Thursday, April 29, 2010

Book Review Libel?

As somebody who writes the occasional book review, my attention was caught be the article in the current Chronicle of Higher Education, "Libel Case, Prompted by Academic Book Review, Has Scholars Worried."(subscription required). Me too, maybe. Author of the book reviewed, Karin N. Calvo-Goller, a lawyer and senior lecturer at the Academic Center of Law & Business, a college in Israel, sued the editor of the journal that carried the review, Joseph H.H. Weiler, editor of the European Journal of International Law for criminal libel in French court. Mr. Weiler is a professor of law at New York University. Speculation is that the suit was set in France rather than the United States, where the journal is published, or Israel, where the plaintiff lives, because the European Union's rules on freedom of expression are not as expansive. But this is entirely speculation, because Ms. Calvo-Goller has not responded to requests for comment, nor made any public comments. Here is a snippet from the article, by Jennifer Howard:

If you're an author confronted with a negative book review, you have several options. You can write an angry letter to the editor. You can complain to friends and family about the reviewer's lack of discernment. You can decide that bad publicity is better than no publicity at all and let the book speak for itself (often the wisest course, in my experience as a book-review editor).

What you don't do is sue the editor of the newspaper or journal that published the review. (snip)

Although the case, set for trial in June, is so unusual that it seems unlikely to set a precedent that would seriously dampen academic reviewers' freedom of critique, that possibility still has editors worried. And it has left observers scratching their heads over why a scholar would choose to dispute a review in court and not in the usual arenas of academic debate.

First the details. The plaintiff is Karin N. Calvo-Goller, a lawyer and senior lecturer at the Academic Center of Law & Business, a college in Israel. The defendant, Mr. Weiler, is a professor of law at New York University. In addition to editing EJIL, he runs the Global Law Books Web site, which in spring 2006 published a short review of Ms. Calvo-Goller's book The Trial Proceedings of the International Criminal Court (Martinus Nijhoff). The reviewer was Thomas Weigend, a professor of law at the University of Cologne and director of the Cologne Institute of Foreign and International Criminal Law.

Ms. Calvo-Goller has not made any public statements about the case, nor has she has responded to my requests for comment, so we have to rely on Mr. Weiler's account of what happened.

In an editorial in the law journal, he reprints a long exchange of letters with Ms. Calvo-Goller, in which she asked him to remove Mr. Weigend's review from the Web site. "The review is defamatory for my reputation, information contained in the review is false," she wrote.

Mr. Weiler declined to remove the review, arguing that it was not libelous, and offering her the chance to write a comment that could be posted on the Web site alongside the review. She again asked him to take down the review; he again declined. In 2008 he received a subpoena to appear in court. (The exchange doesn't explain why Ms. Calvo-Goller brought the suit in France, but she does note that the European Union's standards of freedom of expression are not as broad as those in the United States.) Mr. Weigend, the reviewer, was not subpoenaed.
Here is a link to the review that caused the suit. It is not a review I would like to receive, but as the article says in the Chronicle, there have, indeed, been worse. And the author of the article concludes that Calvo-Goller has done herself a great deal of harm in the court of public opinion among the world of academics who are generally pretty taken aback at the choice she has made. It is never clear how court cases will come out. The Chronicle reporter spoke with a French lawyer who tries this type of case, who gave a very typical lawyerly answer: it depends.
I asked François H. Briard, a lawyer who tries cases in France's Supreme Court, to give me a sense of how the French legal system treats such cases. "Usually there is no libel between academics," Mr. Briard told me via e-mail, "unless there is true insult." But "the courts are quite protective of honor and reputation. If real harm is done, I mean quite a high level of bad appreciation [negative comment] on the person, the only way for the writer not to be convicted is to plead 1) I did this with entire good faith, for example relying on public facts or wrong information; 2) the appreciation made relies on true facts."

The journal editors I spoke with were optimistic that the case will be dismissed once a judge reviews the facts. But Ms. Damrosch pointed out that whatever the outcome, Mr. Weiler still faces the financial and psychological wear and tear of a court proceeding—not a pleasant prospect.

