CyberStalking program at AALS

I was excited to get an announcement from the Section on Women in Legal Education announcing a couple of programs they are sponsoring at AALS. The one that really got me going is the program on CyberStalking, which OOTJ readers may have seen me blogging about here and here and here before.

Saturday, Jan. 9, 8:30–10:15 am: The First Amendment Meets Cyber-Stalking Meets Character and Fitness

Cyber-stalking and cyber-harassment have made their way to the legal academy. Some scholars say that on-line attacks constitute protected free speech. Other scholars say that this conduct is tortious and raises serious equality and civil rights concerns since internet stalking is often directed at women and minorities. But what about the character and fitness requirements that law students sitting for the bar must satisfy? Do law students who engage in harassment, smearing, and other such conduct (on Facebook, blogs, “Above the Law,” etc.) raise fitness and professionalism issues? Is there a problem with law students using websites to make outrageous gender- or race-specific comments (often about other students or faculty members)? (See http://lawvibe.com/the-autoadmit-scandal-xoxoth/


>) Is this conduct beyond question as free speech or does this conduct raise character and fitness issues that law schools must address? Does the fact that it is technologically difficult to identify all posters impact the calculus?

Panelists:

Deborah L. Rhode, Stanford Law School

Jack M. Balkin, Yale Law School

Brad Wendel, Cornell University School of Law

Danielle Citron, University of Maryland School of Law

Moderator: Elizabeth Nowicki, Boston Univ. School of Law, Tulane Law School, enowicki@bu.edu

I am thrilled that the AALS program is taking this issue seriously!

LexisNexis' New Years Charity

I don't know how many other law school libraries have opened the e-mail from Lexis-Nexis yet. I urge you to open it and read it. And look at the video card. It may be a gimmick, and it is certainly P.R. on their part, but you are invited to select a charity to which Lexis-Nexis will donate (an unspecified) amount on your school's behalf. There is a rather lengthy list of a wide variety of decent charities to choose from.

This follows on Lexis-Nexis' offer to law students this year. In addition to offering the students the usual points toward gifts for themselves for using Lexis-Nexis, this year, the students could choose to use the points to donate to these charities themselves.

In a year when there is so much need, this is a very classy thing to have done, and I honor them for it.

Time for Charities

As we roll down to the end of the calendar year, it's also the time for many people to consider making charitable donations. Partly because it's the holidays, and part of the holidays is giving, but also because it's the last chance to move taxable income out of the reach of the IRS by donating it to charities.

But how to choose what charity? There are, for example dozens of environmental charities, and dozens of charities that purport to help children, or that plan to feed the starving, or shelter the homeless. These charities seem to have overlapping or sometimes identical-seeming missions. What's a donor to do?

American Institute of Philanthropy AIP is praised as the toughest of the raters of charities, unafraid to give flunking grades to charities who mis-spend the money people give them. The AIP home page is simply designed with links at the top to let you decide if you want their list of top-ranked charities organized by area, or if you want to search their A-Z list, read how they rank, or look through their Tips For Giving Wisely. They also have quite a list of articles, from discussing charities that protest their F grades, to Veterans deserve better, to Fake Charities, to Inflated Charity Efficiency Claims, Children Wish Granting Charities, American Indian Charities, In-Kind Donations, Reforming Charities articles that expose shocking stories, Salary articles, articles about solicitations (come-ons) from charities, and MORE TIPS! There are lots of special articles specifically about individual charities, so you can look for yours, or the one you might be thinking about.

There is also an article on MSN here "How to tell good charities from bad," by Liz Pulliam Weston. She mentions AIP, but also sends readers to the Better Business Bureau's Wise Giving Alliance, and GuideStar.org, which began in 1994 to publish 501(c)(3) and some other not-for-profit corporations' tax filing information. They also offer tips and ratings on charities.

Merry, Merry!

Merry Christmas to all the OOTJers who celebrate it. If you are recovering from Hannukah, I hope it was a happy one. If you celebrate something else, I hope you had or will have a wonderful one.

I think all the religions of the world have some kind of celebration sometime around this time of year, and that's because it's the solstice. We have to do something because it gets so DARK. And we all want the sun to come back!

So, whatever you celebrate, and whatever way you celebrate it, I hope you have a jolly one, a happy or blessed or merry one! And may the sun come back and bring us all back to life again, in a happy and healthy new year.

Amen.

Mexico City Votes to Legalize Gay Marriage

The BBC reports here on the vote by Mexico City's leftist city legislature to legalize gay marriage. The mayor is widely expected to sign the bill. The language changes the definition of marriage from a relationship between a man and woman to "the free uniting of two people". The bill passed 39 to 20 with five abstentions.

Gay rights has been an increasingly popular issue in Mexico's capitol recently, with gay pride parades drawing thousands, according to the Associated Press report in the Boston Globe on the vote. The bill was urged in order to provide same-sex couples equal rights with heterosexual couples in such matters as benefits, adoption, bank loans and inheritance, which civil unions, already allowed in Mexico City, failed to provide. According to the Globe version of the AP report:

Only seven countries allow gay marriages: Canada, Spain, South Africa, Sweden, Norway, the Netherlands and Belgium. In the United States, Massachusetts, Connecticut, New Hampshire, Vermont, and Iowa permit same-sex marriage.

Argentina’s capital became the first Latin American city to legalize same-sex civil unions in 2002. Four other Argentine cities later did the same, as did Mexico City in 2007 and some Mexican and Brazilian states. Uruguay alone has legalized civil unions nationwide.

Both articles report plans from the opposition party, which is the majority nationally to challenge the vote, and opposition from conservative groups and Catholic church spokesmen. But the BBC report notes that:

A handful of cities in Argentina, Ecuador and Colombia permit gay unions.

Uruguay alone has legalised civil unions nationwide and allowed same-sex couples to adopt children.

Last month, an Argentinean court narrowly blocked what would been the continent's first gay marriage.

In a last-minute challenge, a court referred the case to the country's Supreme Court, which is due to rule on the issue.

This is worth watching. The image is of local gay rights activists celebrating the vote in Mexico City, from the Boston Globe.

