Law Librarian Blog

What Law Librarians Should Know About Aaron Swartz

That's the title of Scott Frey's (Reference Librarian, Western State College of Law) AALL Spectrum blog post about "programmer, hacker, internet activist, and information activist" Aaron Swartz (1986-2013). Frey's post provides a concise review of Aaron Swartz's all too human but also far too brief life's work and concludes with the following summary:

Aaron Swartz was very interested in information and how people can access and use it.  He worked to make books, academic articles, and legal documents more available, and to foster freedom on the internet.  I think that these interests gave him much in common with law librarians.  Of course, some librarians would disagree with particular positions or actions that Swartz took.  Few would go as far as Swartz did to further access to information, which led to federal investigation and prosecution.  A librarian might reasonably be nervous about allowing someone like Swartz to use the library's computers!  Nevertheless, I think that law librarians can take inspiration from Swartz's goals of information access and internet freedom, and his willingness to work for them.

Highly recommended for that (as well as hopefully signaling an editorial turning point for AALL Spectrum).

For a tribute to Aaron Swartz as a transparency activist and a legal analysis of the the criminal charges that plagued him, see the links at this LLB post. [JH]

Library Punks Lance Armstrong

A sign posted in an Australian library stated that all of the collection's books written by Lance Armstrong including "Lance Armstrong: World's Greatest Champion" will be reclassified from non-fiction to fiction (for obvious reasons). One social media comment stated that the sign showed "librarians do have a sense of humour". For details and a picture of the sign, see this BBC report, Australia library in Armstrong pledge prank. [JH]

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]

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.

Digital Rights Activism in 2012

For EFF, Jillian C. York writes "[A]ctivism for digital rights saw great successes—and innovations—in 2012. While not every campaign was as successful in quashing efforts to restrict rights, it was nonetheless a great year worldwide for digital activism." See York's 2012 in Review: Digital Rights Activism Around the World for some highlights. [JH]

Leadership Traits from Lincoln to Law Librarians

Hat tip to John Edwards, Associate Dean for Information Resources and Technology and Professor of Law, Drake University Law School, for this heads-up. In the context of Steve Matthews' Top Ten Traits of Great Library Leaders (21st Century Library), featured a couple of days ago on LLB, John wrote "Amazing how those top 10 match Lincoln.  [I] heard Doris Kearns Goodwin speak on Tuesday.  [The] Des Moines Register article below hits some of those top 10 points." And here is the article, Doris Kearns Goodwin offers leadership advice from Lincoln (Jan. 15, 2013). [JH]

More Shed West Era Book Art

This time from Perkins Coie LLP. Repurposing print volumes for the firm's new reference desk in the main library here. [JH]

Aaron Swartz, 1986-2013: A Tribute and a Legal Analysis

See Ellen Miller's In Tribute to Transparency Activist Aaron Swartz (1986-2013) (Sunlight Foundation) and Orin Kerr's The Criminal Charges Against Aaron Swartz (Part 1: The Law) (The Volokh Conspiracy). [JH]

And the Winner of ATL's Lawyer of the Year for 2012 is

... try to guess before checking out Staci Zaretsky's Above the Law’s 2012 Lawyer of the Year Competition: The Winner! post. [JH]

FTC More Or Less Gives Google A Pass On Search, Mostly Cares About Patents

The FTC announced a proposed settlement with Google today over various antitrust allegations made over licensing of patent standards that are essential to the mobile phone hardware industry.  Google purchase Motorola earlier to acquire a substantial patent portfolio as legal capital in the patent cases surrounding its Android operating system.  Apple, Microsoft, Samsung, Oracle, and others have initiated lawsuits globally claiming patent violations over features in their various systems.  Some of it is motivated over money but more of seems to be designed to limit competition in various markets what with demands to exclude products from sale over violations. 

