Law Librarian Blog

On the Editor-Lawyer Relationship: "Take an Excedrin Before Reading"

That's the advice suggested by Jack Limpert for reading his What It’s Like to be Questioned by Lawyers post on About Writing and Editing blog. See also My Favorite Lawyer Moment. Limpert, who was Editor of The Washingtonian from 1969 to 2009, has more to say about lions and tigers and lawyers, oh my, at Five Ways Editors Are Driven Crazy by Lawyers. About this post, ATL's  Elie Mystal wrote "Here are five reasons why editors hate lawyers. Of course, when the editors are lawyers, you just kind of end up hating yourself."

Before you get the impression that the editor-lawyer theme is the central topic covered in the About Writing and Editing blog, check out posts like Nine Things Good Copyeditors Do by Bill O’Sullivan, also a veteran of The Washingtonian, and On Writing: Unearthing a Lost Language by Mike Feinsilber who "joined UP in 1957, and stayed long enough to witness the sun set on the use of wirespeak". [JH]

--30--

Macmillan Settles With DOJ In e-Book Price Case

And then there was...Apple.  The company is the only defendant left in the e-book alleged price-fixing case now that Macmillan has settled.  Here are details from the Department of Justice Press Release:

Under the proposed settlement agreement, Macmillan will immediately lift restrictions it has imposed on discounting and other promotions by e-book retailers and will be prohibited until December 2014 from entering into new agreements with similar restrictions.  The proposed settlement agreement also will impose a strong antitrust compliance program on Macmillan, including requirements that it provide advance notification to the department of any e-book ventures it plans to undertake jointly with other publishers and regularly report to the department on any communications it has with other publishers.  Also for five years, Macmillan will be forbidden from agreeing to any kind of most favored nation (MFN) provision that could undermine the effectiveness of the settlement.

Documents relating to the settlement are here. paidContent points out that the settlement is slightly different than the others in that retailers will be allowed to immediately discount Macmillan e-books as relief for consumers.  The settlement was motivated by the risk of a judgment against the company according to Macmillan CEO John Sargent.  The District Court has to approve the settlement before it goes into effect.  [MG]

A Top "Sweet 16" Ranking of Law School Rankings

"There are lots of law-related rankings out there. And many of them are law school-related rankings. But, with all apologies to Juvenal, quis iudices ipsos iudicabit? Why not me?" writes Derek Muller in Ranking the Rankings. And ranked #1:

1. Intentionally left blank. That’s right. The top slot goes to no ranking. Because I don’t think any of them deserve the top slot. Edgy.

[JH]

Friday Fun: "BE QUIET, THIS IS A LIBRARY!"

As a quick follow-up to OREO's "Whisper Fight" in a Library Super Bowl 2013 commercial, here is The Two Ronnies classic "Shouting in the Library" skit. [JH]

Academic Librarian Sued For Dissing Publisher In A Blog Post

A post in the Leiter Reports: A Philosophy Blog describes an incredible legal attack on a librarian at McMaster University in Canada.  Edwin Mellen Press sued the University and the librarian over the content of a blog post that is described thusly by Leslie Green of Oxford (via Leiter’s post):

A professional librarian at McMaster University’s library complained, in a 2010 blog-post, that Mellen was a poor publisher with a weak list of low-quality books, scarcely edited, cheaply produced, but at exorbitant prices.  Librarians are expert at making such judgments; that’s what universities pay them to do.  And the post made a key point about the public interest: ‘in a time when libraries cannot purchase so much of the first-class scholarship, there is simply no reason to support such ventures.’

Mellen is demanding $3 million in damages for the alleged libel in the Ontario Superior Court.  I recommend reading Green’s comments via the link to Brian Leiter’s blog.  I can’t imagine a suit such as this making much progress in a U.S. court.  Otherwise every bad book review ever written would be the subject of litigation.

Before I had been alerted to this, I had no knowledge of the Edwin Mellen Press.  A search is WorldCat shows that Mellen publications populate libraries with an aggregate listing of 12,679 book titles.  This figure came from searching Edwin Mellen Press in the publisher field.  Of course, placement in libraries, even in the amount noted does not imply quality one way or the other.

I happened across one of the forums in the Chronicle of Higher Education that is devoted to Mellen.  I would think that the publisher might find the 20 some pages that span some three years of posts to be at least as objectionable compared to the opinion of a university librarian.    Mellen has its defenders including posters who claimed to be representatives of the company.  The positives were that it was an outlet for academic publishing when other presses rejected manuscripts.  As such its catalog contains any number of narrow topics that might not get published elsewhere.  I suppose there is value in that.

