Law Librarian Blog

Incorporation by Reference: Private Control Over Access to Public Law

Here's the abstract for Michigan Law prof Nina A. Mendelson's Private Control Over Access to Public Law: The Puzzling Federal Regulatory Use of Private Standards [SSRN], Michigan Law Review, Forthcoming:

To save resources and build on private expertise, federal agencies have incorporated private standards into thousands of federal regulations – but only by “reference.” An individual who wishes to read this binding federal regulatory law cannot access it for free online or in a government depository library, as she can the U.S. Code or Code of Federal Regulations. Instead, the individual is referred to the private organization that prepared the standard, which typically asserts a copyright and charges a significant access fee. Or else she must travel to Washington, D.C. Thus, this category of law has come under largely private control.

In assessing the arguments why law needs to be public, previous analyses have focused almost wholly on whether regulated entities have notice of their obligations. This article evaluates several other considerations, including notice to those who expect to benefit from the way government regulates others, such as consumers of dangerous products, neighbors of natural gas pipelines, and Medicare beneficiaries. Ready public access also is critical to ensure that federal agencies are accountable to the courts, Congress, and the electorate for the regulatory power they exercise. As shown by an assessment of the institutional dynamics surrounding public and private interaction to define the scope of federal regulation, the need for ready public access is at least as strong in this collaborative governance setting as when agencies act alone. Finally, expressive harm is likely to flow from government adopting regulatory law that is, in contrast to American law in general, more costly to access and harder to find. Full consideration of the importance of public access both strengthens the case for reform and limits the range of acceptable reform measures.

Highly recommended. [JH]

CRS on Marijuana Legalization by the States

The Congressional Research Service has weighed in on the apparent conflict between federal and state drug laws in light of legalization in Colorado and Washington for small amounts of recreational marijuana.  Here is part of the Summary that lays out the issues:

The Colorado and Washington laws that legalize, regulate, and tax an activity the federal government expressly prohibits appear to be logically inconsistent with established federal policy toward marijuana, and are therefore likely subject to a legal challenge under the constitutional doctrine of preemption. This doctrine generally prevents states from enacting laws that are inconsistent with federal law. Under the Supremacy Clause, state laws that conflict with federal law are generally preempted and therefore void and without effect. Yet Congress intended that the CSA would not displace all state laws associated with controlled substances, as it wanted to preserve a role for the states in regulating controlled substances. States thus remain free to pass laws relating to marijuana, or any other controlled substance, so long as they do not create a “positive conflict” with federal law, such that the two laws “cannot consistently stand together.”

This report summarizes the Washington and Colorado marijuana legalization laws and evaluates whether, or the extent to which, they may be preempted by the CSA or by international agreements. It also highlights potential responses to these recent legalization initiatives by the U.S. Department of Justice (DOJ) and identifies other noncriminal consequences that marijuana users may face under federal law. Finally, the report closes with a description of legislative proposals introduced in the 113th Congress relating to the treatment of marijuana under federal law, including H.R. 499 (Ending Federal Marijuana Prohibition Act of 2013); H.R. 501 (Marijuana Tax Equity Act of 2013); H.R. 689 (States’ Medical Marijuana Patient Protection Act); H.R. 710 (Truth in Trials Act); H.R. 784 (States’ Medical Marijuana Property Rights Protection Act); and H.R. 964 (Respect States’ and Citizens’ Rights Act of 2013).

The report is State Legalization of Recreational Marijuana: Selected Legal Issues.  It was issued on April 5, 2013.  The order code is R43034.  [MG]

More On Statutes And Copyright

Joe’s post below reminds me of the story of how the Illinois Compiled Statutes came to be.  If I remember correctly, Lexis wanted to publish a copy of the Illinois Revised Statutes.  West claimed the copyright in the numbering system.  The legislature passed several public laws attempting to place the organizational scheme into the public domain.  Governor “Big Jim” Thompson vetoed these attempts.  The legislature finally passed a bill placing a new organizational scheme into the public domain.  More details on this are available from the Illinois Legislative Reference Bureau.

For a more detailed look at copyright in statutory compilations, see State Ownership of Copyrights in Primary Law Materials by Irina Y. Dmitrieva, 23 Hastings Comm. & Ent. L.J. 81 (2000-2001), available on Hein Online.  [MG]

Dumb Halloween Laws

It’s Halloween.  Here is a short list of laws related to Halloween courtesy of idiotlaws.com.  Here’s an example:

While in Huntsville, if you see someone in an animal control officer uniform that means by law the person is in fact an animal control officer…

So… does that mean during Halloween, by law there are a bunch dead people running around?

