Black History Month in the Court Law Library

The Brooklyn Supreme Court Law Library is participating in the Court's Black History Month celebrations by demonstrating the value of the Library's collection. We assembled a book truck with historical print materials and print outs from HeinOnline's historical slavery treatises. Announcements posted in the court house have brought in new users and alerted frequent visitors to our valuable materials.

On the book truck we put the complete run of the Race Relations Reporter. This publication published by Vanderbilt University with the aid of Ford Foundation funds tracked the legislative and judicial actions implementing Brown versus Board of Education. We also put out two volumes from the American Trials set highlighting the trial of the Lincoln conspirators and a trial of a Methodist minister accused of preaching freedom to a racially mixed congregation.

For Bring Your Child to Work Day, I will show the children that instead of Googling, they can go to a library and find encyclopedias and indexes.

Small efforts like this promote the Library and develop new patrons. It has introduced me to some wonderful judges who are involved in writing and history.

Information Wants to be Free

One of my heroes is Carl Malamud, the founder of Public.Resource.org, whose website makes available government information at no cost. I have to say I find the website somewhat hard to use (it's not particularly user friendly), but I applaud the intent behind it--the dissemination of legal information whose creation was funded by taxpayer dollars. Mr. Malamud has recently turned his attention to Pacer, according to a story in today's New York Times. Pacer (Public Access to Court Electronic Records) is run by the government and is notoriously awkward to use; what's worse, it is fee based--8 cents per page to access records that are not copyrighted. "Recently, however, a small group of dedicated open-government activists teamed up to push [Pacer] into the 21st century--by simply grabbing enormous chunks of the database and giving the documents away, to the great annoyance of the government." Court documents can be extremely voluminous, and the 8 cents per page add up--Pacer runs a budget surplus of about $150,000,000. Mr. Malamud was able to put up Pacer documents by encouraging "fellow activists to go to ... libraries [that were hosting a free trial of Pacer], download as many court documents as they could, and send them to him for republication on the Web, where Google could get to them." One activist was able to download about 20% of Pacer before the the government "suspended" the Pacer pilot program. President Obama is on record as supporting open government, and it will be interesting to see if this translates into free access to government information under the Obama Administration.

CILP Rolls back prices to 2005

This just in: Penny Hazelton, for the Current Index to Legal Periodicals says,

I know we are all worried about how to maintain the quality of our collections and services in light of our uncertain economy.

We have decided to roll back our price for electronic CILP to 2005 levels or $696 for the coming year.

As with any vendor, we have expenses to pay. We are trying to reduce these to give you the best possible price we can.

Any other vendors willing to follow suit?

Microsoft sets a bounty on the guys that created the Conficker Worm

The Conficker worm, also known at the Downadup, Downup, or Kido virus which targets Windows computers, has become such a significant threat that Microsoft has set a bounty on whomever created the virus. Click on the title to this post to read a full report at Network World (you may have to click past an ad to get to the article). But briefly,

The money will be paid for "information that results in the arrest and conviction of those responsible for illegally launching the Conficker malicious code on the Internet," Microsoft said today in a statement, adding it is fostering a partnership with Internet registries and DNS providers such as ICANN, ORG, and NeuStar as well as security vendors Symantec and Arbor Networks, among others, to stop the Conficker worm once and for all. (snip)

Conficker, also called Downadup, is estimated to have infected at least 10 million PCs. It has been slowly but surely spreading since November. Its main trick is to disable anti-malware protection and block access to anti-malware vendors Web sites.

But security experts are concerned about a potentially much worse second stage of the Conficker worm, as it calls home each day to more than 250 command-and-controls servers around the world as it awaits instructions on future downloads or actions.

"The policy we have here is to target the update mechanism," says Gerry Egan, director of product management for security products and response at Symantec, a member of the stop-Conficker coalition.

While the unique domain names for servers used for Conficker control may constantly change on a daily basis, the anti-Conficker coalition anticipates that by the major domain-name registrars working in collaboration, it may be possible to "take out those domains," or otherwise interfere in the smooth flow of the Conficker operations, says Egan.

