March 1, 2013
Connecticut Courts Offer Games With Other Court MaterialsThere are lots of things one expects from judicial web sites: opinions, dockets, rules, and maybe jury instructions. Connecticut's Judicial Branch includes a page of kid's games. "Try one of our games," the page says. The offerings include tic-tac-toe, various puzzles and word games. Anyone interested in trying their luck can access the page here. [MG]
White House Directs Agencies Create A Public Access Plan For Federally Funded Research
What with all the talk leading up to the sequester kicking in today, sometimes it’s hard to notice some of the things the Obama administration are doing. Here’s an example from last Friday. The White House Office of Science and Technology Policy issued a directive to executive departments and agencies to develop policies to make federally funded research available to the general public after one year of publication. The entire document is here. An excerpt:
The Office of Science and Technology Policy (OSTP) hereby directs each Federal agency with over $100 million in annual conduct of research and development expenditures to develop a plan to support increased public access to the results of research funded by the Federal Government. This includes any results published in peer-reviewed scholarly publications that are based on research that directly arises from Federal funds, as defined in relevant OMB circulars (e.g., A-21 and A-11). It is preferred that agencies work together, where appropriate, to develop these plans.
The administration put out a Request for Information on the issue and solicited comments on November 3, 2011. Many university libraries and publishers weighed in. Libraries supported the idea of public availability for federally funded studies. Publishers not so much, although they seemed to embrace the idea that the government should reimburse them for editorial and other fees they expend in bringing these articles to market if the works are publicly available. The comments (available with the RFI) reflect the commercial bias of most publishers who describe the current high priced subscription system as working well. I tend to think that if federal funding was involved in a study, then it should be publicly available. We should wait for the details to emerge as the agencies have yet to formulate their plans under the directive. [MG]
To the extent feasible and consistent with applicable law and policy; agency mission; resource constraints; U.S. national, homeland, and economic security; and the objectives listed below, digitally formatted scientific data resulting from unclassified research supported wholly or in part by Federal funding should be stored and publicly accessible to search, retrieve, and analyze. For purposes of this memorandum, data is defined, consistent with OMB circular A-110, as the digital recorded factual material commonly accepted in the scientific community as necessary to validate research findings including data sets used to support scholarly publications, but does not include laboratory notebooks, preliminary analyses, drafts of scientific papers, plans for future research, peer review reports, communications with colleagues, or physical objects, such as laboratory specimens.
Securing the Infrastructure for the First Amendment
From the abstract of Yale Law prof Jack Balkin's essay, The First Amendment is an Information Policy [SSRN]:
This essay, based on the 20th annual Hugo Black lecture at Wesleyan University, argues that we should think about individual liberties of freedom of speech, press, and assembly not in isolation, but in the larger context of policies for the spread and growth of knowledge and information.
Although we normally think about the First Amendment as an individual right, we should also see it as an integral part of a knowledge and information policy for a democratic state. That is because the practical ability to speak rests on an infrastructure of free expression that involves a wide range of institutions, statutory frameworks, programs, technologies and practices.
Using the examples of democratic protests in the Middle East and the controversy over WikiLeaks, the essay explains how free speech values are implicated in knowledge and information policies, in the design of digital networks and in the maintenance of infrastructure.
Around the world today, the fight over free speech is a fight over knowledge and information policy, and, in particular, how the infrastructure that makes free speech possible will be designed and implemented. Although the First Amendment is a crucial information policy for democracy, it is only one information policy among many. It needs the assistance of an infrastructure of free expression to make good on its promises. We must design democratic values into the infrastructure of free expression if we want an infrastructure that protects democracy.
Friday Fun: The Celluloid Trial's Most Hackneyed Scenes
And the Oscar for curation goes to Bloomberg Law. [JH]
Ever notice how every movie trial has the very same tired elements? From "all rise" to the celebration after a "not guilty" verdict, every celluloid trial looks like every other one you've ever seen. Think we're exaggerating? Then take a look at these scenes from 29 of the "best" courtroom dramas and comedies ever filmed.