Filed in: Huntsville

There are, of course, other dumb laws listed beyond the current holiday, though note the disclaimer:

The laws listed here are for entertainment purposes only. We have tried to cite specific references when available but, we make no guarantees on the validity of these laws and as such: the laws and regulations including the interpretation and commentary we have provided are for entertainment only.

I think I've seen the same words appear in many of the textbooks I used when I was in law school.  [MG]

Copyright Office Identifies Libraries, Mass Digitization as Priority In Copyright Policy

Maria A. Pallante, the Registrar of Copyrights, released a report last week identifying the legislative priorities for October 2011 through October 2013.  These are, as the proverb goes, interesting times for copyright law, what with every interested party staking out conflicting positions, extreme or otherwise.  Take a look, for example, at this commentary from The Awl, which contains author Ursula Le Guin’s take on the best outcome of the Google Book case, as she would like it:

"Their [Google’s] agreement, or a ruling requiring them, to immediately stop digitalising copyrighted books without obtaining permission from the copyright owner. With a reminder to the libraries that have been facilitating this illegal activity that it is piracy, and they should not have agreed to it."

I believe under that scenario the publishers would be free to follow in the footsteps of the music labels and pursue those who share illegal copies of digitized books:  snaring a few high profile (and high expense) cases and at the same time deterring practically no one.  Google and the libraries would theoretically live in peace and harmony.  Le Guin doesn’t state whether she favors changes in the law that would facilitate mass digitization of books.  The Copyright Office, however, at least identifies the issue from the perspective that it needs to be addressed going forward:

Mass Digitization

The Copyright Office has undertaken a preliminary analysis identifying the issues related to mass book digitization—developments the Office analyzed in connection with the U.S. Statements of Interest filed in the Google Book Search litigation, as well as in testimony on the subject provided by former Register Marybeth Peters in the House of Representatives. The analysis addresses the current landscape and marketplace; possible methods to facilitate digitization projects, including voluntary, extended, and statutory collective licensing; and the implications for prior studies and proposals to address orphan works (www.copyright.gov/orphan) and section 108 library and archive exceptions in the digital age (www.section108.gov). The Office will use the analysis as the basis for future research and policy discussions in the United States. Publication date: October 2011.  www.copyright.gov/docs/massdigitization

Here are related statements with respect to orphan works and libraries:

Orphan Works

One issue that has been very widely discussed in recent years is how to create a legal framework to facilitate the authorized use of so-called “orphan works.” Orphan works are defined, in this context, as works for which authors cannot be identified and located by prospective users in situations that would otherwise require permission and licenses.  In 2006, the Copyright Office delivered a major study to Congress on this issue: Report on Orphan Works (www.copyright.gov/orphan). The Office agreed with many in the copyright community that millions of works that could be available to the public (e.g., for research, education, or use in mainstream books or documentary films), are barred from use because of the inability to find rightsholders. The Office proposed limiting the remedies a copyright owner might obtain against one who has failed to identify or locate the copyright owner after conducting a reasonable, diligent search (details of which were later defined in draft legislation to incorporate best practices and technological tools).  The House and Senate worked extensively on orphan works legislation in the 109th and 110th Congresses. The topic then stalled after the parties to litigation involving the Google Book Search program announced a proposed settlement agreement in part because it had implications for orphan books. However, in 2011 the court rejected an amended version of the settlement, expressly ruling that the disposition of orphan works belongs with Congress, not the courts. See Authors Guild v. Google Inc., 770 F. Supp. 2d 666, 677–78 (S.D.N.Y. 2011). Foreign countries, including members of the European Union, are also renewing their focus on the orphan works problem. The Copyright Office will continue to provide analysis and support to Congress on this important issue.

* * * *

Copyright Exceptions For Libraries

In 2008, the Copyright Office received the Section 108 Report (www.section108.gov) which details concerns with the current copyright exceptions for libraries and archives (and discusses expanding the section 108 exceptions to museums). The independent study group included a mix of copyright owners and copyright users; its work was cosponsored by the Librarian of Congress and the Register of Copyrights. In sum, the 2008 report concluded that section 108 fails to meet the needs of libraries and archives (and other entities, such as museums) dealing with born-digital works, digital preservation and conversion issues, as well as numerous types of uses and lending of works by patrons of these institutions. Because some of the issues were implicated in the Google Book Search litigation (including issues related to providing access to copyrighted works), some stakeholders were wary of proceeding too quickly with legislative discussions. However, because many of the issues are critical for libraries, in 2012 the Office will formulate a discussion document and preliminary recommendations on these issues.

