March 3, 2012
Wealthier People Are More Likely to Lie, Cheat, and Behave Unethically Then Those Who Are Not Wealthy
Details on the studies conducted to reach this conclusion at ADR ProfBlog's Rich People Lie and Cheat. [JH]
March 2, 2012
Yikes! Y2K Was One Thing But Not Coding for Leap Year for a Litigant Strategic Profile from LexisNexis' CourtLink System is Something Else
For details, see Greg Lambert's Lexis Litigation Lists Lag on LeapDay post. Sure programmers live in their own space-time continuum but... . [JH]
Groups Protest and National Security Counselors File Case Action Lawsuit Over CIA's New Mandatory Declassification Review Fees
More than 30 organizations including AALL, ALA and SLA joined the National Security Archive and OpenTheGovernment in protesting the CIA's recently implemented MDR review fee schedule for effectively pricing the public out of the opportunity to challenge the CIA’s secrecy claims. Quoting from the Feb. 23, 2011 open letter to Director of National Intelligence, James Clapper, Director of the Central Intelligence Agency, David Petraeus and Director of the Information Security Oversight Office, John Fitzpatrick:
Re: CIA Regulation change to 32 CFR Part 1908 allowing the Agency to charge requesters as high as $72 per hour for Mandatory Declassification Review requests.
To whom it may concern:
We the undersigned would like to call to your attention an alarming regulation that the Central Intelligence Agency entered into the Federal Register on 23 September 2011. Finalized without any notice for public comment, this regulation could cut off access to the most effective tool the public can use to request declassification of the CIA’s secret documents, the Mandatory Declassification Review (MDR) program.
The regulation states that declassification reviews will now cost requesters up to $72 per hour, even if no information is found or released. The public must now also agree to pay a minimum of $15 in duplication fees. Throughout the government, and previously at CIA, MDR fees are commensurate to FOIA fees. Under FOIA, Congress stipulated that public interest, educational, journalism, and other fee waivers must be granted, when applicable under the statute. Furthermore, agencies must forfeit their right to collect some FOIA processing fees when they miss their processing deadline.
The effect of the CIA’s new policy will be to price the public out of submitting MDR requests, a result not at all consonant with Obama Administration transparency policy in general or its declassification policy under Executive Order 13,526 in particular.
In Groups Protest CIA’s Covert Attack on Public Access, OpenGovernment also reports:
On Wednesday, February 22nd Kel McClanahan, Executive Director of National Security Counselors (NSC), also filed a class action suit on behalf of several frequent MDR requesters against the CIA for violating the Independent Offices Appropriations Act (IOAA) by charging fees to MDR requesters for this public service. The case, in the U.S. District Court for the District of Columbia, is National Security Counselors, et al. v CIA, No. 12-284. The National Freedom of Information Coalition (NFOIC) recently announced a grant to NSC to bring the court challenge over the regulation from the Knight FOI Fund, a legal war chest administered by the NFOIC to support litigants in meritorious open-government cases.
Hat tip to SLA San Francisco Bay Region Chapter's Intersect Alert. [JH]
Friday Fun: The Fantastic Flying Books of Mr. Morris Lessmore
OK, I don't watch the Oscars so this is a huge hat tip to Beverly Goldberg's Feb. 29, 2012 American Libraries's story for this gem. Goldberg writes
A film allegory that celebrates the curative power of story in general—and reading in particular—won the Academy Award for Best Animated Short February 26. The Fantastic Flying Books of Mr. Morris Lessmore, a wordless film whose most inspiring scenes take place in a fanciful library full of living books, was produced by start-up Moonbot Studios in Shreveport, Louisiana, and depicts how the title character heals emotionally, over time, from the cataclysmic devastation of his personal world by Hurricane Katrina through the transformative properties of the written word.
For more, see Goldberg's Oscar Nod to Fantastic Flying Books Shows Love for Libraries.
