Law Librarian Blog

Round-Up of Law Practitioner Blogs

Spinal Injury Lawyer Blog
http://www.spinalinjurylawyer24-7blog.com/
http://www.spinalinjurylawyer24-7blog.com/index.xml
Examines spinal cord injury cases, news, and opinions in New York. Published by Stephen Bilkis & Associates
 
Birth Injury Lawyer Blog
http://www.birthinjurylawyer24-7blog.com/
http://www.birthinjurylawyer24-7blog.com/index.xml
Examines birth injury cases, news, and opinions in New York. Published by Stephen Bilkis & Associates.

San Diego Trademark Attorney Blog
http://www.sandiegotrademarkattorney.pro/
http://www.sandiegotrademarkattorney.pro/index.xml
Discusses trademark cases, news, and related matters in San Diego. Published by Mandour & Associates

Legal Blasts (and Unrelated Baseball Opening Day Memories)
http://www.legalblastsandopeningday.com/
http://www.legalblastsandopeningday.com/index.xml
Discusses a variety of legal matters including litigation and healthcare law in California. Published by Theodora Oringher PC

Upstate New York Family Lawyer Blog
http://www.upstatenewyorkfamilylawyerblog.com/
http://www.upstatenewyorkfamilylawyerblog.com/index.xml
Examines family law cases, news, and related legal topics in New York. Published by The Law Office of James B. Lesperance, Jr.

United Nations E-Government Survey 2012

From the announcement for the United Nations E-Government Survey 2012: E-Government for the People:

The United Nations E-Government Survey 2012: E-Government for the People was completed in December 2011 and launched in February 2012. The 2012 edition of the survey was prepared in a context of multiple challenges of an open, responsive and collaborative government for the people. The report examines the institutional framework for e-government and finds that the presence of a national coordinating authority can help overcome internal barriers and focus minds on integrated responses to citizen concerns – an important lesson for sustainable development actors. The Survey also argues that e-government provides administrators with powerful tools for grappling with problems of social equity and the digital divide. The caveat is that governments must find effective channels of communication that fit national circumstances while also taking steps to increase usage of online and mobile services in order to realize their full benefit to citizens.

Links to the complete survey, the Executive Summary and individual chapters, listed below, are avaiable here.

Chapter 1: World e-government rankings 

Chapter 2: Progress in online service delivery 

Chapter 3: Taking a whole-of-government approach 

Chapter 4: Supporting multichannel service delivery 

Chapter 5: Bridging the digital divide by reaching out to vulnerable populations 

Chapter 6: Expanding usage to realize the full benefits of e-government

[JH] 

GPO Access Shuts Down Next Week

GPO Access is closing on March 16th, or next Friday from the date of this posting.  So, one question, and probably more if I browsed around the FDsys.gov site more, and that is what's up with the e-CFR?  The link on the FDsys page links back to, ah, GPO Access.  Will this be transitioned by next week?  I ask as it is a really useful resource.  And while we're at it, why no easy links to the List of Sections Affected?  It does appear, but one has to look in the link for Browse Government Publications from the selected list of links on the right of the main page.  Even then, it takes several clicks to get to a download of an entire issue of the LSA rather than the title view GPO seems to be pushing.  I like the look of FDsys and the functionality of the site.  In some cases, such as with congressional documents, it's a vast improvement over GPO Access.  But some stuff just makes me wonder what GPO was/is thinking.  [MG]

Gamed Law School Data Felonies: Will unemployed grads be visiting their law deans in prison someday?

From the abstract of Law Deans in Jail [SSRN] by Morgan Cloud and George B. Shepherd (both Emory Law):

A most unlikely collection of suspects - law schools, their deans, U.S. News & World Report and its employees - may have committed felonies by publishing false information as part of U.S. News' ranking of law schools. The possible federal felonies include mail and wire fraud, conspiracy, racketeering, and making false statements. Employees of law schools and U.S. News who committed these crimes can be punished as individuals, and under federal law the schools and U.S. News would likely be criminally liable for their agents' crimes.

Some law schools and their deans submitted false information about the schools' expenditures and their students' undergraduate grades and LSAT scores. Others submitted information that may have been literally true but was misleading. Examples include misleading statistics about recent graduates' employment rates and students' undergraduate grades and LSAT scores.

U.S. News itself may have committed mail and wire fraud. It has republished, and sold for profit, data submitted by law schools without verifying the data's accuracy, despite being aware that at least some schools were submitting false and misleading data. U.S. News refused to correct incorrect data and rankings errors and continued to sell that information even after individual schools confessed that they had submitted false information. In addition, U.S. News marketed its surveys and rankings as valid although they were riddled with fundamental methodological errors.

And this all started out so innocently to move up a notch or two or three positions for law prof ego-stroking peer recognition. Hello, DOJ! For concerned members of the legal academy and US News, here's the link to the US Sentencing Commisssion's Federal Sentencing Guidelines Manual.

Hat tip to The Chroncile's Law Deans Could End Up in Prison for Misleading Applicants, Paper Suggests. [JH]

Friday Fun: Are You a Slut? There's a flowchart for that!