In the meantime, I missed blogging about the District of Columbia voting to legalize gay marriage there, on December 15. On December 18, the mayor signed the bill. The vote was 11 to 2 in favor of legalization. The mayor signed the bill in a Unitarian church which has been a welcoming place to same-sex couples. But all legislation in the District must be ratified by Congress within 30 days. There seems to be little taste among the majority Democrats generally for removing this vote, according to the A.P. report.

Opponents, however, said the issue is far from settled. Members of a group called Stand4Marriage, led by local pastor Bishop Harry Jackson, have met with members of Congress to urge them to oppose the bill.

An attorney for the group, Cleta Mitchell, said that after the bill goes to Congress, the group will ask the district's board of elections to allow a referendum on the ballot asking voters to overturn it.

But they face an uphill battle.

The group Mitchell represents made a similar request this summer, when the city passed a law recognizing gay marriages legally performed in other states. The board declined to put the issue on the ballot, citing a city human rights law that bars discrimination.

Jackson said Tuesday he believes this time the group has an "airtight legal case."

"If it gets to the vote, we win," he said, referencing the other states where residents overturned same-sex marriage laws.

The group also has another avenue of attack. It has lawsuit pending from earlier this year, when it tried to get an initiative on the ballot in D.C. asking voters to define marriage as between a man and a woman. There, too, the elections board cited the human rights law in keeping it off the ballot. A hearing in that case is scheduled for January.

(from the A.P. report on the original vote on Dec. 15, written by Jessica Gresko).

Google Book Project Settlement News

Library Journal reports that the American Library Association, the Association of Research Libraries and the Association of College and Research Libraries have joined in writing a letter to the Antitrust Division of the DOJ, in which they ask that department to actively supervise the Google Book settlement. Here is a link to the PDF of the joint letter.

The letter refers to an earlier joint letter sent from these library associations in July, and recaps the points they made in that letter. They broadly support the Book Settlement, as providing the public with unprecedented access to millions of digitized books. They recognize the Settlement as "...perhaps the most efficient mechanism for cutting the Gordian knot of the huge transaction costs of clearing the copyrights in millions of works whose ownership often is obscure." But then, the authors raise concerns:

• The digital repository enabled by the settlement will be under the control of Google and the Book Rights Registry. The cost of creating such a repository and Google’s significant lead time advantage suggest that no other entity will create a competing digital repository for the foreseeable future. In the absence of competition for the services it will enable, the settlement could compromise fundamental library values such as equity of access to information, patron privacy, and intellectual freedom.

• In particular, the absence of competition for the institutional subscription service, combined with the high likely demand among academic libraries for this service, makes libraries particularly vulnerable to profit maximizing pricing.

The United States in its September 18, 2009 Statement of Interest agreed that Google would have exclusive control over the database, noting that under the settlement there was “a dangerous probability that only Google would have the ability to market to libraries and other institutions a comprehensive digital book subscription.” U.S.Statement of Interest at 24. To address this problem, the United States urged the parties to amend the settlement “to provide some mechanism by which Google’s competitors[] could gain comparable access to orphan works….” Id. at 25.

As you are no doubt aware, the Amended Settlement Agreement does not provide such a mechanism. It may well be that the parties ultimately agreed with the Statement’s intimation that “an industry-wide arrangement for the licensing of copyrighted works for digital distribution” would not comply with “the limitations of Rule 23.” Id.

However, even if the parties had found a way to create an industry-wide arrangement that did comply with Rule 23, it would not have solved the fundamental problem of Google’s exclusive control of the database. Google has a five-year lead-time advantage over potential competitors, during which it has refined the scanning process and scanned as many as 12 million books into its search database. Considering this significant head start, it is unlikely that any commercial competitor will enter into this unproven market in the foreseeable future. And there is no indication that the federal government or private foundations would fund the creation of a comprehensive database of books to compete with Google’s.

Moreover, assuming that a competitor to Google did emerge, the competition problem would remain because the Registry would still control the rights to the “orphan works.” The Registry would have no competition, and it could attempt to push the price of the institutional subscription to a profit maximizing point.

Given these marketplace realities, the Library Associations believe that the most effective way to prevent the Registry and Google from abusing the control they will have over the essential research facility enabled by the settlement would be for the court to regulate the parties’ conduct under the settlement. Specifically, when requested, the court should review the pricing of the institutional subscription to ensure that it meets the economic objectives set forth in the settlement, i.e., “(1) the realization of revenue at market rates for each Book and license on behalf of Rightsholders and (2) the realization of broad access to the Books by the public, including institutions of higher education.” Settlement Agreement at 4.1(a)(i).

Rule 23 and the settlement agreement already provide the court with the authority to conduct this oversight. However, the United States should advise the court that it has this authority, and urge the court to use this authority to the extent necessary to prevent abuse by the parties and to maximize the public benefit of the settlement. Additionally, the United States should carefully monitor implementation of the settlement, including the pricing of the institutional subscription. If the United States concludes that Google, the Registry, or rightsholders are acting in a manner inimical to the public interest, the United States should petition the court to address the situation. We believe that supervision of this sort will be far more effective in preventing abuses of market power than attempting to create industry-wide licensing arrangements that will never be used.

Finally, we wish to express our great disappointment that the United States in its Statement of Interest did not urge the parties to require representation of academic
authors on the Registry board. As we explained in our filings with the court and in our meeting with the Division staff, academic authors wrote the vast majority of the books Google will include in its database. These academic authors probably would want the Registry to price the institutional subscription in a manner that maximizes public access rather than profits. Accordingly, we requested the staff to advocate for representation of academic authors on the Registry board.

While the Statement of Interest articulates at great length concern about the adequacy of representation of foreign rightsholders, it contains no mention whatsoever of academic authors. (snip)

Currently, the fairness hearing on the amended Settlement is set for February 18, 2010. You may want to check the ALA Guide to the amended Settlement here. It's very succinct.

Using Technology to Do Justice in Cambodia

Back in August, I blogged about the Special Tribunal for Cambodia, which is trying several leaders of the infamous Khmer Rouge for crimes against humanity and violations of the Geneva Conventions. (This link is to the Avalon Project at Yale, which provides the full text of all of the Geneva Conventions). The December issue of LTN (Law Technology News) has published an article entitled "Rain of Terror," written by Claire Duffett, available only to registered subscribers, that describes how translation technology is facilitating the prosecution of the Khmer Rouge leaders. Duffett describes the proceedings, and notes that on one day she attended, trial

participants and the audience wore headsets that translated the proceedings into their language of choice: English, French, or Cambodia's mother tongue, Khmer.