Here's a the poignant YouTube video clip from of the entire film. (Hat tip to Sarah Patrick's comment to this post for the correction.) [JH]
Law and Order, Then and Now: Animals and inanimate objects, including human corpses, put on trial
And what for? In the history of animal trials, typically to adjudicate criminal complaints based on their behavior. Today's animal rights advocates who are campaigning against breed-specific legislation might want to take note that in the annuals of animal litigation, defendants -- the accused animal -- oftentimes enjoyed the benefits of due process. In Bugs and Beasts Before the Law, Nicholas Humphrey, a theoretical psychologist who is known for his work on the evolution of human intelligence and consciousness, reports
All over Europe, throughout the middle-ages and right on into the 19th century, animals were, as it turns out, tried for human crimes. Dogs, pigs, cows, rats and even flies and caterpillars were arraigned in court on charges ranging from murder to obscenity. The trials were conducted with full ceremony: evidence was heard on both sides, witnesses were called, and in many cases the accused animal was granted a form of legal aid — a lawyer being appointed at the tax-payer’s expense to conduct the animal’s defence.
For an animal found guilty, the penalty was dire; execution was not uncommon. However, Humphrey adds
[T]he outcome of these trials was not inevitable. In doubtful cases the courts appear in general to have been lenient, on the principle of “innocent until proved guilty beyond reasonable doubt”.
Humphrey explains that much of his souce material comes from a book he found in the Cambridge University Library, E.P. Evans, The Criminal Prosecution and Capital Punishment of Animals (1906) (Open Library link). His article, adapted from several sources by permission, was published in The Public Domain Review as an illustration of the value works in the public domain may have for scholarship.
In this article, Humphrey asks "What was the purpose of these lengthy and extravagant procedures? A desire for revenge cannot have been the only motive." Humphrey cites to cases reported by Evans where inanimate objects were brought up on charges.
In Greece, a statue that fell on a man was charged with murder and sentenced to be thrown into the sea; in Russia, a bell that peeled too gleefully on the occasion of the assassination of a prince was charged with treason and exiled to Siberia.
Humphrey also argues that the protection of society cannot have been the only motive either.
Evans tells of the bodies of criminals, already dead, being brought to trial. Pope Stephen VI, on his accession in 896, accused his predecessor, Formosus, of sacrilegiously bringing the papal office into disrepute. The body of the dead pope was exhumed, dressed in the pontifical robes and set up on a throne in St. Peter’s, where a deacon was appointed to defend him. When the verdict of guilty was pronounced, the executioner thrust Formosus from the throne, stripped him of his robes, cut off the three benedictory fingers of his right hand and threw his body “as a pestilential thing” into the Tiber.
Humphrey reaches the following conclusion:
Taken together, Evans’ cases suggest that again and again, the true purpose of the trials was psychological. People were living at times of deep uncertainty. Both the Greeks and medieval Europeans had in common a deep fear of lawlessness: not so much fear of laws being contravened, as the much worse fear that the world they lived in might not be a lawful place at all.
Social chaos vs some sort of system of governance defined by law cannot be dismissed because they are based on Humphrey's examination of the strange world of bringing to law courts animals and inanimate objects which exhibit no criminal intent and even corpses for trials of possible crimes. Law and order is a cultural phenomenon that remains alive today. Quite likely it is based on a fear that the society we live in must be a lawful place. [JH]
March 1, 2012
Supreme Court Action: Federal Pre-emption Of State Law
February 29 was the day that only occurs every four years, being leap year. The question that presented itself is how many Supreme Court opinions were ever issued on February 29? The answer is 11, including the opinion delivered Wednesday. That case is Kurns v. Railroad Friction Products Corp. (10-879). Kurns is the executrix of the estate of George Corson. He worked as a welder and machinist for a railroad carrier. He was diagnosed with mesothelioma after he retired and sued Railroad Friction Products and others in state court claiming defective design and failure to warn of the dangers posed by asbestos. The case was removed from state court to federal court where summary judgment was granted to defendants on the basis that the state law claims were pre-empted by the Locomotive Inspection Act (LIA). The Third Circuit affirmed. The Supreme Court also affirmed.
