Dystopian views

I've been having a chat with my brother-in-law via e-mail. He used to be an EMT til he blew out his back -- twice. He finally had to quit, though. But he still remembers with a good deal of outrage the things he saw on that job. And I guess I remember the things I saw at my job as a legal services lawyer. It's kind of funny how close we are on so many details and yet we wind up on opposite sides in the final analysis. I am reminded of the recent research that seems to show that people's tendency toward liberal or conservative (though neither of us in quite so neat in our political slotting) seems to be pretty much biologically based, not a product of rationality or philosophy.

At any rate, John thinks it would be an excellent solution to the problem of the "welfare lifestyle" to link eligibility for benefits to a system that both tests for drugs and is tied to a job application tracking system. If somebody applied for a job, was offered the job and turned it down, they would be ineligible for benefits. If they tested positive for drugs, they would be ineligible, of course.

I can see right away how this would twist in the real world. Number one, it does not touch alcoholism. Number two, people would immediately begin learning how to "game" the drug testing, and paying each other to take the urine and blood tests for them. There would be this whole black market for test takers, I imagine if the system were not tied to fingerprints right away.

But what are you going to do to support the children of the drug-addicted parent? Are you just going to let them wander the streets begging for food? This is where the whole plan runs off the rails. Because you have the innocent children squeezed in all this. So you get programs like food stamps and WIC, Temporary Assistance to Needy Families, etc.

The other thing that just grabbed me was the thought about what if your turned down a job offer, and that blocked you from all welfare programs? If it was just set up like that, with no nuances, it could be such a cruel system that could be so abused by employers! If there were really dangerous jobs, like a coal mine that had no safety precautions, totally unregulated -- you'd be crazy to accept the job -- a death sentence! And yet, if there were no other jobs open to you in your area, and you turned down that job, you would be totally screwed in terms of welfare benefits for you and your family! Talk about a captive labor market!

You don't think business would take advantage of a change in the law like that?

Image of 1984 cover art from http://spacekimono.wordpress.com/about/ blog post about author George Orwell.

Hell No! I won't dye!

For some years now, I have been noticing colleagues at my law school gradually darkening up their graying hair. Grecian formula? Whatever!

I had thought I was in the last stronghold where it did not matter, or in fact, might be a GOOD thing to be GRAY! I watched my younger sister struggle with dye. I listened to people moan about how once you started dying, you were trapped because of the ugly problem of the roots growing out gray with the dark ends. I really, really felt so lucky to be in academe where there just wouldn't be any of those commercial pressures to dye my hair.

So, why am I seeing all my colleagues dying their hair? Men as well as women?

Ageism is rearing its ugly head here, I fear.

There has been a problem with deadwood on the faculty. And then sloppy thinking has begun to equate deadwood with age. This is patently not the case. We have several older faculty who are paragons of ultra-high quality and output in all three: teaching, scholarship and service. And, like a bell curve, we have a number who are quite good quality. But the perception in some quarters has been that it is only younger faculty who are teaching and doing scholarship!

I also think that the murky politics of this place play into the mix, because Old Hands seem threatening to Current New Hands in some ways. It doesn't have to be that way, IMHO. So, old seems bad in that way, too, and that gets mixed up in people's thinking and then gets slopped into the mix of how everybody gets judged.

I am, by the standards of my school, a relative new-comer. I am, by the standards of the Social Security Administration, not near retirement.

And yet, I have a great deal of white and gray hair. I really like how it looks by the way. I would say my hair was silvery if it didn't sound twee. I am very fortunate in the way my hair has grown and the way it has come in gray. I have no intention of dying it, and I very much resent what is beginning to feel like pressure and prejudice.

If people were to be as judgmental about peoples' skin color as they are being about people's hair color, that would be racism. What is this about the pressure to color over all the gray in our hair?

I began to think about this when I had a very interesting conversation with a student who had an internship in Cambodia. He ended up having a conversation with the Justices of the Cambodian Supreme Court. I asked if they wore wigs. He said no. That the way they denoted their wisdom in that culture was that they had moles with hairs growing out of them. And they just let them grow really, really long, and that was a sign of how old and therefore how much wisdom they had accumulated.