Suddenly, a monsoon began to pound the roof of the courthouse. Static blased from the speakers and into the headsets, then all sound cut out. Everyone sat in a tense silence while the rain drummed overhead. Cambodians believe that heavy showers are the voices of the dead ... The event highlighted the unexpected (and emotionally charged) interruptions that characterize international war crimes tribunals.

In addition to evoking the atmosphere of the courtroom, Duffett describes in detail the infrastructure that has been created to aid the tribunal in its work. "When it first opened offices in early 2006, the [tribunal] lacked a strong, modern technology infrastructure." A fiber optic cable was installed, as were cloth screens to dampen the noise from the torrential rains. AV and translation equipment were purchased, "including headsets, speakers, display monitors, and individual screens inside the chamber." The tribunal also had to purchase servers, desktop and laptop computers, printers, and other equipment, litigation support software, and a document management system which "converts recordings of witness interviews and trial proceedings to compressed digital formats."

The experience of putting together a new system has been stressful for the tribunal's staff. The former chief co-prosecutor, Robert Petit, has said that

'You're creating a system from scratch, bringing people together from different backgrounds, different languages, different professional experiences, and asking them to tackle these complex factual and legal issues, and asking them to do it under the glare of public expectations, the media, and civil society--all for a dime.'

Future upgrades are planned. One exciting possibiity is a satellite system that would allow lawyers to "question witnesses who live in remote areas that lack communication infrastructure--like the small Cambodian vilages where some regime survivors live."

Public Libraries Editorial from Massachusetts

Here is a link to a terrific little video and editorial from the Patriot Ledger, a multi-community newspaper on the South Shore of Massachusetts. It's looking at the decision that Norwell has to make about renovating or rebuilding its public library, and reviews the fabulous job that a number of nearby communities, including my home town of Milton, have done with their public libraries. It is a very nice little video with slide shows showing brief shots of the various beautiful libraries. They don't begin to show how wonderful these libraries are, because I've been a heavy user of both the Thomas Crane Library in Quincy and the Milton Public Library, and both are very beautiful. I wish both sites showed more pictures of the libraries, which deserve to be better known for their fabulous interiors. They both have nice collections, but they are gems of buildings, which may be the new importance of public libraries, in many ways. They are places for people to meet, to use computers, to be trained, to have civilized conversation and to be educated with special programs of all kinds. Cool!

All images are from the Architecture section of the Thomas Crane Library Website, at http://thomascranelibrary.org/ The image with the drummers is the atrium, at the lower level entry to the Crane Library, near their coffee shop, where they have free wireless, and also have lectures, art exhibits and exhibitions like this drumming. I have seen ethnic dancing, story-telling, and other programs as well. The image with people seated is one of the Crane library reading rooms. And the dark wood shows off one of the oldest part of the Crane library, preserved from the original library.

Open Access Encyclopedias

Having been involved in an open access database here at Pace Law School, I know from experience how difficult it is to keep it going. Funding is available for start-up ventures, but harder to get for established programs. Even though a database is extremely valuable, users are reluctant to pay for it, especially if it's been free for awhile and they have never paid for it. The sponsoring institution may recognize its value, but not have the resources available to devote to it, especially when there are so many competing demands. How do you maintain a database or other online scholarly project in the absence of regular sources of funding?

This article from Inside Higher Ed provides some insights from institutions that are trying to "build online encyclopedias that are rigorous, scholarly, and free to access." Why even bother with encyclopedias when "journals ... have the cachet of being the frontlines of academic discovery"? According to a librarian at the University of Pennsylvania, "'There is a need to get good verifiable academic information out there,' ... 'whether it's general or specific.'" One of the major roadblocks to producing a scholarly encyclopedia is securing contributors who are willing to write for free "without compromising the rigor of the editorial process." Eugene M. Izhikevich, editor-in-chief of Scholarpedia, "a free, 'peer-reviewed' online compendium" says the way to do this is to "make contributing a privilege." By "playing to [contributors'] egos," a great deal of high-quality material can be secured at no cost. Unlike Wikipedia articles, Scholarpedia articles are credited, and the name of the "curator" of each article appears in a prominent position. This may mean that authorship of a Scholarpedia article will have value during the tenure process.

Even with some free labor, open access encyclopedias need money to keep going. Some encyclopedias have to hire editors to improve articles written by non-native speakers of English. The editors of other encyclopedias want to translate their articles into other languages, and translators do not work for free. One possible "solution" to the funding problem is to induce libraries to pay dues to encyclopedias that are freely available online. This strategy is being sold to libraries "as an investment in open access--a cause many libraries, frustrated by the rising prices of academic journals, have been happy to support." The author concludes that there is no "blueprint for success," and that some projects may not "survive in the long term." Interestingly, "even Wikipedia is beginning to bend under the burden of the free-content model. It recently started running large banner ads asking users to donate money to curb the massive infrastructure costs that come from being the world's fifth most highly-trafficked Web site. It has imposed increasingly strict submission and editing codes, and the rate at which new articles are added has fallen significantly."

Cornell's Legal Research Search Engine!

Wow! Cornell has teamed up with Google to offer something a bit different from the new Google Scholar legal search radio button. The Cornell Legal Research Search Engine allows users to do Google-powered searches of

* Legal Research Guides (prepared, usually by law libraries, to help explain how to do legal research in a particular area)

* The Legal Internet (this is a broad area that can include anything from law firms' websites that can be information rich or poor,depending on how focused they are on marketing; non-profit organization and government sites, and non-governmental organizations websites all of which tend to be quite information-rich; education institutions which again can be rich sources of information; corporations and private entities, private individuals and miscellaneous sponsors of websites. The question you must ALWAYS ask is WHY have they bothered to put up and maintain the website?

* Academic Blawgs Many law professors now have blogs on legal topics, or blawgs. Some write on narrow topics, others are all over the map. Some voice their personal opinions, others are writing simply about what the law seems to be. Again, as the consumer, think for yourself.

