Law Librarian Blog

DPLA: A noble but controversial effort to create a national digital library system

The DPLA initiative may not be high on law librarians' "event horizon" at the moment but it has produced a fair amount of concern and criticism in public and education library circles. In his recent LLRX article, David H. Rothman writes:

Beyond doubt, the Harvard-originated national digital library initiative is an underachiever in K-12 matters. That's merely one area where the DPLA could better serve America's libraries and their users. Some other problematic areas range from family literacy to the content creation needs of local libraries, and preservation and digital divide efforts. Ahead, while urging massive incremental funding of the DPLA despite its extremely fixable shortcomings, I'll put forth specific remedies.

See Rothman's article, The risks if the DPLA won’t create a full-strength national digital library system: Setbacks for K-12, family literacy, local libraries, preservation, digital divide efforts? for more. Highly recommended. [JH]

It's Time for AALL's Annual "Make a Difference" Ritual by Nominating Leaders Pack Followers to Elected Office

According to AALL's Jan. 2013 eNewsletter, if you want to make a difference, then consider running for election to an AALL national office:

AALL is looking for the next leaders of the Association.

If you or someone you know has proven leadership experience, commitment to law librarianship, and the demonstrated ability to think strategically, please consider serving on the AALL Executive Board.

The Nominations Committee is asking members to nominate individuals for the 2013 AALL Executive Board election. The committee is looking for strong candidates for the offices of vice president/president-elect, secretary, and two Executive Board members. The election will be held in November for three-year terms beginning July 2014.

If you or someone you know is ready to serve on the AALL Executive Board, let the Nominations Committee know. The chair of this year's committee is Catherine Lemann of the U.S. Court of Appeals for the Fourth Circuit Library. You can email her your nomination. The committee is accepting nominations through March 15.

(Email link omitted because ...)

OK,  to quote REM, "here we go" again. Of course the chair of the Nominations Committee is well within the E-Board's status quo comfort zone for screening out "trouble makers" because she is a former AALL President. This year's Nominations Committee chair was featured performing one of her official presidential but not necessarily leadership duties in a circa 1991 shiny happy people holding hands video with "Jenny Westlaw" at Denver 2010.

Besides wondering where "Jenny Westlaw" is today, my hunch is (1) any "trouble making" elected AALL president would not be featured in this sort of vendor AALL member sponsored pablum without substantial editing of the video; and (2) nor would a former "trouble making" AALL president be chair of the Nominations Committee. It would take the concerted actions of the rank-and-file to get to either (1) and (2) but that is not likely to happen anytime soon. At best, see if the Nominations Committee even permits a "rogue" law librarian this year to be on the ballot. Even if that happens, there is no doubt in my mind that AALL's old boys-girls club will campaign behind closed doors for the "safe" candidate(s) also on the ballot for the same offices.

Absent the election to national offices of law librarians who have a proven track record of being willing to stick their neck out to make a difference, our association's leaders are nothing more than followers trying to catch up to the rank-and-file. [JH]

Friday Fun: The Corporate Amplication Device of AALL's "Vendor Partners" and Their (But Not Our) Business Plans

If loudness equals power (and it does), how do law library institutional buyers get loud enough to drown out the nonsense of our association's so-called "vendor partners" while AALL officially knees down before the altar of vendor business plans to offer sacrifices as well as to alter, as in to castrate, to spay, their own library, not vendor, member institutions' business plans? Both are something other library associations refuse to do because they neither sacrifice nor try to silence castrate their member insitutional buyers' business plans. They loudly advocate for their institutional buyers and patrons.

Our so-called vendor partners are "whales." So far AALL is nothing more than "whale louse". [JH]

Harper's Publisher Says Google Steals Its Content, Buries Harper's In Search

I’ve read many an attack on Google for all kinds of reasons, some valid, and some not.  I usually don’t encounter one that is so misguided that reading it would turn eye-rolling into an art form.  John R. MacArthur publishes Harper’s Magazine.  He recently published a rant editorial criticizing Google for “stealing” copyrighted information for the company’s own benefit and profit.  “Media barons,” he calls Google executives Larry Page, Sergey Brin, and Eric Schmidt.  His complaints are typical of the aggrieved publisher seeking an easy target.  Here’s an example:

Google’s bias for search results that list its own products above those of its competitors is now well-known, but equally damaging, and less remarked, is the bias that elevates websites with free content over ones that ask readers to pay at least something for the difficult labor of writing, editing, photographing, drawing, and painting and thinking coherently. Try finding Harper’s Magazine when you Google “magazines that publish essays” or “magazines that publish short stories” — it isn’t easy.

