Tuesday, March 30, 2010

West pokes itself in the eye again


Thomson Reuters has done it again! Another black eye in librarian relations.

They have announced that they will be changing their invoice system for West materials. The Technical Services listserv has been buzzing with this recently. Apparently, monthly invoices have been turned into a select benefit available ONLY to those libraries willing to accept the LMA contract. Any other library, either those dropping the LMA contracts or those not willing to sign or not ABLE to sign LMA contracts (because for instance, they have state budgets that do not allow long term commitments), will no longer be able to get monthly bills. Instead, we will get weekly bills for each of the zillions of subscriptions we have with the West behemoth. To make matters worse, the invoices will be mailed separately from the item, so that the Acquisitions department will have to verify receipt and be sure it was the correct item as a separate step.

Here is the letter Anne Ellis sent the Acquisitions listserv on the matter:

Early this month, West included a statement in the invoices of all its subscription print customers who weren’t on a predictable pricing plan that they would be invoiced for print products at the time of shipping. Our goal is to help reduce the time customers spend accumulating, matching, reviewing and handling paperwork, as well as ease the process of managing invoices.

This program will be implemented in phases, with the current phase including only those customers who receive on average fewer than four products per month. We will be talking to a cross section of customers who average four or more shipments per month to determine the optimal billing interval before introducing the process to these customers later in the year.

We want to work with you to make our business relationship as easy for you to manage as possible. To this end, we offer invoice formats and billing options to best suit your business, including mail, e-mail and electronic options. Also, West offers options through My Account that can reduce the number of paper invoices customers receive. Customers can download a PDF of their invoice by logging on to My Account and signing up for e-billing. You will then receive e-mail alerts when your invoice is ready to view, copy or store. Payments also can be made through My Account. This option is a convenient way to manage your account and reduce paper documents. Log on to myaccount.west.thomson.com for more information.

I would also like to take this opportunity to remind you that West offers a variety of predictable pricing programs, including Library Maintenance Agreements. These programs provide a great way to simplify the administration and processing of your print account and manage your print budget. We have a model for everyone, and you can contact your sales representative or account manager for more information.

Thank you for your question and best wishes,

Anne Ellis
Senior Director, Librarian Relations
Thomson Reuters, Legal
You can see how they are trying to herd us into the LMAs, but it's not really very subtle. Some representatives WILL say out loud what Anne does not put into writing: this is what you get for dropping out of your LMA. Some folks have actually been told that to their faces.

What Anne does not address is that many of our libraries CANNOT take advantage of the billing alternatives they offer (which they very likely understand). Our universities do not allow us to set up electronic payment systems per vendor. Even those of us with credit card payment systems will be bogged down trying to manage separate billing statements each week for the West bills, rather than monthly. And cutting checks on a weekly basis is not going to be a very viable solution for paying as many different bills as the average library has with West. This is pretty clearly a punitive action designed to drive libraries into the LMA program, NOT to "...make our business relationship as easy for you to manage as possible."

The only solution is to replace West with a vendor that will serve better.

And to ask our state Attorneys General consumer protection divisions to investigate the Thomson-Reuters business practices.

General Outrage (from Boston.com) expresses my feeling perfectly. you tell'em kiddo!

Monday, March 29, 2010

First Look at WestlawNext

I finally got a first look at WestlawNext today. I think our students are going to love it because it looks and acts a lot like Google. It will probably be hard for some faculty members to make the transition to WestlawNext, and we librarians will have to do a lot of individualized hand holding and training. We couldn't figure out whether the Custom Digest feature has been incorporated, but our Westlaw rep couldn't find it. Other concerns, at least for the academics out there, include: support for standalone printing, which I assume will work at some point in the future; the Alert feature, which isn't supported at this time; and links from TWEN-- links from TWEN to westlaw.com don't work in WestlawNext and have to be put in. Another ongoing concern is the question of content. I am still annoyed that ALR International was made available to the law school market and then pulled summarily after a very short time. Thomson's answer is that we can buy it separately if we want it, and I suspect that that will be the answer as more databases are taken down from the academic market.

Boston Public Library Branch Closures Protest Continues

The Boston Globe reports today on quiet protests at the Boston Public Library (BPL)main branch of the continuing plans to close community branches of the Boston Public Library. The article reports that about a hundred protesters picketed the main branch at Copley Square, making a point of respecting the library's quiet as they entered the building. The article by Patricia Wen, also reports that the BPL's spokesperson, Gina Perille, told the Globe in an e-mail that the final vote would occur on April 9.

One of the organizers, Brandon Abbs, told protesters about a website — peopleofboston.org — that shows how the library’s board of trustees, Mayor Thomas M. Menino, the City Council, and state officials each play a role in a potential decision to shutter up to 10 of the city’s 26 branches. The site emphasizes ways of helping the library system make up for its $3.6 million budget shortfall.
If you go to the People of Boston website, you find, as noted, a list of links to Mayor Menino and the trustees appointed by him, and a Q & A on the issues. It's a good website full of information. One thing it does not do very clearly, though, is point out that Menino packed the BPL leadership so that it absolutely is set up to close the branch libraries. He fired the former Director of the Boston Public Library, Bernie Margolis, and put in Amy Ryan. Margolis was an excellent fundraiser and politically connected at the Statehouse. Ryan's skills actually run in a counter direction. She previously worked at the public library in Minneapolis, with the charge of "consolidating" the library there. Here is the Boston Globe story on Margolis being forced out in a power play by the trustees appointed to the library board of trustees by Mayor Menino, written on November 4, 2007. Ironically, the reason for forcing Margolis out was officially stated as disagreement that Margolis was not focusing enough attention on the branch libraries, and was spending too much on the central library. And here is a New York Times article that probably gets to the heart of the Menino-Margolis argument: money and power. Hizzoner grabbed the BPL's nearly 200 trust funds, totalling about $54 million dollars. Since they were accrued through bequests, they should at least theoretically be still required to be used for the purposes for which they were donated to the library. But oddly, the Globe has gone silent on all of this. The most recent stories have not mentioned any of these issues, merely pointed at the current protesters, who seem not to know about these issues, either. The article at the time Margolis left said that Boston at that time was spending about $50/patron for its libraries. I am sure we are far below that amount now. The question is, WHAT HAS HAPPENED TO THE TRUST FUNDS?

Sunday, March 28, 2010

Well the SCOTUS Student Loan Bankruptcy Excitement is Over


United Student Aid Funds v. Espinosa, showed up first with some breathless headlines:

Supreme Court Rules for Student Seeking Discharge of Loan Debt shouted the ABA Journal. Actually what showed up in my e-mail alerts was: "Student Wins SCOTUS Approval for Loan Discharge." I was puzzled why that link was dead. And now I guess it may be sheer embarrassment over the exuberance of the headline. While it offers a nice link to the PDF of the full opinion, the ABA's brief summary, which may be derived from the short Associated Press article, is a bit misleading. The opinion really deals more about discharge of INTEREST on the student loans, not discharge of the loans themselves. Further, the decision is quite narrow, and revolves around requirements of a hardship determination before discharge, regardless of whether the debtor requests one or not. It is a very small bone to toss the student loan holders.

Sigh.

Friday, March 26, 2010

National Jurist ranks law school libraries


The National Jurist ranks the best law school libraries. In a brief intro that warms my heart, even as we all will instantly begin to quibble over their criteria, they begin,

Many thought that the digital age would render brick-and-mortar libraries obsolete. But the modern-day library has emerged as a vital center for learning and research that's busier than ever. We rank 198 law libraries for resources, services and space.

When James Dunkelberger first walked into the law library at Brigham Young University School of Law, he was surprised by the extensive list of resources available to students.

He was assigned a personal study carrel where he could store his study materials and supplies. It came wireless network access as well as a hardline connection that he could plug into. And he had access to the library'e 25 private rooms that he and members of his study group could reserve for meetings.

"It's like a home base," he said of the BYU law library. "You can network with the people you need to. Everything you need is at your fingertips."

The result is a place that is inviting, even enjoyable, for students but still offers everything they need to enhance the educational process.

"The school has provided us a place where we feel comfortable and has the space and technology to facilitate learning," Dunkelberger said.