By now must people have heard about Rush Limbaugh calling Sandra Fluke, a Georgetown law school student, a “slut” and a “prostitute” for her testimony before the House Democratic Steering and Policy Committee in support of mandated private health coverage for contraceptives. This one time self-admitted prescription drug abuser has since apologized for his slut-prostitute assault on Fluke's character but not for saying that women who want contraceptives from their health insurance are trying to get “American taxpayers” to fund their “personal sexual recreational activities."

ATL's Staci Zaretsky explains Why You Shouldn’t Call a Woman a ‘Slut’ on the Eve of Women’s History Month Because She Uses Contraceptives. For more, see Adam Serwer's Limbaugh Not The Only Conservative Who Fails To Understand How Birth Control Works on Mother Jones.

But this is a LLB Friday Fun feature. In that light and presumably as a PSA because women and men who "have sex, for like, non-procreative reasons" probably want to know if they are sluts, Mother Jones has published the below flowchart to help them answer that question.

Hat tip to Bridget Crawford's How to Tell if Someone is a "Slut" - For the Visual Learner on The Faculty Lounge. [JH]

Keeping Austin Weird: SXSW 2012 Starts Today

Alas, attending SXSW still remains on my bucket list. Austin is great place to spend 10 days. Perhaps one of the members of our law library community's Lone Star State contingent will be attending and will report on the activities.

SXSW 2012

Interactive: March 9–13
Film: March 9–17
Music: March 13–18

Here's the official First-Timer's Guide to SXSW. But I like the title of UT-Austin School of Information student Paul Vinelli's SXSW Interactive guide, Unofficial SXSWi Primer for Rowdy Librarians. See slide 17 for a listing of some presentatons. More information here.

Hat tip to LISNews. [JH]

Opening: Reference Librarian, Rutgers Law Library, Camden Campus

The Rutgers University School of Law Library Camden Campus serves about 800 law students, 51 full time faculty, as well as visiting and adjunct faculty. In addition to these primary users, the Library is also a major legal information resource center for the southern half of New Jersey, serving the University, the State Bar, the judiciary, and the public. Rutgers University is the state university of New Jersey. The Library has over 460,000 volumes, 6 librarians, and 12 staff.

Description: Rutgers Law School – Camden Law Library seeks applications for a Reference Librarian. The position is a full-time, twelve month contract, tenure track library faculty position. The Reference Librarian works as part of a reference, instruction, and research support team that interacts with the law school and university communities as well as serves legal and general public users. The Reference Librarian should be proficient in both legal and general research strategies and resources. Applicant should be familiar with new and emerging information technologies as they apply to legal research. The applicant should have an awareness of developments in law librarianship. The Reference Librarian teaches legal research as required.  The Reference librarian is a member of the faculty and will report to the Head of Public Services for the Law Library.

Duties and Responsibilities

* Provides reference and research services as part of a team, including some evenings
* Participates in collection development and selection
* Assists the faculty, as needed, in legal research
* Develops Law Library brochures and bibliographies for print and online distribution
* Assists as needed in teaching research in first year writing program and upper level courses

Qualifications. Applicant must:

* possess a Juris Doctor degree from an ABA accredited school
* possess a Master in Library or Information Science from an ALA accredited school
* be service oriented, innovative and flexible
* be able to work in a fast-paced atmosphere with multiple projects and diverse users
* possess excellent organizational skills
* exhibit strong oral and written communication skills
* have the ability and willingness to work independently and as a member of a team
* have the ability to meet university requirements for promotion and retention as a member of the law school’s tenured library faculty

Salary. Competitive salary that is commensurate with experience and qualifications.  Fringe Benefits include retirement, a variety of medical plans, 22 vacation days, and life insurance.

To apply, send a letter of application, a resume, and the name, address, telephone number and e-mail of three references to:

Anne Dalesandro, Library Director
Rutgers University School of Law Library
217 North Fifth Street
Camden, New Jersey 08102

Applications may also be emailed to the library secretary at: debcarr(at)camden.rutgers.edu.

Apple And Publishers May See Antitrust Litigation Over e-Book Pricing

The news of the Justice Department likely suing five major publishers and Apple over what amounts to price-fixing the cost of e-books is not much of a surprise.  When the dust settles there should be a book about the machinations between Apple, Amazon, and yes, Google, over the way e-books are sold and read.  Apple and Amazon were there at the beginning with Apple advocating the agency model where the publishers set the price and Apple taking 30% of transactions passing through the iTunes store.  Amazon wanted to set its own prices at around $9.99 a title.  The publishers have said at one time or another that lower prices for e-books lower the perceived value for the content.  Gosh, nobody wants that except Amazon, and oh, possibly consumers.  One point about pricing is that 30% of $10 is a lot less than 30% of $25.00, even for something that costs less to produce and distribute compared to the overhead of print copies. 

