January 13, 2010
Stuck in a Search Engine Rut?Michel-Adrien Sheppard (a/k/a Library Boy) is dead on when he writes "we don't like to admit it, but we all have a favourite search engine we use all the time, despite the fact that numerous studies show that the results from different search engines can be vastly different." He calls attention to Search Engine Land's 4 Comparison Search Tools You May Not Know About … But Should, observing "the article examines search tools that display results from different search engines side-by-side. It can be quite an eye opener to realize that not all search engines are the same. A good reminder to try more than one" in Tools To Compare Results From Different Search Engines. Also very helpful for those of us who get stuck in a SE rut. Also very useful for online literacy instruction. [JH]
CRS Report: Amendments Between the HousesIn Amendments Between the Houses: Procedural Options and Effects (Jan. 4, 2010), the Congressional Research Service explains how the House and Senate resolve differences between versions of legislation. Excellent for an ALR course reading assignment. [JH]
January 12, 2010
Defendant in File Sharing Case Asks For Retrial: Some Thoughts
Joel Tenenbaum, found liable by a jury in federal district court for copyright infringement by sharing files, last week filed a motion for a retrial and a reduction in damages. His lawyer, Charles Nesson, has characterized Tenenbaum's file sharing as the responsibility of the record labels to some extent as they made their product so tantalizing that he couldn't resist the file sharing services' ability to give him the music he wanted in the way he wanted it. That would be without any digital restrictions, without having to buy a complete album to get the one or two songs he actually wanted, and at a reasonable price point (free). This, as characterized by his lawyer, is how many of Tenenbaum's generation see the distribution of music and therefore should not be punished for uploading 30 songs via a file-sharing service, especially to the tune of $675,000 ($22,500) per song (pun intended). For Tenenbaum, as argued, getting the music the way he wanted to get it is a fair use. Though Tenenbaum had alternative and legitimate ways to acquire music, these are inconvenient compared to file sharing.
These arguments were actually considered by the Court when it filed it's Fair Use Memorandum and Order issued on December 7th:
An in-ground swimming pool that its owner has failed to fence off is perhaps the classic example. In this case, the defendant argues that the plaintiffs failed to “fence off” these songs from infringement, that the songs were highly appealing to him and his generation, and that he fell into the vast ocean of file sharing. It is an intriguing theory, to say the least, particularly because file sharing has been widespread among teenagers and students.
Unfortunately, this principle has no foothold in copyright law. Indeed, the idea that a copyright holder could lose the rights to his work precisely because of its popularity runs counter to the purposes of copyright. It would punish those authors and artists whose works are most attractive and pleasing to the public. As for the plaintiffs’ failure to encrypt, the Copyright Act makes plain that not even copyright registration, deposit, or notice is needed to legally protect artistic works. See 17 U.S.C. §§ 405(a), 407(a), 408(a). Requiring even more substantial affirmative steps by copyright holders, like encryption, would be inconsistent with these provisions. As a practical matter, it would be akin to the idea that the copyright holders of literary works must mount a campaign against the photocopier or scanner in order to preserve their legal rights. The ease of reproduction or transmission is simply not relevant to liability; copyright law is itself the source of protection.
Imagine if courts actually accepted this argument. Copyright holders would issue their works with such draconian digital rights management (as in, you don't have any) to meet a new legal requirement to pursue an infringement action. Digital natives, I'm sure, would be appalled, but they would only be getting what they asked for. What defendant and his attorney categorize as an attractive nuisance would easily become a very unattractive nuisance to all consumers. This may appear to be a drastic potential reaction by the labels, as in who would buy music under those circumstances. The alternative would be to legitimize file sharing of copyrighted materials. Somehow that would be more damaging to the labels' current business model. Moreover, it would probably force other copyright holders for other forms of intellectual property to consider doing the same with their content. There were reports at one time that Chicago Park District employees were preventing people from taking photographs of a large stainless steel bean-like sculpture called Cloud Gate located in Millennium Park because of copyright issues. These enforcement attempts included pictures of newlyweds married in the park near the sculpture. That enforcement no longer takes place as reason somehow prevailed, even in Chicago. We can be thankful in one sense that the Court is not likely to change views.
