Law Librarian Blog

The White House Homepage Gets a Makeover

See Macon Phillips' White House Blog post, Upgrading the White House Homepage, for Whitehouse.gov. [JH]

Iowa Law Hiring Case Concludes Unhappily

One of the cases making the news is one where plaintiff Theresa Wagner sued the University of Iowa law school because she was passed over for a faculty position.  She alleged she failed to get the job because of her conservative views and activities.  Of the 50 faculty members at Iowa, 46 are registered Democrats with only 1 registered Republican.  The School claims she fluffed the interview.

The jury returned a mixed verdict, finding against her on the claim that her First Amendment rights were violated, and deadlocked on her claim that she was denied her 14^th Amendment Equal Protection rights.  Her lawyers are upset that they did not get a chance to poll the jury after the verdict was announced.  More on the outcome of this case is in the Chronicle of Higher Education.  The report indicates that this case was on the messy side in its procedure.  It should be interesting to see how the Court of Appeals treats it.  [MG] 

A "Crock of Crap": Did Thomas Jefferson School of Law intentionally inflate its placement stats?

"In a sworn statement, Karen Grant, a former career services assistant director at Thomas Jefferson School of Law, admits that she fabricated graduate employment outcomes for the class of 2006. Grant alleges that her fraud was part of a deliberate scheme by the law school’s administration to inflate its employment statistics. She also claims that her direct supervisor, Laura Weseley, former Director of Career Services, instructed her on multiple occasions to improperly record graduate employment outcomes and justified the scheme because 'everybody does it' thus 'it is no big deal.' TJSL could face sanctions from the American Bar Association as severe as losing accreditation." Quoting from LST's Ex-CSO assistant director from Thomas Jefferson admits to fraud, alleges deliberate scheme by law school.

In an un-sworn statement, Thomas Jefferson School of Law dean Rudy Hasl called the allegations a "crock of crap." See Mark Hansen's Former Law School Employee Says in Sworn Statement She Was Pressured to Inflate Graduates’ Job Stats (ABAJ News). [JH]

Friday Fun: "I'll blow your mind, show you how to find."

Students and faculty from the University of Washington's Information School get their groove on in this clip titled "Librarians Do Gaga." [JH]

How Open Is It? A Guide to Understanding the Core Components of Open Access

Hat tip to Legal Research Plus for calling attention to the SPARC (Scholarly Publishing & Academic Resources Coalition), PLOS (Public Library of Science) and OASPA (Open Access Scholarly Publishers Association) production of its 2-page checklist guide, How Open Is It? Open Access Spectrum — OAS: A Guide to Understanding the Core Components of OA. The guide  was prepared for this year's Open Access Week: Set the Default to Open Access (October 22-28, 2012). See SPARC's press release for download links to the Guide, FAQ and PowerPoint.

From the Guide

How To Use This Guide:

In 2002, the Budapest Open Access Initiative articulated the basic tenets of Open Access for the first time. Since then, thousands of journals have adopted policies that embrace some or all of the Open Access core components related to: readership, reuse,copyright, posting, and machine readability. However, not all Open Access is created equal. For example, a policy that allows anyone to read an article for free six months after its publication is more open than a policy that creates a twelve month embargo; it is also less open than a policy that allows for free reading immediately upon publication.

This guide will help you move beyond the seemingly simple question, “Is this journal open access?” and toward a more productive alternative, “How Open Is It?”

Use it to:

• Understand the components that define Open Access journals
• Learn what makes a journal more open vs. less open
• Make informed decisions about where to publish

[JH]

Memphis Public Library Card With Photo Held To Be A Valid Voter ID

Here’s a bit of legal fun.  The Tennessee voter ID law was under attack in that state as unconstitutional.  The Tennessee Court of Appeals ruled that the law is constitutional.  However, the more interesting part of the opinion concluded that a photo ID issued by the Memphis Public Library constituted a valid ID for anyone attempting to vote under the law.  The State had argued against that point.  The Court stated:

The list of photograph identification cards that are deemed acceptable as proof of identity at a polling place includes “a valid identification card issued by a branch, department, agency or entity of this state, any other state, or the United States authorized by law to issue personal identification; provided, that such identification card contains a photograph of the voter.” Tenn. Code Ann. § 2-7-112(c)(2)(A). Memphis argues that its library cards meet this definition. The State argues that the Memphis library is not a “branch, department, agency or entity of this state.”