Perhaps, but most people looking for Harper’s would simply type in the name.  paidContent points out that only a tiny fraction of individuals would search for Harper’s content that way.  I agree.  Do most people seriously search for essay collections with that kind of search?  I think Google is marvelously useful but it’s not a substitute for a reference librarian.  As it turns out, using MacArthur’s search phrase brings up results that include Harper’s, at very least referencing reactions to his essay.

Another one of his statements elicits multiple head scratches:

Or try to get up-to-date news about Xavier Niel and Free through your friendly local Google search engine. Not exactly web neutral, our buddy-philanthropists Larry, Sergey, and Eric.

Perhaps MacArthur hasn’t heard of Google News.  Results there show multiple stories as current as today with a deep archive of active, accessible links.  Google invites one to set up a news alert that will return up to the minute results.  No news blackout there as far as I can see.  For the record, Xavier Niel runs the French ISP Free which is doing battle with Google in France over copyright.  That country is considering changes to its copyright laws that would require search engines to pay a royalty to link to French media content. 

MacArthur further acknowledges that the Federal Trade Commission dropped its investigation in how Google ranks search results.  He attributes this to Google’s vast lobbying capability.  Most commentators speculated that the FTC may have concluded it couldn’t win a case if it brought one.  Even the FTC indicated that while subjective ranking may hurt competitors, it didn’t hurt the consumer.  Consumers are the object of the antitrust laws, not competitors.

MacArthur describes himself as “a journalist and board member of the Authors Guild.”  I think I know where he gets his outlook on the Internet.  The Guild has been fighting a losing battle to suppress indexing of content in its members books.  The HathiTrust case comes to mind.  Despite the rejection of the settlement in the Google book scanning case, it’s an open question of whether the Guild will prevail on the ultimate copyright issue if the HathiTrust case holds up on appeal. 

It’s easy to lament the fact that online versions of newspapers and magazines do not generate the same kind of revenue as their print products had in the past.  There are a couple of alternatives MacArthur could take.  He could lobby Congress to change the copyright laws to better protect his product.  He could remove all of his content references from Google.  Rupert Murdoch threatened that but never followed through.  I wonder why.  Or he could put Harper’s content behind a complete and very thorough pay wall.  Consumers can then decide if its value is worth the charge for access.  I’ll mention that I read a lot of online materials in The Atlantic, the New Yorker, Slate, Salon, The Daily Beast and comparable publications.  Their writers and bloggers are not shy about commenting on and linking to stories on other sites.  I never see references to Harper’s.  I’ll ask again, I wonder why?  [MG]

A Follow-up on the CRIV Conference Call with LexisNexis about the Company's Free eBook Companion Business Plan

In CRIV Conference Call with LexisNexis on eBook Plans, CRIV Chair Michelle Cosby lists the questions in topical order submitted to LexisNexis about the Company's free eBook-for-CD companion substitution plans. Several questions submitted by rank-and-file members that pertained to "pricing details" were not asked by CRIV. Hopefully they were forwarded unofficially to LN.

Alternatively, Michelle recommends that AALL-represented members (obviously library, not vendor, members) contact their LN reps about questions regarding their accounts. Many (as in most) in-house LN pBook-and-eBook reps for sales and customer service work in the Company's Albany office. As reported in an earlier CRIV Blog post, many (most?) Albany staffers will be experiencing staggered layoffs until the office is completely shut down by the end of 2014.