The situation at BYU isn't unique. While the mission of law libraries hasn't changed all that much over the years, the way they go about achieving those goals certainly has.

Today, every library must provide material, not just in printed books, but in a variety of digital formats. And they have to make sure the library is not just a place for academic research, but a comprehensive learning center where students can interact with one another while still getting valuable instruction and advice from trained professionals.

It's all part of the evolution of the law library in the 21st century.
While they did a nice job of talking about libraries' importance to law students, we can all quibble over their balancing of the factors, and where different libraries landed. Iowa came in number 1 (congrats!). The article has the top 50 law libraries. They continue to look at number of volumes, titles, number of seats, hours open, and the number of librarians per FTE student. Very frustrating as always when you know there is so much being missed in the ranking. But still. Fun to see.

Note: as of 4/1, I received an e-mail from the publishers explaining that, though the article claims there is a link to all the 198 libraries they used in their data gather, that they failed to include the link. They apologize for the mistake and oversight.

Tuesday, March 23, 2010

Public Online Information Act (POIA)

The Public Online Information Act (POIA) HR 4858, has been introduced into the House of Representatives by Congressman Steve Israel of the second district of New York. If you follow the link for POIA above, it will take you to an excellent links page provided by the Sunlight Foundation, which describes itself as "a non-partisan, non-profit organization based in Washington, DC that focuses on the digitization of government data and the creation of tools and Web sites to make that data easily accessible for all citizens." Here is most of the summary of the bill provided at that site:

POIA requires Executive Branch agencies to publish all publicly available information on the Internet in a timely fashion and in user-friendly formats. It also creates an advisory committee to help develop government-wide Internet publication policies. Freeing government information from its paper silos provides the private sector with raw material to develop new products and services and gives the public what they need to participate in government as active and informed citizens. Establishing an advisory committee that brings all three branches of government and the private sector together to develop government-wide information best practices will improve how the government serves the American people.

POIA has far reaching effects:

* POIA empowers government oversight and accountability by citizens, media, and government officials alike.
* POIA promotes intra-governmental coordination by bringing key players together to develop common standards for information transmission, streamline government data collection practices, and increase the sharing of information vital to our citizens.
* POIA contributes to economic growth by helping small and large business innovate, create jobs, and compete globally.

EXECUTIVE BRANCH AGENCIES MUST PUBLISH PUBLIC INFORMATION ON THE INTERNET

POIA requires Executive Branch agencies to publish public information on the Internet subject to limited, commonsense exceptions. It requires the government to adopt a presumption of openness and transparency. OMB’s E-Government Administrator and CIOs at independent agencies are responsible for crafting regulations to implement POIA. And, the public is granted a limited private right of action (similar to that under FOIA) to guarantee that the government lives up to its transparency obligations.

POIA’s scope is limited in three major ways:

* Sunrise provision: Internet disclosure of public records becomes mandatory three years after POIA’s enactment, giving agencies time to prepare.
* Prospective application: Only public records generated, updated, or released after POIA’s enactment must be published online, limiting the timeframe of disclosure.
* Content-based exemptions: Public records exempt from disclosure under the Freedom of Information Act may also be exempted from POIA’s online publication requirement. Additional records beyond the scope of FOIA may be withheld if it is in the public’s interest.

POIA CREATES A GOVERNMENT-WIDE ADVISORY COMMITTEE

POIA creates a special federal advisory committee to coordinate the development of Internet disclosure policies. These policies promote best practices generally, including data interoperability standards, and will keep the government up-to-date with new technology. The advisory committee’s 19 members – six appointed by each branch of government, plus one by GSA – are drawn from the public and private sectors and serve as watchdogs, synthesizing the needs of agencies and the public and making recommendations on updating federal law.

Monday, March 22, 2010

FCC Takes Public Comments on Future of Media & Information Needs of Communities in the Information Age

The FCC is taking public comments on the Future of Media & the Information Needs of Communities in the Information Age! That means libraries, as well as newspapers, blogs, the Internet, and all kinds of other information resources. The deadline has been extended to May 7. So YOU, yes, YOU can put in your two cents worth to your government.

The ALA has already put in a statement, focusing largely on public libraries, of course. (footnotes are skipped in the following excerpts)I am skipping most of the letter's excellent summary of the effects on libraries of the digital revolution -- my readers already know this because we live it. However, I really like their statement on copyright issues: D. Purchase versus Licensing.

In the digital world, content providers have adopted a business model based on licensing rather than sale. One of the important consequences of this model for libraries is that rights to the work are based on the terms of the license rather than on the carefully developed balances of copyright law. Not only do libraries have to deal with managing a variety of different restrictions based on the terms of particular licenses for particular works, but they often find use limitations on the work that undermine existing provisions in the copyright law such as those for first sale, fair use, and archiving and preservation. Furthermore, libraries are not purchasing the work, per se, but have limited access to the work for a specific time. Many libraries consider preservation and long-term access to works to be core responsibilities; rather than rent content for a limited period of time (and pay for it again once the license has expired); the library wants to be able to purchase electronic content with which to build growing collections. In the past, this decentralized system of preservation has preserved society’s knowledge base. It is not clear that a highly centralized system of distribution from commercial providers will provide similar stewardship for the nation’s cultural heritage.
I think the ALA has done an excellent job of laying out major points of how the digital transformation is affecting libraries. I recommend readers to look at the whole text; I am pleased that they have said it so well. The point of the letter, though, is what they ask the FCC to change, which is:
10. How should FCC policies change?
From a library perspective, responding to the digital transformation touches a wide range of Commission policies. Rather than survey them all, we will highlight five general areas here and identify key recent ALA comments to the Commission on those topics. ALA believes that the Commission should:
Establish a national broadband policy: The rapid digitization of media has made ubiquitous and affordable public access to high-speed digital communications a requisite, not an option. This is no less important today than when Congress, in the Communications Act of 1934, established the Commission and charged it with making available “to all the people of the United States, without discrimination on the basis of race, color, religion, national origin, or sex, a rapid, efficient, Nationwide, and world-wide wire and radio communication service with adequate facilities at reasonable charges.” ALA calls for a national broadband policy with goals no less ambitious. Raise the E-rate cap: Libraries are and will for the foreseeable future be essential public access and service points to digital services and media. The E-rate is vital to libraries by making telecommunication services more affordable. In the current harsh economic climate, many libraries find that their bandwidth is no longer adequate. In order to support increasing capacity, many libraries—and likely an increased number of libraries—will need to request a larger discount from the E-rate program than in the past as higher capacity service will result in higher on-going costs. The $2.25 billion cap is insufficient to meet an increase in requests for Priority One services. Additionally, the infrastructure necessary to support higher capacity bandwidth may not be in place in many libraries. We are likely to see a need for more Priority Two requests which the current cap cannot support. The current E-rate fund is insufficient for the investment needed for libraries to transition to the advanced services they now require. Assure openness and neutrality of distribution channels: ALA understands that service providers need to manage and even prioritize the traffic in their networks in order to optimize performance. However, ALA also firmly stresses the need to avoid price or technological barriers that discriminate against equitable access to resources on the Internet or that protect existing distribution and business models at the expense of new, innovative approaches. Resist pressures to regulate technological controls on content access: Although technological controls are promoted as ways to protect copyright, in reality they are usually imposed to protect contract and licensing terms (See our comments above on the trend toward licensing.) The rights and exceptions expressed in Copyright law are far too subtle and subjective to be incorporated in computer algorithms. Technological protections prevent uses beyond those proscribed by copyright law and, thus, inevitably encroach on fair use and other limitations and exceptions. Furthermore, if imbedded in the information infrastructure by regulation and law, they risk controlling access to uses of other works not even covered by the licenses. Ultimately, technological controls that are intended to protect business models can ultimately impede innovation and the development of new products. Include libraries in any new national initiative to upgrade broadband infrastructure: Libraries are widely acknowledged as a critical provider of broadband access in their communities. In 71% of communities the library is the only provider of no-fee access to the Internet. Many libraries report an increased demand for their online resources—for job searches, e-government, continuing education, and more—which is taxing library network capacity. This new demand coupled with state and local budget cuts jeopardizes the ability of many libraries to continue to meet the information needs in their communities.

