December 8, 2012
In the Beginning There Was Pong
"On Nov. 29, 1972, a crude table-tennis arcade game in a garish orange cabinet was delivered to bars and pizza parlors around California, and a multi-billion-dollar industry was born. Here's how that happened, direct from the freaks and geeks who invented a culture and paved the way for today's tech moguls, writes BuzzFeed's Chris Stokel-Walker. For details, see Atari Teenage Riot: The Inside Story Of Pong And The Video Game Industry's Big Bang. [JH]
December 7, 2012
The Supreme Court Finally, Maybe, Takes Up Gay Marriage
Well, well, well. The Supreme Court announced today that it will take up two major cases affecting the rights of homosexuals to marry. One case concerns the invalidation of California’s Prop. 8 which amended the California constitution to prohibit marriage between two men or two women. The other concerns the Defense of Marriage Act which more than one lower courts has declared unconstitutional. The Court is expected to hear arguments and decide the case in the current term. There is, however, a procedural wrinkle in both cases that gives the Court an out on the substantive issues if it so desires. The Court wants the parties to brief jurisdictional issues as well. Here is the statement in today’s orders list:
12-144 HOLLINGSWORTH, DENNIS, ET AL. V. PERRY, KRISTIN M., ET AL.
The petition for a writ of certiorari is granted. In addition to the question presented by the petition, the parties are directed to brief and argue the following question: Whether petitioners have standing under Article III, §2 of the Constitution in this case.
12-307 UNITED STATES V. WINDSOR, EDITH S., ET AL.
The petition for a writ of certiorari is granted. In addition to the question presented by the petition, the parties are directed to brief and argue the following questions: Whether the Executive Branch’s agreement with the court below that DOMA is unconstitutional deprives this Court of jurisdiction to decide this case; and whether the Bipartisan Legal Advisory Group of the United States House of Representatives has Article III standing in this case.
ABA Task Force on the Future of Legal Education Solicits Comments on Economics and Delivery of Legal Education
The ABA Task Force on the Future of Legal Education Subcommittee on the Costs and Economics of Legal Education seeks comments on what problems are caused or promoted by the costs of a legal education and what plans or actions can be undertaken in the next five years to remedy them. The Subcommittee on the Delivery of Legal Education and Its Regulation is doing the same with respect to what the functions and goals of U.S. law schools are or should be over the next 25 years and how those functions and goals should affect the missions of individual law schools; the nature and demographics of the students they serve; and the costs and availability of legal services.
Both subcommittees are deliberating over questions listed here. Responses can be sent to Art Garwin, the deputy director of the Center for Professional Responsibility at art.garwin(at)americanbar.org.
Hat tip to Mark Hansen's ABAJ News post. [JH]
Friday Fun: Guilty or Not Guilty, Stats on Law & Order EpisodesHat tip to Overthinking It, "where we subject the popular culture to a level of scrutiny it probably doesn't deserve," for its two year crowdsourced effort to collect and analyze the outcomes of all 456 Law & Order episodes. For details, visit The Law and Order Database: All 20 Seasons. [JH]
December 6, 2012
Big Bother Will Be Watching
That's not a typo in the title. One of my regular topics for this blog is developments in privacy. One thread is typically about how we are tracked via the Internet for the sake of providing us with targeted ads based on our interests. Here’s an example. I tend to read a lot of news about Windows 8 and the various kinds of hardware that runs it. I also tend to see a lot of ads for the Microsoft Surface tablet. Likely a lot of these displays are based on Microsoft buying a lot of ad space to promote the device. I suspect, however, that I may see more Surface ads than the average person due to my reading habits. There are efforts to create a standard for protecting consumers from tracking, but these are mired in disagreement. See here and here, for example.
The only reason targeted behavioral advertising is possible is because the web is interactive. Its very nature allows for bits and pieces of information to be transmitted and stored against profiles to provide this delightful service to advertisers. Google at its heart is really an advertising agency with a very good search engine that helps drive its product. Some media, such as television, do not have the built in advantage of interactivity. At least not yet.