According to the conference call follow-up CRIV Blog post:

Lexis will make its own response to these questions, and CRIV will notify AALL members when that response is available.  In the meantime, Lexis has created a website that addresses some of the questions submitted by AALL Members available at http://www.lexisnexis.com/ebooks/resources/ .  The eBooks FAQ is available at http://www.lexisnexis.com/ebooks/questions/ .

(Emphasis added.)

CRIV deserves our thanks for addressing this matter in a timely manner. As previously observed, I doubted LN would be prepared to answer all the questions being submitted during the conference call because of the number of questions rank-and-file members asked and specificity of details that were asked in their questions. We'll just have to wait for the Company's response. 

While I am disappointed that all questions submitted to CRIV were not including, I'm not surprised. "Free" apparently is being construed by AALL national elected office holders and their hired hands as pertaining to "pricing details." One could make the case that "free" is one among many "pricing structures for e-books." Apparently only AALL's Vendor Liaison can talk to our so-called vendor partners about eBook pricing structures in the context of AALL's official vendors-know-best "business plans" policy for fair business practices. [JH]

An UELMA Update

Published on SLAW by Judy Gaskell. Read more about it at Can You Trust Law Online? a 2012 UELMA Update. [JH]

Law's Information Revolution: On the advent of quantitative legal prediction in the professional legal services industry

Hat tip to Edward Bryant's The Intelligent Solutions Blog post for calling attention to Quantitative Legal Prediction – or – How I Learned to Stop Worrying and Start Preparing for the Data Driven Future of the Legal Services Industry, 62 Emory Law Journal ___ (Forthcoming 2013) [SSRN] by Daniel Martin Katz (Michigan State College of Law). Here's the abstract:

Do I have a case? What is our likely exposure? How much is this going to cost? What will happen if we leave this particular provision out of this contract? How can we best staff this particular legal matter? These are core questions asked by sophisticated clients such as general counsels as well as consumers at the retail level. Whether generated by a mental model or a sophisticated algorithm, prediction is a core component of the guidance that lawyers offer. Indeed, it is by generating informed answers to these types of questions that many lawyers earn their respective wage.

Every single day lawyers and law firms are providing predictions to their clients regarding their prospects in litigation and the cost associated with its pursuit (defense). How are these predictions being generated? Precisely what data or model is being leveraged? Could a subset of these predictions be improved by access to outcome data in a large number of 'similar' cases. Simply put, the answer is yes. Quantitative legal prediction already plays a significant role in certain practice areas and this role is likely increase as greater access to appropriate legal data becomes available.

This article is dedicated to highlighting the coming age of Quantitative Legal Prediction with hopes that practicing lawyers, law students and law schools will take heed and prepare to survive (thrive) in this new ordering. Simply put, most lawyers, law schools and law students are going to have to do more to prepare for the data driven future of this industry. In other words, welcome to Law's Information Revolution and yeah - there is going to be math on the exam.

[JH]

Recorded for Posterity

Last week, the now famous remark by Justice Thomas made Elie Mystal's Non-Sequiturs post on ATL:

Now you can hear for yourself the three words that Clarence Thomas spoke. It’s at the 41-minute mark.

Recorded for posterity, Elie Mystal provided the link to the audio from the SCOTUS website.

Do note that Justice Thomas has spoken from the bench in the course of reading opinion summaries but this was a first (and a last?) for speaking during oral arguments. [JH]

A Review of the Recently Revised Guide to Fair Business Practices

In November, AALL’s Executive Board approved a revised, third edition of the Guide to Fair Business Practices. A Task Force oversaw the revision, adding substantive examples or clarifications, and making other, non-substantive changes, as identified in the July 2012 Board Book. The Task Force responded to legal publishing developments since the last revision in 2008. Substantive changes include:

1. a recommendation - ultimately based on the former FTC Guides For the Law Book Publishing Industry [at § 256.2(e)] - that publishers provide, upon request, at least the current and last two years of supplementation costs;
2. emphasis on training for all customer service employees;
3. provisions to notify customers of pending changes in ownership of publications or internal restructurings affecting subscriptions (though without reference to timely notice);
4. clear and conspicuous display of the scope and coverage of electronic and print publications (though without definitions of “clear” and “conspicuous”);
5. deletion of language recognizing a right of publishers to circumvent disclosure pursuant to contractual confidentiality or "proprietary information";
6. instruction to minimize use of confidentiality clauses; and
7. clarification of the terms of trial subscriptions, including those offered as negative option plans (though without guidance of the kind informed by AALL’s own comments on negative option plans.)