Libraries are in virtually every community across the nation. Providing anchor institutions such as the library with high capacity broadband service will result in greater broadband availability and bring service to areas where availability is currently inadequate. Moreover, libraries—as is true for other community anchor institutions—will need much increased broadband capacity to support the critical new applications that will be forthcoming in the future. The critical role libraries play in connecting communities needs to be reflected by support in new national broadband initiatives, including high-capacity infrastructure build-out.
Libraries have a unique role in their communities as providers and curators of information. As the Commission examines the future of media and information needs of communities in the rapidly changing digital climate, ALA respectfully urges the Commission to consider the impact of their findings and subsequent recommendations on libraries.
Don't forget to add your own comments to the FCC!

Friday, March 19, 2010

Obama, WHAT are you THINKING!?


from the ABA Grassroots Newsletter:

USA PATRIOT ACT: President Obama signed legislation Feb. 27 that extends the “library,” “lone wolf” and roving wiretaps” anti-terrorism provisions under the USA PATRIOT ACT through Feb. 28, 2011. Enactment of the new law, P.L. 111-141 (H.R. 3961), postpones the need for immediate action on two broader bills, H.R. 3845 and S. 1692. Although both bills were ready for floor action following committee approval, Congress chose a simple extension of the three expiring provisions. The “library” provision allows the government to seek surveillance orders from the Foreign Intelligence Surveillance Court for tangible things, including medical and library records, that it states are related to a terrorism investigation. Under the “lone wolf” provision, the government may apply to the court to conduct surveillance on suspected terrorists who are not connected to larger terrorist organizations. The third provision extends authorization of court-approved roving wiretaps to terrorism suspects using multiple communications devices. The ABA has urged Congress to thoroughly review executive branch powers under the USA PATRIOT ACT and to conduct regular oversight of the government’s use of the Foreign Intelligence Surveillance Act.
The image decorating this, General Outrage, is courtesy of Boston.com

Judge Walks Out Mid-Argument in Proposition 8 Case


Dan Levine at LegalPad reports (March 16) that Chief Judge Vaughn Walker stood up and walked out on Orrick Herrington & Sutcliffe partner Stephen Bomse in mid-sentence as Bomse continued an argument opposing a discovery motion in the Proposition 8 case in California (Perry v. Schwarzenegger)(follow the link to Lambda Legal where they include a summary, full text documents and a time line); Perry v. City and County of San Francisco (link to docstoc.com, Judge Fisher's opinion Dec. 1, 2009, in the U.S. Court of Appeals, 9th Circuit, appealing from Judge Vaughn Walker, below) . Levine reports, in part,

This discovery mess – which threatens to delay a final Walker ruling on the constitutionality of Prop 8 – commenced in January, when the Ninth Circuit forced Yes on 8 to turn over some of its campaign materials. (that link to CalLaw requires a free registration)

Making good on an earlier threat (same free registration required; if you already registered above, you are set), Yes on 8 in turn subpoenaed documents from various groups that fought the anti-gay marriage amendment. Magistrate Judge Joseph Spero turned down attempts by those No groups to kill the subpoenae, and ordered them to start producing documents.

The No forces, led by Bomse, asked Walker to overrule Spero. But Walker immediately cut Bomse off, telling him the standard to reverse was clear error. The ACLU has not come up with a fresh reason to attack Spero’s reasoning, Walker said. “You haven’t submitted anything,” Walker said.

The hearing lasted about an hour and a half, during which Walker appeared completely unsympathetic to the No arguments. At the end, Bomse tried to pick up on a point made by the plaintiffs’ attorney, Christopher Dusseault of Gibson Dunn & Crutcher, that the Yes lawyers had gotten stuff before trial but made a strategic decision not to put them in the record. “All the public documents were produced, and they made no use of them,” Bomse said.

Then, as Bomse began his next sentence, he was hit a with “Thank you very much” from Walker as the judge strode off the bench. Bomse remained at the lectern for a second before turning back collect his things.

Beyond the discovery arguments themselves, I can imagine a few meta-motivations fueling Walker’s irritation. First, there is the delay: Walker wants the trial over, like, yesterday, but these discovery issues may put off closing arguments for a while. What Walker regards as a frivolous appeal to Spero’s order doesn’t help.

Also, Walker has been trying to build a full record, the better to withstand appellate review. So kicking around the No side in an attempt to complete the evidence can’t hurt his credibility with the nine wise men and women in Washington D.C. – at least any more than the camera fiasco (CalLaw again: free registration required) already did.
Nice analysis!

Although Wikipedia is subject to random editing and vandalism on a topic a controversial as this, I thought they had a very nice entry on the case. See Perry v. Schwarzenegger at Wikipedia for a very nice history and lots of links to in-depth info on the various parties involved.

As always at OOTJ, the swans decorating this post remind me of the story of Boston Public Garden's swans Romeo and Juliet, who turned out to be Juliet and Juliet, just about the time our Supreme Judicial Court ruled on our case of Goodridge v. Dept. of Public Health, which made same-sex marriage legal in Massachusetts.

Thursday, March 18, 2010

States' Rights Resurgence

The New York Times ran an article, "States' Rights is Rallying Cry for Lawmakers" on March 16, 2010 (I saw it in the Boston Globe). Kirk Johnson wrote:

Whether it’s correctly called a movement, a backlash or political theater, state declarations of their rights — or in some cases denunciations of federal authority, amounting to the same thing — are on a roll.

Gov. Mike Rounds of South Dakota, a Republican, signed a bill into law on Friday declaring that the federal regulation of firearms is invalid if a weapon is made and used in South Dakota.

On Thursday, Wyoming’s governor, Dave Freudenthal, a Democrat, signed a similar bill for that state. The same day, Oklahoma’s House of Representatives approved a resolution that Oklahomans should be able to vote on a state constitutional amendment allowing them to opt out of the federal health care overhaul.

In Utah, lawmakers embraced states’ rights with a vengeance in the final days of the legislative session last week. One measure said Congress and the federal government could not carry out health care reform, not in Utah anyway, without approval of the Legislature. Another bill declared state authority to take federal lands under the eminent domain process. A resolution asserted the “inviolable sovereignty of the State of Utah under the Tenth Amendment to the Constitution.”

Some legal scholars say the new states’ rights drive has more smoke than fire, but for lawmakers, just taking a stand can be important enough.

“Who is the sovereign, the state or the federal government?” said State Representative Chris N. Herrod, a Republican from Provo, Utah, and leader of the 30-member Patrick Henry Caucus, which formed last year and led the assault on federal legal barricades in the session that ended Thursday.

Alabama, Tennessee and Washington are considering bills or constitutional amendments that would assert local police powers to be supreme over the federal authority, according to the Tenth Amendment Center, a research and advocacy group based in Los Angeles. And Utah, again not to be outdone, passed a bill last week that says federal law enforcement authority, even on federal lands, can be limited by the state.

“There’s a tsunami of interest in states’ rights and resistance to an overbearing federal government; that’s what all these measures indicate,” said Gary Marbut, the president of the Montana Shooting Sports Association, which led the drive last year for one of the first “firearms freedoms,” laws like the ones signed last week in South Dakota and Wyoming.

In most cases, conservative anxiety over federal authority is fueling the impulse, with the Tea Party movement or its members in the backdrop or forefront. Mr. Herrod in Utah said that he had spoken at Tea Party rallies, for example, but that his efforts, and those of the Patrick Henry Caucus, were not directly connected to the Tea Partiers.

And in some cases, according to the Tenth Amendment Center, the politics of states’ rights are veering left. Rhode Island, Vermont and Wisconsin, for example — none of them known as conservative bastions — are considering bills that would authorize, or require, governors to recall or take control of National Guard troops, asserting that federal calls to active duty have exceeded federal authority.

“Everything we’ve tried to keep the federal government confined to rational limits has been a failure, an utter, unrelenting failure — so why not try something else?” said Thomas E. Woods Jr., a senior fellow at the Ludwig von Mises Institute, a nonprofit group in Auburn, Ala., that researches what it calls “the scholarship of liberty.”