Many of the news stories out there are quoting the biography of Steve Jobs as advocating the higher pricing scheme as something the publishers want, despite the higher cost to consumers.  As he is no longer with us, there is probably documentary evidence out there that may suggest some form of collusion between Apple and the publishers to make this happen.  I can’t imagine the Justice Department threatening suit on anecdotal evidence.  The case appears strong enough that there are reports of publishers in settlement talks to avoid a suit.  I don’t know what remedies could do that, short of an open pricing model, but there are no details.  No one is talking, which is par for the course in these matters. 

How does this affect Google?  They have a bookstore as well, so any changes to the pricing model affect them as they are part of the market for these kinds of goods.  Barnes & Noble and their Nook product will likely be affected as well.  Then there is the on again off again Google Book Settlement.  I imagine the outcome of the DOJ action will affect the valuation of damages or of any deal that ultimately comes out of this.  And let’s consider the global ramifications as well.  The European Union is investigating the same issue in its own bureaucratic way.

The five publishers mentioned in many of the reports are Simon & Schuster Inc., Hachette Book Group, Penguin Group (USA); Macmillan and HarperCollins Publishers Inc.  Most of the reports are based off a single report by the Wall Street Journal.  HarperCollins is owned by News Corp. which is the parent of the WSJ as well.  The invisible hand of the e-book market may get just a bit more visible by the time this is all over.  [MG]

New Management Team Announced for Harvard Law School Library

Harvard Law School has announced that Jonathan Zittrain, Professor of Law, Faculty Co-Director, Berkman Center for Internet and Society, and Professor of Computer Science, has been appointed Vice-Dean of Library and Information Resources and Suzanne Wones, HLS Library’s Assistant Director of Research, Curriculum and Publication Services, has been appointed Acting Executive Director of the law library, both effective July 1, 2012. According to yesterday's announcement, Zittrain and Wones will serve for one academic year, "after which the library’s leadership structure will be further assessed."

About Zittrain and Wones' roles and responsibilities:

Zittrain will oversee the work of the executive director and the associate director, Kim Dulin, who leads the Harvard Library Innovation Lab. He will also chair the HLS Library Committee and represent HLS on the Harvard Library Board. He will serve as the primary liaison between the library and the faculty, oversee changes to the Collection Development Policy, and lead other matters concerning library strategy.

Wones will oversee all daily HLS Library activities, including research services, FRIDA, academic technology, empirical services, scholarly communications, case studies, collection development, historical and special collections, and digitization. She will also lead strategic planning with input from HLS and library administrators, develop and manage the library budget, steward faculty/library relationships, work with the HLS development office, and serve as a representative of the HLS Library within Harvard University and on HLS committees and working groups, at national conferences, and with collaborative partners.

[JH]

Indie Law Publisher, Jones McClure, Plots Invasion of Legal Education Book Market Place

Watch out Lexis, Apsen and TR Legal's [insert name of eventual buyer's] legal education publishing divisons, there is a new player coming to market. "'Legal Publisher Declares Law School to be Easy, Fun.' This. Will. Be. Awesome.'" tweeted Jason Wilson. When I click on the provided link, sure enough it sent me to a Feb. 28, 2012  press release titled Legal Publisher Declares Law School to be Easy, Fun and, well, the press release speaks for itself. A couple of quotes:

No longer will students have to struggle to learn the finer points of jurisprudence,” said vice president Jason Wilson [Jones McClure Publishing]. “Instead of parsing obscure cases, studying dense outlines, and puzzling over their professors’ remarks, law students can simply read these entertaining comic guides and easily understand it all.”
 
When reached for comment at his law office, author Nathaniel Burney remarked “he said what?!”

Who is Nathaniel Burney? He is the author of the first volume of Jones McClure Publishing's Illustrated Guide to Law series, "The Illustrated Guide to Criminal Law", due out this fall. Burney's work started life as a highly praised webcomic last year.

I'm thinking Jason's tweet -- "This [full stop] Will [full stop] Be [full stop] Awesome [full stop]" is not an understatement. There's plenty of talent beyond the full-time law faculty who have much to contribute by way of law school educational publications. Hell,ABA and/or state bar association CLE programs offered to members of the bench and bar taught by practitioners also could be a substantial contribution to educating law school students while they are still attending law school. Just imagine course credit hours being earned toward graduating with a JD by way of CLE webinars. But I digress... .

Mr. Burney, formerly a prosecutor in the Manhattan DA’s Rackets Bureau, explained the origins of his work.

[I started the project] because the law is fun, and I like explaining it. I already teach a series of courses aimed at lawyers. But there are so many myths and misconceptions out there, so I thought I’d try something that high school students and other regular folks could easily grasp—starting with the most very basic concepts and building from there. I wasn’t even thinking about law students at first. But now, yeah, obviously they’d probably get a lot out of it.