The brief seems to mischaracterize the fair use argument, stating that the Court has accepted the concept as applied to file sharing before a viable commercial alternative existed. The court did state that a possible fair use argument could be made under those circumstances, proposing that as a hypothetical argument rather than as a doctrine that could be applied in other file sharing cases. The Court sets the time for a viable commercial alternative as the appearance of iTunes in 2003. Defendant argues the time should be 2007, when companies abandoned DRM for commercial distribution of music files. This seems to contradict the the attractive nuisance theory. Should the labels encrypt their files? Should they not?
As to the damages being excessive, Nesson may have a point. Songs cost around 99 cents or so as legitimate downloads, and the inconvenient physical CD album presentation of a song is in the $1.50-$2.00 range. On the other hand, the $22,500 per song is below the statutory maximum of $30,000 per infringement. Given that range of damages as implemented by Congress, a reviewing court might not easily agree that the amount as assessed by the jury is excessive. The history of this case, the arguments presented in memoranda, briefs, and at trial, digital natives may just have to make do with things the way they are. Either that or they have to be a bit more careful about how they pirate copyrights. All documents are linked from the excellent Recording Industry vs The People Blog by Ray Beckerman. [MG]
Today is World's Fair Use DayToday is the first annual World’s Fair Use Day (WFUD), all-day celebration of the doctrine of fair use. WFUD will take place at the Newseum in Washington D.C. It is organized by Public Knowledge, a Washington D.C.-based non-profit, consumer-advocacy group that works to ensure that communications and intellectual property policies encourage creativity, further free expression and discourse and provide universal access to knowledge. Details including webcast here. [JH]
Turning Law School Accreditation Over to the Corrupt?
In a knee-jerk reaction to the the current labor market, Mark Greenbaum, a DC attorney and writer, calls on the federal government to consider taking steps to "stop the flow of attorneys into a saturated marketplace" in a Los Angeles Times opinion entitled No more room at the bench. He argues that the US Department of Education should strip ABA of its accreditor status because the "legal profession must be saved from itself."
According to Greenbaum, the ABA can't be trusted:
The ABA has ... refused to create and oversee an independent method of reporting graduate data. Postgraduate employment information generally provides the most useful facts for prospective students to study in deciding whether to go to law school.
In many cases, the data that schools now furnish are based on self-reported information, skewing the results because unemployed and low-paying grads are less likely to report back. Law schools do this because they want the rosiest picture possible for the influential rankings given by U.S. News & World Report. Despite its ample resources, the ABA has rebuffed calls to monitor the schools to get more accurate data, calling the existing framework an effective "honor system."
Alas, Greenbaum thinks the Department of Education should "give the authority to an organization that is free of conflicts of interest, such as the AALS or a new group."
Although the AALS is made up of law schools, it is an independent, nonprofit, academic -- not professional -- group, which could be expected to maintain the viability and status of the profession, properly regulate law schools, curtail the opening of new programs and perhaps even shut down unneeded schools. The AALS has cast a very skeptical eye on for-profit schools, compared with the ABA's weak hands-off accreditation policies.
Really? Unfortunately he defeats his own argument in his discussion of the ABA's accreditation task force:
Based on what happened with the accreditation task force, the ABA is not likely to force change; it is too intertwined with the law schools. ABA groups -- such as the task force, which was chaired by a former dean -- are stacked with school officials who have no incentive to change the status quo.
If law school officials working on an ABA task force have no incentive to change the status quo, can an association made up completely of law school officials be trusted? These are the same folks who fudge the employment data to game the US News law school rankings in what Leiter calls the "survival of the corruptest."
Accreditation Reforms. That won't work ... "or a new group" to quote Greenbaum.