The Task Force deserves praise for offering these welcome changes, and the Board deserves praise for adopting them. However, the Fair Business Practices Guide remains a disappointment, especially due to two related problems. First, under the Guide, we concede that "the publisher is in the best position to fully implement the guidelines in a manner suitable to its business plan." As a result, a publisher need not "fully implement" - and perhaps may effectively disregard - the guidelines for any unfair business practice "suitable to its business plan." Moreover, institutional buyers also have business plans. But we acknowledge no harm to their business plans from unfair business practices, notwithstanding our duty to "to obtain the maximum value for our institution's fiscal resources." (AALL Ethical Principles)

Second, we missed an important opportunity. The Consumer Advocacy Caucus recommended sweeping changes to strengthen consumer protections. See July 8, 2012 Comments by the Consumer Advocacy Caucus submitted to the Fair Business Practices Guide Task Force. Our Caucus sought a rigorous system to monitor Guide violations, with an annual report to the membership of complaints that CRIV could not resolve. We also proposed using data in the annual reports to identify and pursue needed government interventions or regulation, particularly where unfair business practices have become "suitable to" the business plans of industry participants.

Of course, our proposed system of oversight would likely require changes. We therefore asked the Task Force to host a membership-wide forum about our recommendations. We hoped to explore room for compromises, so that we could move AALL closer to consensus over how to advocate for consumers of commercial legal publications. Unfortunately, the Guide still falls well short of the advocacy consumers might otherwise expect from AALL.

Michael Ginsborg
Consumer Advocacy Caucus Chair, 2011-2012

Supreme Court Action: Time Limits in Administrative Appeals

The Supreme Court issued one opinion this morning concerning the time limit in which a medical care facility can request a review of its reimbursement amount for Supplemental Security Income (SSI) benefits provided under Medicare.  The case is Sebelius v. Auburn Regional Medical Center ((11-1231). 

Statute provides a 180 day window and Health and Human Services regulations give the Secretary the power to extend the deadline to three years.  HHS uses contractors to calculate the reimbursement.  One of these contractors, CMS, used flawed data to calculate SSI payments to Bay State Medical Center.  Bay State timely appealed to the Provider Reimbursement Review Board (PRRB) and ultimately prevailed.  In the process, the flaws were exposed, triggering appeals by other providers working with CMS.  The appeals, however, were for payments that were ten years old.  The District Court dismissed the other providers’ claims.  The D.C. Court of Appeals reversed holding that equitable principles allowed tolling the limitations period to the administrative claims. 

The Supreme Court had three choices: 

Three positions have been briefed and argued regarding the time for providers’ appeals to the PRRB.  First, a Court-appointed amicus curiae has urged that the 180-day limitation is “jurisdictional,” and therefore cannot be enlarged at all by agency or court.  Second, the Government maintains that the Secretary has the prerogative to set an outer limit of three years for appeals to the Board. And third, the hospitals argue that the doctrine of equitable tolling applies, stopping the 180-day clock during the time the Secretary concealed the information that made the fiscal intermediary’s reimbursement determinations incorrect. 

The Court rejected the first option stating that rules of statutory construction do not make the statutory time limit jurisdictional.  This conclusion was based on Court precedent holding filing deadlines are not jurisdictional.  If jurisdictional, the Secretary could not extend the time limit and there would be no allowance for equitable tolling.  The Court of Appeals justified its reversal on Court precedent that allowed equitable tolling for suits against the United States.  The Supreme Court rejected this position saying that it never applied equitable tolling rules to administrative proceedings. 

The Court accepted the Government’s argument that the three year extension was a valid exercise of the Secretary’s rulemaking powers and under the Chevron case was entitled to deference.  The Court of Appeals was reversed and remanded.  Justice Ginsburg delivered the opinion for a unanimous Court.  Justice Sotomayor filed a concurring opinion.  She agreed that the result in this case is correct but would not foreclose applying equitable tolling principles from appropriate administrative cases. 