According to the press release future volumes in the Jones McClure illustrated guides series will cover constitutional law, property, procedure, torts and more. For the moment I can't wait for a copy of The Illustrated Guide to Criminal Law (hint). In general, criminal law isn't an area I have ever been all that comfortable performing research in so I'll "probably get a lot out of it.” [JH]

Distinguishing the Difference between Open Government and Open Data

Nextgov's Joseph Banks writes

A new research paper by Harlan Yu and David Robinson does an excellent job of tracing the history of the open government and open data movements and the way the two have been conflated, especially since the beginning of the Obama administration.

The authors do a good job of explaining why reporters and other traditional open government enthusiasts are often frustrated with that conflation and how it may encourage agencies to practice digital transparency only where there's no political downside.

From the abstract of Yu and Robinson's The New Ambiguity of 'Open Government' [SSRN]:

This essay proposes a more useful way for participants on all sides to frame the debate: We separate the politics of open government from the technologies of open data. Technology can make public information more adaptable, empowering third parties to contribute in exciting new ways across many aspects of civic life. But technological enhancements will not resolve debates about the best priorities for civic life, and enhancements to government services are no substitute for public accountability.

[JH]

Openings: Three Reference Librarian Positions, Univ. of Miami Law Library

The University of Miami Law Library has three reference positions available.  In addition to general reference responsibilities, each position is responsible for the following:

1. Reference/Instructional Services Librarian – outreach to students and student groups;
2. Reference/Internal Instructional Services Librarian – outreach to the law school staff and departments; and
3. Foreign and International Law Librarian – outreach to support the law school’s foreign & international law curriculum and develop the foreign & international law library collections.  Fluency in Spanish is required.

For detailed information about the positions, go here. [JH]

The Librarian As Dear Abby

There is a movement in Britain to elevate some of the services a public library provides to include social services to library patrons.  This takes the form of training librarians to not only guide individuals to online resources, but also to qualitatively use those resources.  An article in the Guardian makes this clear as to the motivation.  A government source notes that 8.2 million people in Britain have never used the Internet with slightly less than half of those socially excluded.  A third of this group is out of work. 

The idea is to ameliorate the circumstances for these individuals by getting them connected at their local library.  The information that librarians can provide is described as quality internet advice and information about finding a job, changing career or keeping healthy.  The pilot program which includes about 60 libraries will be ending at the end of this month.  If successful, the plan is to deploy similar services through all U.K. libraries.  From the Guardian:

Brighton's head of libraries and information services Sally McMahon, who is also an executive committee member of the SCL says: "By May we hope to have a report, with supporting staff training information, which can be used in every public library to help ordinary frontline staff guide the public on these kind of issues.

"We can't expect library staff to be trained up to Citizens' Advice Bureau level, however librarians have always had a strong information and advice role and this initiative will enable them to give good quality online advice and direct people to where they can find the knowledge they need."

The pilots are the latest example of the growing role which libraries are playing in helping to reach the digitally excluded.

I imagine this kind of service takes place in public libraries in the United States and elsewhere, at least very informally.  Even in law libraries we have our regulars who may get different kinds of attention from the staff, some positive, some not.  I'm sure we all have our stories.  The fact that there is a concerted effort to expand the role of libraries from an information center to a social center with information at the hub is interesting.  It’s a given that law librarians can’t offer legal advice to patrons, but social information?  We talk about law librarianship as an alternative career for lawyers.  Perhaps public librarianship will become an alternative career for the social worker if this trend becomes popular.  [MG]

Licensing eResources by Law Libraries

In case you missed it or in case you refused to accept the terms and conditions of AALL's web communications policy to join the Members Open Forum that AALL unilaterally populated with all AALL members, in a March 5, 2012 date-stamped Members Open Forum post, AALL's president issued the below call to the membership to take a survey. Do note well, the survey closes on March 19, 2012.

Recently, I appointed the Library Procurement Process Improvements Task Force, to address one of the outcomes from the Vendor Colloquium Action Plan.  As part of its work, the task force has developed a short 10 minute survey in order to gain additional feedback from AALL members. The results from the survey will help identify areas of high-priority as the task force continues to review the AALL Principles for Licensing Electronic Resources and creates a checklist based off these principles to serve as additional guidance in the library procurement process.

Please complete the short survey before it closes on March 19, 2012 to ensure that the task force understands the broad spectrum of practices and concerns that need to be considered in the revised principles.

The survey really is short. Not sure how AALL came up with the "10 minutes" time because it took me all of 60 seconds to answer the no-brainer questions. They are very and I mean very general but in the context of the objective of identifying "high-priority" areas (read not specific issues), I guess this effort is or can or may be characterized as the start of a long and winding road to specificity assuming that the Task Force intends to solicit additional feedback by follow-up issue-focused surveys. Don't know. "Principles" are not "guidelines."

Even if AALL decides "guidelines" for licensing e-Resources are long overdue, it is not like our association of institutional buyers will have much success with enforcing them. Besides the likely outcome that AALL's long established practice of dithering over pressing institutional buyer concerns has typically resulted in "too little, too late" responses, AALL certainly has not had much success with persuading its vendor "partners" to abide by its long established guidelines of p-resources, even after the Vendor Colloquium. It is going to take a much more aggressive consumer advocacy to do anything that actually represents its insitutional buyer members. So far, AALL has earned one big F = failure if we use ALA as the standard of what can actions can be taken by an institutional buyers association well-informed about member concerns.