How about a blue-ribbon commission of federal and state jurists chaired by the Chief Justice of the United States Supreme Court? Might work if site inspection teams aren't populated with members of the legal academy, if reported data is audited, if accreditation standards include real, standardized and measurable outcome metrics, and if law school administrators and law profs are held accountable to ethical and professional responsibility standards similar to those members of the bench and bar are. [JH]
New Features Added to THOMASSeveral new features have been added to THOMAS. To increase visibility and accessibility of the GPO's PDF versions of bill text, PDF links on the bill version listing page have been added. Very helpful as is the increased timeout interval for search results, from 5 minutes to 30 minutes. There's also a new bookmarketing and sharing widget, a new RSS feed for bills presented to the President and more. Details here. [JH]
Does Social Networking Negatively Affect Students’ Grades?
Apparently not, according to a new study by the University of New Hampshire School of Business & Economics. In Social Networking Usage and Grades Among College Students, 1,127students from all colleges at the university were surveyed.
"The study found no significant difference in grades between those considered to be heavy users of social media and those considered to be light users. For example, 63 percent of heavy users received high grades, compared to 65 percent of light users. Researchers found similar results with lower grades. While 37 percent of heavy users of social media received what were defined as lower grades, 35 percent of light users received fell into that same category. There also was no correlation between grades and the social media platform used. For example, almost the same number of heavy and light users of both Facebook and YouTube received the same category of high and low grades."
Now we need a study to determine the correlation of social media and work productivity. [RJ]
January 11, 2010
Here's a good idea: France considers a "right to forget law"
One of the unintentional consequences of the Web 2.0 is that once you, or someone else, has posted an embarrassing photo, gossip or other unwanted personal information, it's there forever. As a result, the French are considering addressing this problem with legislation known as a "right to forget" law.
A proposed law in [France] would give net users the option to have old data about themselves deleted.
This right-to-forget would force online and mobile firms to dispose of e-mails and text messages after an agreed length of time or on the request of the individual concerned.
Divina Frau-Meigs, Professor of American Studies and Media Sociology at the Paris Sorbonne University, believes the law would counter against unguarded communications becoming an official record.
"This debate is also connected to the right of presumption of innocence in many ways, so that people are not found guilty even before they start on life," she explained.
"People and young people need to be protected by the State so that there is fairness in the way this protection is established," she added.
A right-to-forget could protect an individual's privacy and stop them from being permanently held to ransom by unguarded actions from their past.
Hat tip the BNA Internet Law and News.
Barnes & Noble to begin offering textbook rentals to students
From the Chronicle of Higher Ed:
Barnes & Noble's college-bookstore division has entered the growing field of textbook rental for college students, the bookseller announced Monday. After testing the waters with a pilot program, the service has expanded. It will allow students to rent textbooks through campus-bookstore Web sites at 25 college campuses or through the Barnes & Noble stores on those campuses. Students can pay for the service in several different ways, including financial aid and campus debit cards. The rental service will compete with other lenders such as Chegg and CourseSmart.
Here's more from B & N's press release:
Barnes & Noble College Booksellers, LLC, a wholly owned subsidiary of Barnes & Noble, Inc. (NYSE: BKS), the world’s largest bookseller, announced today that it has created a multi-channel textbook rental program for college students that could result in millions of dollars of savings for college students across America. Barnes & Noble College is the first nationwide bookseller to offer a multi-channel program.
Barnes & Noble College has made the program easy for students, enabling them to rent their textbooks from the comfort of their dorm or home simply by logging into their campus bookstore’s e-commerce site. They can also rent from their campus Barnes & Noble bookstore. This innovative rental program gives students the added flexibility of paying for their rentals using any form of tender, including campus debit cards and student financial aid.
Hat tip to the Chronicle of Higher Ed.
Update - SCOTUS Limits Live Feeds Temporarily: Video Broadcasting of Propostion 8 Trial Set to Begin Today
Update: SCOTUS says "wait." The Supreme Court temporarily blocked the broadcasting of the trial except to other rooms with the confines of the courthouse where to the trial is being held to give it more time for further consideration of the issue. Justice Breyer dissented stating that based on the record before the Court, wider broadcasting of the trial did not show a likelihood of “irreparable harm.” The order prohibits live video feeds to other federal courthouses and delayed YouTube distribution.