The FTC’s proposed consent decree would require Google to license its essential standards patent portfolio on fair and reasonable terms, which is how the industry would normally work.  The statement from the Commission, however, seems to put all companies on notice that the Commission is willing to step into the “patent wars” if competition is at stake: 

We previously explained in the Commission’s unanimous filings before the United States International Trade Commission in June 2012 that the threat of injunctive relief “in matters involving RAND-encumbered SEPs, where infringement is based on implementation of standardized technology, has the potential to cause substantial harm to U.S. competition, consumers and innovation.”  The threat of an injunction allows a SEP holder to demand and realize royalty payments reflecting the investments firms make to develop and implement the standard, rather than the economic value of the technology itself.    In addition to harming incentives for the development of standard-compliant products, the threat of an injunction can also lead to excessive royalties that may be passed along to consumers in the form of higher prices.  Alternatively, an injunction or exclusion order could ban the sale of important consumer products entirely.  This type of “patent ambush” harms competition and consumers and is rightly condemned by the Commission. 

We take this action pursuant to the Commission’s authority under Section 5 to prohibit unfair methods of competition, which both Congress and the Supreme Court have expressly deemed to extend beyond the Sherman Act.  A stand-alone Section 5 unfair methods of competition claim allows the Commission to protect consumers and the standard-setting process while minimizing the often burdensome combination of class actions and treble damages associated with private antitrust enforcement.  In a society that all of us recognize is overly litigious, the judicious use of Section 5 is a sensible and practical way for the Commission to bring problematic conduct to a halt.  [footnotes omitted.] 

I’m particularly interested in seeing how the Commission may investigate other claims of patent abuse by other companies in ways that it may harm competition.  If Google is litigious in this area, it is far from the only company to go that route. 

The two other areas where the Commission had investigated Google are how it treated advertisers conducting ad campaigns over multiple ad platforms and the claim of how it used content from other web sites in displaying search results.  Google’s contracts with advertisers made it difficult for advertisers to evaluate the effectiveness of its ads.  Google agreed to give advertisers more freedom in managing campaigns over multiple platforms without impacting their ranking in search results. 

Other companies have complained that Google appropriates their web content such as reviews and rankings as part of their own search results.  The Commission noted that this practice could conceivably “chill” a web site from creating product innovations.  Another claim was that Google favored its own properties when producing search results.  The FTC said this in the press release: 

According to the Commission statement, however, the FTC concluded that the introduction of Universal Search, as well as additional changes made to Google’s search algorithms – even those that may have had the effect of harming individual competitors – could be plausibly justified as innovations that improved Google’s product and the experience of its users. It therefore has chosen to close the investigation. 

I have not seen that language in the Commission statement, but I’ll take the press release at face value.  Closing the investigation with that conclusion should frost more than a few Google competitors.  Microsoft recently and bitterly complained that Google refuses to license code to allow Windows 8 phone users to watch YouTube videos via an app.  Google provided such an app for Android and iPhone users.  Windows 8 phone users are limited to YouTube access via a browser which is substandard compared to native apps.  This conceivably makes the Windows phone platform less desireable. 

Fairsearch.org, which is an industry consortium of Google competitors, would like to see Commission action to diminish Google’s search dominance.  They will be highly disappointed with this end to the investigation.  Not only was there a “nothing to see here response,” there wasn’t even a fine.  Beyond that, only the patent issues and conclusions are binding on Google.  [MG]

A Very Vintage Happy New Year to All

From two very vintage LLB bloggers, Mark Giangrande and yours truly. [JH]

"What do you see as a significant trend for the legal marketplace in 2013?"

On December 20th, Susan Martin launched into a series (or at least two posts) with a lead-in that through the end of 2012 Legal Current would feature predictions from leaders across the legal business of Thomson Reuters by asking them to provide a short answer to one question:

What do you see as a significant trend for the legal marketplace in 2013?

See the responses by Chang Wang, chief research and academic officer (Dec. 20, 2012 post) and Mark Medice, senior director of Peer Monitor (Dec. 24, 2012 post). Interesting. More to follow? [JH]

Some of This Year's Legal Highlights and Low-Lights

By way of David Brown's The Year in Review on the National Law Journal. [JH]

Robert H. Bork, 1927-2012

Robert Bork died on Dec. 19, 2012 after a distinguish career serving on the bench as well as by way of his many published contributions to legal philosophy. While many commentators writing about his legacy today characterize his jurisprudence as "Originalism," back in the day it was best to view his work from the perspective of Legal Positivism.