The Court reasoned that earlier precedent in Napier v. Atlantic Coast Line R. Co., 272 U.S. 605 (1926) applies. That case held that carriers can only operate locomotives in proper condition and safe to operate without unnecessary danger of personal injury and the equipment inspected as required under the LIA and can withstand tests under regulations prescribed by the Secretary of Transportation. The Court reads the LIA as pre-empting state law in this context as the federal and state laws are both directed to the equipment of locomotives.
The Federal Railroad Safety Act of 1970 (FSRA) does not alter the LIA’s scope as that Act left previous federal laws and regulations intact. The Court rejected arguments that the repair of locomotives fell outside the LIA as Congress intended it to occupy the entire field of regulating locomotive equipment. The Court rejected the alternative argument that the failure to warn claims are not pre-empted due to liability being based on the failure to provide adequate warnings regarding the products risk. Corson suffered his injury due to exposure to asbestos in locomotives, thus pre-empted by the LIA. Other arguments fell under the statement that all locomotive issues fall under the LIA.
The opinion was written by Justice Thomas who tends to live in his own version of legal reality. Justice Sotomayor filed an opinion concurring in part and dissenting in part joined by Justices Ginsburg and Breyer. She disagrees on the failure to warn claim:
The majority further conflates defective-design and failure-to-warn claims by noting that each is “directed at” locomotive equipment. Ante, at 9. That is insufficient. Not every state law that “could be said to affect tangentially” matters within the regulated field is pre-empted. English v. General Elec. Co., 496 U. S. 72, 85 (1990). Rather, “for a state law to fall within the pre-empted zone, it must have some direct and substantial effect” on the primary conduct of entities subject to federal regulation. Ibid. As explained above, the LIA regulates the physical equipment of locomotives. But petitioners’ failure-to-warn claims, if successful, would have no necessary effect on the physical equipment of locomotives at all, as respondents themselves acknowledge.
Then again, he convinced six other Justices on his position. [MG]
Copyrighted Legal Briefs Continued: Are The Downloaders Just As Liable?
A few more observations about PACER’s role in the legal brief copyright case are in order. One comes from a tweet by Sarah Glassmeyer that the prime users of PACER (95%) are, gasp, the vendors. The product in the packaging of the litigation products has to come from somewhere. As I think more about the “parade of horribles” that proceed from a potential finding of infringement in this case, what happens to the lawyers that may have downloaded briefs from Westlaw or Lexis? Can they be liable for infringement? I’m not sure there is an analogy with the music and movie litigation we’ve seen in the past. Some judges have had problems with the level of damages in those cases compared to the cost of the infringing items, but not the liability. Imagine West as the Napster of legal briefs.
One of the pieces of the literature I cited in my last post is available as a download from SSRN. That would be The Highest Form of Flattery? Application of the Fair Use Defense against Copyright Claims for Unauthorized Appropriation of Litigation Documents by Davida H. Isaacs, of the University of Maryland and published at 71 Missouri L.Rev. 391 (2006). Another article that was not mentioned in the learned judge’s opinion from Canada in the related suit is Appellate Court Briefs on the Web: Electronic Dynamos or Legal Quagmire? by Michael Whiteman from the Salmon P. Chase College of Law at Northern Kentucky University. It’s published in 97 Law Library J. 467 (2005).
Peeps in Law: Time to create your dioramas!
The ABAJ's 4th Annual Peeps in Law Diorama Contest in now underway. "To get your Peep on, tap into your playful spirit and create a court, law or justice-inspired Peeps diorama." The ABAJ News staff will pick their favorites and then ask readers to vote to determine the top three. Contest details here.
Damn, I think it is too late to submit Peeps in the Law Library photos, dioramas or not, for AALL's 2012 Day in the Life contest. But, my hunch is that there may be some empty Exhibit Hall space in Boston if AALL wants to display actual Peeps in the Law Library dioramas for a contest. Just like the ABAJ contest, Peeps & Co. may sponsor the event by awarding the top three winners with gift baskets valued at $25, $50 and $100. At some point during AALL's annual meeting, many attendees do need a massive dose of sugar to carry on. [JH]
Value and Utility Propositions for Enhanced Law eBooks: Marx vs. the Other Guy
We all know that CALI's executive director John Meyer is a pinko commie (or commie pinko) and that CALI is home base for the Red Menace because "[o]ur premise is that if it's educational, you've got to give people the freedom to repurpose the material for educational goals. If anytime you have to ask yourself, 'Does this make us money,' then you're not really serving educational goals." Quoting from RIP pCasebooks, 1871 - 2021 (Do note John's comment to the post.) Now comes more commie open access propaganda from Elmer Master, CALI's Director of Internet Development:
The future of the book is the open web, not some platform silo. Only putting books on the web will unlock the potential of books and it is easy enough to do.