* * * *

The words used in Tenn. Code Ann. § 2-7-112(c)(2)(A) are quite broad, with no modifiersto limit their application. According to Tenn. Code Ann. § 2-1-102, the election code is designed “to regulate the conduct of all elections by the people so that: (1) The freedom and purity of the ballot are secured; . . . and (4)Maximum participation by all citizens in the electoral process is encouraged.” Allowing local governments to produce photographic identification cards that can be used as identification for voters at the polls is consistent with and furthers both of these goals.

* * * *

In addition, Tennessee case law supports finding that the city is “a branch, department, agency or entity of this state.” Tenn. Code Ann. § 2-7-112(c)(2)(A). The Tennessee Supreme Court has observed that, “[i]t is beyond question that a Tennessee municipality is an agency of the state exercising a portion of the sovereign power of the state for the public good.”  Collierville v. Fayette Cnty. Election Comm’n, 539 S.W.2d 334, 336 (Tenn. 1976).  We hold that Tenn. Code Ann. § 2-7-112(c)(2)(A) allows the City of Memphis, through its public library, to issue photographic identification library cards that can be used by voters to satisfy the identification requirements of Tenn. Code Ann. § 2-7-112.

In accordance with Tenn. R. App. P. 36(a), an appropriate order will be entered simultaneously with this Opinion requiring the defendants to take immediate action to appropriately notify the Shelby County Election Commission in accordance with this decision.

I have to believe there are more uses for a library card acting as a photo ID beyond voting under this logic.  The case is City of Memphis, Tennessee v. Tre Hargett, Secretary of State (No. M2012-02141-COA-R3-CV - Filed October 25, 2012).  [MG]

News Flash: Clark Kent Quitting the Daily Planet

The BBC is reporting that Clark Kent will be quitting his reporter job at the Daily Planet in protest that "hard news" has been sacrificed for too many "soft" entertainment stories since the newspaper was taken over by a conglomerate. The source of the BBC story is DC Comics which publishes Superman. "The publisher has hinted that the Man of Steel might even go the way of many journalists and become a blogger... ." [JH]

You Bought It, You Own It! Owners’ Rights Initiative Launched to Protect Consumers’ Rights

Launched on October 23, 2012, the Owners' Rights Initiative (ORI) is a coalition of retailers, libraries and Internet companies that have joined together to protect ownership rights. See Coalition of businesses, associations, educators and libraries join together to protect ownership rights and global commerce. From ORI's statement of purpose:

We believe in the fundamental premise that if you bought it, you own it, and should have the right to sell, lend or give away your personal property. ORI members are concerned about recent federal court decisions that have eroded owners’ rights. The initiative provides a unified voice for members to engage in advocacy, education and outreach around these important issues.

Founding members include ALA and ARL. See, for example, ALA Joins Coalition to Protect Library Lending Rights ("The coalition was formed to champion “first-sale rights,” or ownership rights, as the issue will be taken up by the U.S. Supreme Court in the case of Kirtsaeng vs. Wiley & Sons, Inc. on October 29, 2012. The Supreme Court’s decision could have adverse consequences for libraries and call into question libraries’ abilities to lend books and materials that were manufactured overseas.") 

About Kirtsaeng, see Mark Giangrande's Supreme Court To Hear Case On Applying The First Sale Doctrine To Foreign Goods, yesterday's post by Mark, The Deeper Implications Of The Pending Kirtsaeng Case and Kirtsaeng vs. Wiley & Sons, Inc (SCOTUSblog). [JH]

Posner's Pragmatism: "I don’t need four minutes to explain my theory of statutory and constitutional interpretation because I have no theory."