The negative comments, however, were very negative.  The various posts appeared to suggest that Mellen was the imprint of last resort for an academic that could not find an outlet elsewhere for a manuscript.  Further comments suggested there was a quality problem, though this was engaged by the Mellen supporters to the contrary.  I don’t know who is right, but if I took the 20 pages of comments to heart I would think that Mellen indeed has an image problem that is consistent with the opinion of McMaster University librarian.   Perhaps the Chronicle has better lawyers to account for the lack of legal engagement on its end.

I want to make it clear that my lack of knowledge of Mellen does not give me the ability to agree or disagree with any statements made by anyone commenting on Mellen.  I have to say, however, suing a librarian is not going to silence any of the other critics of Mellen.  I don’t know the details of Canadian libel law but I do think bringing attention to this matter will likely backfire on Mellen no matter how it comes out.  Read more at the Academic Librarian Blog from Princeton. 

Update:  The Chronicle of Higher Education has a lengthy article with more of the back story on the suit.  Read it here.  [MG]  

Opening PACER

Hat tip to Legal Research Plus for calling attention to OpenPACER.org's draft bill, The Open PACER Act of 2013.

The Open PACER Act provides for free and open access to electronic federal court records. The courts currently offer an expensive and difficult-to-use web site. They charge more than their cost of offering the service—more than Congress has authorized—violating the E-Government Act of 2002. This Act seeks to, once and for all, compel the courts to fulfill Congress' longstanding vision of making this information "freely available to the greatest extent possible".

[JH]

A "Bar Exam" for Educators: Not a Bad Idea to Punch Law Profs' Tickets to Ride for Being Suitable to Teach

The American Federation of Teachers is proposing a "bar exam" similar to the one wannbe lawyers have to pass before they can practice reports NPR's Claudio Sanchez in Union Backs 'Bar Exam' For Teachers. See also Constitutional Daily's Coming Soon: A Bar Exam for Teachers.

Not a bad idea for the legal academy; behind closed doors some law school deans probably would like to prune the dead wood. In public, however, even the reduction-in-force buzz word "downsizing" is used in a different context. Not a word about "down-right-sizing" faculty ranks. See, for example, Loyola-Chicago Dean Yellen's The Faculty Lounge post titled The Downsizing of Legal Education (Feb. 1, 2013)("It is tempting to say that we are downsizing [student enrollment] because it is the morally right thing to do, but that would not be honest. Any benefit to society or even to individual students from a single school’s downsizing will likely be mostly symbolic.") For a different take on the prospective law prof labor market by law profs, see Ethan Bronner's Law Schools’ Applications Fall as Costs Rise and Jobs Are Cut (NYT, Jan. 31, 2013).

Like the real world bar exam, testing could be a useful requirement for having to acquire and then being able to pull law profs' tickets to ride. While a lawyer's ticket can be pulled permanently or temporarily for getting "caught" at doing something that ultimately sounds in professional ethics after passing the bar, lifetime job security makes it substantially more difficult to do either in the teaching ranks of the legal academy. [JH]

Flagging Ban in California Designed to Protect Disabled LSAT Test Takers From Potentially Discriminatory Law School Admission Review Put On Hold

NLJ's Karen Sloan reports that Sacramento County Superior Court Judge Raymond Cadei issued a preliminary injunction blocking enforcement of California Assembly Bill 2122 on Feb. 1st. The statute would have prohibited the LSAC from continuing its "flagging" practice for alerting law schools when LSAT test takers with disabilities received extra time for the LSAT.

Sloan reports "[t]he ruling means that the flagging ban will not apply to scores earned during the February 9 administration of the LSAT, the first since the bill went into effect on January 1." For more, see Ruling allows council to 'flag' disabled Law School Admission Test takers. [JH]

The Challenges of eBooks in Law Libraries (and one very interesting real world solution)

On Jan. 24, 2013, Ellyssa Kroski, Manager of Information Systems, New York Law Institute, and Bess Reynolds, Technical Services Manager, Debevoise & Plimpton LLP, presented "Going Digital – The Challenges of eBooks in Law Libraries" in a LLAGNY professional education and development program. They reviewed publishing industry, vendors and aggregators current offerings, licensing restrictions and pricing models (oops, AALL trouble maker alert -- too late for our professional association to censor an event that mentions pricing models a/k/a "pricing structures" this time). Ellyssa Kroski and Bess Reynolds also "tackled the current challenges and obstacles to be overcome by both private and academic law libraries interested in implementing an eBooks program" and "discussed what law libraries are doing to make eBooks available to their attorneys and patrons." Their presentation stacks can be viewed at On Firmer Ground. Highly recommended.