Mr. Woods, who has a Ph.D. in history, and has written widely on states’ rights and nullification — the argument that says states can sometimes trump or disregard federal law — said he was not sure where the dots between states’ rights and politics connected. But he and others say that whatever it is, something politically powerful is brewing under the statehouse domes.

Other scholars say the state efforts, if pursued in the courts, would face formidable roadblocks. Article 6 of the Constitution says federal authority outranks state authority, and on that bedrock of federalist principle rests centuries of back and forth that states have mostly lost, notably the desegregation of schools in the 1950s and ’60s.

“Article 6 says that that federal law is supreme and that if there’s a conflict, federal law prevails,” said Prof. Ruthann Robson, who teaches constitutional law at the City University of New York School of Law. “It’s pretty difficult to imagine a way in which a state could prevail on many of these.”

And while some efforts do seem headed for a direct conflict with federal laws or the Constitution, others are premised on the idea that federal courts have misinterpreted the Constitution in the federal government’s favor.

A lawsuit filed last year by the Montana Shooting Sports Association after the state’s “firearms freedom” law took effect, for example, does not say that the federal government has no authority to regulate guns, but that courts have misconstrued interstate commerce regulations.

National monuments and medical marijuana, of all things, play a role as well.

Mr. Herrod in Utah said that after an internal memorandum from the United States Department of the Interior was made public last month, discussing sites around the country potentially suitable for federal protection as national monuments — including two sites in Utah — support for all kinds of statements against federal authority gained steam.

And at the Tenth Amendment Center, the group’s founder, Michael Boldin, said he thought states that had bucked federal authority over the last decade by legalizing medical marijuana, even as federal law held all marijuana use and possession to be illegal, had set the template in some ways for the effort now. And those states, Mr. Boldin said, were essentially validated in their efforts last fall when the Justice Department said it would no longer make medical marijuana a priority in the states were it was legal. Nullification, he said, was shown to work.

Whether the political impulse of states’ rights and nullification will become a direct political fault line in the national elections this fall is uncertain, said Mr. Woods of the von Mises institute.

But in Utah, at least, a key indicator is coming much sooner. The party caucuses to determine, among other things, whether candidates will face primary elections, are to be held next Tuesday, and Mr. Herrod said the states rights’ crowd would attend and push for change.

“Those politicians who don’t understand that things are different are in big trouble because a few people showing up to caucus can have a big influence,” Mr. Herrod said.

A spokeswoman for Gov. Gary R. Herbert, a Republican — who signed a firearms law like South Dakota’s last month declaring exemption from federal regulation for guns made and used within the state — said Mr. Herbert was still studying the new batch of bills passed this week and had not yet made decisions about signing them.
When I went looking for the N.Y. Times' version of what I read in the Boston Globe, I stumbled over an earlier article in the Times, on March 2, 2010, "States' Rights vs. Gun Rights," by the editors. This is a short editorial on the Supreme Court hearing the gun control case, McDonald v. City of Chicago, and looks at the development of recent gun control cases in the Court. Then, they present short essays by four prominent scholars: Eugene Volokh, Saul Cornell, Donna Schuele, and James Alan Fox. Then, there are pages and pages of readers' comments. I can't help but think the resurgence of activity in asserting states' rights is meaningful and that the federal government should at least pay attention to the event.

Wednesday, March 17, 2010

Good News from PACER

The United States Judicial Conference voted on March 16 to increase the number of free documents that the public can retrieve from PACER. Currently, users can get $10 of free pages per year; in the future, users will get $10 of free pages per quarter--a significant increase and one worth cheering. What would be even better, of course, is if all documents on PACER were freely available. Here is a link to the press release that describes this change and other changes coming to PACER.

Franklin Pierce to Merge

Inside Higher Education is reporting a proposed merger between the University of New Hampshire and Franklin Pierce Law Center, the only law school in the state. Franklin Pierce would be known as the University of New Hampshire School of Law, but would remain in Concord for the time being, at least. The American Bar Association and the New England Association of Schools and College have to sign off on the plan, but work is already underway to coordinate the two schools' curricula and administrations. There are a lot of benefits to the merger for both parties, and this move is certainly more cost effective than creating a new law school.

Tuesday, March 16, 2010

Watch out for foursquare!

And you thought foursquare was just a cool little social media tagging tool. Well, it is. You use your cell phone to add a metadata tag to anyplace, and you can set up a game. "Earn badges!" urges the website, "Unlock your city." Or your campus. And the Chronicle of Higher Education reports that the game is taking off at campuses, in an article titled, "Will Your College Be Covered in Virtual Graffiti?" by Marc Parry. There is a lot more than what I quote here:

Since Foursquare's debut last year, students have diligently labeled, praised, and, in some cases, profaned college campuses. Take this note, easily Googled, that somebody calling himself Mock Redneck Jr. left at the University of North Carolina at Charlotte: "The library has Free Wi-Fi, Barely Legal girls and a warm place to drop a deuce."

Now imagine this nightmare scenario: A prospective student's mother goes on a college tour. She pulls out a phone. Her expression screams oh-my-gosh as she reads Mr. Redneck's note. Maybe she goes on to a dorm, and perhaps its residents have left other goodies online. The teacher they loathed. The room they smoked pot in. The couch they had sex on.

Here's how it works. Foursquare players see a list of nearby places. They can "check in" to any of them, and, if they want, have their arrival broadcast to "friends" on Foursquare and other networks like Facebook and Twitter. They can create new places and leave public "tips" about existing ones, like the "free Wi-Fi" at the Charlotte library. They earn "badges"—for example, "gym rat"—for checking in at various spots. If they check in at one spot often enough, the game crowns them "mayor."

As in, Wesley Chen is mayor of the Original California Taqueria.

"It's kind of like a passive-aggressive way of telling your friends where you are," says Mr. Chen, 21, a junior at New York University who has checked in some 460 times and holds the hizzoner title at eight different locations.
A Growing Trend

Foursquare is still a microtrend of the digerati, one that doesn't come close to the even-your-grandmother-is-on-it ubiquity of Facebook. But whether or not this particular company becomes the Next Big Thing, signs suggest that the basic technology behind the game—that ability to contextualize information to your location—will go mainstream.

Another smartphone application, Gowalla, has similar features. Twitter now lets users attach locations to their messages. So does Buzz, Google's foray into social networking. And Facebook will reveal a feature in April that may use your friends' locations as a new form of place-based status update, according to The New York Times.
The Chronicle article goes on to tell how some universities, like Harvard and North Caroline State University, are embracing the technology. I know librarians have considered whether the technology could be used for library assistance (where is this book? or give a tour with foursquare), but the locating technology is not fine enough yet to work on something like a library tour. It will help you find Harvard Yard, but not where inside the library the ALRs are shelved. Maybe one day!

The article has a lot of great info, and interesting, thought-provoking aspects. The author takes you to people who are embracing the technology joyfully and thinking creatively about what educators and students can do in educational settings with it. But there are also more dark sides than just the embarrassing graffiti mentioned above. For one thing, by announcing to the world that you just arrived at one place, you may also be alerting burglars that you are not home. Or be telling muggers that you are about to pass by their lair. So, students should be exercising safe practices (lock your doors when you leave home, travel in groups), at any time, but maybe especially if they are using this kind of technology.

Monday, March 15, 2010

New bill to track metals in electronics


The Boston Globe has a story today by Emily Sweeney focusing on the misery in Congolese mines, which are the source for so many minerals used in consumer electronics. Many of the mines in the Democratic Republic of Congo, where minerals such as tantalum lie close to the surface of the earth, are controlled by rogue military groups illegally mining to buy military weapons. They kidnap people to force them to work either as miners or as sex slaves, or they force men and boys into labor through debt pressure. The bad news for us as consumers is that these minerals from the Congo are two or three times cheaper than those mined in Australia or Canada or elsewhere. And that means that if you have a cell phone or laptop or other electronic device, that the transistors and capacitors in your device most likely have minerals mined in the Congo.

The destruction may be happening more than 6,500 miles away, but it’s closer to home than many people realize, according to the Enough Project at the Center for American Progress, a think tank based in Washington, D.C. “Ultimately, our cellphones, laptops, and other consumer electronics have been feeding into this war,’’ said David Sullivan, a researcher with the group.