On Oct. 17, 2012, Judge Posner presented "How I Interpret Statutes and the Constitution" at Columbia Law via video conference. Hosted by the Federalist Society, you can view his presentation here. ATL's David Lat reviews Posner's remarks at Judge Posner on Statutory Interpretation: This Is How We Do It (Or, for the less high-minded: MOAR BENCHSLAPS.) [JH]

The Deeper Implications Of The Pending Kirtsaeng Case

There was a very stimulating discussion yesterday via conference call on the Kirtsaeng case which will be argued in the U.S. Supreme Court next Monday.  I wrote about the case last week, mostly in the context of the law of the case and a potential effect on libraries.  The central issue in the case concerns the application of the first sale doctrine to foreign made goods.  I won’t repeat the specific facts at issue here.  They are in the earlier post.

The panel consisted of the following individuals:

• Marvin Ammori, Bernard L. Schwartz Fellow, New America Foundation and Affiliate Scholar, Stanford Law School Center for Internet & Society
• Hillary Brill, Global Policy Counsel for eBay Inc.
• Mark J. Griffin, General Counsel for Overstock.com, Inc.
• Joseph Marion, President of the Association of Service and Computer Dealers International (ASCDI)
• Alfred Paliani, President of the American Free Trade Association and General Counsel of Quality King Distributors, Inc.
• Vailey Oehlke, Director of Libraries for Multnomah County, Oregon
• Betsy Wilson, Dean of Libraries at the University of Washington
• Moderator:  Andrew Shore, Executive Director of the Owners’ Rights Initiative

The discussion brought out some of the implications of a decision upholding the Second Circuit’s ruling that the first sale doctrine does not apply to imported goods.  The context in this case is the resale of imported books but the impact could be much broader in a world with increasingly globalized trade.  One of the examples the panel used is technology.  Our electronic devices are typically manufactured outside of the United States.  If not the devices themselves, the parts they contain likely contain foreign-manufactured parts.  Technology built in cars is a perfect example.

It may seem absurd to suggest that one couldn’t resell a car because the radio it contains was manufactured at an Asian facility and the manufacturer refused permission for the resale.  I agree it would be absurd.  However, a ruling that limits first sale doctrine application would create another level of rights that can be negotiated.  This would likely result in higher prices for producers of finished goods and ultimately consumers. 

One of the suggestions at yesterday’s panel was that domestic manufacturers who might want to limit their products in secondary markets could easily manufacture their goods overseas as limit on distribution.  If this also sounds absurd, consider that Universal Music Group sued an individual for reselling promotional CDs on eBay.  The Ninth Circuit ultimately ruled that the “license” terms limiting resale ran afoul of the first sale doctrine.  The case (UMG v. Augusto, 628 F.3d 1175 (2011)) could have a different outcome under an affirmed Kirtsaeng.  All UMG would have to do is make their promotional CDs outside of the United States and make that make that notice of geography prominent.

The same thought could occur to any publisher who would rather sell new copies of books, music, and movies by limiting resale.  Consumers would not be the target of suits as such (though Troy Augusto was a targeted consumer in the UMG case).  Legitimate resale businesses, however, used book and music stores, could easily be targets to enforce a copyright regime.  As a consumer I’m just as happy to buy a used DVD copy of a Doctor Who episode at Reckless Records in Chicago for a very reasonable $6.99.  I’m sure Warner Bros. and the BBC would prefer I pay a much higher new price for the privilege.  Consumers will suffer if the law will allow cutting out these resale opportunities either by limiting the channel for used goods or by mandating higher prices for the privilege of buying something used.

Libraries in the United States lend books.  Betsy Wilson, Dean of Libraries at the University of Washington estimated that slightly more than half of the books in the system’s collection were imported.  It would be a nightmare to mine collection information to determine which books can be loaned and which could not.  Those supporting the lower court ruling in Kertsaeng say this is nothing more than drama on the part of libraries.  Really?  Have any publishers stepped up in writing that they wouldn’t enforce their importation rights if Kirtsaeng is affirmed?  I only ask this possibly dumb question because there is a track record in place for publishers on the distribution of e-books.  Libraries can only get them with ridiculous DRM and/or contract terms that severely limit their use.  Can we ever say that will not happen with print copies if the law allows it?