* or all 3 at once

Broad searches work very well. My student who alerted me to this site was thrilled with the site and termed it a "refined version of Google." But she also wanted to caution her fellow students that one could not search with it for pinpoint topics and expect good results. Start broadly and refine, is the advice. Understand what you are searching. A sub-set of the internet, and think about what is likely to be in the portion you choose to search. The search you use will only locate the resource of your dreams if you can guess the terms that will be in the source you hope to find!

A Nuanced View of Multi-tasking

Mark Bauerlein, writing in the Chronicle of Higher Education's Brainstorm blog, has some interesting and nuanced things to say in the ongoing conversation about multi-tasking and the toll it may be taking on our ability to concentrate. Life in the Tech Lane is the name of his very nice essay, which you can link to without a special password. He includes a series of links out to other writers, including "Howard Rheingold entitled "Is Multitasking Evil? Or Are Most of Us Illiterate?" that asks for a middle ground in the discussion" at the Encyclopedia Brittannica blog with multiple posts on the issue of multi-tasking. Rheingold refuses the bait of assuming that multi-tasking is always making all multi-taskers less efficient, less thoughtful workers. He is a professor of journalism.

Is the discourse about multitasking falling into the fallacy of the excluded middle?

Could it be that instead of a stark choice between the frantic pursuit of getting more done in less time at one extreme or demonizing multitasking at the other end of the spectrum that there is an as-yet undocumented literacy in the relatively unexplored middle, a partially mental and partially technical skill at deploying the appropriate attentional style with the appropriate media at the appropriate time?

Or is multitasking unequivocally the mental equivalent of bingeing, an addiction to fragmentation, a seductive waste of mind we should discard, a habit that all decent people should eschew and discourage?

The overwhelming tone of contemporary discussion about this topic, buttressed by a growing body of empirical evidence, seems to favor the strong point of view that people today, and particularly those darn kids today, are driven to distraction, attracted by flashy and superficial media gimmickry, hypnotized and addicted, fragmented, disordered.

"I wonder: is something valuable to be found in the deep gulf between frenetic and hyperfocused?"I wonder – I don’t yet claim to know – is something valuable to be found in the deep gulf between frenetic and hyperfocused?

Don’t get me wrong – I’m alarmed at the way people neglect their situational attention while they are texting on the sidewalk, and am terrified of those I’ve seen texting while driving. I face university students in my classes on a regular basis who are gazing at their laptops while I or another student talks. As far as I can tell, these screen-tropic students might be taking notes or they might be rallying their guild in “World of Warcraft” or changing their Facebook status to “it’s complicated.” (snip)

I explore a number of attention probes with my students – sometimes I open the first class meeting by asking them to turn off their phones, shut their laptops, and close their eyes for a minute. Sometimes, only the two students who co-teach with me that week keep their laptops open. Sometimes, 20% of the class can have their laptops open at any one time, and it’s up to them to regulate their use. Always, I direct them to pay attention to where their attention is going when their laptops are open or the phones in their pockets buzz. So I’m not ignoring the lack of mindfulness associated with my students’ – and my own – use of all the screens of various sizes in our lives.

But I think it’s worth asking whether we can learn to use our digital mind amplifiers more effectively. Without a doubt, digital media are encouraging attention to go wild. But what if it could be tamed? Taming wild attention is the center of Buddhist practice, and recent books have delved into the application of Buddhist practices to mindfulness in contemporary life. I’m inquiring into the possibility of bring similar practices to life online. While there are ample reasons to consider the healthy alternative of spending time offline, for many – more each day – cyberspace is where we learn and work. (snip)

The issue that I confront with digital journalism students is relevant to all of us who dwell in the always-on milieu – the need to balance a defense against becoming overloaded by the overwhelming influx of mediated information with a need to know the most accurate and fresh information that will be professionally and personally useful. For a journalist, this is not only a personal need, but part of their duty. In that regard, I have been instructing them in a combination of mental discipline and technical skills that I call “Infotention.”

We are in charge of which information we pay attention to, but if we don’t actively construct, tune, and manage our own information filters, the raw flow of info, misinfo, and disinfo around us will take charge. It’s up to each consumer of information to make personal decisions about what to pay attention to and what to ignore. That decision-making is a mental process that all humans have always deployed in the world, but the world that we evolved in through pre-digital eons has been hyper-accelerated recently through our use of the media we’ve created. We need to attune those native attention filters to our contemporary needs. To those who know how to use them, a treasury of tools are available, free of charge, on the web. By knowing how to use search and persistent search, syndication of web-published material (”RSS”), and other Web services, journalists and others can set up dashboards and radars that tune in streams of information about specific subjects that come to the informed seeker as soon as it is published. Other web services can filter those incoming streams to reduce the flow still further to only those items that are most likely to be of interest.

Back to Bauerlein, who links to several other Brittanica essayists as well, before musing on other resources, which he thoughtfully links to. He finanally calls for some solutions of his own:

Create a renaissance of attention

* Question the values that undermine attention.

As Americans, we very often equate speed and impatience with getting things done and being successful. As librarians, we really know better. Bauerlein recognizes that slow, careful, difficult work is behind knowledge creation.

* Dial down the climate of distraction.

Bauerlein reports on IBM engineers who instituted "Think Fridays" three years ago, where they shut off e-mail, conference calls and meetings to focus on their patent work. Evidently, it was productive enough to be replicated, with more flexibility, in other teams and departments. I know other folks who do this in various ways -- shutting the door and turning off the ringer on the phone for a block of time to work on writing. Or covering for each other on the reference desk to work on scholarship.

I am glad to see some balance in the discussion about multi-tasking. I believe that when I see students doing multiple things at once, they are certainly managing them better than I would. But I do know that there are certain things, like thinking hard or reading deeply, that you cannot do and multi-task well. And I do worry, as Mr. Bauerlein points out, that we risk losing the skill of thinking deeply, reflecting and analyzing, if we do not teach it and practice it regularly. Now is the time to talk about it, before it is too late.