I thought "Wow!" Would that not be a more relaxed culture to age in?! Wouldn't that be more accepting and actually really honor age as accumulating wisdom!?! I do think I am wiser now than I was at 20, 30 and 40. My reflexes are slower. But I know a lot more about how the world turns. I know a lot more people, too. I have contacts all over the law library world! That should be worth something to my law school as well.

At any rate, I will not dye my hair.

Trawling The Invisible Web

Here is something I try to teach my students about searching the Internet. Librarians know that:

* It's not all on the Internet. AND

* You can't even find everything on the Internet with search engines.

Google (and Bing, Yahoo, etc.) can't search things that are in databases or tables on websites. That's a LOT of valuable data! There are websites that don't allow crawling. This vast trove of really rich stuff is called the Invisible Web.

Here are a few of my favorite tips for searching those depths:

1. Think about organizations that might generate reports, maps, statistics on your area. Governmental, NGOs, not-for-profit organizations all generate huge amounts of very worthwhile data! Occasionally, it may be biased, but even so, if you keep the bias in mind, it can be worth using the information, warily!

1.a. To locate organizations in your topic area, a good method is to go to Wikipedia, and search for a keyword or N.G.O.

"environmentalism" or

"Education"

"non-governmental organization" (pulls up a list of search results)

all will pull up at least one article, and sometimes a list of articles. There were always choices when I selected the link I chose for this blog post, so you may want to enter the term and search rather than simply link. Wikipedia's strength is the list of links and references that you can use to locate organizations and websites. The list may help you locate important organizations in the field that you would never have thought of or perhaps have heard of, without the links.

You should use your judgement about the quality of the website. Look for some link "ABOUT US," or something like that. Read about the organization, its mission and who founded it. Sometimes you will discover wonderful organizations that you never heard of that are doing important work and generating fabulous, reliable information while they are doing it. For U.S.-based organizations, you can look at the materials they file with the I.R.S. to support tax-exempt claims, which may help you decide how legitimate they are. For international and foreign organizations, you wont' have that sort of form to rely upon.

So, for instance, using this technique, one locates at the bottom of the Environmentalism article a list of Environmental Organizations and Conferences. One locates a list there of many United States-based groups, in addition to many United Nations links. One can flip through these fairly quickly, looking always for signs that there are reports, publications or a database on the site. Many of the organizations are set up solely as advocacy groups and so the websites simply trumpet the dangers, the organizations' claims of results and solicit donations. The researcher can skip over these. By skipping down, one finds the Wildlife Conservation International, and looking at that website, one notices a link to ICCF, International Conservation Caucus Foundation, a U.S.-based, bi-partisan foundation that lobbies the Congress on behalf of conservation issues. It has what looks like some excellent briefing material that it produces to give to Congress. I recognize the logos of the Smithsonian Institution, and the Audubon Society among others as sponsor/authors of some of these materials. It's an interesting and deep looking collection.

2. Do look for governmental information. Don't forget to look at the URL extensions, for that .gov to show you it's a government agency of some sort. The U.S. federal government and many state governments publish helpful materials. There are foreign government materials that can be helpful as well. Thus, the U.S. Federal Trade Commission, to pull an agency out of the hat, at this point in time, provides a good amount of primary law on the website. Look a the tabs along the top of the page for an easy way to navigate the site. I chose the General Counsel's office, to show simply because it includes amicus briefs, statutes, policy hearings, and more. Here is a web page with the British Foreign Office, their "Working For Us" page where you can find out about jobs there.

3. Multi-national, consortial, and non-governmental bodies like the United Nations (and all of its many, many subsidiary organizations, which often generate databases, reports, maps, and wonderful data). Here is their Environmental Programme page for Climate Change. Examine the many tabs and then the index at the bottom. They have so many links there, some of which lead to publications, databanks and rich statistics. You have to take your time to explore.

4. There are lots of wonderful quasi-governmental bodies, like the National Conference of State Legislatures, a bi-partisan N.G.O to serve the legislators and their staffs of all 50 states. They help set up agreements between states, do research on shared issues, as well, so there is a lot of information at this website.