I’ve said many times that I would like to see the underlying litigation in the Google Book case and the HathiTrust case go to a final court decision as at least we’d know what the Courts believe to be fair use under the current copyright laws.  I believe the libraries have a better chance here than with legislation as the Courts tend not to be persuaded by campaign contributions when it comes to interpreting legislation (or making it).  How would Le Guin feel if the courts ruled mass digitization projects are fair use?  Would that still make it piracy?  [MG]

And Yet Another New Tax Target: The Cloud

And while we're on the subject of a new income tax revenue stream for the states see Joe's post below, consider a recent report in the BNA Computer Technology Law Report (12 CTLR 312) that examines the possibility inevitability of states collecting taxes from cloud services.  Software as service is still something akin to tangible physical software as far as the New York State Department of Taxation is concerned.  Adobe markets photo editing capability in the form of an online subscription.  Consumers can subscribe to the software as an alternative to buying Photoshop.  New York would subject the subscriptions to state and local taxes even though no copies of the online code are transferred to users.  As the Department states:

The location of the code embodying the software is irrelevant, because the software can be used just as effectively by the customer even though the customer never receives the code on a tangible medium or by download.

New York State, of course, has the power to interpret its rules in its favor, so why not?  Other states are beginning to follow suit according to the report.  Michigan has a similar ruling, with Illinois and Louisiana looking at the issue.  The taxing landscape may be uncertain now, as the report suggests, but I think other states will join the bandwagon once cloud services and online software access become more popular.  The report notes that Congress is considering the Digital Goods and Services Tax Fairness Act to set national standards as to which jurisdiction would be able to collect the tax when more than one can make the claim.  That may make some states unhappy with the choice out of their hands.  You can bet that if treating software that is accessed but never transferred is considered the same as tangible property, states will find a way to further tax things such as streaming media rentals, or any type of subscription delivered over the web.  [MG]

Un-branding State Codes?

Some of my colleagues here at Buffalo pointed out that the cover of the new volumes of New York Consolidated Laws Service (CLS) published by LexisNexis are strikingly similar to it's competitor McKinney's Consolidated Laws of New York published by Thomson Reuters. So far we have received new CLS volumes for 4 (CPLR) and 40 (Workers Comp). In terms of content, the traditional blue CLS volumes feature forms as indicated on the spine. The new CLS volumes boast "Forms Practice Insight" which appears to be an attempt to provide commentary like its competitor's Practice Commentaries. Here are some observations about the physical similarities between McKinney's and the new CLS volumes: Both covers are pretty much the same shade of black AND both feature gold typography. The typography is very similar except that McKinney's is serif and CLS is sans serif. The new CLS volumes feature a black on black imprint of "CLS" on the spine and the cover. The traditional blue CLS volumes feature "CLS" in a visible shade of blue darker than the book cover.  Though the new CLS volumes do have the publisher's name on the spine, it's small letters are  very subtle. The only conclusion we can draw about the un-branding is that the publisher of CLS wants us to be confused. Is this happenstance or is this a trend? Have law librarians in states with two competing state codes observed a similar pattern? [BA]

USCprelim: Pilot Project to Update Online USC Titles Faster Launched With IRC

In Is There a Future for an e-USC? Law Library Lights, 9 (Winter 2010), Andy Zimmerman and Trevor Rosen asked "would it be possible for the OLRC to create an e-USC along the same lines of the e-CFR?" By way of email exchanges with Andy about this topic he wrote

For some time I've wished the government would post a relatively current edition of the United States Code, and I got particularly interested after the e-CFR proved successful. I researched the situation last Fall, and spoke with Peter LeFevre, the Law Revision Counsel. At the time Mr. LeFevre was focused on the worthy goal of reducing the time lag for incorporating new laws into the official USC to about a year, but he was receptive when I mentioned possibly also developing an unofficial-but-nearly-current edition of the USC similar to the e-CFR.

Looks like LeFever ran with the idea! Recently the House of Representatives Office of the Law Revision Counsel (OLRC) launched USCprelim with the online publication of Title 26 containing the Internal Revenue Code, current through Public Law 111-237 (August 16, 2010). You can view the updated IRC by section or group of sections, specify the title and section or other subdivision, or search by words or phrases using boolean and proximity connectors. Additional search options include

• Concept (searches for documents statistically related to your query)
• Relate (suggests words related to your query, based on co-occurrence within database)
• Fuzzy (suggests words spelled similarly to the first word in your query)
• Dictionary (verifies existence and popularity of a word in the database)

See the Help page for details.