Criticism of the Nook

Barnes & Noble's new electronic book reader, the Nook, is not ready for prime time. So says David Pogue in his product review in the The New York Times. The Nook is modeled after Amazon's Kindle reader, but falls short of the Kindle in several respects according to Pogue. One is the "color touch screen," which is "actually just a horizontal strip beneath the regular Kindle-style gray screen." Another is the touch screen, which is "balky and nonresponsive." Nook claims that it has over one million titles available, but many of them are "junky Google scans of free, obscure, pre-1923 out-of-copyright books, filled with typos." Nook books are more expensive than Kindle books. The built-in Wi-Fi doesn't work well, and the claim that you can loan Nook books to friends is not completely true. "You can't lend a book unless its publisher has O.K.'ed this feature. ... only half of its books are available for lending ... Furthermore, the book is gone from your own Nook during the loan period ... And each book can be lent only once, ever." Pogue reserves his most stinging criticism for "Nook's half-baked software," which he describes as being "slower than an anesthetized slug in winter." A very vivid image! He concludes that "the Nook is a mess, clearly rushed out the door in hopes of stealing some of the Kindle's holiday cheer." A number of fixes are in the works, but for now, the Nook remains an inferior product, at least in Pogue's opinion. I played with one at a Barnes and Noble in Manhattan a couple of weeks ago and found that the screen tended to be nonresponsive, even for the salesperson. I concluded that it would drive me crazy to try to read a book when it took three seconds to turn a page (Pogue cites the same figure) and I didn't buy it. While I was at the booth, I was the only customer; there didn't seem to be much interest in the Nook on the part of other customers, although the store was otherwise very busy.

Blast from the Past

The best course I took at Columbia Library School was History of the Printed Book with Professor Terry Belanger. Starting with incunabula, Profesor Belanger took us through five and a half centuries of changes in how books were manufactured. The course covered more than the history of the book--Professor Belanger taught us social history, literary history (with an emphasis on British literature), the history of technology, art history, copyright, business history, all as reflected in the printed book, and made it fascinating. To this day, I check the back of a hardcover book to see what typeface it is printed in before I look at the title page or table of contents. Columbia closed its library school in 1992, and Professor Belanger, like the rest of the faculty, had to find a new home. He had founded the Rare Book School at Columbia in 1983, and moved it to the University of Virginia in 1992. The mission statement of the School comes from its homepage: "Rare Book School (RBS) provides continuing-education opportunities for students from all disciplines and levels to study the history of written, printed, and born digital materials with leading scholars and professionals in the field." In fulfillment of this mission, the Rare Book School offers courses on everything related to books and information from Introduction to Paleography to Born Digital Materials: Theory & Practice. The latter offering was recently brought to the attention of LIPA members through an email message. Professor Belanger recently retired from the position of director of the Rare Book School. His influence has been widespread. Most rare book librarians in the United States have taken at least one course at the Rare Book School.

The Chronicle of Higher Education, which unfortunately requires a subscription for access, profiles Professor Belanger in its December 11 issue.

The profile brought back fond memories of a favorite professor. One would think that a person who loves the printed book would recoil from technology, but that is not the case at all. Professor Belanger has embraced it wholeheartedly as yet another tool in his arsenal.

Both the euphoric embrace of digital technologies and the haze of nostalgia for the book have obscrued its technological nature, propagating the notion that the meeting between the book and the computer pits the pretechnological against the technological. Any triumph for one is viewed as a loss for the other. Without denying that digitization poses serious new challenges for the book, one can argue that that perspective is deeply flawed.

Few people are better prepared to explain why than Belanger, who has spent his career teaching others how to study the book as a physical object, as a form of technology, and as the product of many other technologies. It turns out that doing so has profound consequences. It has made Belanger receptive to the use of digital technologies in the study of the book and inspired his innovative approaches to collecting and teaching. It has also been the core insight behind the transformation that he and his students have brought to the field of rare books over the past several decades.

Belanger buys up cast-off books in bad condition so that he and his students can take them apart and look at their guts without remorse. He

despises the tendency of some of his colleagues in the world of rare books to allow their fondness for books to become an undiscriminating fetish of form over function. He calls that "pretty-book syndrome" and works hard to guard against it by emphasizing the prosaic aspects of working with rare books and playing down the spiritual satisfactions. As he likes to quip, "Librarianship is not all glamour."

Belanger believes that online databases and Google can help researchers to track down obscure information about books and authors, but is concerned that projects to digitize rare books pose risks. "Because so much information about a physical object is lost in photographic duplication, future students of the book will be a profound disadvantage if they can examine only digital reproductions. ... 'Each generation needs to rediscover the past in its own way, using its own improved technology for that purpose.'" Belanger thinks that not all books need to be preserved in their original format, and that digitized versions provide adequate access.

He believes that books do certain things well and digital technologies do other things well. The two should coexist without trying to eliminate each other. If an Audubon print is viewed in the original rather than in digital reproduction, that is no reason to maintain that information created digitally and intended for digital viewing would be improved by taking on physical dimensions.

I highly recommend this entertaining profile of a library pioneer.

New Google Service

The New York Times has an article in the Technology section describing Google's new Living Stories project. This "new approach to presenting news online by topic [was] developed with The New York Times and The Washington Post," and will be offered to all newspaper publishers if it proves to be a success. According to the Times article, "Living stories is a much-enhanced version of what some newspaper Web sites already do, grouping articles and other material by subject matter." At present, only eight broad topics are offered; for each, a summary is provided, and then a "timeline of major events and some pictures, followed by the opening sections of a series of articles, in reverse chronological order." I don't know whether Living Stories will bring more traffic to newspapers' websites, which is one of the goals of the project, but I think it has great potential as a research tool. The organization is logical and intuitive, and should be appealing to students.

The End of the Computer Lab?

The Chronicle of Higher Education for December 11 has a front-page story entitled, "Computer Labs Get Rebooted as Lounges." The gist of the article is that a number of universities are "taking a hard look at those brightly lit rooms with row of networked computers, which cost hundreds of thousands of dollars a year to maintain." Some telling statistics were cited:

More than 11 percent of colleges and universities are either phasing out public computer labs or planning to do so, according to this year's survey of college technology leaders by the Campus Computing Project ... At colleges that have not pulled the plug on their labs, nearly 20 percent are reviewing the option.

In addition to saving universities money, doing away with computer labs reflects the fact that most students today have laptops and don't need access to public computers. Labs are being replaced with student gathering spaces that look more like lounges complete with

[M]odular furniture and plasma televisions; virtual labs that give remote laptops access to software; or bigger, better computer rooms with state-of-the-art machines and pleasing architecture that can act as de facto student centers. ... [N]early all officials interviewed said they planned to let students drink and eat while typing away--something that has long been forbidden in traditional computer rooms.