Of course, Bork is most well-known for his nomination to the SCOTUS and the fallout from failing to receive the Senate's confirmation. In A Conservative Whose Supreme Court Bid Set the Senate Afire, NYT's Ethan Bronner writes

The success of the anti-Bork campaign is widely seen to have shifted the tone and emphasis of Supreme Court nominations since then, giving them an often strong political cast and making it hard, many argue, for a nominee with firmly held views ever to be confirmed.

Some present-day pundits have opined that they were surprised by how ill-prepared Bork appeared to be during the Senate Judiciary Committee hearings. But they are applying the post-Bork standard for the current status quo to Senate confirmations.

In Recalling Cardozo Law Review’s “Bork Book” (Concurring Opinions), Lawrence Cunningham recounts the story of working on a Cardozo Law Review's issue that was published just ahead of the confirmation proceedings. Titled "The Bork Nomination", the editors collected and published a dozen essays and four reports assessing Judge Bork’s jurisprudence in a 530-page special issue.

The special issue, released in early October ahead of the hearings, sold briskly at many book shops around Washington and New York that fall.  It was clear during the hearings that many Senators had read our product.  In the years after, it was even clearer that Judge Bork had, as he cited to our “Bork book” often.

This is one of those very, very rare instances where a law review issue actually contributed to something beyond the closed world known as the legal academy. [JH]

Where is the Legislation That Banned Christmas?

First published in LLB on Dec. 25, 2007.

Cromwellian apologists, like the Cromwell Association, argue that there is no evidence to support the myth that Oliver Cromwell banned Christmas:

There is no sign that Cromwell personally played a particularly large or prominent role in formulating or advancing the various pieces of legislation and other documents which restricted the celebration of Christmas, though from what we know of his faith and beliefs it is likely that he was sympathetic towards and supported such measures, and as Lord Protector from December 1653 until his death in September 1658 he supported the enforcement of the existing measures.

I see. He was just a fellow-traveler. The Cromwell Association explains that it was "the broader Godly or parliamentary party, working through and within the elected parliament, which in the 1640s clamped down on the celebration of Christmas and other saints’ and holy days."

OK but where is this legislation? Nigel Jamieson, Senior Lecturer in Law, University of Otago, New Zealand, has found it and his delightful tale of the research that went into locating the Ordinance 360 years after the fact is published in Oliver Cromwell—The Grinch That Stole Christmas, 26 Statute L. Rev. 189 (2005).

Although without royal assent, The Ordinance, bearing the date of 4 January 1645 and resolved upon before both Lords and Commons assembled in Parliament, provides in its 'Appendix touching Dayes and Places for Publique Worship':

There is no Day commanded in Scripture to be kept holy under the Gospel, but the Lord's Day, which is the Christian Sabbath.

Festival dayes, vulgarly called Holy dayes, having no Warrant in the Word of God, are not to be continued.

Jamieson explains that the application of this general prohibition against feast-days to the specific celebration of Christmas is clear from an earlier Ordinance, dated 19 December 1644,"'for the better observation of the monethly Fast; and more especially the next Wednesday, commonly called The Feast of the Nativity of Christ, Thorowout the Kingdome (sic) of England and Wales." This Ordinance provided:

Whereas some doubts have been raised whether the next Fast shall be celebrated, because it falleth on the day which heretofore was usually called the feast of the Nativity of our Saviour. The Lords and Commons in Parliament assembled doe order and ordaine that publique notice be given that the Fast appointed to be kept on the last Wednesday in every moneth, ought to be observed until it be otherwise ordered by both Houses of Parliament: And that this day in particular is to be kept with the more solemne humiliation, because it may call to remembrance our sinnes, and the sinnes of our forefathers, who have turned this Feast, pretending the memory of Christ into an extreme forgetfulnessse of him, by giving liberty to carnall and sensuall delights, being contrary to the life which Christ himselfe led here upon earth, and to the spirituall life of Christ in our soules for the sanctifying and saving whereof Christ was pleased both to take a humane life, and to lay it down againe.