While not news to the NYC law library community, one very interesting development is that the New York Law Institute have made its collection of 56,000 eBooks available to NYLI members free of charge. Debevoise & Plimpton is the Institute's first eBook client to integrate the NYLI catalog module into the firm's OPAC. Any law library that uses EOS and is a NYLI member now can make the Institute's substantial collection of eBooks available to their library's users.

Also highly recommended. I don't know about you but one little Ohio county law library that uses EOS will be looking into the ways and means of becoming an institutional member of the New York Law Institute to access this collection -- and this despite many notable legal publishing houses being missing from the Institute's eBook collection publishers list because they either deny law libraries the ability to circulate eBooks or try to limit lending to non-integrated, not institutional-centric platforms. [JH]

Mary Minow's ALA TechSource Workshop on Copyright, Licensing, and the Law of E-Books Tomorrow

From the description:

Copyright, Licensing, and the Law of E-Books (ALA TechSource Workshop)
A 90-minute workshop, Wednesday, February 6, 2013, 2:30pm Eastern/1:30pm Central/12:30pm Mountain/11:30am Pacific

Along with their popularity and convenience, e-books bring their own set of challenges to libraries. If you manage an existing e-book collection or are in the planning stages, the following questions will already sound familiar: as your library acquires e-books, do you acquire ownership or access? How do the rights granted for lending print books change in a digital environment? How does the concept of First Sale apply to library materials, and what is its current application to library e-books? Lending and licensing models are in flux, and new players are entering the e-book marketplace, making up-to-date guidance even more necessary. In this workshop Mary Minow from LibraryLaw.com will take you on a pragmatic journey through the law of e-books, cutting through the jargon to give straight answers to common questions. With an understanding of the legal underpinnings of library e-book lending, you’ll be able to plan an effective e-book strategy for your library. Among the topics to be explored:

An introductory review of major e-book platform vendors and emerging library-based projects

• Is First Sale in jeopardy, as some say?
• The implication of a recent court decision, The Authors Guild v. Hathitrust, with regard to Fair Use
• How the so-called Library Exception (Section 108), which permits libraries and archives to make copies for interlibrary loan, preservation and replacement, applies to e-books
• Conditions and e-book applications of Section 121, also known as the Chafee Amendment, which allows authorized entities to copy and distribute some copies to persons with print disabilities
• What to look for in licensing language and provisions 

Go here for registration information about this online event. [JH]

California Requiring It's Non-ABA Schools To Maintain A 40% Bar Passage Rate

As if law schools don’t have enough problems, California is adding one more to schools within its jurisdiction.  As of this year, California is requiring its ABA unaccredited law schools to have at least a 40% bar passage rate to maintain state accreditation.  That figure may seem rather low, though California has one of the tougher bar exams.  The pass rate for all takers of the general bar exam last year is 55.3%. 

California allows anyone to take the bar.  The rates for California unaccredited schools show dismal results.  First time takers passed at a rate of 22.2% (20 out of 90); repeaters were worse at 12.4% (30 out of 242); and the all-takers category showed a passing rate of 15.1% (50 out of 331).  Before anyone points out that 90 + 242 = 332, the stats are from the California Bar’s own stat sheet.  One taker more or less in each category is not going to make a significant difference in the numbers.  The rates for California accredited schools are not much better with passage of 31% by first-timers, 10.5% by repeaters, and 19% for all-takers. 

The new rules do not apply to ABA accredited schools as the California Bar believes the ABA has sufficient requirements to ensure a quality education.  In fact, California schools accredited by the ABA have a passage rate of 68.9%.  Out of state ABA approved schools accounts for a 54.7% rate.  Some of the affected schools have a better record than others.  There is a chart contained in the story on the change by the Independent Voters Network that shows which schools are likely to be affected.

California is doing a bit more than imposing a set of regulations on state law schools.  It is considering the creation of a limited practice license for those who don’t make it.  The press release states:

Trustee Heather L. Rosing said those who can’t afford the services of a licensed attorney are often forced to turn to non-lawyers because of cost. Although legal aid, pro bono service and court-employed family law facilitators all try to fill this gap, too many people need legal assistance and simply cannot afford it at today’s legal market rates.

“We’ve created somewhat of a black market,” she said. “We are simply not serving the vast majority of citizens when it comes to their legal needs.”