I understand what a “parade of horribles” is in the context of a legal argument.  Kirtsaeng won’t unleash the worst possible results if the Court affirms the Second Circuit, at least not immediately.  However, all bets will be off once business considerations start interacting with the decision.  And as several panelists noted, the Court’s decision won’t be the final word.  Congress will be treated to an expensive expansive round of lobbying from both sides to preserve or overturn the decision.  That effort will probably spill over into fair use if the HathiTrust and Georgia State reserve cases stand.  Kirtsaeng is about much more than whether an enterprising student can import textbooks for resale against Wiley’s wishes.    

More information on the coalition to overturn the Second Circuit is available at the Owners Rights Initiative.  [MG]

How Open? Survey of Online State Primary Legal Resources

This is the sixth annual Open Access Week so it seems appropriate to see just how far states have progressed to provide open access to their primary legal resources online.

AALL: 2011-2012 Preliminary Analysis of AALL’s State Legal Inventories (September 2012; Updated October 2012)

Sunlight Foundation: State Regulations Online wiki page and Matt Rumsey's blog post, Survey: How Many States Publish Rules and Regulations Online?

[JH]

ARL Hosting Webcast on HathiTrust Decision This Afternoon

From the press release:

The Association of Research Libraries (ARL) will host a webcast on Wednesday, October 24, 2012, from 2:00 to 3:00 p.m. eastern time, to discuss the Authors Guild v. HathiTrust decision and the implications of this victory for research libraries. The webcast will be moderated by Brandon Butler, Director of Public Policy Initiatives at ARL, and will feature discussion from:

• Jonathan Band, of policybandwidth, an expert in copyright law and the co-author of the Library Copyright Alliance amicus brief in the HathiTrust case
• Peter Jaszi, Professor of Law at American University’s Washington College of Law, as well as co-facilitator of the Code of Best Practices in Fair Use for Academic and Research Libraries and a member of the legal team that represented the National Federation of the Blind
• Dan Goldstein, a partner at Brown, Goldstein & Levy, acts as counsel for the National Federation of the Blind (NFB) and has initiated a national legal campaign to ensure access to technology
• Jason M. Schultz, Assistant Clinical Professor of Law and Director of the Samuelson Law, Technology & Public Policy Clinic at the University of California Berkeley School of Law

To register for the webcast, please visit http://www.visualwebcaster.com/event.asp?id=90208.

An archive of the webcast will be made available on ARL's YouTube channel after the event.

For background, see Mark Giangrande's Authors Guild Loses Its Suit Against HathiTrust and Authors Guild Responds To Loss In HathiTrust Case. [JH]

Law Libraries and Their "Willingness to Pay" for Law eBooks

Following up on yesterday's post, Assessing the Market Value of eBooks Acquired by Libraries, I professionally believe enhanced Law eBooks is "The Next Big Medium-Size Thing" but there is plenty of early anecdotal evidence that can lead one to conclude that private and government sector law libraries are not yet "willing to pay". See Grappling with the Current Law eBook Status Quo as an Institutional Buyer and Bess Reynolds' The Challenges of E-Books in Law Firm Libraries. For an overview, see generally the E-Books section of Laurie Selwyn & Virginia Eldridge's "Technology, Contracts, and Electronic Resources" chapter in Public Law Librarianship: Objectives, Challenges, and Solutions (IGI Global, 2012) [Amazon link].

These are the early days of the "Law eBook." Remember grappling with installing Law CDs on the desktop and in networked towers back in the bad old 1990s? While CDs ended up being a technological dead end, Law eBooks may earn a place in institutional buyers' collection development plans if our major vendors address the value proposition for library users. High, if not top, on the list of issues is there must be an eLending solution with an associated pricing mechanism based on a unified institution-centric discovery platform that is not vendor-specific.

But first all major vendors must get into the Law eBook business (think BLaw-BNA). Then they must realize that their eBooks will be a supply chain dead end without a pricing-eLending solution (think Thomson Reuters) that addresses institutional buyers requirements (think the entire industry). [JH]

Get Ready For MS Surface And Windows RT

This is the week when the world changes for Microsoft and its customers.  Windows 8 and the Microsoft Surface “tablet” start distribution this Friday.  There is excitement in the air and press over the event though coverage of the development of the new version of Windows has been decidedly mixed.  The touch oriented version of Windows 8 sports a new interface that has seen good reviews on tablets but is seen by some as a detriment on a desktop machine with a keyboard and mouse.