February 28, 2013
Supreme Court Action: Class Action Status and Statutes of Limitations in Securities Fraud Cases
Here are summaries of the two cases issued yesterday by the U.S. Supreme Court. The first is Amgen v. Connecticut Retirement Plans and Trust Funds (11-1085). It concerns the burden of proof in a private securities-fraud case where the plaintiffs seek class action status. Connecticut Retirement sued Amgen over allegedly misleading statements on which Connecticut Retirement claims to have relied upon. Connecticut Retirement sought class action status under Federal Rule of Civil Procedure 23 which was opposed by Amgen. There is a rebuttable presumption that members of the class relied on material misrepresentations in an efficient market under the fraud-on-the-market theory, which does not require direct reliance to be proved.
Amgen opposed the class action certification on the theory that plaintiffs had to show the materiality of Amgen’s alleged misrepresentations before the class could be certified. The District Court rejected that assertion and certified the class. The Ninth Circuit affirmed. The Supreme Court affirmed holding that Rule 23 does not require that level of proof in order for a class to be certified. The rule demands that questions of law or fact predominate over questions affecting individual plaintiffs. Materiality of Amgen’s alleged misrepresentations is measured against an objective evidentiary standard that applies to the class. If the proof fails, the litigation ends. Thus no individual questions could predominate as the case would be over. A second issue in the case was the rejection of rebuttal evidence presented by Amgen when it disputed the class certification. The Court said Amgen attempted to litigate the merits of the case at the class certification stage, which was not required under the standards of Rule 23. Justice Ginsburg delivered the opinion of the Court which was joined by Chief Justice Roberts, and Justices Breyer, Alito, Sotomayor, and Kagan. Justice Alito filed a concurring opinion. Justice Scalia filed a dissenting opinion. Justice Thomas filed a dissenting opinion which was joined by Justice Kennedy in full and by Justice Scalia except for part I-B.
The second case, Gabelli v. SEC (11-1274), concerns the starting point for the running of the Statute of Limitations in an investment fraud case brought by the Securities and Exchange Commission under the Investment Advisors Act. The Act makes it illegal for investment advisors to defraud their clients. The general statute of limitations places a five year limit for suit from the date the claim first accrued. The SEC sued Gabelli for civil penalties under the act in 2008 for fraudulent activity between 1999 and 2002. Gabelli moved to dismiss the case as time barred and the District Court granted the motion. The Second Circuit reversed, holding that the statute of limitations started running at the time the violation was discovered.
The Supreme Court reversed. It said the most natural reading of the statutory language is that the statute runs from the time the fraud accrued, not when it was discovered. That language is:
“Except as otherwise provided by Act of Congress, an action, suit or proceeding for the enforcement of any civil fine, penalty, or forfeiture, pecuniary or otherwise, shall not be entertained unless commenced within five years from the date when the claim first accrued if, within the same period, the offender or the property is found within the United States in order that proper service may be made thereon.” 28 U. S. C. §2462.
The discovery rule may work in situations where the plaintiff is an individual suing for compensation. The government is not that type of plaintiff. The SEC seeks civil fines instead. Applying the rule to government would be a challenge to the courts. It’s more difficult to determine things such as when the government knew or should have known about the fraud compared to private individuals who are seeking redress as defrauded victims. Chief Justice Roberts delivered the opinion for a unanimous Court. [MG]
Law School Marketing: "Is today the day I'm going to break down and file a complaint?"
That would be a complaint with a state bar ethics panel alleging that law school administrators have been misleading students about the value of legal education and in some cases knowingly spreading false information about their schools. The "is today the day" statement was expressed by Ben Trachtenberg (University of Missouri School of Law) in the below Bloomberg Law interview.