When we did a major renovation of the Pace Law Library three years ago, we wrestled with whether to include a computer lab. Ultimately, we built two--a training lab reserved for computer instruction and used by the library and other campus departments, and a computer lab with sixteen networked computers. In addition to the computers, the lab has a high-quality scanner, LexisNexis and Westlaw standalone printers, and two high-speed, high-volume laser printers. Most of our students have laptops, but this does not mean the lab is not used. On the contrary, there are times when every computer is in use. It is possible that students use the lab because we have not yet enabled printing from the wireless network; perhaps when that is in place, students will not need to use the lab computers in order to print. I know other students use the lab because we offer software on those machines that they don't have on their laptops. Some students cite the convenience factor of running into the lab, checking their email quickly, and going on their way. Whatever the reason, our computer lab is extremely popular, and I can't imagine how we would do without it.

RIAA: They can make him pay, but they can't make him go away

According to Wired.com, Judge Nancy Gertner declined the RIAA request to censor Tenenbaum’s Twitter commentary criticizing the RIAA and, according the the RIAA, inciting his followers to piracy.

"Although plaintiffs are entitled to statutory damages, they have no right to silence defendant’s criticism of the statutory regime under which he is obligated to pay those damages,” Gertner wrote. “This court has neither the desire nor the authority to serve as the censor of defendant’s public remarks (.pdf) regarding online file sharing.”

Gertner also expanded on a pretrial ruling in which she declared Tenenbaum could not render a so-called “fair use” defense. Tenenbaum claimed that his file sharing was not counter to the Copyright Act. The act provides up to $150,000 in damages for each infringement, and the figures are left to jurors.

The only other accused file sharer to go to trial against the RIAA was Jammie Thomas-Rasset. The RIAA won a whopping $1.92 million verdict against the Minnesota woman this summer for sharing 24 songs on Kazaa.

In the last six years, the RIAA has sued about 30,000 individuals for file sharing. Most defendants have settled out of court.

The RIAA is winding down its litigation campaign against individuals, and is instead working with internet service providers to come up with plans that might lead to cutting off internet access for repeat, digital copyright scofflaws.

In the Tenenbaum case, the judge wrote Monday that Tenenbaum’s version of fair use was “so broad that it would swallow the copyright protections that Congress created, defying both statute and precedent.”

That ruling was a major blow to what was expected to be a key point of argument for the Berkman Center for Internet and Society, which represented Tenenbaum and is now seeking a new trial. Ahead of the summer trial, Gertner precluded the fair-use defense with a brief order without much elaboration.

The judge gave the Berkman Center until Jan. 4 to seek a new trial. Among other positions, Tenenbaum is also likely to argue that the damages were unconstitutionally excessive, according to Charles Nesson, Tenenbaum’s lead attorney. “Applications of huge statutory damages to individual people to individual people like Joel is unconstitutional,” Nesson said in a telephone interview.

He said he would also ask the court to reduce the verdict to $22,500 — the minimum $750 per song allowed under the Copyright Act.

The Joel Fights Back image is from the website http://joelfightsback.com/ built and sponsored by the Charles Nesson team representing Joel Tennenbaum. The website says "comments closed." Apparently, Joel is now fighting back on his own, via Twitter.

Legal Rebel Carl Malamud

It was good to see this laudatory profile in the Legal Rebels series that has been running in the ABA Journal. It celebrates Carl Malamud, who, although not a lawyer himself, has led a crusade "to make public-domain legal materials actually accessible to the public." Malamud founded the organization Public.Resource.org, and thousands of pages of primary authority are freely available through its website. Malamud is currently working to "liberate" and post to Public.Resource.org the Code of Federal Regulations, state administrative codes, and public safety codes, just as he liberated the EDGAR database in the 1990s.

Malamud is also campaigning to be appointed the head of the Government Printing Office. His campaign slogan is "Yes We Scan," and his campaign website includes his prepared statement. In it, Malamud puts forth some of the initiatives he would champion if he were to lead GPO: GPO should lead the way in making federal primary legal authority easily accessible; the Federal Depository Library Program should be redesigned to support librarians better; passports should be designed to better protect Americans' privacy and security; the presentation of federal information on the Internet should be rethought to include cloud computing and upgraded video capabilities; GPO and its operations should be transparent; the public domain should be expanded and protected. The graphic that illustrates this post comes from the campaign website.

Rupert Murdoch Takes a Stand

Rupert Murdoch, the chairman of News Corporation, owner of the Wall Street Journal and The Times, among other newspapers, is a vocal critic of Google. He accuses Google of stealing content from newspapers and making it available through its search engine without any payment to the publisher. The Telegraph is reporting that in response to complaints from Murdoch and other publishers, Google has launched a new initiative--the First Click Free program--"that lets ... [Google] index website content but prevents Web surfers from having unrestricted access once they reach the online locales." Google now offers publishers the ability to "'limit users to no more than five pages per day without registering or subscribing.'" What this means is that "Google users may start seeing registration pages pop up when they click for a sixth time on any given day at websites of publishers using First Click Free ... ."

I understand that newspaper publishers have got to find a way to finance their expensive news operations. Our local newspaper for Westchester County has recently laid off forty staff members, and the story is the same at newspapers around the country. However, I think that charging for content is going to be a struggle. Users have become used to accessing information for free, and frankly don't care how it gets paid for. Murdoch has stated that newspapers "'need to do a better job of persuading consumers that high quality news and information does not come free.'" He is currently negotiating with Microsoft about making its Bing search engine the exclusive online source for content from Murdoch's newspapers. Will this content be enough to give Bing a competitive advantage over Google?

Public School of Law in Massachusetts Questioned

Turns out I'm not the only person wondering what kind of math those Trustees at the University of Massachusetts are using to figure that they can pick up Southern New England School of Law (SNESL), and expand it, keep the tuition to $23,500, offer about half the student body scholarships that cut their tuition in half, and still achieve ABA accreditation by 2012, all without costing the taxpayers of Massachusetts or the University a dime. In fact, they expect the University of Massachusetts at Dartmouth, the new mothership, to end up making money on the deal, somehow.