The road from rural mines to retail store shelves where such electronic devices are sold is long and twisted, and until recently most US consumers knew nothing about it.

That is slowly changing.

Several efforts are underway to shed more light on the supply chain that leads to the cellphone in your pocket and the laptop on your desk.

US Representatives Barney Frank of Newton, James P. McGovern of Worcester, and Michael E. Capuano of Somerville support the Conflict Minerals Trade Act, which would require companies to certify whether their goods contain minerals that originate from conflict areas of Congo. The measure focuses on gold, cassiterite, wolframite, and columbite-tantalite (also known as coltan), minerals common in consumer electronics products.

The bill was introduced in November by US Representative Jim McDermott, a Democrat from Washington state who hopes it will raise awareness. “I’m always worried about what’s going on there,’’ said McDermott. “Central Africa is a black hole in the earth for most people.’’

McDermott’s legislation highlights problems that have long plagued Congo, a country that holds vast amounts of mineral wealth, but remains one of the poorest nations in the world. In the eastern part of the country, illegal Congolese and foreign militia groups have run rampant for years. They have kidnapped and forced civilians to work as laborers, soldiers, and sex slaves. Men and boys are also exploited through debt bondage, and coerced into working in mines for extremely low wages, according to the State Department. Such armed groups “are simply stealing ore and selling it to the international market,’’ said McDermott, and “everyone who has a cellphone has a piece of the action.’’

Similar legislation was introduced last April by US Senator Sam Brownback, a Kansas Republican, and Democratic Senators Richard Durbin of Illinois and Russ Feingold of Wisconsin. Their measure would require companies to disclose their use of Congolese minerals to the Securities and Exchange Commission every year. So far three senators from New England — Patrick J. Leahy and Bernie Sanders of Vermont, and Sheldon Whitehouse of Rhode Island — have signed on as cosponsors.

Congress also recently passed a defense budget that calls for the State Department to create a map of mineral-rich areas that are under the control of armed groups in Congo.

In April, manufacturers and processors of tantalum — a high-performance metal used in many electronic devices — will convene in Boston to brainstorm on ways they can specify the source of tantalum responsibly. The gathering is being sponsored by the Electronic Industry Citizenship Coalition, an association of 40 global companies that includes Apple Inc., Dell Inc., Intel Corp., EMC Corp., and Best Buy.

The Electronic Industry Citizenship Coalition and another industry group, the Global e-Sustainability Initiative, are working to develop a way to certify smelters who obtain tantalum through “socially and environmentally responsible mines’’ in Congo and surrounding countries.

The meeting will be hosted by Cabot Corp., a Boston company that is one of the world’s leading producers of tantalum products.

Andrew O’Donovan, general manager of Cabot’s supermetals division, said the industry coalition is trying to eliminate conflict minerals from the supply chain without freezing out legitimate suppliers in the region.

There are some legitimate mining operations in Congo that are “just trying to make a living like the rest of us,’’ said O’Donovan. But “today there is no system in place to determine the good from the bad,’’ he said.
Here is a report from Oxfam on the issue of forced labor, kidnapping and rape in the Congo, dated July 14, 2009. Oxfam's analysis was that the U.N. backed military offensive caused a surge in this action against civilians. They carried out a survey of 569 villagers as they provided aid. The brief report contains a link to an in-depth report, "Waking the Devil,the impact of forced disarmament on civilians in the Kivus." While not specifically mentioning forcing men to work in the mines, this cycle of violence against civilians must be connected to the working of the mines to acquire weapons. Global Issues, a site by Anup Shah, an individual in the U.S. maintains a page with a nice summary of the painful recent history of the Democratic Republic of Congo. The photo of Congolese miners is from the Globe, which credits Finbarr O’Reilly /Reuters.

Wednesday, March 10, 2010

Boston Public Library Branch Closings Debate is Passionate

The Boston Globe's Andrew Ryan reports on a passionate and raucous meeting at the central Boston Public Library. Nearly 400 people packed a lecture hall in the beautiful Copley branch. When City Council President Michael Ross stepped to the microphone at one point, the crowd roared, and people shouted: "The public goes first!" and "Let the people speak!" And speak they did! The city council, Mayor Menino and the Trustees of the Public Library got quite an earful from the people of Boston.

Sell a page from the 556-year-old Gutenberg Bible, one woman suggested. Charge a modest fee for library cards, said another, waving a $10 bill.

One man said that he was a prison librarian while serving time in Walpole and that closing any library branches would be far worse than any of his crimes.

“I may have robbed a bank, but I have never burned a book,’’ said the man, John McGrath. “And that’s what you do when you close a library branch, because they are never going to reopen.’’ (snip)

“It’s outrageous that it has come to this,’’ said Yann Poisson of Dorchester. “Only a fifth-term mayor could dismiss libraries as a 21st-century anachronism, something that can be replaced by Yahoo or Google.’’

The library’s president, Amy E. Ryan, outlined a broad range of criteria that will be used to target branches for potential closing, including computer usage, handicapped accessibility, proximity to other branches, and the story behind each location. No decisions have been made.

The library lacks a sufficient number of computers, Ryan said, and it cannot adequately staff some of its most basic programs, such as story hours.

“We have to ensure that if it says Boston Public Library over the door that we have to commit resources for families, kids, and adults,’’ Ryan said.

Some at the meeting, though, accused Mayor Thomas M. Menino of trying to divide the city and pit neighborhood against neighborhood. They implored the library’s board of trustees to increase fund-raising, cut other costs, and twist arms on Beacon Hill and at City Hall until someone coughs up the money.

Donald Haber, who is active in the Jamaica Plain Branch Library, put a larger question to library administrators.

“Is the underlying issue really about money’’ asked Haber, who fears that his branch is on the chopping block because it is not handicapped accessible. “Even if a miracle happened and you got your $3.6 million, would you still be looking to close branches?’’ (snip)

Yesterday Ryan referred to librarians as “information navigators’’ and compared the system’s current technology to an abridged encyclopedia, not a multivolume set.

Using another metaphor, Ryan said, “We can’t take a car designed in the 1970s onto today’s information superhighway.’’

But many in the audience bristled at the frequent references to technology. They spoke about their branches as refuges, gathering places, and focal points for their communities.

“Not the computers, not the high-tech, not the downloadables,’’ Maria Rodriguez said. “Libraries are about books and librarians. I didn’t hear anything about that in your vision.’’
And I think that is what the people who are busy thinking about the "information superhighway" and "library as information center" are missing. In so many ways, the library is still vital as a PLACE. Its importance to the community it serves lies largely in its physicality. The human touch of the librarians helping people with reference questions, and offering story hour in public libraries. The pleasant and civilizing experience of reading, studying or attending an event in a beautiful venue. I know at least some schools and law firms still use the library as a show case where they lead prospective students, faculty and hires through that space when they want to impress them with the best the place can offer. It communicates a good deal about the aspirations and values of the community.

And in tough times, more people fall back on these consoling and FREE community resources. It has become more and more important to more and more people. The mayor in Boston picked a very bad time to try to divide and conquer. He packed the library trustees board with his own picks, but I think they have all run into a good deal of surprising trouble right here. We'll see what happens.

Fake Restitution site - Beware

The Boston Globe reports that con artists have set up a website that mimics the website run by the Securities Investor Protection Corp, SIPC.org. The fake website, I-SIPC.com when I looked is "temporarily closed." I don't know if it will re-open at this URL or will move. The Globe article, by Beth Healy, states, in part:

The phony group has created a website that looks similar to the one run by the Securities Investor Protection Corp.

The real SIPC is an insurance fund that covers up to $500,000 of investor losses if a brokerage firm fails. Yesterday, the SIPC said a fraudulent group had set up the website I-SIPC.com and was attempting to lure Madoff’s victims.

Among the claims on the fraudulent website: that $1.3 billion hidden by Madoff in Malaysia has been found. The phony group claims to have ties to the United Nations and the International Monetary Fund.

In a statement, the SIPC’s president, Stephen Harbeck, said, “This bogus group is already attempting to obtain funds and confidential financial information from investors in the U.S.’’ He said Madoff’s victims and others should not reveal any personal financial data on the I-SIPC site or rely upon it as a source of information. “We intend to use every available means to shut down this illicit operation,’’ Harbeck said.