Trachtenberg is the author of Law School Marketing and Legal Ethics [SSRN]. It was one of two articles featured on LLB at On Playing Games with Law School Data: The buck stops where and by what means of accountability? [JH]
February 27, 2013
Supreme Court Action: Surveillance and Awarding Attorneys Fees Under Federal Rules
The Supreme Court issued two opinions yesterday and two this morning. One of those opinions from yesterday is controversial and has generated a significant number of news reports. Clapper v. Amnesty International (11-1025) concerns the reach of §1881a of the Foreign Intelligence Surveillance Act of 1978 which was added by amendment in 2008. That provision allows for surveillance of foreign individuals outside of the United States, including interception of their communications. This surveillance is subject to approval by the Foreign Intelligence Surveillance Court (FISC), congressional oversight, and compliance with the Fourth Amendment. The plaintiff’s in the initial case are individuals and organizations that communicate with likely surveillance targets. Some are journalists and others are attorneys who may be representing these potential targets. Their suit seeks a declaration that the 2008 amendment is unconstitutional as it can intrude on conversations that are excluded from the Act’s coverage.
The District Court held that the plaintiffs did not have standing as there was no injury. The Second Circuit reversed, holding that it was reasonable for them to expect that their communications would be intercepted and their injury stems from the mechanisms they use to secure their conversations. A split Supreme Court reversed. It held that for standing to exist the injury must be “concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling.” The Court noted the difference between “likelihood” and “certainly impending” in determining that the Second Circuit got it wrong. The plaintiff’s fears are speculative as to whether their conversations will be swept into the surveillance. The measures they are taking are subjective on their part and the fact that they are taking them cannot manufacture standing. Justice Alito delivered the opinion of the Court which was joined by Chief Justice Roberts and Justices Scalia, Kennedy, and Thomas. Justice Breyer filed a dissenting opinion which was joined by Justices Ginsburg, Sotomayor, and Kagan.
The other opinion from yesterday is Marx v. General Revenue Corp. (11-1175). It concerns whether an award of attorney fees against an unsuccessful plaintiff under Federal Rule of Civil Procedure (FRCP) 54(d)(1) is displaced by a provision of the Fair Debt Collection Practices Act (FDCPA). Marx filed suit against General Revenue Corp. alleging that it violated the FDCPA while trying to collect on her (defaulted) student loan. The District Court ruled against Marx and awarded fees under the Rule. Marx tried to vacate the order, claiming that 15 U. S. C. §1692k(a)(3) displaced the rule. That section allows for fees to be awarded when an action under the Act is brought in bad faith and purposes of harassment. The District Court held that the Rule was not displaced by the statute and the Tenth Circuit Affirmed.
The Supreme Court affirmed the Tenth Circuit, holding that the statute does not replace the Rule in situations where the plaintiff brings the case in good faith. Arguments to the contrary suggested that the statute displaced the Rule by limiting the award of fees to suits brought in bad faith. The Court rejected this interpretation stating that the statute in question has to limit the trial court’s discretion under the rule. Justice Thomas delivered the opinion which was joined by Chief Justice Roberts, and Justices Scalia, Kennedy, Ginsburg, Breyer, and Alito. Justice Sotomayor filed a dissenting opinion which was joined by Justice Kagan.I’ll cover today’s opinions in tomorrow’s postings. [MG]
Cooking Up the Next Big Thing Instead of Meth in the Garage
Giving customers what they say they want instead of taking on the much harder task of figuring out what they need and then providing it is how most of our professional legal services vendors have turned into tweakers instead of innovators when it comes to their content and search offerings. To innovate is to disrupt the status quo. That is risky business. To tweak is to follow the B-School recipe for cooking meth. That too is risky. The chefs can blow up the garage and all of its inhabitants by practicing risk averse incremental only change based on standard business modeling techniques.
"Large, legacy publishers recognize that their business models are changing dramatically, yet they can’t afford to shift resources into developing the risky new technologies that may–or may not–rescue their companies," writes Lean Back 2.0's Emma Gardner. She adds
To address this dilemma, publishers have started experimenting with a new solution: innovation labs. In the past few years, legacy publishers from the New York Times Company to Condé Nast have launched small departments dedicated to exploring potential company-wide innovations. Each lab differs in terms of structure and focus, but all strive to function more like start-ups. The hope is that these departments can be less risky, but much more agile, innovators within the larger organization.