I’m not going to rehash whether Windows 8 is a good or bad move from Microsoft.  My feeling is that the company is right to design an operating system for mobile devices as that is where the consumer market is obviously headed.  It’s not a question of whether Microsoft made the right move as much whether the design and approach of Windows 8 is right.

The success of Windows 8 on traditional computers with keyboards and mice will only become apparent once the general public has a chance to use it.  Articles in the tech press are loaded with comments for and against features in Windows 8.  I tend to discount those to an extent as a majority of readers there work in technical industries.  My suggestion is to try it out for yourself and see how you like it.

With that, I want to clear up some confusion about what Microsoft is distributing this Friday.  There are two types of Windows and two types of Surface tablets.  The iteration that appears at the end of the week is the tablet that runs Windows RT which is not a full version of Windows.  While it will sport a desktop, it will not be able to run any legacy applications that are not preinstalled by Microsoft.  These will include a version of Office RT that includes Word, Excel, PowerPoint, but not Outlook.  Microsoft wants users to use the live tile version of the mail app instead.  There will be no option to install programs to the desktop side of Windows in Windows RT.

For those wanting that capability, wait for the Windows Pro version of the Surface or other OEM equipment that runs full Windows.  Microsoft’s version won’t appear until January at the earliest.  These type of devices are expected to cost significantly more as they mimic the desktop experience in a tablet/laptop/ultrabook form factor.  Microsoft has released pricing and specifications for the Windows RT version of the Surface.  The device will cost $499 without a cover/keyboard and $599 with.  A more tactile keyboard is available for $129 as a separate option.  The summary specifications and a feature by feature comparison to the iPad are in a nice chart courtesy of PC Magazine.  There is a nice article in SlashGear on how the Surface Tablet came to be.

Microsoft’s success is far from assured though I have no doubt Windows 8 will be a success in one way or another.  The much hated Vista (let us never speak of it again) sold millions of copies despite being much of a joke in the technical community.  Google and Apple both have new tablets in the offing.  Google will announce the next generation of the Nexus 7 before the end of the month.  Apple is expected to announce the iPad mini tomorrow.  Amazon, of course, keeps speeding along with the Kindle.  I expect Microsoft to have an impact in the mobile market with the Surface.  I won’t predict success.  The Wall Street Journal  (subscription required) is less sanguine.  [MG]

Assessing the Market Value of eBooks Acquired by Libraries: An Economic Analysis Commissioned by ALA

ALA retained economists Stanley M. Besen and Sheila Nataraj Kirby to produce an economic analysis of the current environment in which libraries acquire eBooks. The report concludes that eBook pricing is determined by the library's willingness to pay. That, in turn, is determined by the institutional buyer's assessment of the perceived value of eBooks accorded by library users.

Besen and Kirby's E-Books and Libraries: An Economic Perspective for ALA (September 2012) is highly recommended because we won't see any similar expert economic analysis specific to Law eBooks from the perspective of member law library institutional buyers by AALL anytime soon, if ever.

Table of Contents for E-Books and Libraries: An Economic Perspective

Introduction
The Differences between Print and Electronic Books
The Costs of Publishing Print and E-books
How E-books Are Distributed
The Introduction of E-books and the Library Demand for Books
The Effect of Value-added Features of E-books on Library Willingness to Pay
The Effects of Usage Restrictions on a Library’s Willingness to Pay
Budget Constrained Libraries
The Effect of the Existence of Demand by Individuals
Looking to the Future
Appendix A: Derivation of a Library’s Willingness to Pay for a Book

See also ALA OITP Program Director Carrie Russell's District Dispatch post covering the Besen and Kirby analysis at Why Do Librarians Expect a Fair Price for an Ebook? [JH]

CCC Offers Publishers Open Access Solutions Through Its RightsLink Platform

Check out Roy Kaufman's, CCC's Managing Director of New Ventures, Key Considerations and Solutions for Open Access Publishing. [JH]