A Microsoft spokesperson says Conficker is trying to download malware from these domains and it also uploads infection counts to these domains, but this is not a new trend. A large percentage of these domains are being blocked from being registered. Secondly, a number of the domains are being redirected toward "sinkhole" servers that are owned by trusted research partners around the world. Sinkhole servers allow researchers to observe the worm’s activity, according to Microsoft.

Apparently the malware has spread much more in Asia than in the U.S. so far, but it is beginning to show up here. There is a patch for Windows that was distributed in October, 2008. If your work or home computer is not automatically updated with Microsoft patches, now would be a really good time to update your Windows!

Geez. Boycott Nordstroms

If this story from Cato Institute, related at Information Week's Global CIO's Weblog is true, people should simply make a point of boycotting Nordstrom and tell them why:

Witness the story of Beckons, an organic yoga and lifestyle clothing business founded in 2006 by two women in Colorado. Around the time they began selling their "Beckons" clothing line in July of that year, Ann Sather and Becky Prater filed for a trademark on the word "Beckons" associated with pants, shirts, T-shirts, shorts, dresses, sweatpants, and jackets. PTO registered their trademark in June 2007. Ann and Becky have been business partners for 20 years, designing and selling clothing lines while raising their children. They each have two children in or nearing college.

After Ann and Becky filed, but before their application was published, the Nordstrom retail chain filed applications for a trademark on the word "Beckon," planning to use it as a house brand on women's fashion apparel and accessories. The similarity between the two words and the identity of the product lines would have required the PTO to reject Nordstrom's application, but it didn't. Somehow, the examining attorney missed the fact that "Beckons" already was a registered trademark associated with clothing. He approved Nordstrom's applications for publication.

So instead of continuing to build their business, Ann and Becky found themselves hiring lawyers to file an opposition to Nordstrom's trademark applications, something they had to do to protect their mark. Because they were first to file and first to use, the law unambiguously gives them the right to their trademarked term "Beckons" and anything similar. But trademark law and trademark practice are two different things.

With 169 stores, a line of restaurants, and its own bank, $2.75 billion Nordstrom Inc., decided to show Ann and Becky who was boss. Instead of recognizing that the trademark they wanted was taken, Nordstrom's lawyer moved to cancel Ann and Becky's trademark. He argued that their Beckons mark only refers to "yoga clothing." His filing moved the issue to the Trademark Trial and Appeals Board and ramped up the paperwork and legal bills for Ann and Becky."

(the blogger, Bob Evans, continues:At that point, Harper writes, the Patent & Trademark Office lawyer handling the case became aware of his error, and told the TTAB that the Nordstrom applications should be sent back to him for resolution. That was done, and the attorney turned down the Nordstrom application for "Beckon," offering a (temporary) victory to the two women holding the "Beckons" trademark.

However, 10 days after that PTO lawyer turned down the Nordstrom application, the big retailer filed papers saying the two women had "abandoned rights in Beckons," Harper wrote, which sent the case back to the TTAB and triggered another round of legal machinations. And even though the TTAB dismissed this second attempt as "duplicative," the Nordstrom legal assault on Beckons goes on: "Today, Nordstrom's effort to cancel Ann and Becky's trademark is on the TTAB docket on a schedule that will take until at least mid-2010 to resolve."

Harper's newsletter offers a poignant excerpt from one of the business partners to the commissioner of trademarks: now back to the Cato Institute newsletter)

"We filed for a trademark so that we could reasonably secure ourselves from someone else using that name. If your office cannot protect us from this, why would we, or anyone, file an application? The law is supposed to be accessible to all people. Just because Nordstrom has money and we do not does not give them the right to use the name for which we have the trademark. . . . [T]he cost to work through the TTAB will easily exceed $70,000 just to fix the problem The Trademark Office made in the first place. We understand that we must stand behind and police our trademark. How is this possible for a small company to stand up to a behemoth like Nordstrom for $70,000? Your office has ensured our demise."