Gardner kicks off her series of innovation lab posts with a profile of Dow Jones R&D's 7-person team which "is purposely independent and is tasked with creating innovative solutions to company-wide challenges." Check out the team's "digital vault." It can be viewed as being a bit disruptive of the Company's legacy business model. For more, see Inside the Dow Jones R&D department.
Being "unfriended" by the customer base. Someday B-school culinary arts trained chefs cooking their legacy publishers may be singing... . [JH]
February 26, 2013
Six Strikes Program Against Piracy Goes Into Effect In The US This Week
The six strike copyright monitoring system that was brokered between content holders and ISPs goes into effect this week. The FAQ for the Center for Copyright Information (CCI) explains how the system works. Generally, content holders will monitor peer-to-peer networks, identify the content as their own and send the IP address to the appropriate ISP. The ISP will send a series of messages to the account holder indicating the piracy allegation. The first two messages are educational. The next two are acknowledgement alerts that require a response. The final two are mitigation alerts that impose minor consequences such as a speed slowdown. Appeals are allowed at $35 a pop. The CCI does not make money from these appeals as the money goes to the American Arbitration Association, the organization that hears the appeal.
Some commentators expect little change in the downloading habits of those who may be affected by the program. One reason is that termination of the offending Internet account is not part of the program. Another is that by limiting the program to BitTorrent and P2P traffic, determined downloaders will move to other sources such as blogs, file lockers, and of course, Usenet. Many companies providing subscription services to Usenet tend not to log their customer activity. That detail may put a dent in enforcement should the program start monitoring these sources. And using virtual private network (VPN) or proxy services can hide an IP address.
My biggest concern is how the CCI will handle the inevitable messages sent by scam artists pretending to be ISPs or the CCI. It is possible that some scammers could conceivably send high quality fraud messages that steal graphics from legitimate sites. I get these all the time from people pretending to be banks or popular Internet destinations. One way to tell a legitimate message from a scam is that the ISP/CCI messages should not demand money to mitigate a violation. Another way is to let the cursor hover over a link in the message (without clicking on it, of course) to reveal the true destination. Most mail clients and browsers support this feature. I recommend calling an ISP’s customer service line to verify the messages are accurate for anyone who still isn’t sure.One other prediction: watch for the content holders to advocate for a stronger program when their sales or profits do not rise significantly. Read more in the National Law Journal, Billboard, and my favorite snarky technology news site, The Register. [MG]
IFLA's Principles for Library eLending
Earlier this month IFLA's Governing Board endorsed Principles for Library eLending as a complementary policy statement to IFLA's database-focused Licensing Principles (2001). "It is evident that the library distribution of downloadable trade eBooks differs fundamentally from the licensing of digital databases."
From the Background statement:
The differences for library acquisition of the two types of digital content include:
- The 2001 Principles assume “a willing information provider and a willing purchaser of information access” and advocate for standard license terms and conditions in a number of areas. As has been well documented, the large multi-national trade publishers take very different approaches to selling eBooks to libraries including withholding content and will not engage in collective discussions about terms and conditions due to concerns over anti-competition legislation.
- With eBooks a layer of complexity is added with interoperability restrictions for end users dictated by eReading device manufacturers/distributors (Amazon, Apple…) and interfaces and use restrictions dictated by content sellers/resellers (OverDrive, Amazon…). Imposed restrictions often do not integrate seamlessly with other library discovery services.
- While licenses for aggregated eBook collections are negotiated, when made available to libraries eBooks are often licensed on a title by title basis from publishers or through resellers and terms and conditions are non-negotiable.
- Publishers of trade eBooks most often have regional geographic rights which may constrain their ability to contractually agree to international interlibrary loan to regions where they do not hold rights.
- Consortia licensing of eBooks is actively discouraged by trade publishers and resellers.
