app coming from a locked source like an online database that requires a login account.

Apple can use the device as the point of sale for content worth more than the device itself. The leverage is linked - the first leads to market presence, and then the market presence makes for stronger monetization opportunities in the device-hosted channel ... one that is intentionally constrained to be a delivery channel for content and applications from or via one company, Apple.

Again, Stogdill comments also apply to Amazon's Kindled editions. No doubt TR Legal, LexisNexis and Wolters Kluwer will find these locked down eBook distribution channels attractive once the negotiated pay walls have reach sufficient height. Casebooks, hornbooks, supplemented treatises, updated practitioner guides, topical codes, court rules, and even repackaged sections of multi-volume print continuations can be ported into the eBook distribution channel once publisher, not eBook distributor, controls pricing, something the major textbook publishers won in their battle with Amazon recently. In the context of law eBooks, this may likely include regular updating along the lines of the standing order or subscription model where licensed texts includes regularly billed updates to license holders.

eBook Access in the Law Library. At the moment, DRM is the single most important factor hindering eBook use for library patrons according to the 2009 Librarian eBook Survey conducted by Highwire Press. They prefer eBooks in PDF format and librarians prefer purchase with perpetual access as the most acceptable business model of eBooks. Law librarians have forsaken perpetual access to other legal materials in favor of licensed access. There is no reason to assume that this trend will stop simply because eBooks cannot be checked out at the Circulation Desk right now. 

In reality, Kindled and iPad editions are not completely device dependent. They are software based. For example, you can download an app to read a licensed Kindled text on a laptop or desktop.. Some day this may open the door for law libraries to acquire licenses for eBooks without the need to acquire eReaders but, if the past is prologue, one can expect restrictive access requirements to these distribution channels similar to current licensing practices for online legal databases.

Eventually, law libraries will be acquiring licensed access to eBooks made accessible in their computer labs, should they continue to exist, or on patron's laptops or eReaders for specified durations. Instead of sending overdue notices, either the law library, publisher or the distributor will pull the access plug at the conclusion of the lending period. While we might hope for the day when .txt is the new .mpg, when eText is DRM-free, it's more realistic to consider as something viable in the future semi-open access under a licensing model that allows law libraries to provide some form of limited duration eBook access to their user population. [JH]

"It has come to our attention that we are charging off considerable Westlaw costs due to Westlaw searches that can be run more efficiently..."

Greg Lambert reports about a BigLaw memo sent out to all associates mandating any associate that "utilizes or intends to utilize Westlaw" to attend a training session to learn the firm's "Best Practices" at Inefficient Westlaw Searches Causes One National Firm to Hold Mandatory Training for Associates. Unfortunately the firm's "Best Practices" are not identified but most law librarians have a very good idea. Greg writes

I'm actually glad to see that a firm has stepped up and created a "Best Practices" manual for using resources like Westlaw, and is using the professional staff in the library to do the training (rather than having the Westlaw rep come in and do it for them.)

Training is "supposed" to be an ongoing event for the firm, especially on a product like Westlaw that can be one of the biggest expenses for the firm. But, let's be honest... how many associates attend the weekly or monthly training sessions held in the library? Probably very few. What firms are left with then are self-taught associates that probably do not understand the difference between an in-contract search versus an out-of-contract search... or how cost recovery even works.

The need to attend training sessions could be reinforced by billing partners' phone calls to associates who just racked up huge Westlaw (and Lexis) search charges that had to be written off.

You Don't Want to be Called into the Billing Partner's Office Because of This Online Legal Search Session. Cost-efficient legal search instruction needs to start in law school. See Patrick Meyer's Law Firm Legal Research Requirements for New Attorneys, 101 Law Library Journal 297 (2009) [reported on LLB here]. Meyer's article reports on the findings of his 2007 survey of law firm librarians which identifies the most important law firm research tasks and the proper format or formats in which those tasks should be performed so that advanced legal research courses could be designed to prepare new law firm attorneys. Unfortunately it is almost utterly impossible for legal research instructors in the legal academy to demonstrate the actual cost of WEXIS searches to students but they certainly can provide detailed instruction about potential costs in the real world. 

Some local law firm librarians can provide redacted copies of pricing schedules for lectures on WEXIS licensing practices and may even be willing, eager in fact, to present a guest lecture on WEXIS costs and client push-back on billing WEXIS search charges. More than a few law firm librarian guest lecturers probably have horrors stories to tell they can illustrate in Powerpoint presentations. No doubt some guest lecturers can start their presentation off by saying "you don't want to be called into the billing partner's office because of the cost of this online legal search session." [JH]