Attendees of Boston 2012: Learn, Connect, Grow (whatever), might want to mark the following session on their calendar. 

G4: Antitrust Considerations and the Association, Monday July 23, 2012 2:45pm - 4:00pm @ HCC-Room TBD

Speakers Shaun Esposito, Margaret K. Maes
 
Target Audience: Librarians with responsibility for library administration and/or legal information purchasing decisions

Learning Outcomes:

1) Participants will understand the history of the Federal Trade Commission guidelines related to legal information resources and of the antitrust discussion within AALL.

2) Participants will be able to identify the challenges posed by current antitrust law on association activity, while also identifying strategies for effective collective responses to unfair licensing and publishing practices.

AALL Vendor Liaison Margaret Maes will introduce the program with a brief history of the transition from FTC rules to guidelines and the antitrust discussion and considerations that have garnered interest within the Association’s membership. Panelists will then review key challenges that associations face when considering action at the organizational level, identifying those activities that are outside the boundaries of legal collective action. Next, panelists will offer a survey of association activity related to business practices that are acceptable and feasible, along with a report of action taken to date by the Executive Board with respect to antitrust policy issues. Lastly, the audience will be asked to contribute suggestions and responses.

All panelists have not yet been identified. I'm thinking our association's legal counsel who drafted last year's bend-over rejected but de facto implemented antitrustism policy should be there, if still retained. If not, our association's current legal counsel should be there. Hell, some AALL members have suggested that an independent antitrust specialist attend this session  because "the audience will be asked to contribute suggestions and responses." I am willing to support that suggestion by pulling out my checkbook even if it is not a recognized "sponsorship" opportunity by AALL. 

I'm also thinking that this may be the first public opportunity for our association's vendor liaison to respond to former AALL president Kathie Price's closing comment at Harvard's 2011 "Future of Law Libraries: The Future is Now?" conference. In her "Developing Human Resources: The Skills Needed for Law Librarians of Today and the Future" session, Price closed her presentation by stating that AALL must confront publishers over antitrust issues before it is too late. Ah, that had nothing to do with the session topic. I was there. Price was looking directly at our association's current vendor liaison when she made that statement.

Vendor Relations and AALL's Web Communications Policy. While I was very relucant to accept AALL's rules for its web communications platform, I did eventually hit the "accept buttom" to sign up for a couple of groups for reading purposes only. It's been a learning experience and one thing I learned yesterday came by way of a Vendor Relations group post. While we are not supposed to talk about pricing, etc., etc., one AALL member has found a work-around. That work-around is to call attention to and link to a blog post that discloses a vendor's pricing  that was published outside the walled garden of AALL's antitrustism-inspired policy. Hum. [JH]

Vending Appellate Briefs: A 2010 selective survey of jurisdictions on providing briefs to commercial vendors

Like Mark Giangrande's recent posts, listed below, I find lawyer claims that court pleadings acquired for some sort of cost-plus or commercial gain violates copyright laws are questionable at best. Who really is the "owner" of work product? The firm, the billing partner, the associate who actually drafted the pleading under a partner's direction, the client who paid for legal representaion?

My hunch is that the matter will be resolved eventually. At issue may be the extent to which a public record is in the public domain. Will, for example, courts be required to go through the Copyright Clearing House when an individual requests a copy of a pleading in person? Will court records centers, PACER and commercial vendors have to obtain permissions and possibly paid whomever the "author" is fees? Where will "fair use" come into play? Will courts end up requiring a waiver of copyright for accepting pleadings?

Hell if I know. But as a footnote to Mark's recent posts recent posts, listed below, a former Standford Law student, Bryan L. Jarrett, wrote a directed research paper for Paul Lomio a couple of years ago. About Jarrett's Vending Appellate Briefs paper, Lomio wrote:

I took a second look at a directed research paper a student did for me a couple of years ago on the subject of vending appellate briefs.  The student surveyed 17 jurisdictions — 10 that provide briefs to vendors and 7 that do not.

One of the interesting take-aways from the student’s paper is the wide variety in means by which vendors have obtained briefs. Some states have made various arrangements with vendors; others refuse to do so.  For a very few states there is a distinct quid pro quo. Past practices will change, though, as the vendors are increasingly just pulling from posted copies; unless a court rules against such a practice it will only accelerate.

Jarrett's paper "surveyed the largest ABA jurisdictions (by membership size) and seven jurisdictions that did not supply copies of appellate briefs to commercial vendors. The data was gathered in 2010" according to Erica Wayne's follow-up Legal Research Plus post. In Selling Others’ Briefs, Illustrated, "[t]o better illustrate some of the points made by Paul in his posting Selling others’ Briefs," writes Wayne, "Bryan L. Jarrett (our former student and now an associate at Jones Day) has given us permission to post two of the charts he created for his paper 'Vending Appellate Briefs.'” [JH]

For additional LLB posts on the issue, see:

• Lawyer Copyrights Briefs, Sues West And Lexis for Distributing Them
• Copyrighted Legal Briefs Continued
• Copyrighted Legal Briefs Continued: Are The Downloaders Just As Liable?