Enter Verizon with a patent application submitted on May 26, 2011 and published on November 29, 2012 titled Methods and Systems for Presenting an Advertisement Associated with an Ambient Action of a User. It describes a system that includes a way to track immediate activity (the ambient stuff) by television users through cameras and microphones placed in the set-top box. Commercial breaks on television programs would be based on the immediate activity that is detected. Here are some selected descriptions and examples from the application:
3. The method of claim 1, wherein the ambient action comprises at least one of eating, exercising, laughing, reading, sleeping, talking, singing, humming, cleaning, and playing a musical instrument.
4. The method of claim 3, wherein the interaction between the user and [sic] the another user comprises at least one of cuddling, fighting, participating in a game or sporting event, and talking.
8. The method of claim 1, wherein the detecting comprises utilizing at least one of a gesture recognition technology, a profile recognition technology, a facial recognition technology, and a voice recognition technology.
10. The method of claim 1, further comprising: determining, by the media content presentation system, a mood of the user in accordance with the detected ambient action; wherein the selecting of the advertisement comprises selecting the advertisement based on the determined mood of the user.
11. The method of claim 1, further comprising identifying, by the media content presentation system, one or more physical attributes associated with the user.
14. The method of claim 1, wherein: the detecting of the ambient action comprises detecting at least one word spoken by the user; and the selected advertisement is associated with the at least one word spoken by the user.
20. The system of claim 19, wherein the detection facility is implemented by a detection device comprising at least one of a depth sensor, an image sensor, an audio sensor, and a thermal sensor.
 To illustrate, an exemplary ambient action may include the user eating, exercising, laughing, reading, sleeping, talking, singing, humming, cleaning, playing a musical instrument, performing any other suitable action, and/or engaging in any other physical activity during the presentation of the media content. In certain examples, the ambient action may include an interaction by the user with another user (e.g., another user physically located in the same room as the user). To illustrate, the ambient action may include the user talking to, cuddling with, fighting with, wrestling with, playing a game with, competing with, and/or otherwise interacting with the other user. In further examples, the ambient action may include the user interacting with a separate media content access device (e.g., a media content access device separate from the media content access device presenting the media content). For example, the ambient action may include the user interacting with a mobile device (e.g., a mobile phone device, a tablet computer, a laptop computer, etc.) during the presentation of a media content program by a set-top box ("STB") device.
 In certain examples, detection facility 104 may be configured to obtain data (e.g., image data, audio data, 3D spatial data, thermal image data, etc.) by way of a detection device. For example, detection facility 104 may be configured to utilize a detection device to receive an RGB video stream, a monochrome depth sensing video stream, and/or a multi-array audio stream representative of persons, objects, movements, gestures, and/or sounds from a detection zone associated with the detection device.
I can’t speak for others, but I don’t believe I would be interested in sharing personal details of my life with Verizon, from boring to intimate merely to get targeted advertising based on whatever I happened to be doing at the time. Other articles on this development speculate on the types of ads that might pop up if the patent were implemented. Some of them were pretty lurid or embarrassing. I’ll leave it at that.
I realize that a patent does not mean the technology will ever be implemented, or if it is, what the terms of service will be. Let’s say that this kind of capability does find its way into living rooms. Will it be active only when the set-top box is on? Consider that any profile it generates can be combined with other profiles to create super profiles no matter what media is involved. Moreover, how is the information represented in these profiles? Physical attributes? Facial and voice recognition? How would these characteristics be tracked over time? And most importantly, who would have access to this information? Would the government be able to subpoena collected information or even use the detectors as super wiretaps? Data mining is already creepy. It will take an exponential leap if this comes to pass.
The Tempest in the General Trade Publishing Industry: Will the past be prologue?
Reading André Schiffrin's article in The Nation, How Mergermania Is Destroying Book Publishing, reminds me of some the same sort of promises made to buyers during the early day of mergermania in the legal book publishing industry. "Don't worry, editorial quality will remain excellent, pricing won't increase more than the usual, sales-buyers relationships will be as good if not better after the acquisition is completed." Yup, like that is what happened after competitiveness was eliminated from the equation.
If anyone wonders what will really happen in the general trade publishing industry after mergermania, all one has to do is examine the now well-established consequences of the consolidation that took place in the US legal publishing industry many years ago. Will the antitrust and competition scrutiny of general trade publishing mergers by US and European regulatory agency open the door for a review of the legal publishing industry? Or will the status quo in legal publishing pave the way for regulatory acceptance of mergermania in the the general trade publishing industry? [JH]
December 5, 2012
Who's Monitoring Your eBook Reading Habits?