Legal information workers of the world unite! In The Future of The (Case)Book: Open and Closed Platforms, Elmer makes an important point:
Anything that you can do on the web, you can do with a book. As an author, reader, student, teacher, scholar; anything is possible with a book that is on the open web. The potential for linking, including external material, use of media, note taking, editing, markup, remixing are opened without the bounds of a specific reader platform. A book as a website provides the potential for unlimited customization that will work across any hardware platform.
This Marxist inspired argument does assume that locking down an eBook to one or more specific commercial platforms reduces the utility of the eBook. Nothing is stopping an author of an enhanced law eBook from citing to and linking to any source unless the commercial publisher and/or e-bookseller refuses to allow that.
Sound far-fetched? Seth Godin, the bestselling author of 13 books, reports that Apple
is rejecting my new manifesto Stop Stealing Dreams and won’t carry it in their store because inside the manifesto are [Amazon] links to buy the books I mention in the bibliography.
What if one of our commercial law vendors insists on substituting the vendor's database links for the worker's provided links to open source law? What if the author cites and links to secondary source titles not available in the vendor's database because they are published by a competitor? Here's where the law eBook value proposition of bourgeois economics comes into play. We'll have to just wait to see how this plays out in the commercial enhanced law eBook space.
Watch out attendees of Some Assembly Required. I'm thinking a full-blown commie manifesto is coming. (Do note that the above link embedded in the word "manifesto" is to text provided under the Creative Commons Attribution-ShareAlike License.) The "men in black" at CALI's annual meeting this year may be agents of potential buyers of TR Legal's law school publishing division.
Customization as repurposing content for a specific educational purpose. Today's forthcoming eBook formats include enhanced capabilities for interactivity but, and not intending to put words in Elmer's mouth, I believe his most important point really is that the book-on-the-web offers customization opportunities for the course instructor who adopts the work and student end users. The key here is the open web where context can be provided with an Creative Commons license. In terms of instructional purposes, fair use may allow customization by scraping eBook content to tailor text for e-course packages profs create and enhance for a specific reading list based on utilizing all available e-content in all available forms. That, however, may not be as easy to do as the open web platform.
Of course, the licensing model for law eBooks may not even allow fair use for educational purposes by way of customization or current (as in not yet hacked) platforms that may make it damn hard to do so. While CALI is a corrective for for-profit ventures in this market space, the commercial publishers for law eTextbooks -- commercial casebooks, treatises and study aids -- in enhanced eBook formats will be the dominate product source for this market.
The other guy's name is Adam Smith. Despite CALI's noble goals, many (most?) law profs do like to get paid for their labor when they write law books. The greatest earnings potential remains in the distribution channels offered by our commercial legal publishers. Let's add that commercial publishers have put a lot more of the editorial production work on the shoulders of authors but they have not yet tasked them with eBook conversion coding.
Imaging, for example, the cringing experience of a IT staffer's reaction to a law prof who says "I want to unlock the potential of my new book by putting it on the web or eBooking it and I hear that is 'easy enough to do.' So I want you to create an e-commerce site on the web for my book or format the text for all eBook reader apps for me so I can sell it to everyone." Remember when law profs ask their tech staffs to create their powerpoint presentations for them? Is this next?
Law school IT staff alert! In the commercial space, there are p- and e-Book publishers you can send your law faculty to investigate. One that come immediately to mind is Tulane law prof turned indie publisher, Steven Alan Childress' Quid Pro Books.