5. And do not overlook the huge variety of not-for-profit and other organizations. From the National Rifle Association, with "News and Politics," focused on the Second Amendment, and offering their analysis and commentary, to the National College for DUI Defense (I don't think this is not-for-profit) which trains defense lawyers, and provides a very handy list of the DUI laws state-by-state. Sometimes you stumble over these things. I found the DUI college through Wikipedia again, preparing a worksheet for students!

The image is an underwater cave, courtesy of a scuba diving website: http://www.dailyscubadiving.com/deep-diving-an-introduction/

Eagle Scouts Protest BSA Policy Banning Gays

The Boy Scouts of America announced on July 17, 2012 that the organization would continue its policy of excluding individuals - both youth Scouts and parent leaders - who identify as gay or lesbian. Here’s the statement from the BSA Chief Executive:

“The vast majority of the parents of youth we serve value their right to address issues of same-sex orientation within their family, with spiritual advisers, and at the appropriate time and in the right setting,” said Bob Mazzuca, Chief Scout Executive, Boy Scouts of America. “While a majority of our membership agrees with our policy, we fully understand that no single policy will accommodate the many diverse views among our membership or society.”Link to full press release

The Boston Globe on August 27, 2012 ran an in-depth story about Eagle Scouts protesting the Boy Scouts of America policy banning gays from the organization. Many Eagle scouts are returning their hard-won Eagle Scout badges. But several are organizing others using the Internet and Facebook to take more useful steps to protest the policy. The step of returning a badge is remarkable and heartfelt gesture -- my eldest brother is an Eagle Scout and I know how hard it is to gain that title. A scout must earn 21 merit badges and then lead a major community service project (recruiting, motivating and directing a number of other volunteers in the process). I have received one C.V. with Eagle Scout listed as an achievement and it certainly made me sit up and take notice. I am sure it is a qualification that makes a difference in a guy's resume for any job.

The scouts who return the badge in protest do so because they feel the Boy Scouts of America have betrayed the values enshrined in the badge: honesty, trustworthiness and tolerance, top among them. According to the Globe article,

Jerry Hegarty, the scoutmaster in Reading, said that many of his Scouts do not support the policy on gays.

“It’s at odds with some of the points of the Scout oath,” he said, and, by sending back their awards, Eagle Scouts are “exposing an archaic perspective on certain policies.”

He added: “I’m not disappointed in them. It’s to be applauded.”

Leo A.P. Giannini, who became an Eagle Scout with Troop 1 in Pittsfield in 2005, called the policy a “serious contradiction” of Scout teachings. (snip) Another scout, Bill Thomas, who became an Eagle Scout in 2003 with Troop 702 in Reading, added: “The first point of the Scout oath is “Trustworthy” and they’re not allowing people to be open and true to themselves and true to others.”

Giannini and Eagle Scout and activist Zach Wahls have created a website, Scouts for Equality, where people can share videos, sign a petition and donate. This also links to Change. org. More than 475,000 people have signed two different petitions on the site. One is a petition asking BSA to allow the Board to vote on whether they want to end the ban on gay scouts and leaders. That petition has garnered nearly 150,000 signatures The other petition, by far the most popular, has received 328, 725 signatures as of 5:30 PM EST today, and requests the BSA to reinstate a cub scout leader who was removed for being openly gay. This was Jennifer Tyrrell, a den mother from Ohio.

Many of the scout protests have showed up on social media sites like Facebook. One scout went through the Gay and Lesbian Alliance Against Defamation GLAAD, which has begun collecting petitions. There is a Tumblr site, Eagle Scouts Returning Our Badges. You should read the open letter there to understand how at least one scout feels about the hypocrisy in this policy. There are 150 letters so far affiliated with this site. There are also links to 8 articles from around the U.S. covering Eagle Scouts protesting the policy by returning their badges, the oldest appears to be from July 25, 2012. Another is from the Atlantic. There is another social media site linking Eagle Scouts protesting the policy on Boing Boing. The letters are both brave and heart breaking. These guys learned how to be leaders and they are leading! It's hard to count, but at least 12 letters here from Eagle Scouts sending back their badges. And the best explanation of what it means to be an Eagle Scout.