In Who's Tracking Your Reading Habits? An E-Book Buyer's Guide to Privacy, 2012 Edition, EFF's Cindy Cohn and Parker Higgins write
In nearly all cases, reading e-books means giving up more privacy than browsing through a physical bookstore or library, or reading a paper book in your own home. Here, we've examined the policies of Google Books, Amazon Kindle, Barnes & Noble Nook, Kobo, Sony, Overdrive, Indiebound, Internet Archive, and Adobe Content Server for answers to the following questions:
Can they keep track of searches for books?
Can they monitor what you're reading and how you're reading it after purchase and link that information back to you? Can they do that when the e-book is obtained elsewhere?
What compatibility does the device have with books not purchased from an associated eBook store?
Do they keep a record of book purchases? Can they track book purchases or acquisitions made from other sources?
With whom can they share the information collected in non-aggregated form?
Do they have mechanisms for customers to access, correct, or delete the information?
Can they share information outside the company without the customer's consent?
The authors add "[i]n many cases, these answers were frustratingly vague and long-winded." See EFF's The E-Reader Privacy Chart, 2012 Edition for the results. In the context of course management systems, see Mark Giangrande's Professor Big Brother Is Watching. [JH]
ALA Leads the Way in Advocating for Fair eBook Lending Practices: Will AALL ever emulate this campaign?
“The library community cannot sit by while publishers openly refuse to sell libraries the e-books that they need to serve their patrons,” said ALA President Maureen Sullivan, who recently led several library meetings with publishers. “Librarians and our allies must speak out more forcefully in communities across the country. Everyone needs to know that libraries offer e-books and 21st century library services, but we are unable to offer all the e-reading choices our patrons demand and deserve.”
Towards that objective ALA has released an E-book Media & Communications Toolkit. For more information, see Ron Jankowski's Nov. 27, 2012 ALA Membership Blog post titled ALA Launches E-book Media & Communications Toolkit to Assist Libraries.
Yes, yes, I know the vast majority of law librarians do not belong to ALA. But ALA is the only library association that has been campaigning against the current eBook status quo because many general trade publishers deny libraries access to their eBooks for their patrons use. These are issues that are only starting to be addressed in law libraries. We, law librarians and AALL, can learn from our colleagues in public libraries and from what ALA is doing to advocate for their user populations. ALA's consumer advocacy media campaign toolkit can be easily adapted to law library circumstances. [JH]
December 4, 2012
Supreme Court Action: Temporary Flooding Of Land Is A Taking Under the Fifth Amendment
The Supreme Court issued one opinion this morning. The case is Arkansas Game And Fish Commission v. United States (11-597). It concerns an application of the Takings Clause of the Fifth Amendment to state owned and managed property. The Arkansas Game and Fish Commission owns land that it used to grow timber and as a wildlife and hunting preserve. The Army Corps of Engineers controls a damn on the Black River which runs through the Commission’s land. The Corps periodically releases water via the dam that flooded the Commission’s property. These releases were based on a manual developed by the Corps and included options for temporary deviations from the manual. The floods sometimes caused minimal damage to the land, and sometimes significant damage that required extensive restoration.
The Commission filed suit claiming that the temporary deviations caused sustained flooding of its land during tree-growing season necessitating costly reclamation measures. The Court of Federal Claims found for the Commission but was overruled by the Court of Appeals for the Federal Circuit. The Appellate Court held that the flooding had to be permanent or inevitably recurring to qualify as a taking. This holding was based on two Supreme Court cases from 1924 (Sanguinetti v. United States, 264 U. S. 146, 150 (1924)), and 1917 (United States v. Cress, 243 U. S. 316, 328 (1917)).
The Supreme Court reversed. The Court said each case has to be considered within its own circumstances and reviewed its past cases concerning flooding or temporary taking and concluded that there was significant past precedent that supported the view that even temporary flooding constituted a taking. The Government argued that language in Sanguinetti required that the flooding be a “permanent invasion of the land.” The Court said subsequent cases undermined the effect of that language.