The US Securities and Exchange Commission issued a statement about the group’s posing as an international branch of the SIPC. “Never underestimate the creativity and duplicity of con artists,’’ the SEC said. “They will do anything to separate you from your money and securities.
Another a very good rule to always be aware of those URL extensions! The .org compared to the .com is a clue whether you are at the right site. But it's hardly a hard-and-fast rule -- the folks who assign the Internet addresses do not seem to make any inquiries when you claim to be a not for profit organization.

Monday, March 08, 2010

Nicholas Carr: Is Google Making Us Stupid & Pew Research


In 2008, Nicholas Carr wrote a very provocative article in the July/August issue of the Atlantic Monthly, Is Google Making Us Stupid?. While he loves the wonderful access the Internet gives him as a writer to all kinds of information, Carr has noticed that it seems to have changed how he reads the materials he gets online:

For me, as for others, the Net is becoming a universal medium, the conduit for most of the information that flows through my eyes and ears and into my mind. The advantages of having immediate access to such an incredibly rich store of information are many, and they’ve been widely described and duly applauded. “The perfect recall of silicon memory,” Wired’s Clive Thompson has written, “can be an enormous boon to thinking.” But that boon comes at a price. As the media theorist Marshall McLuhan pointed out in the 1960s, media are not just passive channels of information. They supply the stuff of thought, but they also shape the process of thought. And what the Net seems to be doing is chipping away my capacity for concentration and contemplation. My mind now expects to take in information the way the Net distributes it: in a swiftly moving stream of particles. Once I was a scuba diver in the sea of words. Now I zip along the surface like a guy on a Jet Ski.
That is the basic premise of the article. That the huge sea of information that is the Internet seems to somehow subvert HOW we read, from deep, meditative reading to a kind of skimming. And Carr does not just rely on his own and others' anecdotal evidence. He presents some impressive experimental data.
And we still await the long-term neurological and psychological experiments that will provide a definitive picture of how Internet use affects cognition. But a recently published study of online research habits , conducted by scholars from University College London, suggests that we may well be in the midst of a sea change in the way we read and think. As part of the five-year research program, the scholars examined computer logs documenting the behavior of visitors to two popular research sites, one operated by the British Library and one by a U.K. educational consortium, that provide access to journal articles, e-books, and other sources of written information. They found that people using the sites exhibited “a form of skimming activity,” hopping from one source to another and rarely returning to any source they’d already visited. They typically read no more than one or two pages of an article or book before they would “bounce” out to another site. Sometimes they’d save a long article, but there’s no evidence that they ever went back and actually read it. The authors of the study report:

"It is clear that users are not reading online in the traditional sense; indeed there are signs that new forms of “reading” are emerging as users “power browse” horizontally through titles, contents pages and abstracts going for quick wins. It almost seems that they go online to avoid reading in the traditional sense."

Thanks to the ubiquity of text on the Internet, not to mention the popularity of text-messaging on cell phones, we may well be reading more today than we did in the 1970s or 1980s, when television was our medium of choice. But it’s a different kind of reading, and behind it lies a different kind of thinking—perhaps even a new sense of the self. “We are not only what we read,” says Maryanne Wolf, a developmental psychologist at Tufts University and the author of Proust and the Squid: The Story and Science of the Reading Brain. “We are how we read.” Wolf worries that the style of reading promoted by the Net, a style that puts “efficiency” and “immediacy” above all else, may be weakening our capacity for the kind of deep reading that emerged when an earlier technology, the printing press, made long and complex works of prose commonplace. When we read online, she says, we tend to become “mere decoders of information.” Our ability to interpret text, to make the rich mental connections that form when we read deeply and without distraction, remains largely disengaged.
Carr goes on to talk about how the malleable human brain is shaped by the tools we use. The Internet is reshaping the brain, and we should be aware of it. He also recognizes that the Google folks assume that we will all be better off with our brains augmented with the power of the Internet. He is also quite aware that each new technology brought its doomsayers, from writing, to the printing press, and that the world did not actually end. Carr is balanced in his commentary. He recognizes that we should be skeptical of his skepticism. But it's definitely worth considering this warning.

So I am quite intrigued that Pew Research has responded, two years later, with a survey, Does Google Make Us Stupid? It's worth noting that the folks who took the survey consist of: "...371 longtime experts who have regularly participated in these surveys. The second column covers the answers of all the respondents, including the 524 who were recruited by other experts or by their association with the Pew Internet Project."
"Future of the Internet" survey, conducted by the Pew Internet & American Life Project and Elon University's Imagining the Internet Center, were asked to consider the future of the internet-connected world between now and 2020 and the likely innovation that will occur. The survey required them to assess 10 different "tension pairs" - each pair offering two different 2020 scenarios with the same overall theme and opposite outcomes - and to select the one most likely choice of two statements. Although a wide range of opinion from experts, organizations, and interested institutions was sought, this survey, fielded from Dec. 2, 2009 to Jan. 11, 2010, should not be taken as a representative canvassing of internet experts. By design, the survey was an "opt in," self-selecting effort.
Not surprisingly, especially when you see in the comments section how many of the responders are leaders at Institute for the Future, or Linden Labs, or other major Internet-related organizations, the experts and even their recruited non-experts largely disagreed with Carr's assessment. There is a long list of comments which follow the brief summary of the results. This is actually the most interesting part of the survey, to me. I recommend both the original Carr essay, which has aged well, in my opinion, and the new Pew Research Survey, to your notice. Time will tell where the real concern should be, but we should certainly be aware of the possibility that the Internet is changing the way, not only that we access information, but that we handle it with our minds.

The logo decorating this post is from the Pew Research website. Tip of the OOTJ hat to Roy Balleste, who passed along the Pew Research survey!

You Can't Believe Everything You Hear!

The Chronicle of Higher Ed passes along a story from Above the Law, "The Backstory of the John Roberts Retirement Rumor." Datelined October 4, 2010, ATL explains that there were thousands of erroneous e-mails, blogposts and text messages flying around that Supreme Court Chief Justice John Roberts was on the verge of announcing his retirement for health reasons. Radar evidently broke the story, and was the first to retract. Radar's retraction makes it sound as though Roberts just reconsidered. ATL tells it differently; they were skeptical about the rumor and used contacts at the Supreme Court, checking at the Public Information Office, where the rumor apparently caused laughter. Roberts would apparently rather die in office than give President Obama the option of appointing his successor. ATL reports further, with some good, old fashioned investigative reporting:

Here’s an account of what went down in Professor Peter Tague’s criminal law class this morning, from a 1L at Georgetown Law:

"Today’s class was partially on the validity of informants not explaining their sources. [Professor Tague] started off class at around 9 am EST by telling us not to tell anyone, but that we might find it interesting that tomorrow, Roberts would be announcing his retirement for health concerns. He refused to tell anyone how he knew. Then, at around 9:30, he let everyone in on the joke." (snip)

A second Georgetown Law student confirms that Professor Tague’s class was probably where the Roberts resignation rumor got started:

"Our criminal justice professor started our 9 am lecture with the news that roberts will be resigning tomorrow for health reasons — that he could not handle the administrative burdens of the job. He would not say how he knows — but halfway through our lecture on the credibility and reliability of informants he revealed that the Roberts rumor was made up to show how someone you ordinarily think is credible and reliable (ie a law professor) can disseminate inaccurate information."

By then the horse was out of the barn — and running at a gallop:

[B]etween the hour when the class began and when he revealed that he made it up, plenty of students texted and IM’ed their friends and family…. [So] there’s a very good chance that the Roberts rumor that spread like wildfire on the internet was sparked by an eccentric law professor trying to make a point.
We’ve reached out to the aforementioned eccentric law professor, by telephone and by email, but we haven’t heard back from him yet. If we do, we will update this post.

And that, dear readers, is what we do around here — we talk to multiple sources, including the sources most directly involved in a given story, in the course of our reporting. We exercise judgment in deciding what to report and when to report it. We do want to be first, but we also want to be right.
So, John Roberts is still Chief Justice, and not only Professor Tague's class, but much of the legal blogosphere learned a huge lesson in not believing everything you hear!