The decoration for this page is from the Tumblr site, Roger Chenard's letter and returning memorabilia. http://eaglebadges.tumblr.com/page/2 (scroll down to Aug. 13, 2012). I have to admire the heck out of these guys' principles!

Next threat on the Internet Horizon: Watch the World Conference on International Telecommunications (WCIT)

The World Conference on International Telecommunications (WCIT)is a global treaty conference hosted by the International Telecommunication Union where the national governments will be coming together to discuss and modify the International Telecommunications Regulations (ITRs). The Conference will be held December 3 - 14, 2012 in Dubai.

The fear is that the ITU which are calling the meeting and planning the update of the regulations are less than transparent and are in the pocket of copyright/IP lobbyists.
(see blog posts at Electronic Frontier Foundation here, and here and from Milton Mueller for the Internet Governance Project here.

According to the EFF, the ITU is inimical to the Internet's model and ethos:

the International Telecommunications Union (ITU), a bureaucratic agency made up of 193 member states and corporate “associate” members that include some of the world’s most powerful telecommunications companies. When it hashes out treaties, the ITU epitomizes many of the worst traits of Internet policymaking -- it is an exclusive, government-directed process that is hostile to the distributed decision-making model that has fostered the Internet’s growth. (snip)

One dangerously problematic provision in the ITU Constitution, [f]or example, includes a State’s "right" to stop or suspend access to telecommunications services in order to address any communication that is dangerous to state security. In other words, the ITU Constitution permits “kill switches”— it allows governments to cut off the lifeline of communications networks in times of political protest, as the world witnessed states doing during the recent event in Egypt and Libya.

In an effort to remain relevant, the ITU has already issued a number of technical standards (ITU-T) and reports relating to various aspects of Internet policy, including on cybersecurity and cybercrime. However, these have not been binding, nor have they witnessed broad adoption or been elevated to the level of international regulations.

This coming December, the ITU’s underlying core regulatory instrument, the International Telecommunication Regulations (ITRs), will be revised at a gathering of global governments known as the World Conference on International Telecommunications (WCIT). This meeting is particularly significant because it’s the first time the treaty will be revised since the Internet was widely adopted. And given concerns about the problematic Internet-related provisions already in place, considerable attention has been directed at the ITU’s upcoming meeting in December, when its 193 member states intend to vote on whether to regulate certain aspects of Internet policy at an international level.

Just as with other international treaties or trade agreements, the International Telecommunication Regulations (ITRs) are legally binding on all the ITU’s Member States. This means that while it’s still up to lawmakers to decide whether, or to what extent, they should implement the updated ITRs into domestic law, democratic countries, including those with weak democratic institutions or a lack of robust advocacy organizations will be more likely to adopt any flawed provisions that make their way into the treaty.

This will bear watching and the folks who care about Internet growth and health being ready to lobby their legislator

Accessible Publicly Funded Research

The Chronicle of Higher Education, in a lengthy Hot Type article by Jennifer Howard, "A Push Grows Abroad for Open Access to Publicly Financed Research," covers a lot of interesting territory.

In Britain, the Finch Group Report recommended methods to broaden access to published research. David Willetts, British minister for universities and science announced that the government had accepted nearly all the Finch Group's recommendations. They then issued a Research Councils UK Policy on Access to Research Outputs. In exchange for publishers making individual articles available on Open Access (OA), the policy agrees that publishers should be able to charge extra money added onto subscriptions. The policy has been criticized by Stevan Harnad from the University of South Hampton (see keynote address), posted by the speaker at SPARC OA in Google Groups.

The European Union, on July 17, 2012, announced that it would make open access "a general principle of Horizon 2020" which is their framework for supporting research and innovation.

Denmark actually had their group of government councils make a statement strongly in favor or Open Access in June, 2012.

In Australia, Aidan Byrne, the new head of the Australian Research Council has spoken to newspapers claiming a "particular interest" in Open Access. This is a turn-around from his predecessor, Margaret Sheil, who "dismissed repeated calls to embrace open access," according to the Chronicle article.

The Chronicle article is definitely worth a read, but my link will probably require you have a subscription to read it online. If you want to find it in print, it is at page A10, of the Aug. 17, 2012 issue of the the Chronicle. It takes up just one newsprint page.