The heart of the opinion is Part IV:
We rule today, simply and only, that government induced flooding temporary in duration gains no automatic exemption from Takings Clause inspection. When regulation or temporary physical invasion by government interferes with private property, our decisions recognize, time is indeed a factor in determining the existence vel non of a compensable taking. See Loretto, 458 U. S., at 435, n. 12 (temporary physical invasions should be assessed by case-specific factual inquiry); Tahoe-Sierra, 535 U. S., at 342 (duration of regulatory restriction is a factor for court to consider); National Bd. of YMCA v. United States, 395 U. S. 85, 93 (1969) (“temporary, unplanned occupation” of building by troops under exigent circumstances is not a taking).
The Court returned the case to the lower courts for more factfinding on issues relating to causation, foreseeability, substantiality, and the amount of damages. Justice Ginsburg delivered the opinion in which all other members joined. Justice Kagan did not participate in the case. [MG]
AALL Election Results
The 1,373 ballots cast -- meaning only 29.85% of dues paying members were interested in voting -- have been counted in this year's AALL election. Congratulations and good luck to AALL's new national office holders:
Vice President/President-Elect (July 2013 - July 2014):
- Holly M. Riccio, Library Manager for Northern California, O'Melveny & Myers LLP, San Francisco, CA
Treasurer (July 2013 - July 2016):
- Gail Warren, State Law Librarian, Virginia State Law Library
Executive Board (July 2013 - July 2016):
- Femi Cadmus, Edward Cornell Law Librarian, Associate Dean for Library Services, Cornell Law School
- Kenneth J. Hirsh, Director of the Law Library and Information Technology, University of Cincinnati College of Law, Robert S. Marx Law Library
See AALL's election results page for the demographics of this year's voting population.
Considering the low voter turnout, which may not be atypical, does the voter turnout not support the argument and suggested changes in how nominees could appear on the ballot to make AALL more representative of rank-and-file interests at the national level as stated in When "None of the Above" Is Not an Option in Electing AALL National Officers. [JH]
The Coming Second Citation War
Thomson Reuters "has not given permission to LexisNexis for the use of Westlaw citations to unpublished decisions on the Lexis Advance research service." -- Bruce Knudson, VP Large Law Business, Thomson Reuters.
The above quote is from a letter republished on 3 Geeks in Mark Gediman's post Citation Wars...or Mine! Mine! The post also publishes a response by LexisNexis. Quoting from Mark's highly recommended post:
Although I am sure that Westlaw feels that this response [to a LexisNexis advertising campaign] is justified, I think that to respond to what is really a common industry practice indicates a surprising degree of desperation.
Indeed it is for the moment. However my hunch is Thomson Reuters is preparing the stage for an anticipated new normal when West is not the official publisher of federal and state court opinions. Then all decisions may be "unpublished" as defined by the outcome of the First Citation War and vendor database file citations (i.e., WEXIS file number cites) may require permission to be used by a competitor.
Clearly the coming new normal will be court opinions which are officially published in electronic format at the court level that will be vendor neutral. Vendor specific database file citations may very well be proprietary. Just imagine the consequences for citation indexing and the practice of parallel citations provided in commercial research platforms.
We are in the very early stage of official electronic distribution of primary legal materials like court opinions. UELMA is just the start. If a uniform system of official neutral citation format is not adopted by federal and state courts, will commercial vendors just provide their own and arguably proprietary database file cites? Could you blame our commercial vendors if they do? [JH]
December 3, 2012
New Florida Law School Still Looking For A Home
I wrote a short piece last March about yet another new law school debuting in Florida. The plan was to place it in Daytona Beach. That would have put the school relatively near Gainesville, Jacksonville, and Orlando where other law schools are established. I say relative as the distances range from approximately 60 to 90 miles between these locations and Daytona Beach.
The Daytona Beach News-Journal is reporting that Daytona Beach may not be the site of the new school after all. That’s because all parties involved were looking at the vacant building formerly used by the police which was supposed to have around 55,000 square feet. An appraisal showed that the building had only 38,000 square feet which was not enough for the proposed school of 600 students and 30 full-time faculty members. The incorrect figures were reported once and carried through the negotiations until the appraisal. Woops. The school is now looking at other options in Daytona Beach and possibly Melbourne, some 90 miles south.
I can’t believe that this is a viable project when law school enrollments are falling and jobs are scarce. Then again, any new school will likely pay lip service to things like median GPAs and LSAT scores, at least in terms of rankings. The fourth tier of the U.S. News rankings is a lonely place no matter how well capitalized a new law school may be. I wrote then:
Hope springs eternal. [MG]
This is an underserved market? Maybe we'll see a day where law schools dot communities like big box stores.