Speaking of Justice Sotomayor, she appeared on the Daily Show with Jon Stewart last night:

The Daily Show with Jon Stewart	Mon - Thurs 11p / 10c
Sonia Sotomayor
www.thedailyshow.com
Daily Show Full Episodes Political Humor & Satire Blog The Daily Show on Facebook

There are extended portions of the interview here and here. [MG]

On the 40th Anniversary of Roe v. Wade

Today is the 40th anniversary of the Supreme Court recognizing that women have the right to choose in Roe v. Wade. In 40 Years Post Roe v. Wade, Views on Abortion Remain Divided, Complex, WSJ Law Blog's Ashby Jones calls attention to The Pew Forum on Religion & Public Life's slideshow presentation titled Public Opinion on Abortion. Recommended. [JH]

"A book about boilerplate?"

That's Colorado Law prof Robert Nagel's lead-in sentence for his Dec. 20, 2012 WSJ book review of Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law (Princeton UP, Nov. 25, 2012) [Amazon] by Margaret Jane Radin (Michigan Law). Quoting from Negal's highly recommended Devil's in the Small Print:

The absence of real agreement [according to Radin] means that boilerplate contracts are inconsistent with the moral basis of contract law, which, after all, uses the power of the state to enforce the transfer of one person's property to another on the ground that both agreed to the transfer. This degradation of the moral basis of contract law, in turn, undermines the classical liberal justification for the state, which rests on the need for a public entity that enhances freedom by enforcing private agreements.

You can see where this is heading. Nagel adds:

Ms. Radin is aware of the possible dangers of restricting boilerplate. Consumers, especially poorer ones, benefit from the price reductions that it makes possible. Many established commercial practices could be disrupted by increased regulation. She even briefly considers the possibility of tolerating boilerplate as a useful legal anomaly. In the end, however, she cannot overlook the incompatibility between boilerplate and the rule of law.

In this respect, Ms. Radin's book betrays how tidy is the intellectual world inhabited by many legal academics.

As an intellectual exercise, Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law sounds like it may make for stimulating reading. If purchased from Amazon, you can "start reading Boilerplate on your Kindle in under a minute." Just remember to read the fine print. See also Omri Ben-Shahar's compilation in Boilerplate: The Foundation of Market Contracts (Cambridge UP, 2007) [Amazon].

However, in the real world of boilerplate, I recommend law librarians buy a copy of Lipinski's The Librarian's Legal Companion for Licensing Information Resources and Services (Neal-Schuman Publishers, 2012) [Amazon] to deal with the devil in the fine print. OK, OK, so quoting myself:

While Lipinski does not include major legal publishing vendor licensing clauses, the specificity of the addressed licenses analysis, the answers to over 100 questions about specific licensing agreements, and 20 key issues in licensing agreements, accompanied by sample clauses, makes the work a must-read at least until AALL produces something as detailed. OK, OK, that's probably wishful thinking on my part.

I seriously doubt but I hope to be pleasantly surprised if AALL's Library Procurement Process Improvements Task Force turns out to be up to the task of grappling with boilerplate clauses by way of a detailed analysis and a wide range of sample alternative clauses that address in specificity the many institutional buyer issues law libraries face. Could that be why the Task Force hasn't released and/or the E-Board hasn't approved the revision of AALL's 2004 edition of Principles for Licensing Electronic Resources yet? [JH]

Former FCC Chair Says Forget Network Management, Data Caps In Place To Generate Revenue

Here’s a bit of news that actually no one should find surprising except for the fact that someone who knows is stating it.  Data caps implemented by Internet providers are there to generate revenue and not to alleviate network congestion.  The person stating this is former FCC Chairman Michael Powell.  He is currently president of the National Cable and Telecommunications Association (NCTA), a trade association that includes ISPs.  Powell recently participated in a panel discussion with three other former heads of the agency at the Minority Media and Telecommunications Association Broadband and Social Justice Summit.