A limited licensing program, in addition to helping clients, would create an avenue of employment for law school graduates and legal technicians who haven’t passed the bar, board members said. Engaging in limited practice might be an avenue to eventually becoming a qualified lawyer.

The document notes that Washington State has something like this in place. 

In related news, Hamline University is changing its program to account for those interested in law school but have no intention going through the full J.D track.  The school offers legal certificates which account for student’s technical legal knowledge that may be valuable in other fields that are heavily regulated.  It’s an interesting idea, sort of like CLE but without the C part.  I wonder if any other schools are doing this.  [MG]

Thomson Reuters "is getting out of the dead trees end of the legal education business"

So wrote Jennifer Smith in Thomson Reuters Bids Adieu To Law School Publishing (WSJ Private Equity Beat, Feb. 4, 2013). Of course, it is a little more complicated than merely getting out of the dead trees business. TRI once tried to pitch some unenhanced law school eBooks but academic law libraries pushed back due to costs.

TRI confirmed that the long anticipated sale of its law school publishing unit concluded last Friday. Terms of the deal with Eureka Growth Capital were not disclosed. [JH]

Nothing Stands Still: It may really begin with Wolters Kluwer circa 2013, a/k/a the Year of Becoming a "social Media company"

First Thomson Reuters L&P's  West WestlawNext becomes a "legal solutions" provider, now this from WK:

This year will not be a smooth year, but it will be a successful year when we will become a truly social Media company.

Quoting Christian Dirschl, Content Architect, Head of Content Strategy, Wolters Kluwer Germany, from this Intelligent Solutions Blog post.

In order to be able to master the challenges ahead of us, we need to be even more proactive in socializing, networking, bundling our assets on a European, but also on a global level.

That can include "partnering with publishers, who are (also) potential competitors". In the US, think along the lines of Thomson Reuters becoming a (potential) competitor by way of the Company's and WK's content delivery collaboration known as "Practitioner Insights" for current awareness services.

Everything flows, nothing stands still. This we know from the Pre-Socratic philosopher wisdom-seeker, Heraclitus. The insight is not merely a motto suitable for a T-Shirt. It took some 23 centuries of Western cultural experience to recognize temporality as both the source and fundamental order of the Cosmos. This "being there" has filtered down to the 21st century New Normal experience for information access by "digital natives". What the heck, a little meta-physics has never hurt anyone who pays attention to the details.

But content providers build for "digital natives" because that demographic is their current user population. Law librarians see this in "Google Gen" platforms. And since the Google Gen is also the YouTube Gen, we will increasing see "beyond text only" content delivered once IT infrastructure and on-air "talent" is in place as both already are @ BLaw-BNA. However, if our major vendors only focus on content format, their short-sighted objectives will miss the mark; their strategy is based on the late 20th century space known as Dot-Com web destinations for digital immigrants.

Do "digital natives" want to be restricted to specific places? Our major vendors' current strategy is based on an assumption that new species will evolue because user populations will not be able to, want to, or don't know they can travel from one side of the ever flowing stream to the other. In other words, the genetic theory has not changed.

But the metaphor for the biological population "being there" has. Space has been replaced by Time; the Stream is replacing the Banks. As David Gelernter writes:

Today, this diary-like structure is supplanting the spatial one as the dominant paradigm of the cybersphere: All the information on the internet will soon be a time-based structure. In the world of bits, space-based structures are static. Time-based structures are dynamic, always flowing — like time itself.

Quoted from Gelernter's think-piece, The End of the Web, Search, and Computer as We Know It (Wired, Feb. 1, 2013).

Assuming that a fluid time-based structure eventually will replace a static space-based one, a future-ready commercial licensing model may very well be based on the advertising click-thru model. On the one hand, it doesn't make sense to license a competitive advantage to a competitor based on spacial assumptions. On the other hand, the nexus of a revenue generation model based on temporal assumptions may.

What if WEXIS eliminates in-plan-only static space-based licenses? ... by rolling out a real 21st century pricing scheme modeled on the temporal-based currently known as out-of-plan charges, one that is based on WLN-LA commoditized federated search of commoditized core content but adds current awareness content acquired and/or produced in collaboration, eBooks, and productivity solutions that embed access to them? No doubt that would eventually lead to negotiated click-thru caps by institutional buyers to avoid unlimited cost exposure for fishing in the ever changing Stream.

This is a "what-if" that has a sufficent probability to contemplate. Even today, you don't think WEXIS just sucks a $$ figure for outside content based on space-based access out of their thumb, do you? This is where those WK folks on the other side of the pond stream may be onto something.