"We educate students for a career likely to span 40 to 50 years" says Case Western Law Dean but grads need jobs to pay off student loans now
Quoting from Dean Lawrence Mitchell's NYT think piece, Law School Is Worth the Money:
I’m a law dean, and I’m proud. And I think it’s time to stop the nonsense. After two years of almost relentless attacks on law schools, a bit of perspective would be nice.
For at least two years, the popular press, bloggers and a few sensationalist law professors have turned American law schools into the new investment banks. We entice bright young students into our academic clutches. Succubus-like, when we’ve taken what we want from them, we return them to the mean and barren streets to fend for themselves.
Ah, OK. Law school may be worth the money if grads find jobs that earn enough to start paying off their loan debt while keeping a roof over their heads until they finally land a job to start their legal careers. With plenty of experienced young lawyers unemployed and the escalating number of grads produced each year who are not employed in the legal profession, every new graduating class will find it harder to start their legal career. Many will simply give up. Even a 10 year "career" as a contract employee performing document examination work is unlikely due to advances in information technology.
ATL's email in-box was filled with reactions to Dean Mitchell's immediately notorious wishful thinking piece. See Elie Mystal's Students and Recent Graduates Speak Out About Dean Mitchell’s Defense of Law School. [JH]
Now You See It, Now You Don't: Plan for Contingencies When Negotiating Legal Research Services Licenses That Include Distribution Agreements Involving Outside Publishers
It's been about a month since it was announced that PLI content was no longer available on Westlaw. Missing Westlaw's PLI content? Apparently PLI and Thomson Reuters were unable to reach an agreement for providing PLI materials on Westlaw. Was PLI asking for too much money? Was Thomson Reuters offering too little cash? Were other factors involved? Remember some PLI content is available on Lexis and Bloomberg Law (but for how long?).
So if an institutional buyer killed all or most of its PLI print titles because "it was on Westlaw," deal with it. Content licensed from an outside publisher and distributed by way of one of our major vendors is not something one can depend upon. It is not necessarily a per se material breach of one's license for Westlaw, Lexis or BLaw unless an institutional subscriber makes it one.
Plan for contingencies by modifying boilerplate licenses. First. try to obtain a written assurance that all content licensed from an outside publisher that is redistributed by your search vendor will be accessible for the duration of your next license. If that doesn't fly, see where you get when licenses come up for renewal by insisting on a clause that stipulates that if X, Y or Z disappears, the subscriber has the option to cancel the license or to reduce its fixed costs by a certain amount for the duration of the research platform license.
Reduced costs by how much? The cost paid to the vendor or the replacement cost incurred by the buyer to acquire the content in print or electronic format? Start planning for contingencies. For example, how long do you think BNA will be available from anyone except BLaw-BNA? It just does not make sense to sell a competitive advantage to another research vendor by way of a distribution agreement.
What's going on here? The era of distributing expert secondary resources via Lexis and Westlaw to fill in the deficiencies of their commodized content is coming to a close. One or the other or BLaw but not "all or some of the above." In the No Sacred Cows era of legal research platforms, my hunch is distribution arrangements will become single vendor exclusive agreements that go to the highest bidder. And that bidder may change when the distribution agreement is up for renewal.
I'm not sure one can read the future by recent vendor eCommerce sites but clearly vendors like Lexis are already supplementing their in-house pBooks by offering expert print treatises published by other publishers (e.g., ALM) and professional and trade associations (just like BLaw is providing online). This is private sector demand-driven content sales and distribution in p- and e-formats. High quality speciality titles, something WEXIS lacks in quantity, are now "hot properties" in print and electronic formats for the supply chain. Remember when Sears switched from just selling its own goods to becoming "Brand Central" a couple of decades ago?
Was BLaw's acquisition of BNA a wake-up call for WEXIS? [JH]
December 2, 2012
RIP rethinc.k: 2009 - 2012
In his Nov. 26, 2012 blog tombstone post, Jones-McClure's Jason Wilson writes
Read it while you can until the end of the year, then I’m shuttin’ her down. I can’t stand the sight of a dead blog.
"It" is Wilson's rethinc.k blog. All good thing do come to an end.
What Jason doesn't mention is that Jones-McClure's O'Connor's Annotations blog is alive and well. [JH]