Probably only English legal historians and law librarians will appreciate Jamieson's research narrative. To them, I say, enjoy the pleasure of reading Jamieson's article about the process of legislative research and legal authentication. Merry Christmas. [JH]

Shapiro's Most Notable Quotations of 2012

Starting with:

1. "There are 47 percent of the people who will vote for the president no matter what ... who are dependent upon government, who believe that they are victims. ... These are people who pay no income tax. ... and so my job is not to worry about those people. I'll never convince them that they should take personal responsibility and care for their lives."
 
Mitt Romney, remarks at private fundraiser, Boca Raton, Fla., May 17

Here's the complete list [link fixed; includes some video clips] of Fred Shapiro's ten most notable quotations of 2012. [JH]

Hello World ? ? ?

Gift Guides for Techie Lawyers and Law Librarians

Check out Dennis Kennedy's What Tech Gifts Do You Recommend for Techie Lawyers (and Others)? That post also links to recommendations by Reid Trautz and Allison Shields. [JH]

Short Takes On The News

There is a hearing in an appeal today for the anonymous blogger who allegedly defamed Cooley School of Law.  The issue is whether Cooley can publicly identify the blogger as part of the trial proceedings.  The school knows the identity of the person via a subpoena to the blogging service used to make the statements in question.  The trial court had found the language of the statements strong enough to deny First Amendment protection but delayed proceedings because Michigan has not articulated standards for revealing names in these circumstances.  More is at TR News & Insights.

Apparently the debt and job crises in education are not limited to law schools.  The Chronicle of Higher Education reports these were hot topics at the recent meeting of the Council of Graduate Schools.  One of the points discussed included raising a student’s financial literacy as part of the admission process and continuing throughout the length of the program.  This means telling students up front what they are getting into with debt and likely job outcomes.  I’ll note that many of the law school-fraud-in job-statistics-cases dismissed so far mentioned far ranging publicity about the legal job market as notice to students entering law school.  I’m not sure there is a comparable level of publicity for the rest of the academic job market.  The bottom line as always is the investment in education still worth it.

paidContent is reporting on the interesting development by the Financial Times and the Times (London) to offer free or highly subsidized Nexus 7 tablets with a digital subscription.  Most content providers grouse over their inability to get people to pay for their online content or make enough in ad revenues to fund operations.  News Corp. is shutting down the iPad only electronic newspaper The Daily because it did not generate enough subscribers.  This type of promotion may be a way to generate the type of response online news organizations seek.  The Nexus 7 is expensive enough to have perceived value to the consumer that a logoed tote bag may not.  The tablet is not nearly as expensive as an iPad making an affordable promotion.  This may become a model for the rest of the content industry if this offer is successful. 

Speaking of the Financial Times, Michael Bloomberg is considering whether to purchase the paper.  Another addition to Bloomberg Law?  [MG]

Approaching the Fiscal Cliff in the Blind

The Sunlight Foundation, along with the Institute for Policy Innovation, OpenTheGovernment.org, Public Citizen and U.S. Public Interest Research Groups sent a letter dated December 10, 2012 to President Obama, Senator Reid, Senator McConnell, Representative Boehner and Representative Pelosi urging them to "ensure that any legislation resulting from the negotiations is online for 72 hours prior to consideration in Congress" and that any side agreements, including promised votes on future legislation, are also made public. In addition, meetings with lobbyists and other influencers attempting to impact the outcome of the negotiations should also be disclosed online in real time.

The text of the letter is published in Lisa Rosenberg's Groups Urge Transparency Around Fiscal Cliff Negotiations on The Sunlight Foundation's blog. On Nota Bene, Emily Lawson offers some useful resources in her Guide to the "Fiscal Cliff". [JH]