The Open Access logo on this page was featured at Eloquent Science blog in a post about Open Access.

ABA won't be accrediting non-US law schools

According to the Chronicle of Higher Education, the ABA has turned down a request from the Peking University School of Transnational Law for accreditation. In the process, they made a policy decision not to begin accrediting non-US law schools.

Vote Fraud! It's real -- but not the way the Republicans expected.

Whoopsy daisy! While there are all these stories going down about the new statutes various states are enacting the try to stamp out supposed voting fraud (see the Republican National Lawyers' website about voter fraud -- but be sure to read the little headlines carefully, because they are not scaring up much news about the sort of voter fraud these statutes are designed for).


Voter fraud involving individual voters seems to be pretty ephemeral and rare (just 10 cases in the last 12 years, nationwide).

Surprise!

There was vote fraud going on right here in my Massachusetts backyard.

Yup.

It's true. (Another story from local station WGBH) with more detail.

But this vote fraud shoe is on the other foot. An employee in the town clerk's office for the little town of East Longmeadow appears to have changed hundreds of residents' voter registrations from Democrat to Republican, without their request or any notice to them. Then, he issued forged ballots in these folks' names, trying to throw the Republican primary in his own favor.

This story link does not explain, but the whole sorry mess came out when the excellent staff for this clerk's opponent did some investigation after the primary ran. They were surprised at the outcome (though she did not lose, it was closer than expected). So they did some careful exploring, and found enough suspicious stuff to call in the Secretary of State. There were die-hard Democrats, members of the local party apparatus, whose voter registration was switched to Republican. When the individual voters were contacted, they had certainly not requested a switch and knew nothing about, and had not voted in the Republican primary.

Meantime, here is a helpful database about voter fraud put up and maintained by a large group of independent reporters, who have tried to verify the thousands of reports of voter fraud, and only found 10 that were actual, verifiable fraud by voters. They also include lots more great info, tracking cases, and allowing you to sort by type of fraud, or search by name.

Gary Trudeau, in his Doonesbury comic, has been riding this voter fraud/vote suppression activity hard, lampooning it and drawing devastating parallels to the Jim Crow laws we thought we had left behind with his character Jimmy Crow

.
Cartoon courtesy of Garry Trudeau's Doonesbury at Slate.com

Right of Publicity Laws

The Boston Globe had an intriguing article in the Ideas section today about a bill pending in the Massachusetts legislature enlarging our current right to publicity: "Life, the aftermarket: New laws to protect celebrities push the bounds of what part of a human life can be considered property." (I gave the title and subtitle from the print Globe. Online as you will see, the title is "Who owns you after you die? A Massachusetts bill opens a window onto a shifting corner of the law.) According to the article by Leon Neyfakh, comedian Bill Cosby, a Massachusetts resident, became concerned about the possibility that his likeness might be used after his death to promote products or ideas he would never approve of. He asked his state legislator to sponsor a bill that would allow celebrities and regular residents alike to protect their images, names, speech patterns and various "signature affectations" even after death. This is a form of Right to Publicity Law (the article does not say so), and so far 13 states have extended the right to control an individual's publicity to post-death, according to Neyfakh. His article focuses on the philosophical issues raised between the individual's interest in controlling use of his or her persona balanced against First Amendment free speech and creative rights of others.

There are some interesting, brief quotes from the Boston College law professor who studies death law, Ray Madoff, author of Immortality and the Law: The rising power of the American dead. There are a few, less investigated issues raised briefly in the article that I wish had gotten more discussion, but perhaps that is asking a bit much of a newspaper article. These are questions that raise the specter of owning the right to human beings, even a "persona," echoes most uncomfortably the law of slavery. The question, what are we giving up by allowing major figures to become monetized assets? The question, isn't there some public right to cultural heritage?

In Massachusetts, the current law on right of publicity is codified at MGLA Chapter 214, section 3A. Citizens Media Law Project has a very nice guide about it. The law in Massachusetts currently does not extend to posthumous control of publicity. There is a handy survey of state laws on Right of Publicity compiled by Prof. Jonathan Faber, an (adjunct?) professor* at Indiana University, Indianapolis and Bloomington. The statutes I checked on very nicely reproduce the text and citation, rather than referring the reader to various states' websites. However, be alert that the statutes and blog may not be more current than say, 2008, when Faber lists some amendments pending for the laws in California and Illinois. The link to the survey of statutes will also link to his very interesting blog that includes commentary, case notes, and some marketing stuff.