About USCprelim:

Starting in 2010, the OLRC began a pilot project, called the USCprelim, to update certain titles of the U.S. Code on the website throughout the year as laws affecting those titles are enacted, rather than waiting until the end of the congressional session. Although these titles are also prepared from the same database used to prepare all other versions of the Code, they are posted to the website as a preliminary release, before all editorial notes have been added and before all work has been thoroughly reviewed. Thus, it should be expected that the preliminary release will be subject to further revision before it is released again as a final version. Nevertheless, the preliminary release should be useful to those seeking a more current version of the law. As with other online versions of the Code, the U.S. Code classification tables should be consulted for the latest laws affecting the Code.

In his recent blog post, OT: There IS a future for an e-USC!, Andy writes

I would like to think my article (co-written with Trevor Rosen, a librarian at Kilpatrick Stockton LLP) planted the seed for USCprelim but, either way, the pilot represents a big step forward, and the OLRC should be commended for making it happen.

No doubt Andy's conversation with Peter LeFevre didn't hurt and most likely it was a contributing factor to the development of this new resource. There are substantially different requirements between how the CFR and its eCFR version and the USC and its new USCprelim can be created. But it most definitely looks like OLRC is overcoming some of the hurdles the creators of the e-CFR do not have to face. [JH]

DOJ Releases Guidance for FOIA Act Amendments

The DoJ's Office of Information and Privacy has released guidance on how federal agencies should implement the OPEN Government Act of 2007 which amends the Freedom of Information Act. The amendments require agencies to specifically cite the exemption justifying each redaction to a document requested under FOIA. Agencies also have to mark documents in such a way that shows how much information is being redacted. [JH]

DMCA at 10

Yesterday was the 10th anniversary of the Digital Millennium Copyright Act (DMCA). Over the course of this week and into the next Public Knowledge will post a series of video interviews with scholars, educators, and innovators affected by the DMCA. See 10 Years of the DMCA and the first video interview in the series, an interview with Vijay Raghavan, who serves as a Director at Qorvis Communications and who co-founded the now extinct video-to-iPod service, Load N’ Go Video. [JH]

Federal Courthouse Named After Rush Limbaugh's Grandfather

President Bush signed Pub. L. No 110-13 on March 21, 2007. The statute designates the United States courthouse located at 555 Independence Street in Cape Girardeau, Missouri, as the "Rush Hudson Limbaugh, Sr. United States Courthouse." From H. Rep. No. 110-10:

Rush Hudson Limbaugh, Sr. was born in Bollinger County, Missouri on September 27, 1891.

He began his education in a one room school a mile from his farm home. He attended the University of Missouri at Columbia and in 1914 entered the University of Missouri Law School. He skipped his third year of law school, passed the Missouri bar exam, and was admitted to practice in 1916.

Limbaugh was a leading figure in the legal profession for his accomplishments not just in Missouri and the United States, but around the world. At the time of his death, at the age of 104, he was still practicing law after nearly eight decades. He was the nation's oldest practicing attorney. He argued over 60 cases before the Missouri Supreme Court. He tried cases before the Interstate Commerce Commission, the U.S. Labor Board and the Internal Revenue Appellate Division.

Limbaugh served as City Attorney of Cape Girardeau from 1917 to 1919. In 1923, he started a law firm that still bears his name. From 1942 until 1946 he served as Missouri Counsel for the War Emergency Pipelines, through which gasoline was transported from Texas and Louisiana to the East Coast as a war measure. He was President of the Missouri Bar from 1955 to 1956. He served on the committee that drafted the 1955 Missouri Probate Code and served as Chairman of the Real Property, Probate, and Trust Law Section of the American Bar Association from 1954-1955. Limbaugh also served as Counsel to what is now Southeast Missouri State University for over four decades. In the early days of Indian independence in the 1950s, the U.S. State Department sent him to India to be an ambassador for the U.S. legal system.

He was also active in other areas of civic life. He was elected to the Missouri State Legislature from 1931 to 1932, where he pressed for the formation of the Missouri State Highway Patrol and the consolidation of school districts. He served as President of the State Historical Society of Missouri from 1956 to 1959. He was also a Sunday school teacher, and a member of many local civic organizations including the Boy Scouts of America, Centenary United Methodist Church, and the Salvation Army.

Rush H. Limbaugh Sr. died in his home on April 8, 1996.

Rush H. Limbaugh Sr. will be remembered as more than a brilliant attorney; he will also be remembered as a great American. As such, it is very appropriate that the United States Court House in Cape Girardeau, Missouri be designated the `Rush H. Limbaugh, Sr., United States Courthouse.'