Powell was asked about data caps and the impression they were there as a mechanism for congestion management.  "That's wrong," he said. "Our principal purpose is how to fairly monetize a high fixed cost."  That would be digging up streets and putting wire in the ground or setting up cell towers in the case of wireless.  These are admittedly high cost items, but I wonder how many times a company such as AT&T has to rip up the same street to put in the same wire?  None of the other former members of the FCC disagreed with Powell.  Former member Michael Copps said the Commission should be a little more skeptical about caps but didn’t disagree that they are part of a valid business model.

Not everyone agrees.  Advocacy groups complain that companies use caps to discriminate against competing services.  Netflix is a high bandwidth service where heavy use can easily rack up gigabytes of data per movie.  ISPs tend to exempt their own media services from counting against a data limit.  The Hill quotes NCTA spokesman Brian Deitz as saying:

Our point is we see this as a consumer fairness issue.  Every consumer doesn’t have the same bandwidth needs.

Deitz’s statement came as a response to Senator Ron Wyden’s bill, the Data Cap Integrity Act which would require the FCC to set standards for data caps as a network management tool.  The NCTA is opposed to the legislation, calling it ill conceived:

Usage tiers give consumers more choices to better fit their bandwidth needs, and they rightly distinguish between low-volume users and high-volume users, as is true for many products and services.

On the other hand, ISPs do not offer customer rebates for unused bandwidth at the end of the service period.  Charges are generally set by tiers of speed.

This should get a little more intense in the coming years with the trend to store everything in the cloud.  Vendors such as Apple, Google, and Amazon now have music match services where they will stream purchased music to a device rather than store it locally.  Windows 8 relies heavily on SkyDrive acting as the main point of storage in a world of screens with comparatively low capacity solid state drives.  Accessing those cloud drives for whatever takes up bandwidth.  Maybe it’s a little, or maybe it’s a lot.  Companies such as AT&T and Verizon see this as an opportunity to increase revenues even further.  Let’s not pretend what’s going on here.  [MG]   

Martin Luther King, Jr.: Arousing the Conscience of the Community

Dr. Martin Luther King, Jr., (January 15, 1929 - April 4, 1968) would have been 84 on Jan. 15, 2013. Unfortunately his birthday has been turned into a three-day weekend by being recognized as a federal holiday observed on the third Monday of January of each year. The moral leader of our country deserves better.

If alive today, I believe Dr. King would be calling for justice for all people living in the US regardless of color, nationality, sexual orientation, age, economic status, physical or mental disability or legal status as defined by ICE. He would be insisting that hunger in America is a crime committed by our government, that education is a debt today's generation owes tomorrow's generation, and that health care is a human right that cannot be brokered by congressional "reforms".

If alive today, Dr. King would be preaching that Justice with a capital "J" can be realized in the American legal system. And, if alive today, he would be arousing the conscience of the nation to achieve the dream by overcoming the obstacles of injustice to reach the mountain top. [JH]

 "I submit that an individual who breaks a law that conscience tells him is unjust and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law. " -- Letter from Birmingham Jail, April 16, 1963, Dr. Martin Luther King, Jr.

[JH]

"I Have a Dream" speech delivered at the March on Washington, DC on August 28, 1963.

A Tale of Two Academic Law Libraries

Namely Yale and Cornell in this recent Green Bag article written by Julian Aiken, Femi Cadmus and Fred Shapiro. A snip:

While law libraries are undergoing transformative changes in many different areas, the area in which the changes are probably most transformative is in collections. The two 500-pound gorillas in collection development are tighter budgets and the transition from print to digital formats. These gorillas are not just both big, they also work in tandem to clobber traditional collection ideas.

Clobbered by way of systematic substitution of digital for print. Discussing this now widely accepted practice in academic law library collection development, the authors note that substitution encompases almost all reporters from the National Reporter System "even such basic titles as the Federal Reporter and the Federal Supplement", digests and citators. many loose-leaf services and supplemented treatises, and hundreds of US student-edited law reviews.

This tale of Yale and Cornell also reports that "both libraries have ventured where some academic law libraries have not trodden before" in patron services. [JH]