There are some interesting notes on efforts to pass a federal Right to Publicity law, at International Trademark Association, an article posted online from the Communications Lawyer, vol. 28, no. 2, Aug., 2011, "Why a Federal Right to Publicity Statute is Necessary," by Kevin L. Vick and Jean-Paul Jassy.

Just by happenstance, the Globe also carried a brief opinion piece in the same issue, "Fan Fiction has a Place in Literature," by Cathy Young. She discusses the right and independence of fan fiction authors to riff on beloved characters in previous works. It sort of ties into the Right to Publicity. In a way an author's rights over his or her characters are a bit like celebrities' or even their own interests in their protecting their personal image from exploitation by others. And yet, as the Young points out, Shakespeare used characters from earlier works of all sorts, like The Moorish Captain, an Italian novella, which became the kernel for Othello, according to this editorial. Most of the great plays by ancient Greek or Roman playwrights were based on characters fully lifted from their myths and legends. As with the earlier article, Young raises the question of what creative chains we apply to the future by locking up access to potential mother lodes of inspiration.

* Faber may also (or perhaps, more clearly?) be an associate in the law firm McNeely, Stephenson, Thopy and Harrold -- he is not listed as a faculty member at IU Indianapolis, and may be an adjunct at both IU Bloomington and at IU Indianapolis.

The picture of a child peering through chains is from a blog, "Circles All the Way Down".

Copyright and Fair Use at Georgia State

Link to this excellent blog note by Kevin Smith at Duke about the ruling in the Georgia State fair use litigation. (Cambridge Univ. Press, et al. v. Mark Becker as President of Georgia State Univ., et al., in the Federal District Court for the N. Dist. of Georgia, Atlanta Div., opinion filed May 11, 2012) Tip of the OOTJ hat to our fabulous colleague, Ron Wheeler at San Francisco U.

The thing was, that in a mixed, complex opinion, more than half the claims were either dropped by the publishers or dismissed by the judge, and then, in the stunning finish, the judge awarded the costs and attorney fees to Georgia State!

There are a number of articles by now on the matter:

Chronicle of Higher Education (with the excellent link to the decision).

Library Journal (includes links to earlier articles in the same journal covering the original filing of the case, and the closing arguments in the case, etc., but no links to original documents, sadly).

Inside Higher Education includes a link to Prof. Kevin Smith's blog post as well as one to the Association of American University Presses website in support of the plaintiffs in the case. This includes an excellent section of original documents in the case, most from the plaintiffs, but some from the defendants as well. Excellent link site!

Educause provides a web page with lots of links original documents:
* Document with links to the decision and analysis by 3 scholars (note from Betsy: this sometimes does not show up on my computer; I am not sure if it's a problem with my computer or their link)

* a memorandum summarizing the key rulings in the case and the implications for libraries (again, the PDF does not show up on my computer and I don't know if it's their glitch or mine)

* policy notes from the ARL (I cannot get this link to work today; I hope it works other times!)

* a collection of blog notes from all over about the case, and more (these work!)

The Digital Reader - very handy because it handily recaps the story of the case up til the decision, and provides some nice links out to blogs and a NY Times story that follows the story through the years from the 2008 filing til now.

Experts figure the story may not be over yet. They expect that the publishers may go on to appeal this district court decision. But it was a huge statement for Fair Use Doctrine defenders in an era when there has been such a drumbeat (at least in the lobbyist-influenced legislatures) in favor of the copyright holders. But it's a complex, nuanced and HUGE decision -- 350 pages! The judge was careful and made decisions on an item-by-item basis.

She laid out clear rules for how universities can and cannot use textbook versus non-textbook materials and still fit within fair use guidelines. But she also gave GSU credit for sincerely trying to develop policies that would honor fair use. That undoubtedly saved them!

So, it's not a broad, clear win for one side over the other. But the awarding of the attorney fees was a pretty strong statement!