Sure there are plenty of law profs who participate in CALI e-text publishing programs. They should be commended. Creative Commons permissions or an ownership model for commercial eBooks which allows repackaging of e-Content that does not consider customization to be a derivative work under copyright law may seem far fetched but my hunch is that some of our major legal publishers will eventually allow some sort of customization and not just for educational purposes. Doing otherwise eventually will be about as futile as one of our vendor's long ago attempt to stop photocopying based on copyright claims.
End note. With I had tip to Sarah Glassmeyer's tweet, there is another commie plot afoot in the education field. The first ever Open Education Week is taking place March 5-10 2012. The purpose is to raise awareness of the open education movement and its impact on teaching and learning worldwide.
This campaign might want to take a close look at the FCC and US Department of Education's “challenge to states and companies to ensure every K-12 student has a digital textbook within five years.”
This ambitious plan “to help K-12 schools transition to digital textbooks” in the next 5 years is laid out in the Digital Textbook Collaborative. The plan builds on the FCC’s National Broadband Plan and the Department of Education’s National Education Technology Plan and includes “membership” from a range of technology companies, publishers, schools and associations—from Apple to Verizon, Blackboard to McGraw Hill, San Diego Unified School District to Freed-Hardeman University.
Quoting from Nancy K. Herther's Etextbooks Attracting Involvement of the FCC, Education Department, and Higher Ed. [JH]
The Open Knowledge Foundation's The Open Data Handbook
The Open Data Handbook is a valuable resource for everyone interested in open data. It covers many types of data, but its particular focus is open government data.
The Open Data Handbook is targeted towards a broad audience. It contains useful information for civil servants, journalists, activists, developers, researchers – basically, for anyone with an interest in open data!
From a basic introduction of the ‘what and why’ of open data, the Handbook goes on to discuss the practicalities of making data open – the ‘how’. It gives advice on everything from choosing a file format and applying a license, to motivating the community and telling the world. Clear explanations, illustrative examples and technical recommendations make the Handbook suitable for people with all levels of experience, from the absolute beginner to the seasoned open data professional.
This handbook is the most recent addition to Open Knowledge's series of handbooks and guides:
- DataPatterns focuses on the technical aspects of data wrangling, and
- Guide to Finding Public Domain Works Online is intended to assist people who are interested in exploring works which have entered the public domain.
The first comprehensive practical guide for the data journalist, The Data Journalism Handbook, is forthcoming.
Hat tip to DigitalKoans. [JH]
February 29, 2012
Windows 8 Consumer Preview Now Available
The Microsoft Windows 8 Consumer preview is now available in 64 bit and 32 bit editions for multiple languages. If anyone hasn’t heard, and I doubt that seriously, Microsoft is using Windows 8 as the way to create a unified operating system for tablets, phones, and the desktop. The Metro interface which is standard on WP7 phones is dominant on all platforms, though the traditional desktop still exists to run legacy apps. The question is how seamless will that be? Now is the time to find out.
Most of the initial reviews of the preview focus on the touch interface on tablets with the desktop working well in that environment with mouse and keyboard. I’m more interested in how well the desktop works on a desktop and will the Metro interface stand up to that environment. I have some suitable hardware lying around, so I’ll be checking it out.
Reviews are at ABC News and CNET, and I’m sure other tech outlets will be putting up their own commentary as the preview trickles out. The Consumer Preview is here, with ISO images coming in at 3.3 GB (64 bit) and 2.5 GB (32 bit) each. Product activation keys are included with the images at the download screen. More on the philosophy, if one could call it that, and development of Windows 8 is at the Building Windows 8 blog from the Microsoft development team. The minimum specifications for running the preview are:
1 GHz or faster processor
1 GB RAM (32-bit) or 2 GB RAM (64-bit)
16 GB available hard disk space (32-bit) or 20 GB (64-bit)
DirectX 9 graphics device with WDDM 1.0 or higher driver
These are not the final hardware specifications according to the blog entry on the consumer preview. I am skeptical of the Metro interface on a pure desktop without touch, but my views are subject to change once I try it out. I'll simply say that I'm wary of the trend to turn computers into mostly consumption devices. Traditional desktop machines with hard drives are obviously capable of downloading and storing content for later and multiple view. Tablets, even with cloud computing seem to compromise that capability. I hope the preview can dispel my concerns.