Invisible

A few days ago, I had an interesting experience. I carried a cane to work with me. There has been a good deal of ice and snow and slush. I carried the cane more as a preventive measure – to prevent a fall, than because I actually have a bad leg right now. But there have been people in front of our building for some weeks gathering signatures on various petitions – ecology issues, mostly, and they catch law students and faculty as we enter or leave the building. That day, with the cane, I seemed to be invisible to these individuals. It was a very interesting experience. I usually have to duck them.

It has happened to me once before, when I wore a neck brace. A colleague, who knows me enough to ask for library services, completely ignored me at the elevator and would not answer me when I said hello. It was very strange. In both instances, it felt a little like being invisible. I wonder if it is discomfort with a disability in others, or fear of not knowing what to say or how to react, that made people react in such a strange way. I imagine this is a small dose of what a person in a wheelchair or who is blind or has some other striking impairment must run into on a regular basis.

I was thus, all set to blog self-righteously about how it feels to be made invisible. I was recalling how angry I felt as a child to be overlooked as I waited in line to pay for items at a store, and adults were waited on first. I was rolling up a big sermon, full of wrath and fury. But then, I opened the March (how can that be?!) issue of Discover Magazine, and looked at the Brain feature. Sadly, you cannot get the March issue online yet – I will try to remember to link to this article when it becomes available online.

The entire issue is focused on Darwin and his theory of evolution (because it is both the 200th anniversary of Darwin’s birth and the 150th anniversary of the publication of the book, On the Origin of Species. The brain column picks up the idea that our aversion to strangers and those who look ill may be an evolutionary adaptation to avoid illness. Our brain has adapted our behavior to avoid infection in the first place, as an improvement over adapting our immune systems to battle bacteria and viruses.

So, in one column, all my outrage has been wiped out by the theory of evolution, wisely adapting to help us avoid smallpox. If I lived before vaccinations, my ill-advised tendency to approach the ill and halt would probably have killed me early, according to this theory. Hmmm. I still think we need to reach out. After all, now we have soap, anti-biotics, vaccinations and other modern health care. We have less excuse for prejudice.

Follow animal rights law suit on Twitter

You can follow news of an animal rights law suit, on behalf of elephants in Ringling Brothers, Barnum & Bailey circuses, on Twitter, by following BornFreeUSA. You can link by clicking on the title to this post. If you are already registered in Twitter, log in, and then click on the link or search for BornFreeUSA and choose to follow. Otherwise, you can go to Twitter and register. Then, follow the instructions.

Other events that have been posted on Twitter include the plane that landed in the Hudson River recently, the terrorist attacks in Bombay (in both of these cases, regular folks at the scene with PDAs or at desks with computers or laptops tweeted what they were seeing live -- 'way ahead of professional news), and the Mars Rovers (NASA tweeted the Rovers' results). Cool, huh? They just released the transcript of audio tapes from the Hudson River plane crash and folks are Tweeting that even as I blog.

You can search real time on Twitter. Go to the bottom of your Twitter page and click on search. You can also enter a phrase in your regular twitter window with a pound sign (#) in front: #marsrover and if anybody is tweeting that at the time, it will bring it up.

Deconstructing the Rankings

"Using Foucault to Deconstruct Rankings," an article published today in Inside Higher Ed, highlights a new study published in the American Sociological Review. The article, entitled "The Discipline of Rankings: Tight Couplings and Organizational Change," "demonstrates the value of [philosopher Michel] Foucault's conception of discipline for understanding organizational responses to rankings." (This quote is from the abstract). According to the authors, law schools make a good test case for their theories because the law school world is relatively small.

Extensive interviews with law school deans and other administrators were conducted. It won't be news to anyone who has worked in legal academia to read that rankings skewer how resources are allocated. Deans describe themselves as being "obsessed" with rankings. As faculty members, they tended to pay less attention to the rankings; however, once faculty members became law school deans, they felt compelled to focus on the U.S. News rankings. It is no wonder that law school deans feel a high degree of stress, as reported in this post from WSJ.com. In addition to worrying about the rankings, dean also have to spend huge amounts of time fundraising.