But wait. To permit further consideration by SCOTUS, the order issued today will remain in effect until Wednesday, January 13, 2010, at 4 p.m. eastern time.
Despite objections from Proposition 8 supporters, Chief U.S. District Judge Vaughn R Walker's request for broadcasting Perry v. Schwazenegger, 3:09-cv-02292, was granted by the 9th Circuit Judicial Council last week. The historic trial of the lawsuit challenging California's ban on same-sex marriage begins today in the US District Court for the Northern District of California and remote viewing is expected to be available at federal courthouses in San Francisco, Pasadena, Portland, Seattle and Brooklyn. SF Gate is reporting that delayed broadcasts will be delivered on YouTube at youtube.com/usdccand
Last December, the 9th Circuit Judicial Council established a policy that allowed federal trial courts to broadcast nonjury civil trials. This is the first trial to implement the policy. In ordering the broadcasting, Judge Walker concluding the trial is just the type of case that warrants breaking with traditions that generally have banned cameras in federal courts. See Los Angeles Times editorial, The public and Prop. 8 ("In the age of YouTube, it's only fitting that a court challenge to the amendment banning same-sex marriage is broadcast.")
Late Friday, a three-judge panel of the 9th Circuit Court of Appeals denied a request to block the broadcasts by Proposition 8 supporters who oppose broadcasting the trial on YouTube, arguing that the video broadcast would likely cause "harassment of witnesses, threats to the safety and security of trial participants, unnecessary public exposure and ridicule of trial participants." The denial has been appealed to Supreme Court Justice Anthony Kennedy, who handles requests from the 9th Circuit. Justice Kennedy can rule himself or send the request to the full court. Stay tuned.
Chief Judge Walker controls the recording process and has reserved the right to terminate the audio or video at any time. Link to the Court testing the video system on YouTube. [JH]
News Organizations Support NU Innocence Project Students
The journalism students at the Northwestern University got a little help today in their battle with the Cook County State's Attorney's Office over evidence they colleted in the case of Anthony McKinney. The State challenged the motive of the students and demanded they turn over notes, grades, interview transcripts and notes, emails, and other materials they generated in their investigation. There were allegations that one of the interviewees received money for favorable testimony on McKinney's case. The help came in the form of a brief filed by the Chicago Tribune, the New York Times, the Chicago Sun-Times, CBS News, the Washington Post, and more news organizations supporting the position of the students.
Google Toilet PaperIt's a headline grabber, isn't it? See for yourself (via Mashable). [BA]
WEXIS Meets Web 2.0 & Web 3.0: Will Cobalt Satisfy the High Expectations of the Not-So-New Generations of Experienced Researchers?
Jason Wilson reports on what's known and unknown about Project Cobalt, the soon to be appearing new platform for Westlaw at Westlaw 2.0: Project Cobalt. This is a highly recommended post for its detailed information. Greg Lambert is reporting the new platform will be released in February, probably at LegalTech, Feb. 1-3 in New York. Even if Cobalt is merely demonstrated at the trade show, not officially launched then, the timing is just ahead of the Company's 4Q and FY 2009 earnings report.
Both Jason and Greg link to this powerpoint presented at Thomson Reuter's 2009 Investor Day meeting on Oct. 1st. Cobalt was demonstrated at the meeting but no archived webcast is available this year. While there is no road-map for Project Cobalt, the powerpoint also discusses the new but more widely known plans for staging the implementation the Project Utah platform for the financial industry, from version 1 in 2010 to version 2 in 2012.
One catch phrase used in the TR Investor Day powerpoint presentation in connection with Cobalt is "New Generation of Users with Higher Expectations." Essentially the same was said at the unveiling of Utah last August: “People who grew up with Google have totally different expectations of how to interact with information and media. We can’t ignore that" -- Devin Wenig, head of TR's Market Division. See From Messenger Pigeons to the Web. See also TR CEO Tom Glocer's remarks. Obviously true. Equally obvious, the not-so-new generations of Westlaw users have had to lower their Westlaw expectations based on what Westlaw offers and what web innovation makes available so TR is taking a huge but absolutely necessary risk. Time has passed by Westlaw.