Market and Distribution Cannibalization in the General Trade Publishing Industry for eBooks, Part 2: Outcome objectives of publishers and libraries as intermediaries between authors and readers of eBooks

"[T]here are many legitimate reasons for the biggest publishers to take a wait-and-see attitude about libraries and ebooks," writes Mike Shatzkin in a post published before Random House's recently announced price increase. See part one of this LLB's series. According to Shatzkin, they include:

• libraries are, at most 5% of a general trade publisher’s business and far less of the ebook business
• the market is changing so rapidly
• every retailer except Amazon can be said to be struggling to carve out a sustainable position in the global ebook marketplace

In the context of the general trade publishing industry, Shatzkin adds

The fear is of a “shopping and consuming” experience at the libraries which is comparable to what the retailers can offer. That potential is largely mitigated now because most of the big books don’t go to them. But, if they did, publishers fear the market could shift away from retail.  ... That fear is not just about a “lost sale”. It is also about a “lost channel” of sales, or a pipe to the consumer that runs entirely through Amazon.

For more on the general trade publishing industry's side of the issue, see Shatzkin's Libraries and publishers don’t have symmetrical interest in a conversation.

Bob Mayer, CEO of Who Dares Wins Publishing, an indie p- and ePublisher writes at Authors create content, readers consume content, everyone else is in between (Digital Book World):

Some roles, the mainstays of traditional publishing, are outmoded.  Distribution is no longer king (yes, I know print still outsells eBooks but take out your top 5% of authors and really??). Discoverability is key.  Since traditional publishing’s business model was essentially wrapped around distribution, this is such a fundamental change one wonders if most of those in traditional publishing will survive it.

Sound far-fetched? What if authors decide to go eBook-first on their own? The more successful authors might then land a contract for pBook editions. What if Amazon Publishing's new business venture succeeds? No doubt the primary objective is to sell exclusive content for eBooks only available in Kindle edtions. "At some point ... the eBook will become the publishing market’s primary engine," writes Frédéric Filloux in Ebooks: The Giant Disruption (Monday Note: Media, Technology & Business Models).

At the moment, Mayer may be overstating the case for the Big Six. eBook discovery certainly is crucial for indie publishers; utilizing the likes of an Amazon pipeline to sell their p- and eBooks helps sales. It is not, however, the issue Shatzkin highlighted above for the Big Six publishers' distribution concerns. But are the Big Six concerns short-sighted? In the context of the French publishing industry, Filloux, who is the general manager of the French ePresse consortium, writes "[t]oo many publishing industry professionals still hope for a soft transition." Perhaps that statement also applies to the Big Six. At the very least, five of the Big Six are taking a wait-and-see approach to eLending and are probably doing so in the hope of an eventual soft transition in the wholesale market for institutional buyers who want to lend eBooks.

One could make the weak case that eLending of eBooks is a means to consumer discovery of the eBook editions. Studies has been produced to show that eLoaned eBooks do produce individual consumer sales of eBooks. However, as long as general trade publishers sell their eBooks by way of "lost channel[s]" of sales, their concern remains. Or does it? These same publishers are selling their p-Books via Amazon, etc.

For the moment, the public library that wants to loan eBooks apparently is viewed by major general trade publishers as an institution that might threaten eBook sales to individual consumers. If that were the case, the same is true for circluating pBooks, audio, etc. The wholesaler pricing matrix established by Random House will, I believe, eventually be adjusted based on library-supplied aggregate eBook circulation data. Upward or downward? Who knows. However, this is a publishing industry problem, one that was not created by libraries.

In economic terms, market cannibalization is in play. It is the negative impact of a company's new product (eBooks) on the sales performance of its existing related products (pBooks). Clearly that was behind major publishers' push-back response to Amazon's initial attempt to set eBook prices so low. At the moment, one may also view distribution cannibalization as being much more in play because trade publishers jumped into eCommerce by way of sellers like Amazon. However, in the 21st century are eCommerce e-booksellers really any different than big chain pBook book store sellers were in the past?

For the public library, however, the mission as instiutional buyer and provider of lendable matters remains unchanged. Quoting from the ALA's March 2, 2012 press release, ALA calls on Random House to reconsider major ebook price increase:

Libraries must have the ability to purchase a wide range of digital content at a fair price so that all readers have full access to our world’s creative and cultural resources, especially those who depend on libraries as their only source of reading material.

Libraries belong at the center of this digital revolution, not on the periphery. We continue to seek partners to further our shared goals of connecting readers and authors well into the 21st century.