From the Preamble:
The IFLA Principles for eLending is based on the assumption that it is necessary for libraries and publishers/authors to negotiate a range of reasonable terms and conditions for the licensing of eBooks to libraries which allows them to fulfil their mission of guaranteeing access to knowledge and information for their communities. Successful negotiations will require solutions which do not unduly jeopardize the publisher’s and author’s financial viability. It is not acceptable that a publisher or author can restrict a library's ability to purchase/license otherwise commercially available eBooks for the library collection. The implementation of a library's collection development policy has to be in the library's control, and not in the control of publishers and authors.
Whoa! I think that means a library's business plan trumps any vendor's business plan.
On Feb. 8, 2013, IFLA launched a new set of resources relating to eBooks and libraries. Recommended as a starting point for law libraries hell bent on not being a lap dog --- meaning by prioritizing their institution's business plan higher than our association's so-called vendor partners business plans.
End note. AALL has some sort of involvement with IFLA, right? Emphasis on "some sort." For example, see this 2011-12 Annual Report about AALL's participation in IFLA affairs authored by Sally Holterhoff, AALL Representative 2011-2014 ("Although the two main categories of IFLA membership are Associations and Institutions, AALL participates through appointment of an individual to serve as its representative to IFLA through a Personal Affiliate membership.") [JH]
February 25, 2013
What Not To Do When Submitting A Legal Memorandum To A Court
Here's a piece of legal research and writing advice for law students an attorneys alike: Don't copy stuff willy-nilly and submit it to the Court as part of a memorandum of law. Oh, and Shepardize (or KeyCite, or whatever Bloomberg uses as a verb for their citator) your cases. The ABA Journal reports on a case where Lindsey Lohan sued a rapper for using her name in a song. She claimed it violated her rights of publicity. The trial court found that using a name in an artwork was protected speech under the First Amendment. The defendants, however, asked for sanctions because significant portions of the memorandum in opposition was taken from another brief in an unrelated case (and not really on point) along with uncited portions of web content and articles. Here's what the Court said in footnote 6 of its opinion:
Defendants also assert, correctly in this Court’s view, that the Opposition was “rife with irrelevant discussion, . . . did not meaningfully address a single case cited by the [defendants] in support of their motion to dismiss, cited a case without disclosing it had been reversed, and essentially ignored every argument made by the [defendants].” (Defs.’ Sanctions Mem. at 11 (internal citations omitted).) According to defendants, the reason that the Opposition did not address the salient points raised in their motion to dismiss was because it was actually taken “nearly entirely and verbatim” from a legal memorandum plaintiff filed in an entirely different case. (Id. at 16 (emphasis omitted) (noting that approximately 14 or 15 pages of the Opposition were copied from a prior legal brief).) Plaintiff does not dispute this assertion.
The Court fined counsel $1,500 for the filing a false representation to the Court. Sanctions were not paid to the defendants who apparently knew about the plagiarism early on but did not inform the Court about it until much later in the proceedings. The Hollywood Reporter provides the opinion and order in the case. [MG]
I got tenure after my book was published by Edwin Mellen Press
If you hunt around the Edwin Mellen Press website you might find author testimonials like one I did during my review of the publisher's catalog of philosophy titles on Feb. 9-10, 2013. (Results of my buy-not-buy decision here.) The gist from [prof's name and link to testimonial omitted] was "I got tenure after my book was published by Edwin Mellen Press".
I don't know if the author only submitted his book to Edwin Mellen Press or only submitted his work to Edwin Mellen Press after it have been rejected by one or more publishers. But consider the message. Remember it was a testimonial by an author about an employment-related result of event after his book being was published that was selected for display by Edwin Mellen Press on its website. (Oops, see how easy it is to draw conclusions.) Place that in the context of Dale Askey's critique of the Press and the titles it publishes.
It is not unusual for publishing houses to solicit submissions for possible publication. Is this one of the ways Edwin Mellen Press goes about acquiring titles for its catalog of offerings? Was the intended audience authors desperately to publish, not perish?
Book testimonials, typically authored by someone who may have read the book are just marketing fodder. Testimonials by authors in this context are a bit odd but they too are nothing more than marketing fodder. No reader should conclude I am stating or implying that the Edwin Mellen Press publication of this testimonial signals in any way, shape or form that listing on a CV a title "published by Edwin Mellen Press" has any value whatsoever.