However, because most of our major vendor corporate prophets clearly lack the street creds to be visionaries, my hunch is that this rapidly aging and decrepit law librarian will be staring in the space-time thing from the window of the Old Librarians Home before anything happens. Think 10-years from now. By that time, all I hope to be hoping for in my "then normal" is that the Blog Widow brings one of our four rescued dogs or one rescured cat while she comes to visit me. [JH]

Google Settles Linking Dispute With French Publishers, Implications Abound

Google’s settlement with French publishers over the use of links and snippets in Google News is not getting rave reviews from the press or politicians.  The announcement came last Friday that Google agreed to set up a fund of about $82 million for the benefit of French publishers.  Executive Chairman Eric Schmidt described it this way on the Official Google Blog:

Today I announced with President Hollande of France two new initiatives to help stimulate innovation and increase revenues for French publishers. First, Google has agreed to create a €60 million Digital Publishing Innovation Fund to help support transformative digital publishing initiatives for French readers. Second, Google will deepen our partnership with French publishers to help increase their online revenues using our advertising technology.

France was considering changes to its copyright law that would require royalties for links.  I can’t say whether France was serious about this beyond a negotiations ploy, but that is off the table with the new agreement.  Commentators say that while this may benefit Google in the short run it may set a precedent for how publishers deal with other aggregators.  $82 million is lunch money for Google.  That it couched the agreement as an advertising partnership means it will recapture some of that cash through its ad network.  

Google settled with Belgian publishers not long ago with a similar deal, though that was the result of copyright litigation in that country.  German performance rights society GEMA is in a royalties dispute with YouTube over musical content licensed by GEMA.  YouTube has blocked the videos with a message suggesting that GEMA is not licensing the content.  GEMA is upset with this as it is willing to license the content, though at a higher rate than Google will accept.  German publishers are interested in pushing Google for money based on the French and Belgian precedents.  They, however, want some type of agreement that would bind all aggregators such as Bing, Yahoo, and others. 

Linking is the new frontier for publishers desperate for money in a declining industry.  Google may be the biggest target with the deepest pockets but the web is much more than Google.  Social networks users, for example, have a habit of casual linking to news.  It’s only a matter of time before publishers complain that Facebook et al. are not paying their fair share on behalf of their customers.  Google’s business arrangements in France, Belgium, and likely Germany, can force a new worldwide model on unwilling participants.  What may be a political dispute will become the cost of doing business.  I’ll be following these developments over time.

One commentary in particular that enforces that idea comes from the Guardian UK.  The perspective there is that Google pulled a fast one on the French as there is no binding contract holding Google to a set of actions.  Any conflicts under the deal are not subject to arbitration.  Google does not have to reveal its search algorithms which are something that may be an issue in the European Union’s antitrust investigation into search ranking.  It’s available here.  [MG]

"Whisper Fight" in a Library

Is this the first time a Super Bowl commercial's setting was a library? [JH]

ALA Releases E-Book Business Models: A Scorecard for Public Libraries

From ALA's Digital Content and Libraries Working Group follow-up report, E-Book Business Models: A Scorecard for Public Libraries (Jan. 25, 2013).

The Digital Content & Libraries Working Group (DCWG) began documenting and describing attributes of various licensing arrangements libraries may have with publishers in the August 2012 report Ebook Business Models for Public Libraries. Now we are pleased to share The Ebook Business Model Scorecard, which more fully examines the variables often seen in ebook license agreements or contracts. At the same time, the variables, when considered as a whole, can help libraries conceptualize licenses holistically instead of fixating on one aspect of a contract in isolation.

It is worth noting that licensing models for ebooks are in flux. Many libraries are experimenting with the development of their own licensing schemes, some already entering into agreements with independent publishers and self-publishing groups. This document focuses on the kinds of licensing terms we see generally in the ebook industry at this time, and the kinds of variables libraries should consider when bargaining with publishers, or when libraries determine that they want to develop their own business models, as some proactive libraries already have done.

(Emphasis added.)

Recommended. [JH]

Google+, Thomson Reuters and Metadata in Free Law

Google+, Thomson Reuters and metadata in OA law were the topics discussed in Friday's episode of LawLibCom. Jean O'Grady and Elmer Masters joined hosts Richard Leiter and Marcia Dority Baker and panelists, Ken Hirsh, Sarah Glassmeyer and Elizabeth Farrell. If you missed the live podcast, you can listen to it here. [JH]