Sunday, March 07, 2010

Copyright for Fashion?


The Globe also reports on Harvard Professor and Guggenheim fellow Jeannie Suk's argument that fashion designers need a tailored (ahem!) copyright provision covering their designs. Professor Suk's article, The Law, Culture, and Economics of Fashion, in vol. 61 Stanford Law Review (March, 2009), is summarized in the abstract, in part:

Despite being the core of fashion and legally protected in Europe, fashion design lacks protection against copying under U.S. intellectual property law. This Article frames the debate over whether to provide protection to fashion design within a reflection on the cultural dynamics of innovation as a social practice. The desire to be in fashion - most visibly manifested in the practice of dress - captures a significant aspect of social life, characterized by both the pull of continuity with others and the push of innovation toward the new. We explain what is at stake economically and culturally in providing legal protection for original designs, and why a protection against close copies only is the proper way to proceed. We offer a model of fashion consumption and production that emphasizes the complementary roles of individual differentiation and shared participation in trends. Our analysis reveals that the current legal regime, which protects trademarks but not fashion designs from copying, distorts innovation in fashion away from this expressive aspect and toward status and luxury aspects. The dynamics of fashion lend insight into dynamics of innovation more broadly, in areas where consumption is also expressive. We emphasize that the line between close copying and remixing represents an often underappreciated but promising direction for intellectual property today.
The Globe article tells that Senator Charles Schumer of New York is sponsoring a bill to create copyright protection for fashion designers. (here is a statement on the issue from Schumer) But interestingly, even folks within the fashion design industry have disagreements and nuanced positions on the issue:
The lack of a fashion copyright law here has given rise to an entire industry that reinterprets - fashionistas call it blatant pirating - high design on the cheap. A $2,000 cocktail dress is inexpensively copied and sold for $80 by Forever 21 or pricey Balenciaga shoes are replicated by Steve Madden for $60. There are multiple examples on websites such as Fashionista.com’s [sic] Adventures in Copyright.

Industry experts say small, emerging designers are particularly at risk, even more than big labels such as Marc Jacobs or Michael Kors, because they don’t have the money to fight back when their ideas are ripped off.

Some disagreement
Though Suk may think it’s clear why the fashion world needs tighter restrictions, shoppers and even some designers in Boston aren’t all quick to agree.
Newbury Street-based fashion designer Daniela Corte has seen a few of her dresses copied by other designers, but she takes it as a compliment. She feels a new law may help prevent this from happening in the future.

“Even if they copy and knock it off, it’s not going to have the same texture, it’s not going to have the same finished look, and it’s not going to have the same attention to detail’’ she says. “That’s what sets us apart. When people try on a well-made garment it feels different from something that’s been made in huge numbers.’’ (snip)

Betty Riaz, who owns the boutique Stil, maintains that unlike art or music, fashion thrives on trends, and she said a fashion copyright law would create a legal mess in the courts as multiple designers create their own similar versions of recent trends, such as the one-shoulder gown or studded boots.

“Where do you draw the line?’’ she asks.

(snip)... if Schumer’s bill is going to go anywhere, it won’t be without a fight. Even some in the industry worry that copyright protections may not work for something as utilitarian as garments, that it will ultimately be impractical to discern what is unique from what is just part of a trend.

“To say something is really new and deserves legal protection I think may be challenging,’’ Kurt Courtney, manager of government relations for the American Association of Footwear and Apparel. “A lot of fashion involves taking elements of past things, putting something together, and then making something new out of it.’’

A fashion copyright bill would set a standard that would protect designers from having their clothing and shoes knocked off by cheap imitators. Language is currently being drafted by Schumer’s office to specify just how similar an article of clothing could be to another before facing sanctions as an illegal knockoff. It’s this question of language that has held up previous versions of a fashion copyright bill in Congress.

Fashion logos are already trademarked - think Levi’s back pocket tab and Nike’s famous swoosh. Those logos are easy to protect because it is obvious when they are being imitated. But the unique design of a Michael Kors dress or a Stuart Weitzman wedge heel can be imitated with little recourse. Everyone from established designers such as Diane von Furstenberg to rising stars like Jason Wu have had their designs copied.

In recent months, Trovata, the late Alexander McQueen, and Balenciaga all filed lawsuits against lower-priced brand names including Forever 21 and Steve Madden for copying their looks. Trying these cases can be difficult because there are no current legal standards in place.

The fashion industry argues that this legislation is essential in the United States because young designers can easily be copied by bigger fashion houses or mass market stores, and lack the funds to defend themselves in court. In a letter to the Council of Fashion Designers, von Furstenberg wrote, “Starving artists, struggling writers and independent filmmakers all at least own the rights to their work. Emerging designers, however, remain vulnerable to knockoff artists who can steal ideas straight off the runway and produce copies before the originals even reach stores.’’

Because these knockoffs are legal, the council says that they can now be found almost anywhere.

“The morning after the Oscars or the Emmys, you have pirates sitting on the couch at ‘The Today Show’ talking with Meredith Viera about what Cate Blanchett wore the night before, and then saying they’ll sell a copy for $39.99,’’ says Steven Kolb, executive director of the council. “It really takes away from what designers are doing.’’

From dance to law
While it supports a fashion copyright bill, the footwear and apparel association, which primarily represents fashion manufacturers such Chico’s, DKNY, and Mackintosh, wants to make sure that the wording of any proposed legislation won’t be so strict that it will keep clothing manufacturers from feeling free to follow trends.
“We’re looking at a situation that could add cost or slow down the industry,’’ says Kurt Courtney, manager of government relations for the association. “That’s not something that’s attractive to us.’’

The fashion council has no problem with stores such as H&M, which translates runway trends into its own inexpensive designs (and often collaborates with major designers rather than knocking them off). The problem is when those inexpensive interpretations become nearly indistinguishable from the original.

Because both the council and the apparel association are currently working out potential language for the bill, both sides were hesitant to publicly discuss specifics of what it might say.

“A lot of people think the whole essence of fashion is being inspired by other works, and in that way, couldn’t you say that all fashion is about copying?’’ Suk says. “But everyone knows the difference between being inspired by something, and just taking something and creating a replica of it.’’
After some searching, I located Senator Schumer's bill, S. 1957, from the 110 Congress, in 2007, and a related House bill, H.R. 2033, sponsored by Massachusetts representative William Delahunt. In August, 2007, S. 1957 was referred to the Senate Judiciary Committee and appears to sit there still. H.R. 2033 was likewise introduced in the last Congress, in 2007, and referred to the House Subcommittee on Courts, the Internet, and Intellectual Property, where it appears to languish. It is possible that Professor Suk's article and the stir of the feature in the Boston Globe may restart these bills. (thank you, TinyThom.as, for the citations that will link to Thomas with a completed search!)

The image decorating this piece comes from a New York Post story here about high design shoe ripoffs, and the illustration shows how to spot imitation Jimmy Choo or other designer heels. The article tells how the Knockoffs rip off buyers and prey on child laborers in sweatshops around the world.

Sixth-Grader Organizes Reading Marathon in Support of Library

The Boston Globe has a story today about Calliope Pina Parker, an eleven year old student in Hull, Massachusetts who is a heavy library user. She was appalled when the local library funding was slashed so deeply that it cost the town its state certification last month. That means that her Hull library card can no longer get her interlibrary loan or library privileges at other area libraries. (if you go to the whole Globe article, you can also watch a video featuring Calliope herself).

“Now people from Hull can’t go to any other library,’’ said Calliope, whose card is no longer welcome at many other certified libraries.

Wanting to do something about it, the 11-year-old organized an all-day reading of the J.K. Rowling book that started it all, “Harry Potter and the Sorcerer’s Stone.’’

Yesterday’s readathon and bake sale, with wizardly cupcakes and “magic wand’’ frosted pretzel rods, raised awareness about the library’s circumstances and collected money for the nonprofit Friends of the Hull Public Library.

While keeping up with schoolwork at the South Shore Charter Public School in Norwell, Calliope found a location, publicized the event with fliers, phone calls, and e-mails, and organized a network of readers that extended well beyond her circle of friends.