I expect we all will be shifting through information once the marketing blitz hits to sort out what Cobalt is really offering when launched. Call me cynical but I think that West agreed to share pricing information for AALL's annual price index last year so that West Thomson Reuters Legal could be an AALL gold sponsor in Denver; it's big splash time. This would be an excellent time for AALL to increase its gold sponsorship threshold to six figures (not including ".01"). I'm predicting the Thomson Reuters Legal party will last longer than two hours this year!
No Chevy Cobalt. Let's start by saying that we're not talking about some Chevrolet Cobalt model of Westlaw. It seem fairly obvious that TR intends to leverage it leading assets in a much more integrated way. Note the "nearly all high-value content exposed & used" language used in the Future of Legal Research slide of the Investor Day powerpoint (#14). About this Jason writes "I’m assuming this means that you will now have access to most of [Thomson Reuters Legal] catalog, perhaps even backlisted items."
Maybe if you are willing to pay for that. My hunch is Cobalt will modularize TR's law, financial and news. Note the Westlaw Business slide in the powerpoint re: the Global platform for the global business lawyer (#9). I'm inclined to think that Cobalt will be packageable to suit institutional needs or versioned like Cobalt Home, Cobalt Professional, Cobalt Uber Premium. Seriously, more likely the former than the latter where package plans will be offered with premium options. For example, TR's Professional Division identifies governments as a growth market. Government users probably won't want to buy or need some of TR's information services.
BigLaw may be interested. Now that "Lexis or Westlaw?" is no longer a blasphemous question at BigLaw firms, Cobalt is clearly intended to regain and increase TR's market share in this very important market segment. Note the TR Professional Division's market forces analysis (left); note which side of the equation large law firms and print products are located.
Content Still Rules. Content, however, will remain king, particularly editorial content added to primary resources and the original content of secondary legal publications. Cobalt will not vaporize the value-added, high quality online content offered by BNA and Wolters Kluwer no matter how much TR Legal may want professional legal researchers to forget that they exist. If "core online legal" in the Company's market forces analysis includes editorial content, TR Legal still has a long march to competitive quality ahead. Perhaps the Company should try to buy BNA (again). Good luck with that.
It will be very interesting to see if TR opens all of Cobalt to law schools as a way of addicting students to it's new feature-rich search service or waits for law profs to demand some facets of Cobalt regardless of the additional expense. If TWEN isn't not fully integrated in the Cobalt experience, LexisNexis may have an opportunity to gain some momentum in the law student addiction marketing objective of electronic course management services. Only "may have" because it really is a pretty poor alternative to TWEN.
WEXIS Meets Web 2.0 & Web 3.0: No Boolean Searching in Cobalt. Both Jason and Greg report that Cobalt is a boolean-free zone. Initially, I thought, "OK, Westlaw has the best natural language search engine in legal search." But much more is probably going on here. In the category of unknowns, Jason writes "How much is the system relying on opencalais for improving semantic search? How much time will it take for the system to learn, and eventually when over the hearts of boolean diehards?" Diehards like me, but a new day is dawning in very expensive legal search and if Cobalt is powered by metadata in some version of Calais, one can be hopeful of a much improved search experience. For more on Thomson Reuter's version of the semantic web, check out the Calais website and this video.
Cobalt is intended to be a landmark development that will result in very expensive legal search competition becoming based on services offered, not more of the usual "tabs and sidebars war" for the near-term. We'll be making comparisons of Web 2.0 and Web 3.0 features when LexisNexis launches its revamped search search, rumored to appear in 2010. The Utah platform offers some such tightly integrated features but comparisons of Utah and Cobalt should be made with extreme caution because of the substantial differences in user populations and platform purposes.