What about the issues of market and distribution cannibalization in the commercial legal publishing industry for law eBooks in the context of law libraries? [JH]

Making the List of "25 Game-Changing iPad Apps for Law Students & Lawyers"

It looks like TR Legal fell for one of OnlineCollege(dot)org's lists of "Top X blab, blab, blab." Such lists are routinely published as a effort to drive traffic to OnlineCollege's website. Expertise is not an essential requirement of the list compilier. In this case, Thomson Reuters' Legal Current post, WestlawNext deemed “game-changing” app for law students, cites to OnlineCollege(dot)org's list of the "25 Game-Changing iPad apps for Law Students and Lawyers" (citation to the list intentionally omitted). "Deemed," really?

Also making the list of TR Legal apps but not highlighed in the Legal Current post is Black's Law Dictionary, 9th ed. Perhaps that is because of the list's description:

Seeing as how Black's Law Dictionary carries a $54.99 price tag, it might not prove a fiscally prudent choice for students; pros, however, might find it a valuable investment to have every term they may or may not encounter available at their fingertips.

No one would expect Legal Currents to report that other featured apps include Fastcase,  Lexis CourtLink, and LexisNexis Law School Q&A Series. I haven't checked to see if those vendors fell for OnlineCollege(dot)org's "trap" by publicizing their app listings because, well, life is just too short and I was sufficiently bored one day to click on my Legal Currents RSS feed. [JH]

Supreme Court Action Today: Habeas Corpus

The Supreme Court issued one opinion today.  That case is Martel v. Clair (10-1265).   It concerns a habeas corpus petition out of California and the Ninth Circuit.  Given the track record of the Ninth Circuit in habeas cases, it would be predictable that the Court of Appeals would likely be overturned.  The prediction came true again, though the Court agreed with the Ninth Circuit on some points.  The issue revolves around standards used in substitution of counsel petitions for indigent defendants in a habeas proceeding.  There are two federal statutes that come into play.  One is 18 U.S.C. §3599, which allows appointment and substitution of counsel where the defendant is sentenced to death.  The problem with that statute is that it does not provide a standard that the District Court can use in evaluating a motion for substitution of counsel.  18 U.S.C. §3006A covers non-capital cases and provides a standard of “interests of justice” in evaluating substitution motions.  The Court of Appeals ruled that non-capital standard applies in capital cases.  The Supreme Court agreed with that holding given that prior to amendment §3006A applied to both capital and non-capital cases. 

The rest of the case gets complicated due to the development of the facts.  Clair was sentenced to death in 1984 and commenced habeas corpus proceedings in 1994.  The District Court concluded its fact-finding on the habeas petition in February, 2005 when it told the parties that it would not accept additional filings.  Clair filed a substitution motion in March of 2005.  His basis was that his attorneys were only seeking to overturn his death sentence and not prove his innocence.  The District Court held a hearing where Clair’s counsel represented that they had met with Clair and reconciled their differences.  The Court then took no action on the substitution motion.  Sometime in June, 2005, Clair filed another substitution motion reiterating what he said in his previous motion and adding that his hired private investigator had uncovered physical evidence that had not been processed and that his attorneys were not cooperating with the investigator.  The District Court denied the second substitution motion without inquiry and denied his habeas petition at the same time.

The Court of Appeals reversed, holding that the lack of an inquiry, the timeliness of the motion, and the reasons of the conflict between Clair and his attorneys as the basis.  The Supreme Court reversed, holding that the District Court did not abuse its discretion even under an “interest of justice standard.  Clair had raised new issues unrelated to his original habeas corpus petition.  The litigation had proceeded for ten years.  The District Court was at the point of issuing its decision and had indicated that it would not accept any additional filings.  As such, the proceedings had ended and a new attorney would not have been able to file new documents.  The case was returned to the Ninth Circuit.  Justice Kagan wrote for a unanimous court.  There were no other opinions in the case.  [MG]

Adoption Rate Watch: WestlawNext vs. Lexis Advance

The latest data from Thomson Reuter's 2011 Year-End report has been add to the below table. Do note that WLN as a percent of the Westlaw Revenue base does not indicate that the actual revenue from WLN has been disclosed. The % of Westlaw Revenue base figure represents total revenue from Classic Westlaw subscribers who have acquired the WLN premium add-on to their Classic Westlaw costs. No one, by which I mean, no one in the investment community has ever asked the question, "how much revenue is being solely generated from WLN" in any investor call during the below listed quarterly reporting sessions.

Unlike the 2011 3Q investor call, this time there was no mention that "in order to ensure the return on these [WLN] investments, we intend to continue selling our product at a premium in the market." Quoting from  LLB's November 2011 post, Taking the Pulse of WestlawNext Sales. Let's just add that it is pretty damn hard to perform any sort of ROI calculation when WLN financial data is not broken out in TRI's reports.

The question "how much revenue is coming in from Lexis Advance?" can be answered easily. Basically it is $00.00 although LA may generate some additional revenue from increased out-of-plan transaction charges that are allowed in Classic Lexis licenses because of LA's federated search capabilities. Once fully rolled out to all Classic Lexis account holders, LA's initial adoption rate will approach 100% because LA access is free.