State Tax vs. Commerce Clause in Massachusetts

The Boston Globe reports this morning that a case before the Massachusetts Supreme Judicial Court will test whether the state can pursue sales tax on large appliance and tires sold to Massachusetts residence who cross the border into nearby states like New Hampshire to avoid state sales tax. The Council on State Taxation, a not for profit organization representing corporations with multi-state and international operations, is very interested and may file friend of court briefs. b

Town Fair Tire Centers is incorporated in Connecticut, but has 25 stores in Massachusetts. It has six stores in New Hampshire. In 2003, Massachusetts investigated and found more than 300 Massachusetts residents had recently bought tires in New Hampshire Town Fair Tire Centers, presumably in order to evade Massachusetts state sales tax. Based on that audit, the state assessed Town Fair Tire more than $100,000 in use tax (a 5% tax on items to be used or stored in the state of Massachusetts) that should have been collected on behalf of the state, arguing that Town Fair knew or should have known that they were selling tires to Massachusetts residents. New Hampshire merchants who sell to Massachusetts residents over the internet are required to collect a sales tax. And if a Massachusetts resident orders items at a multi-state chain store for pick-up in New Hampshire, they must still pay sales tax, per a decision in the 1990's against Circuit City, the recently bankrupt electronics chain.

The state has ordered Town Fair Tire Centers to charge Massachusetts residents state tax, even when they buy tires from one of the New Hampshire stores. Town Fair has filed suit, arguing that the order violates the Commerce Clause of the federal constitution. The suit will be heard next month in the Supreme Judicial Court. The outcome will have huge ramifications for stores like Sears, BestBuy and others, with multi-state stores. I imagine that other states will be watching as well as state residents who like to save the sales tax by crossing the border. Massachusetts is facing a huge budget deficit and is looking hard for ways to close that gap. Meanwhile, residents also face their own budget deficits and are looking equally creatively for ways to make their money go farther. This will be a hotly contested and much-watched argument.

Those interested can watch the oral arguments in the case by clicking on the Supreme Judicial Court link above. You have a choice to watch live or an archived version. Briefs have to be gotten through Westlaw now.

Print Law Reviews

Many law libraries are having to confront serious budget issues as a result of the economic recession. I don't know any library that is totally immune from financial pressures. Some libraries have dropped subscriptions to print law reviews, knowing that they are made available fairly quickly through LexisNexis and Westlaw, and are eventually available through HeinOnline as well. We haven't yet made the decision to cut print law reviews, although we have stopped binding them as a cost-cutting measure and because preservation issues do not loom so large when we have access to the law reviews over reliable electronic databases. A new study by Ross E. Davies, editor in chief of the Green Bag and a professor at George Mason University School of Law, is available from the Social Science Research Network. Professor Davies's purpose was to document whether some of the leading law reviews' circulations had declined, and he looked at their circulation figures over time. While some law reviews did comply with the requirement (including Harvard Law Review, whose circulation fell from 8,760 in 1979-80 (about the point at which LexisNexis and Westlaw began including law reviews in their databases) to 2,610 in 2007-08), he found that a number of law reviews were not complying with the U.S. Postal Service requirements to publish their circulation numbers. There is a pithy article in today's issue of Inside Higher Ed that discusses Professor Davies' study and speculates as to why the law reviews might be reluctant to disclose their circulation figures. "Does the underreporting of the numbers reflect an 'unwillingness ... to confront the possibility that a drop in circulation might be connected to a drop in influence or status[?]' Davies wonders." He also questions whether it is possible that the influence of law reviews is growing because of their wide availability in electronic format, but concludes that it is impossible to know. Given the decline in subscriptions to print law reviews and the well-known preference of users for information in electronic formats, wouldn't it make sense for law schools to publish their law reviews exclusively on the Internet at no charge?