Now, you can say that I'm deeply prejudiced in the matter, being as how I work at Suffolk University, one of the three private law school in Massachusetts that will be most challenged, most put on the competitive edge by this new plan. Just because I am a law librarian and have some idea of what it costs to enlarge and maintain a law library, though, I am deeply skeptical that U. Mass Trustees are not playing with loaded dice when they are rolling these numbers out to the press and the legislature and governor, telling everybody that this is possible. The biggest problem for SNESL accreditation has been insufficient funding. They have a great dean, and some pretty decent faculty, I think. They just have trouble funding the thing properly and that's been a huge barrier to them, and it leads to all the other problems that have prevented accreditation, as far as I can understand.

There are two blog posts at The Faculty Lounge by a couple of Drexel faculty members (not librarians), who have the same questions I have. Today, December 3, Associate Dean and Prof. Dan Filler of Drexel's law school posted, in part:

As more details surface, the whole project becomes more curious. For example, we learn that the $23.2 million dollar gift from SNESL includes a 140,000 volume library collection worth $11 million. The problem, it seems to me, is that a huge part of a law library's cost comes from ongoing subscriptions (this is a digital age, after all) and salaries. I doubt that UMass would pay $11 million for library resources if it were to start a new law school; I wonder if it would even pay a third of that amount. Dean Roger Dennis had further questions here.

That link to Drexel Law Dean Dennis' post of November 30, titled "U Mass Dartmouth-SNESL Merger: Questions That A Board Ought to Ask." His essay refers to an earlier post by Filler about the SNESL-UMass merger which I cannot locate, but says Filler...

properly suggested that from an academic quality perspective if the UMass system wants a law school it would best be advised to create the program from scratch and place it on a research-intensive campus (i.e. the Amherst site).

Dan’s brief blog post nevertheless got my juices flowing. So I want to ask Dan’s question from the perspective of the UMass Dartmouth campus rather than the UMass system. In my analysis I assume UMass Dartmouth wants to seek ABA accreditation promptly.

UMass Dartmouth is an intriguing entity. The university has over 9,000 students, 4,000 of whom live on campus. The UMass Dartmouth campus has academic ambition. It currently has a good but not outstanding reputation. It is ranked 61st (and 16th among state supported institutions) in its US News cohort. The campus has a broad range of undergraduate and graduate offerings, including a selected number of Ph.D. programs. The campus wants to increase its research footprint and desires to be an engine of regional development. The campus faces significant economic stress as a consequence of reduced state funding. This has resulted in layoffs and hiring freezes.

The first question a board should ask is what the likely economics of acquiring SNESL be? Would the campus have to contribute operating funds to make the law school a go? Press reports suggest that the law school intends to charge about $23,000 for in-state tuition. There is good data available on what it costs to run an ABA accredited law school. The average direct expenditure per student for publicly approved ABA schools is in excess of $31,000. Typical indirect expenses raise the average fully allocated expenditure per student to at least $35,000. On a fully allocated cost basis only a handful of ABA state-assisted law schools spend less than $23,000. All of these law schools are in very low cost communities outside the Northeast. And none of the low expenditure schools face the financial aid demands that UMass Dartmouth would face.

Publicly available data suggests SNESL has a bar pass rate in the low 40s. The ABA bar pass standard is particularly convoluted, but in shorthand the standard requires a pass rate of 75%. To attract students at the quality that leads to an acceptable ABA law school bar passage rate, UMass Dartmouth would need to discount heavily, raising its costs in a dramatic manner. Moreover, press reports suggest that the law school would have to invest significantly in new faculty, library and technology to meet ABA standards. So a skeptical board ought to think that the near-term per student costs of running SNESL as an ABA school would significantly exceed the planned tuition level. Hence, UMass Dartmouth will have to subsidize the law school from other campus resources at least for some number of years.

So is it in UMass Dartmouth’s strategic interest to merge with SNESL? It would be far from a costless transaction. Major fiscal and other resources would have to be contributed to the law school to create an academic program that adds luster to the campus. Thus the opportunity cost is high and realistically the returns are likely to be many years in the future. My advice: move with caution!!

A thoughtful commenter at the site offers a link to a Boston Globe article in which SNESL defends itself against its detractors, but in the article, SNESL Dean Robert Ward (himself a Suffolk alum), admits that SNESL's three-year average bar passage rate for first time takers of the Massachusetts Bar is 43 percent, a ceiling they cannot seem to break. Understand that the most recent average passage rate for first time takers of the July, 2009 Massachusetts bar was 90.7%, and that the top three schools were

Harvard 98.9 %

Northeastern 97.3

Suffolk 94.3%

Now tell me that it ain't gonna cost me any money as a Massachusetts tax payer or as a supporter of the University system to bring that baby up to snuff. Even more interestingly, a Trustee of the University of Massachusetts has chosen to follow up an op-ed piece in the Boston Globe with another in the local legal newspaper, the Massachusetts Lawyers Weekly dated December 3, 2009. As in the earlier piece, Braceras calls out the offer of SNESL as being done in a suspicious manner. The Trustees themselves, did not know of the offer, as a group, until very shortly before the decision was due, according to both pieces:

Last month, Margaret Xifaras, chairman of the board of the unaccredited southern New England School of Law offered to "donate: the law school to UMass-Dartmouth. Although the deal had been in the works for months, the trustees learned about the proposal only a few weeks ago from a hastily drafted press release issued by the UMass president's office.

the timing of the announcement, and the truncated timetable for board review, raise serious red flags. When the UMass president's office failed to answer questions about the deal, my colleague Lawrence Boyle and I went public with our concerns in an op-ed in the Boston Globe.

The trustees are bound by the fiduciary duties of loyalty and due care, requiring careful due diligence when considering the creation of new professional schools, potential mergers and significant acquisitions. This is particularly true where such transactions can negatively impact and distract from the university's core mission and responsibilities to its students throughout the system.