Update: My sense of foreboding is not dispelled by this article in Wired: Windows 8 Hands-On: Your Desktop Is Dead. Then again, I'm looking for functionality, not necessarily the future. [MG]
The Redcoats Are Coming! The Redcoats Are Coming!
By invitation this time. Details here. [JH]
What Makes Kno Different? Does excerpting function in an eTextbook platform provide users a means to create a derivative work?
Kno is suing Cengage Learning for breaching the license Kno had to sell Cengage Learning textbooks Kno converted into digital editions for Kno's platform. Kno's platfom includes a feature called Journal that allows a reader of a Cengage-Kno e-textbook to create a digital notebook by highlighting passages from the text, clipping images and adding annotations. The textbook reader (aka the note taking student) can later view all this in a separate file within Kno's platform. Cengage considers the Journal function to infringe of its copyrights because the publisher considers it as providing the means to create a derivative work. (A brief video demo of the Journal function can be viewed on Kno's features page. Do note that the feature is currently available only for the iPad.)
When Cengage Learning first raised this concern with Kno, Kno began working to eliminate its notebook function from its platform but Cengage pulled the plug on its licensing agreement anyway. For the moment, Kno continues to sell Cengage titles it has converted to its platform.
In its complaint, Kno argues that it is not infringing Cengage’s copyright by continuing to sell the e-textbooks because it has a valid license to distribute those works. The Journal feature, the complaint adds, does not infringe Cengage’s copyrights because users’ notes constitute fair use of Cengage textbooks content.
Mashable's Sarah Kessler broke the story at Online Store Kno Sues Publisher for Pulling Its Digital Textbooks. See also Nick DeSantis' Wired Campus post, E-Textbook Vendor Sues Publisher for Ending Licensing Agreement, and Kno is Suing Cengage Over Student Annotations – You Should be Worried by Nate Hoffelder on The Digital Reader ("Part of the reason I know there’s more to this story is that Kno’s Journal is not the first of its kind. The Kindle has supported exporting highlights for some years now, and Cengage still has textbooks in the Kindle Store. What makes Kno different?") [JH]
Federal Judicial Center’s Guide to Research in Federal Judicial History
The Federal Judicial Center reports that its Guide to Research in Federal Judicial History (2010), edited by Jonathan White, has been awarded the 2012 Thomas Jefferson Prize from the Society for History in the Federal Government. The prize is awarded for the best reference work related to federal history. The Guide describes the records of the federal courts, Congress, and the executive branch that are relevant to researching federal judicial history. [JH]
February 28, 2012
Who Owns e-Book Distribution In Older Titles?
Anyone interested in e-books, the rights of authors, and how big content operates should take a look at this article from the Law Technology we site. It’s a report on a case now at the District Court level and guaranteed to work its way through the New York courts no matter how it turns out. The dispute is between HarperCollins start-up e-book publisher Open Roads. The latter recently published an e-book version of Julie of the Wolves, first published in book form by HarperCollins in 1972. The essential dispute is that an e-book is another form of a book as contemplated by the contract between the publisher and the author.
That would be cut and dried but for precedent from a similar case in 2001 between Random House and Rosetta Books where Random House was denied a preliminary injunction preventing Rosetta Books from publishing electronic copies. That denial was upheld on appeal pending a more developed record. The case was settled before that happened, setting the stage for the current case. As a side note, some of the books mentioned in the Rosetta case are for sale as e-books from the Rosetta web site.
The article states that the authors are not litigants in either case, though Jean Craighead George, author of Julie of the Wolves, is said to be fully behind Open Roads. She is quoted as saying "When I signed that contract in 1971, eBooks did not exist so I could not have granted those rights. I am with Open Road all the way." She intends to intervene.