2010 is the year that WEXIS meets current generation web technologies up to and including the semantic web as a component of Tim Berners-Lee's "Web 3.0." Expectations are high. TR Legal's marketing campaign will characterize Cobalt as "evolutionary" to avoid stimulating high anxiety in Westlaw's user population but legal information professionals may very well view Cobalt as revolutionary -- from dedicated terminals to web-based services to this, whatever this really is -- assuming Cobalt meets our expectations.
Pricing. Jason asks and speculates "Does Cobalt come with a new pricing structure? One would think not because it is described as a 'new search tool and design layout.' But then it is suggested that the platform will help the company 'justify premium pricing,' presumably by quickly showing more and more relevant results. Not sure, but it’s a guess."
I expect TR to extract premiums for feature-rich Cobalt. There is no free lunch here. I've seen no mention of how much it has cost TR to develop Cobalt, but in the context of the new Utah platform for the financial industry it was reported that TR made a $1 billion technology investment to upgrade its systems. Cobalt may be part of that $1 billion investment or its costs may be in addition to that figure. Don't know but TR's Market Division is separate from its Professional Division.
TR Legal (will we be forgetting the West brand name soon?) is the major player in TR's Professional Division. See the Division's 2008 pro forma numbers, left. Westlaw alone generated $1.5 billion in global revenue in 2008. Early indications aren't quite as good for 2009. For the first nine months of 2009, operating profits for Legal were down about 1%. As noted above, FY 2009 earnings will be reported in February, around the time Cobalt may be featured at the Legal Tech trade show.
We can expect the Company to extract Legal's profit-maximizing potential. My bottom line prediction -- if TR starts out slowly in premium pricing for Cobalt, that won't last beyond 2012. From then all, full steam ahead for Westlaw 2.0 [insert new brand name here].
Do check out Jason's very informative what's known and unknown about Cobalt post and both Jason's and Greg's blogs for updates. Both are on top of developments and may have published additional information since the writing of this post. [JH]
AALL Call for New Product Award Nominations; Submissions Due by Feb. 1
The New Product Award honors a new and innovative commercial legal information product that enhances or improves existing law library services and/or procedures. New products may include, but are not limited to, printed material, computer hardware and/or software, or other products or devices that aid or improve access to legal information, the legal research process, or procedures for technical processing of library materials. Any product that has been re-introduced in a new format or with substantial changes is also available. A new product is one that has been in the library-related marketplace for two years or less.
All AALL members are encouraged to think about new information products being used in their libraries and to send CRIV their nominations for this award. Recipients of the New Product Award need not hold membership in AALL. Nominations for this award may be made by any AALL member and by vendors nominating their own products.
To Submit a Nomination for the 2010 Award. Nomination forms can be found on the CRIV website under the New Product Award tab or at http://www.aallnet.org/committee/criv/news/newproductform.pdf. The deadline for receipt of submissions is February 1, 2010.
Librarian Nominations. If you are a librarian nominating a product, please give as much information about the product as possible. The New Product Awards Subcommittee will contact the publisher of the product for any further information required.
Vendor/Publisher Nominations. If you are a vendor or publisher nominating a hardcopy product, please submit the form along with a sample product, if available. If you are nominating a Web-based or online product, please submit the form with all necessary contact information, including URL(s) and temporary login and password information.
For hardcopy products, brochures, and/or any other materials, the Committee recommend that you send eight copies for the New Product Award Subcommittee and the AALL Awards Committee.
"Blurry-Edged" Social Networks
Privacy, Free Speech, and 'Blurry-Edged' Social Networks [SSRN] by Stanford Law's Lauren Amy Gelman, 50 Boston College Law Review ___ (2009) discusses the technological, social, and legal regimes that have combined to create the tension between the positive benefits for free speech and the negative effects on user privacy in social networks. From the abstract: "This tension has been exacerbated by technologies that permit users to create social networks with “blurry edges” - places where they post information generally intended for a small network of friends and family, but which is left available to the whole world to access [because] the technology that enables these communities .. also creates an illusion of privacy and control that the law fails to recognize." Hat tip to Media Law Prof Blog. [JH]