We will really only know what WLN and LA adoption rates end up being and what revenues they will eventually generate when both vendors kill off their legacy systems unless some industry analyst in the investment community poses the WLN standalone revenue question before then. But free is a whole lot better than paying a premium to expose an install base of existing users of Classis WEXIS to a next-gen current-gen very expensive online legal search service. [JH]

Quarter	Customers	WLN as % of Westlaw Revenue Base
2010 1Q	2,300	Not published
2010 2Q	5,700	Not published
2010 3Q	9,000	18%
2010 4Q	15,000	31%
2011 1Q	18,500	34%
2011 2Q	24,000	41%
2011 3Q	29,000	46%
2011 4Q	34,000	54%

Market and Distribution Cannibalization in the General Trade Publishing Industry for eBooks, Part 1: Crafting a pricing matrix for eLending

Random House, the only member of the Big Six general trade publishers to make its ebooks available without restriction for library lending, instituted, effective March 1, 2012, a new wholesale pricing formula for its eBooks sold to libraries, usually through digital distributors like OverDrive. I believe the Library Journal's The Digital Shift blog was the first to publish the news on March 2nd at Librarians Feel Sticker Shock as Price for Random House Ebooks Rises as Much as 300 Percent (includes the full text of the statement sent to LJ by a Random House spokesperson). See also paidContent's Random House Sharply Increases Library E-Book Prices.

Ridiculous? No. Some anecdotal evidence indicates that the price increase for the typical market basket of Random House eBooks purchased by public libraries is about 200%. Still ridiculous? Not based on Random House's statement published by LJ. Random House's new pricing can be viewed as a tactical move towards a more narrowly focused pricing matrix for library circulating eBooks.

To come up with its new library lending eBook pricing model, Random House's reference point was its pricing of digital audio books for library lending. That price matrix have generated eLending copies of digital audio books at wholesale prices for institutional buyers and distributors considerably higher than the price for the same digial content purchased for individual comsumption.

Call for eBook circulation data. In his official statement for Random House, the company spokesperson stated that the Company is setting the new library ebook price with “far less definitive, encompassing circulation data” than the sell-through information used to determine retail pricing.

We are requesting data that libraries can share about their patrons’ borrowing patterns that over time will better enable us to establish mutually workable pricing levels that will best serve the overall e-book ecosystem.

In it's March 2, 2012 press release, ALA calls on Random House to reconsider major ebook price increase, ALA responded to the call for more eLending data:

ALA appreciates the data gaps that exist, and we commit to work quickly and collaboratively to address this concern. We must have better data to inform decisions that have such wide and deep implications.

(Emphasis added.)

Wait and see. Until then, in his The Digital Shift post, Michael Kelley reports:

LJ’s 2012 Book Buying Survey showed a 102 percent jump in ebook circulation, and 74 percent of the ebook patrons in LJ’s Patron Profiles report say they want even more ebooks in the ­library.

As the largest distributor of eBooks and digital audiobooks to libraries, OverDrive's stats "provide insight into the general public’s increasing appetite for digital materials in libraries," wrote paidContent's Laura Hazard Owen at New Stats: 2011 Libraries’ Digital Checkouts Up 133% Over 2010.  

In her January 2012 post, she reported on OverDrive's eLending stats. Library patrons checked out 35 million digital titles -- e-books, audiobooks and digital media -- in 2011, up from 15 million checkouts in 2010. eBbooks were not broken out separately in those OverDrive stats.

However, last October OverDrive reported that 12 million e-books were checked out between January 1 and September 30, 2011—up 200 percent over all of 2010. See Laura Hazard Owen's post, E-Book Checkouts From Libraries Up 200 Percent Over 2010.

So while there are some stats "out there," one takeaway of Random House's recent price increase may be that the Company finds the data insufficient for its internal crafting of an eBook pricing matrix for library lending purposes. Do note ALA's committment "to work quickly and collaboratively to address this concern." Was Random House's action a not too subtle nudge for better circulation data from ALA?

Consumer advocacy central to pricing issues. One may argue the case that publishers and libraries have differing but not diametrically opposing best outcome objectives for eBooks at the moment. For eBook lending purposes, publishers concerns including getting wholesale pricing right without cannibalizing their p- and e-book retail sales. For public libraries the concern is acquiring eBooks that can be circulated at a reasonable wholesale price point from all major eBook publishers.

As discussed in the next post in this series, publishers also have another major concern,  namely the cannibalization of distribution channels for selling eBooks to individual consumers. That concern really has nothing to do with library eBook lending but it may explain why Random House is the only member of the Big Six to offer eLending of eBooks at this time. 

I believe it is fair to say that all general trade industry eyes are focused on how Random House and public libraries by way of ALA "establish mutually workable pricing levels that will best serve the overall e-book ecosystem," to quote from the Random House statement. Clearly ALA is not going to be directly involved in setting Random House wholesale pricing for eBook lending or individual consumer retail pricing for eBooks. Providing eLending circulation data for eBooks to Random House (and to the wait 'n see other publishers), is, however, another illustration of how ALA engages in consumer advocacy for its instiutional buyer membership. [JH]