Rush H. Limbaugh Sr. is the grandfather of radio pundit Rush Limbaugh. For more about the Senior Limbaugh see his wikipedia entry and Federal Judge Stephen N. Limbaugh's Rush Hudson Limbaugh and His Times: Reflections on a Life Well Lived (2003). [JH]

Professors and Librarians Win Narrow Exemptions Under Digital Millennium Copyright Act

From the Chronicle.com:

"The U.S. Copyright Office has issued exemptions to the Digital Millennium Copyright Act that may benefit media professors, archivists, and other academics. Under certain circumstances, they will be allowed to circumvent access-control technologies on various electronic media." (for subscribers)

See also:

• Exemptions from Prohibition on Circumvention of Technological Measures that Control Access to Copyrighted Works
• Statement of the Librarian of Congress on the Anticircumvention Rulemaking
• Determination of the Librarian of Congress and Text of the Regulation
• The Recommendation of the Register of Copyrights

[RJ]

Revised Chinese Bankruptcy Law and Partnership Law Adopted

The Chinese Law Prof Blog has the details, including links to the Chinese texts. [JH]

Worst Statute in the World

Mercer Law Prof David Hricik, editor of our sister blog, Statutory Construction Blog, has nominated The Class Action Fairness Act as this week's winner of the Worst Statute in the World. Check out why. [JH]

As we approach the end of the current session of Congress

I am reminded of something Mark Twain said:

"Suppose you were an idiot. And suppose you were a member of Congress... But I repeat myself."

[JH]

DOJ Drops Demand for Library Records

The FBI is no longer seeking library records from the Library Connection, Inc. of Windsor, thus ending this disturbing chapter of attempting to use national security letters under the USA Patriot Act to invade patron privacy. The library group had maintained that the requested records would have been released if the FBI had obtained a search warrant issued by a judge, a course of action the Justice Department argued was unnecessary under the original USA Patriot Act.

In yesterday's press release announcing this development, Ann Beeson, Associate Legal Director of the ACLU stated

First the government abandoned the gag order that would have silenced four librarians for the rest of their lives, and now they've abandoned their demand for library records entirely. While the government's real motives in this case have been questionable from the beginning, their decision to back down is a victory not just for librarians but for all Americans who value their privacy.

Library Connection has now released the NSL letter via the ACLU site. The letter shows that the FBI was seeking all records associated with one computer for a 45 minute time period during one day. In dueling press releases, the FBI explained that although its investigation was "less efficient" because Library Connection refused to comply with the NSL,"the FBI was able to investigate and over time, discount the threat that was transmitted over this computer that was part of the Library Connection’s network."

Text of National Security Letter

ACLU Press Release | FBI Press Release | New York Times article

File under "Privacy trumps inconvenience." [JH]

Michelle's Law Signed by NH Governor

Michelle's Law, which allows seriously ill college students to take leave from school but keep their health insurance was signed into law by NH Gov. John Lynch last week. The Act was named after Michelle Morse a 22-year-old Plymouth State University student who was forced to remain a full-time student, though she was undergoing chemotherapy, because her parents' health insurance company would not let her take a leave of absence from college and maintain her dependent health coverage.  Michelle died on colon cancer last November.

Michelle's mother, AnnMarie Morse, announced plans to launch a national campaign to promote Michelle's Law now. Visit the Michelle's Law website. [JH]

Mine Improvement and New Emergency Response Act of 2006

Here's the legislative history of the recently signed MINER Act of 2006.

S.2803 | CRS Summary | All Congressional Actions | CBO Cost Estimates | Presidential Statement

[RJ]

La. Governor Signs Abortion Ban

The statute, SB 33, which would apply to all abortions except when the life of the mother is threatened, will take effect only if the US Supreme Court overturns the 1973 Roe v. Wade decision or if the US Constitution is amended to allow states to prohibit abortions.

Hat tip to HealthLawProg Blog co-editor Tom May (SMU). [JH]

Glossary of Chinese Tort Liability Law, P.R.C. Civil Code

George W. Conk (Adjunct Professor, Fordham Law School) has distributed a glossary of the English translation of of Part 8, Articles 1 - 68, Tort Liability Law, of the current draft (December 17, 2002) of the Civil Code of the People's Republic of China on SSRN.

From the abstract:

The version published in China by Peking University Press in the journal SiFa [Private Law Review] contained no glossary, nor did the pinyin have phonetic tone marks.

This version is intended for use as teaching materials. The pinyin here - in both the glossary and the translation - does have phonetic tone marks.

A facsimile of the Si Fa version of the translation published in China is available on SSRN: George W. Conk, People's Republic of China Civil Code: Tort Liability Law, Private Law Review, Vol. 5, No. 2 (The 10th Issue), pp. 77-111, December 2005.

[JH]