One of the elements this case highlights to me is the lack of recognition of the author in all of this. It seems from the publisher’s perspective they play no role in what happens to the book once the copyright is assigned. Here’s your money, now go away unless we need you for the book tour or something. Copyright is supposed to encourage creativity, at least that’s what Congress says when it considers term extensions. In a world where creative works are nothing more than inventory it’s kind of refreshing to see an author calling out a large publisher on a contract written over forty years ago. It’s true that today’s book contracts foreclose cases like this from arising. Nonetheless, the result may give older authors the chance and control to redistribute older works in new form. [MG]
NLJ's Top 50 Feeder Law Schools to BigLaw
"Most law schools sent smaller percentages of their 2011 classes into first-year associate jobs at the nation's largest 250 law firms than they did in 2010. Among the 50 schools most popular with hiring firms, 22 percent of 2011 graduates landed associate jobs — down from 27 percent in 2010," reports Karen Sloan in It's tough out there, the lead-in to the National Law Journal's annual ranking at The Go-To Law Schools.
NLJ also reports that the 2010-11 academic year represented a milestone because annual tuition at seven schools topped $50,000.
With no end in sight to tuition increases, The National Law Journal looked at which schools offer the biggest bang for their tuition buck when it comes to landing a job at a large law firm. We identified the schools sending the highest percentage of their class of 2011 to associate jobs at NLJ 250 firms for the lowest tuition price.
See the interactive chart at The Go-To Law Schools: Biggest bang for the buck? [JH]
Bloomberg NEXT Launched
Crain's New York Business reported last week that in the market data and financial analysis industry Bloomberg's market share has pulled ahead of Thomson Reuters, but just barely: 30.44% vs. 30.05%. In Bloomberg LP beats Thomson Reuters, Matthew Flamm reports
Bloomberg's move into first place has coincided with troubles at Thomson Reuters, which replaced its CEO at the end of last year following disappointing results for the Eikon market-data desktop product that the company launched in 2010.
More than 100,000 clients have already converted to Bloomberg NEXT, a major evolution of the Bloomberg Professional service (the Terminal) that consolidates and integrates its extensive data, news and analytics. The company also kicked off a global campaign to convert all its customers, nearly 310,000 of the world’s leading business and financial professionals, to Bloomberg NEXT by the end of this year.
That's an ambitious short-term adoption objective. But in Bloomberg Launches New Version Of Flagship Financial Service, paidContent's Jeff Roberts reports that over 99% of Bloomberg's 110,000 clients have decided to keep Bloomberg NEXT. Roberts adds
The company is providing Bloomberg Next and related training for free as it seeks to retain the traders and other clients who pay about $20,000 per year for the service... .
Free is always a good thing when it comes to acquiring adoption of a new platform for an established user population. Who knows, it just might increase Bloomberg's market share over Thomson Reuters by way of extended free trials of Bloomberg NEXT to Thomson Reuters' install base. Extended free trials are always a good thing for next-gen today's online information services, particularly when a new product launch produces "disappointing results."
Roberts closes his story with this tidbit from yesterday's Bloomberg NEXT press conference.
[Tom Secunda, one of the company's cofounders] "laughed off a question about whether Apple’s lawyers might bristle at the use of “NEXT” (the same name as a 1980’s Steve Jobs computer company).
Well, Bloomberg isn't a computer manufacturer; it is a online information service provider. Apparently no one at the press conference asked about WestlawNext.
What's next for "next"? Anything? I seem to recall that many years ago Lexis sued Lexus as if the brand name of an automaker would be confused with an online information service provider. If my always faulty memory isn't playing tricks on me, I beleve the court made that point in its ruling. [JH]
Madison as a Platform for Crowdsourcing Legislation Critiqued
During the heat of the SOPA and PIPA debates, Senator Ron Wyden (D-OR) and Congressman Darrel Issa (R-CA) proposed The Online Protection and Enforcement of Digital Trade Act (OPEN) which they opened to crowdsourced contributions by way of Madison. Alexander Furnas, a master's cadidate at the Oxford Internet Institute evaluates the Madison platform at Can We Harness the Internet to Collaboratively Write Better Laws? (The Atlantic). From the conclusion:
[A]s a platform Madison is flawed. It is a platform designed without paying enough attention to the lessons learned and best practices developed by those already within the social web space. What its designers overlooked is that collaborative consultation online is merely a political application of already existing social web interactions. The last six or seven years have given us thousands of mini-experiments into how to do social engagement right online, and designing successful political engagement platforms need to learn from them.