Many factors go into a tenure review committee's decision making matrix. Being published by Edwin Mellen Press may or may not have been a factor considered by the tenure review committee in this instance. The author's testimonial does not state a causal link; it simply asserts a fact that can be verified. I'm assuming it is true. I'm omitting the poor prof's identity because legal counsel for the Δ may want to ask him one hellva lot of questions. They might include but certainly may not be limited to the following:
- Why did you submit your publication to Edwin Mellen Press?;
- What questions were asked by Edwin Mellen Press during its acquisitions screening process?;
- Was your testimonial statement voluntary or a condition of being published?;
- Was the testimonial displayed on the publisher's website full and complete?
- Who were the members of your tenure review committee?
Statements of support for Askey. In addition to the previously reported ARL-CARL Joint Statement in Support of Dale Askey and McMaster University, see
ALA President Maureen Sullivan responds to Edwin Mellen Press lawsuit (text republished below).
“As president of the American Library Association, I share the deep concern expressed by the Association of College and Research Libraries, the Association of Research Libraries and the Canadian Library Association among many others in deploring the actions of the Edwin Mellen Press in filing a libel suit against Dale Askey, currently a librarian at McMaster University, for expressions of his professional opinion on his personal blog not associated with either Kansas State University or McMaster University.
“This action strikes at a core responsibility of all librarians as information professionals to provide considered, critical advice to the reading public regardless of the type of library in which they are employed.
“In addition, it has the potential to significantly poison the good relationships enjoyed by the library and publishing communities. I call upon the Press to reconsider its actions and drop this assault on intellectual and academic freedom.”
"The American Library Association is the oldest and largest library association in the world, with 58,000 members. Its mission is to promote the highest quality library and information services and public access to information."
In the event the Canadian Center for Science and Education does more than just threaten to sue Jeffrey Beall, associate professor and scholarly initiatives librarian at the University of Colorado Denver, for being included in Beall’s List: Potential, possible, or probable predatory scholarly open-access publishers based on his Criteria for Determining Predatory Open-Access Publishers (2nd ed., Dec. 1, 2012), my hunch is statements in his support will be forthcoming.
For previous coverage and commentary on LLB, see:
- Academic Librarian Sued For Dissing Publisher In A Blog Post (Feb. 7, 2013)
- The Curious Case of Edwin Mellen Press (Feb. 11, 2013)
- Another Publisher Threatens Suit Against A Librarian For Blog Comments (Feb. 18, 2013)
- When All Else Fails, Sue or Threaten to Take to Court the Publishing Industry Critic (Feb. 19, 2013)
February 24, 2013
Cats: Destroying Stuff Since Forever
There are three stories in The Atlantic that demonstrate how cats have left their mark, literally, in work from distant times. The first documents cat paws in a brick from Roman times that ultimately wound up in construction at Washington State’s Fort Vancouver, probably from the early 1800’s. The second tells the tale of a book dating from March 11, 1445 with inky paw prints across the page. The book in question is described as a something akin to a 15th century Federal Register. The third is the story of another book, this one from 1420, where a cat marked it in another way. The scribe who created it lamented on the page in question that a cat urinated on the open book. He wound up drawing pictures of hands that marked the outer edges of the stain, along with a drawing of a cat. The moral? Don’t leave your books open at night when cats are around.
I have dealt with multiple situations where a cat has
changed my computer settings by pressing a combination of keys through walking
or laying on the keyboard. Once I found a computer
mouse dangling off the table by the merest shred of a cable. The cat may have been entertained by the
mouse, but I wasn’t. There was a time
where I built my own machines, and like most that do so, I kept the side of the
case open for easy access. I did, at
least, until I discovered my cat had decided the open case was a great substitute
for a litter box. Little was
salvageable. Not only do I keep the
cases closed now, I throw towels over them to keep them safe from curious paws.
It seems cat behavior hasn’t changed a
bit in 2,000 years, only the objects of that behavior.
Pictured: The cat who loves computers. [MG]