In this case, due diligence necessarily requires that we ask such fundamental questions as: (1) whether, in this contracting legal economy, it is the right time for the university to venture into legal academia; (2) whether SNESL has anything to offer UMass, or whether UMass, if it is inclined to start a law school, should start fresh at UMass-Dartmouth or elsewhere; (3) whether the university can afford to bail out a failing law school, given recent cuts in the university's budget; and (4) what benefits or burdens would a law school add to the current UMass system and its students. (snip)

Yas (Lawyers Weekly editor David Yas, writing earlier in favor of the merger), however, condemns us for raising the questions, arguing in favor of the merger on the ground that it would provide greater "access" to legal education for "widows" and other non-traditional students.

But the "access" argument is a red herring. There are many ways to increase access for non-traditional students throughout the state, not just those in southeastern Massachusetts. Increasing financial aid, providing more low-interest student loans and fundraising for more private scholarships would all increase access for qualified students at accredited law schools more efficiently and more equitably than the proposed merger.

More importantly, as Xifaras has bragged, SNESL already serves a non-traditional population. There is no evidence that the acquisition of SNESL by the University of Massachusetts would increase access beyond that which already exists.

The access argument is, therefore, irrelevant to the question of whether SNESL and UMass should merge. Put another way, if SNESL already provides access to legal education to non-traditional students, we don't need UMass to step in - unless, of course, SNESL is on the verge of collapse. In which case, SNESL's "gift" becomes a bit of a Trojan horse.

Even assuming, for the sake of argument, a verifiable lack of "access" that would be remedied by this merger, we must ask ourselves, access to what?

Access to legal education is meaningless if that education leads nowhere. The bar passage rate for SNESL graduates is abysmal (6 percent in one recent administration of the exam). Many SNESL grads who pass the bar still have trouble finding work.

Without an infusion of millions of dollars to improve the faculty and the quality of teaching, slapping the UMass name on this enterprise will provide access to nothing but false hope.

Yas argues alternatively, that the proposed UMass law school "could supply the state with countless community lawyers." Yet, he acknowledges that "the question may be moot, since there aren't too many public service jobs to be had anyway."

That was true even before the financial collapse. In these economic times it is not only the private law firms that are downsizing; non-profit legal groups, government agencies and legal services offices are cutting jobs as well. The problem is not a dearth of attorneys willing to do good work. The problem is a lack of funding for public interest work and a shortage of public interest jobs.

To say that the creation of a state law school will increase the number of public interest lawyers begs this question: for whom will these newly minted lawyers work? The creation of a public law school might increase the supply of attorneys seeking such jobs, but it will not increase the demand for their labor. (snip)

Jennifer Braceras is a graduate of UMass-Amherst and of Harvard Law School and serves on the board of trustees of the University of Massachusetts.

(from the Mass. Lawyers Weekly op-ed, which I had to copy out by hand, sadly, due to their stupid digital rights management software. Any typos are my own!)

Where is AALL's Leadership? GPO's Digitization of Legacy Documents

Last spring, ALA and ARL together issued a letter to the co-chairs of the Congressional Joint Committee on Printing, Senator Charles Schumer and Congressman Robert Brady. Here is the letter:

On behalf of the American Library Association (ALA) and the Association of
Research Libraries (ARL), we are writing to express our strong support for a project that will digitize our nation’s historical public domain government works and make these broadly available to the American public. The U.S. Government Printing Office (GPO) will soon seek the approval of the Joint Committee on Printing to undertake this important public access project at no cost to the government. We request your strong and immediate support of this initiative.

For over 140 years, the GPO, through the Federal Depository Library Program (FDLP), has made government information available at no cost to the public. In order to ensure that there is effective, permanent, no-fee access to these valuable government documents in electronic formats, GPO is working with other entities to digitize the legacy documents collection. This collection of over 2.2 million documents once digitized will vastly improve public access to these historical and cultural resources of our nation and importantly, preserve this deteriorating resource. Many of the volumes in this legacy collection are brittle due to age and publication on acidic paper. It is our understanding that GPO will receive from the awardee of this no-fee contract, the unaltered digitized files that GPO will then preserve and use to create access files within GPO’s Future Digital System (FDSys).

Today, the vast majority of public domain resources in the FDLP are not as effectively accessible to many members of the public as they are in print or microform – formats no longer preferred by users. More importantly, these resources are distributed geographically throughout the U.S., oftentimes at great distances from the user. This initiative will open the doors of the institutions housing these paper documents to the public without regard to where they live.

These resources cover virtually every facet of U.S. history, government policy, and administration. This will allow members of the public the ability to understand their culture and history in new, meaningful ways and encourage greater civic engagement. It will foster new educational applications such as building new web accessible educational materials not currently possible in print format. Importantly, this means that educators and students will have access to needed materials previously unavailable without regards for geographic location or financial limitation.

We applaud GPO and the awardee for collaborating to make government information available without restriction and with no cost to the public during these uncertain economic times.

We encourage you to quickly approve this GPO request so that these valuable resources can be made accessible to the public as soon as possible. Please let us know if there is additional information that we can provide.

As you can see, the original plan was to find a collaborating partner to digitize the documents for free. I am guessing that they did not find any takers on the original RFP because now there has been $600,000 allocated for the digitization. AALL did not join on the original letter, and has not yet spoken to GPO or the Joint Committee on Printing on the matter.

We are professionals and have joined as members in a professional organization. In fact, we support a Washington office with the very important goal of making statements on behalf of our organization. Where are they? Why have they not said anything on this matter?

I will admit that I am speaking with an axe to grind on this matter. I am a former board member of LLMC, which hopes to get part or all of the contract. But as a law librarian, i also think I can say that their digitized files fall squarely into the Legacy Documents that GPO hopes to prioritize -- the primary law of the United States, state, local and federal. And that the quality of the digitization that LLMC has provided is consistently very high. That quality is what they have sold us over the years, and what libraries have relied upon. We have seen with the problems in Google Scholar, for instance, scanning done badly, problems with digitized legal texts where the scanners and people digitizing did not understand how to link the tables or indexes or other finding tools to the text inside with metatags or hyperlinks, or even to include them. The inclusion of difficult fold-out inclusions and pocket parts are a headache that scanners don't anticipate or know how to solve, but that LLMC has long-since managed.

Please, OOTJ readers, consider sending an e-mail to
Kate Hagan, the Executive Director of AALL (khagan@aall.org)
AALL President Catherine Lemann (clemann@courts.state.ak.us),
and Government Relations Office Director, Mary Alice Baish (baish@law.georgetown.edu