The schedule of participants filled a grid that stretched across three poster sheets at the Weir River Estuary Center. It included the names of two selectmen, provided flexibility for drop-ins, and allowed readers to go at their own pace - some took a page, some half a chapter.

“It’s a great idea. Calliope really handled it herself. We were there to help her when she asked for it, but she really has put it together herself,’’ said Lindsay Clinton, a friend of Calliope’s mother, Jenn Pina, and a board member of Hull Performing Arts, which helps manage scheduling at the Weir River center.
Reading marathons are something of a New England tradition. The story, by Eric Moskowitz, tells how Calliope was inspired when she attended the New Bedford Whaling Museum’s annual reading of Moby-Dick, the oldest such event in New England. But there is also a Shakespeare marathon at Wellesley College, for instance, and a reading marathon of Homer's Odyssey at Tufts' Classic's Department.

The strict rules about participating in interlibrary loan and trading library privileges have a purpose. A town that funds its library at a very low level and relies on neighbors' collections for interlibrary loan and real use is like a leech. I would be very unhappy to feel like my town library was being taken advantage of by neighbors who did not pay their fair share. If they keep their own library at a reasonable level of funding, then I have no problems with lending from our collection and sharing seats with them.

Libraries are at huge risk right now as cash-strapped towns are looking everywhere for places to cut their budgets. Ironically, in this economy, libraries are also seeing more use from equally cash-strapped consumers who suddenly see how much better it might be to borrow a book than to buy it, or to borrow a movie, even, than to get it from Netflix. When you borrow from a library, after all, it's FREE. And the use of internet access and computers in public libraries is at an all time high. Reference librarians at public libraries are helping people look for jobs, help with mortgage problems and debt collection issues, in addition to the more traditional questions. And the lever of losing state certification is one small protection that public libraries in Massachusetts have to protect or regain their funding.

You rock, Calliope!

Saturday, March 06, 2010

Afghanistan backs away from attempted ban on media coverage of the war


It began last October with a ban by the U.S. military on embedded press photographing or filming soldiers killed in action. The story is here at the National Press Photographers Association website in an article by Donald R. Winslow dated October 14, 2009 for the News Photographer magazine.

...the U.S. military command in Bagram on Wednesday confirmed that is has [sic] banned journalists who are embedded with their forces in eastern Afghanistan from videotaping or photographing soldiers who are killed in action.

U.S. Army Master Sgt. Thomas Clementson, a spokesman for Regional Command East, told News Photographer magazine tonight that commanders in Afghanistan are "trying to strike a balance" with the new policy.

The change in the embed rules about photographing KIAs comes only a few weeks after a Pentagon uproar – raised chiefly by Secretary of Defense Robert Gates – after the Associated Press distributed a picture of U.S. Marine Corps Lance Cpl. Joshua M. Bernard when he was mortally wounded by a rocket-propelled grenade that was fired against him by insurgents during a battle in Afghanistan's Helmand province. (snip)

"The comments relating to imagery of wounded service members and service members killed in action are a change to provide clarification of previous rules," the Master Sgt. told News Photographer. "Media have multiple ways to cover the war in Afghanistan and embedding is only one of the choices available. The press retains the option to report independently or as a media embed with military forces. When a reporter chooses to embed they are given unique and intimate access to our service members in a combat zone, which requires certain limits and rules be established to facilitate coverage and protect our forces. There are cases however, when protecting the privacy of our service members and propriety take precedence over media access," Clementson said.

"It is important to remember that embedding is a reporter's choice and that embedded access does come with some limitations," Clementson said. He stressed for those who might object to the new embed agreement's ban on photographing KIAs, "Embedding is only one of the ways a reporter can cover this war. Many come in and do so independently. Some even informally embed with our enemy."
But then on March 2, the Afghan government, quite possibly somebody acting separately in security, issued a ban on live war coverage, on the basis that militants were using it to their tactical advantage on the battlefield. The link above is to a New York Times article, which includes a nice link itself to the Afghan Constitution in English, noting that it contains a clause guaranteeing freedom of speech, and that Afghan citizens have the right to access government information. The Times article, and many critics of the ban speculate that the ban is more about protecting the image of the Afghan government than about militants mis-using the reporting of battlefield reporting. The U.S. and Afghan media alike are protesting and are pressing the government to rethink the ban.

Radio Free Europe/Radio Liberty carries a story that even the Taliban has decried this ban as infringing civil liberties:
In a statement issued on March 3, the Taliban said it considers the Afghan government's March 2 decision to ban live war coverage, on the basis that militants were using it to their tactical advantage on the battlefield, "a flagrant violation of the recognized principle of freedom of speech."

"The monopolization of activities of independent mass media outlets by the Kabul Puppet Administration is a clear-cut violation of norms and regulation of neutrality, independence, and liberty of speech and has no justification in the light of national and international laws," the statement continued.

In releasing the statement, the group renowned for its oppressive rule over Afghanistan, added its own unique take to the upbraiding and expressions of concern Kabul has received from media watchdogs and foreign officials.

It also put itself in direct competition with Kabul's efforts to regulate the media, lauding "the courageous efforts of the fact-finding and investigative journalists, reporters, and photographers who continue their duty to reflect the ground realities of the Afghan issue despite threats and obstacles that they are facing in their way."

Farida Nekzad, editor of the Kabul-based Wakht News Agency, was among the representatives of Afghan media outlets summoned this week to the headquarters of the Afghan intelligence service, the National Directorate of Security (NDS).

In what she described as a "friendly" atmosphere, Nekzad was informed by a senior intelligence official that she and her fellow journalists in the country would be working under severe restrictions when it comes to reporting on the ongoing insurgency. "He said that the electronic media should be very careful while covering suicide attacks, or the type of attack we recently witnessed," she says.

Nekzad adds that she was told that the media should not provide live coverage of insurgent attacks "because it raises concerns among people, [and that] insurgents or terrorists can benefit from such coverage."

In officially announcing the decision during a press conference later that day, presidential spokesman Wahid Omar addressed rapidly increasing criticism of the move at home and abroad by saying the new guidelines had not yet been drawn up, and promising they would not amount to "censorship."
I was alerted to the story when I heard the NPR program, On the Media which reported a ban on coverage of terrorist attacks while they are ongoing or within 24 hours, as well. Again, U.S. and Afghan media are pressing back on the government policy. In this online story, there seemed to be some hope that the Afghan government was blaming the policy on security department heads and was rethinking the ban. The decoration for this blog post is from the NPR post.

Friday, March 05, 2010

March Madness: Decision Tree for Google Books Project

Wow! That's all I can say about the loving job somebody did on this amazing decision tree, or flow chart, depicting the possible futures for the Google Book Project. It's beautifully done from the LibraryCopyrightAlliance.org, and you need to enlarge it when you go there, so you can read all the various possibilities. But it's real, and it's very well done, from the Fairness Hearing onward, there are the possible outcomes rippling outward.

Class Action over Google Buzz


Google Buzz, the new attempt by Google to bootstrap its Gmail accounts into a Facebook-like social media effort, has already generated two law suits over privacy issues. The earliest class action was filed in San Francisco in front of the Federal Trade Commission. See also this story in the San Francisco Chronicle. See this link for the complaint in PDF. And here is a supplement to the original complaint.

A second class action law suit was filed in federal district court by a second year Harvard law student. Google has posted a blog statement in response at their gmail blog. Google has also responded by making changes to Google Buzz, which they detail in this statement.

See helpful posts from Download Squad blog:
How to turn off Buzz & delete your profile, and

Complete coverage of Buzz at DownloadSquad.com

Thursday, March 04, 2010

SSRN Question

My school is contemplating subscribing to SSRN's Research Paper Series (RPS). We already have a significant number of articles by faculty members on SSRN, but an RPS would allow us to "brand" our scholarship and create our own working papers series as well as take advantage of other features we can't use now. This enhancement would not be cheap, but the cost would be worth it if, as SSRN states, it leads to an "increase in readership" for our faculty scholarship.

I see that many law schools do have an RPS. Do those of you whose schools have one find that the readership of your faculty's scholarship has increased since it was established? Was the investment worth it? Is it the academic equivalent of a vanity license plate, or does the RPS promote downloading of faculty scholarship?

I look forward to comments on this issue from OOTJ readers.