February 27, 2012
Copyrighted Legal Briefs Continued
A number of other commentators have weighed in on law suit filed by two attorneys against Westlaw and Lexis. The New York Law Journal takes the point about potential liability for PACER and, in an interview, the attorney for plaintiffs notes that Congress mandates that the briefs be made available as part of the service. The intended audience for PACER, he says, is judges which make it different from a commercial database. So it looks as if the courts are off the hook.
Eugene Volokh says the issue on copyright in briefs has some sustainability, but given how these documents are used in litigation, many unsettled factors come into play on how they can be distributed:
The argument for infringement is actually moderately strong. Like most other documents, briefs are protected by copyright the moment they are written. The fact that they’re filed in court doesn’t waive any copyright. That something becomes publicly available doesn’t strip it of copyright protection — the point of copyright protection is largely to prevent copying even of material that is publicly available. Lexis and Westlaw’s distribution of the briefs is thus presumptively copyright infringement.
The question is whether the commercial posting of the briefs is fair use; and fair use law is, as usual, vague enough that there’s no clear answer. I do think that the posting is quite valuable to researchers and to others who are trying to figure out what actually happened in a case, and why courts reached the results they did, and I think courts can consider this social value in the fair use analysis. It’s also quite unlikely that allowing such posting would materially diminish the incentive to write good briefs, or the market value of a good brief; that too is potentially relevant to the fair use inquiry. But the case isn’t open and shut, because there are no precedents (at least that I know of) that are clearly on point, because the various fair use factors seem to cut in both directions, and because fair use analysis is so vague in such situations.
The closest thing to a precedent is a decision on February 21st in an ongoing parallel suit by a Canadian judge that certified a class action against Thompson Reuters’ Litigation Service (part of Westlaw Canada) largely over the same issue. The judge acknowledges the difficulty of the question, the questions relating to the application of “fair dealing,” or as we know it, fair use; whether clients can have a role in authorship (in most situations not); how that affects attorney-client privilege; and more. The judge notes these issues are unsettled at this point but not necessary for him to answer to certify the class. He is also kind enough to cite a number of law review articles from U.S. law reviews on the topic:
S.F. Birch, Jr., Copyright Protection for Attorney Work Product: Practical end Ethical Considerations, 10 J. Intell. Prop. L. 255 (2003); L.P. Wang, The Copyrightability of Legal Complaints, 45 Boston College L. Rev. 705 (2004); D.H. Issacs, The Highest Form of Flattery? Application of the Fair Use Defence against Unauthorized Appropriation of Litigation Documents, 71 Missouri L. Rev. 391 (2006).
I haven't read them, so I have no comment about their content. The case comes to us by way of Jason Wilson at rethink.k. I wrote about the Canadian case back in 2010 and concluded the post by saying: “I think the idea of a suit such as this is silly. At the same time, I wish one would be brought in the United States simply to put the issue at rest.” I guess I got what I wanted. I still think it’s a silly case, not necessarily one that is easily decided. For what it's worth, the comments at the Volokh Conspiracy blog reflect a similar point of view to mine. My previous post on the U.S. case is here. [MG]
More Law School Litigation: This time sounding in age discimination in hiring faculty claims at seven law schools
The Courthouse News Service is reporting that 62 year-old Nicholas Spaeth may proceed with his age bias claims against Michigan State University College of Law, the University of Missouri School of Law, Hastings College of the Law, University of Iowa College of Law, the University of Maryland, Baltimore and Georgetown University but only as separate lawsuits against each law school. A federal district court refused to schools motion to dismiss the claims. However, based on Spaeth amended complaint, the court ruled that the law schools acted independently when they evaluated Spaeth's candidacy for a tenured teaching position. Accordingly, Spaeth's age bias claim that each school hired younger, allegedly less qualified candidates, must proceed as separate trials.
Home court advantage to each law school? Probably not. But single plaintiff age bias claims in employment can be difficult to pursue when the burden of proof shifts to the plaintiff. The federal court's failure to dismiss the claim is not a affirmation that the claims have merit under employment discrimination law. [JH]