In the court of scholarly opinion, at least, Ms. Calvo-Goller appears to be losing. Scholars in the blogosphere have been weighing in on Mr. Weiler's side. "The author has obviously done more damage to her own reputation by making this criminal complaint than would have been possible by any book review, let alone the one in question," Brian Leiter wrote on his popular blog, Leiter Reports, in February. He is a professor of law and director of the center for Law, Philosophy, and Human Values at the University of Chicago.

What does Mr. Weigend, the author of the review at stake, make of all this? He seems as taken aback as anyone, saying he cannot add much to what Mr. Weiler has already made public. "In particular, I have never had any personal connection whatsoever to Ms. Calvo-Goller," Mr. Weigend told me via e-mail. "I have been much surprised by the legal action she has brought in France and have no idea what the possible outcome may be."
The case at least gives me the collywobbles.

Wednesday, April 28, 2010

Law Firm Mandates Associate Westlaw Training to Improve Efficiency

Greg Lambert at 3 Geeks and a Law Blog writes a great post about one national law firm that finally got tired of inefficient Westlaw searching eating away at their bottom line. They mandated "best practices" in Westlaw searching and a training lunch for all litigation associates, and any other associates who might use Westlaw.

After several meetings in Boston with a wide selection of private librarians, I was hearing a great deal of need for firms to take things in hand. Apparently, too many firms do not require training, or do not adequately support training by the librarians. They are missing a major way to make the firm more efficient! Not only in terms of Westlaw and Lexis searching, but in other research methods as well, the firm librarians can be hidden resources of great value.

Greg's excellent post, and the comments that follow at the blog note that the importance of the training goes to several points:

1) What is and is not covered in the firm's contract.

When the researcher does not understand the ramifications of searching beyond the contract limits, the bill can rapidly soar beyond what the client should be asked to pay. And the firm will end up "writing off," or hiding the bill. Bad business plan!

2) A combination of a good trainer from Westlaw and Lexis and the librarian can be the best option for the training...

The rep knows what the latest additions are and is really taught how to train. But the librarian knows what is in the library and can fill in the researchers about how to cut costs by using a print resource in the library, or finding a different database in a different online resource or the open Web. With a good relationship, the training can offer the best of both worlds and show the associates how to cut costs and be efficient with their time.

Excellent blog post, Greg!

Two Facebook Stories

The Boston Globe today carried two stories about Facebook. One was about a host of stolen and fake Facebook accounts being sold on the blackmarket. Apparently accounts are stolen through phishing schemes that lure unsuspecting Facebook users into revealing their passwords, or else, malware loaded onto users' machines that track keystrokes reveals their passwords. The article, from the New York Times, by Riva Richmond, explains,

Facebook accounts are attractive because of the higher level of trust on the site than exists in the broader Internet.

As a result, people are more likely to believe a fraudulent message or click on a dubious link on a friend’s wall or an e-mail message. Moreover, the accounts allow criminals to mine profiles of victims and their friends for personal information like birthdates, addresses, pets’ names, and other tidbits that can be used in identity theft.

While the accounts that were compromised and offered for sale could be legitimate, they most likely also included bogus accounts, Howard said. IDefense did not see the accounts themselves, but the inclusion of many accounts with small numbers of friends suggests the seller created fake accounts, perhaps using an automated tool, and sent out blind friend requests to gather contacts.
Perhaps not coincidentally, the second article about Facebook is about Senators pressuring Facebook to improve its privacy controls. The call was triggered by Facebook's announcement last week of new plug-ins that allow users to share their passions for various products on other websites. As part of the new plug-in, Facebook is sharing users' personal information with three other websites: business review service Yelp, music service Pandora, and Microsoft Corp.’s for word processing and spreadsheet. Users have to go into their privacy preferences and opt-out of the service to avoid this sharing, rather than opt-in, and that is what is outraging some users, and the Senators. The article, from an Associated Press article by Michael Liedtke, says,
Facebook users who don’t want to be part of the company’s expansion have to go through their privacy settings and change their preferences.

Schumer thinks the onus instead should be on Facebook to get users’ explicit consent. “They have sort of assumed all their users want their information to be given far and wide, which is a false assumption,’’ Schumer said.

Schumer sent a letter calling for simpler privacy controls to Facebook founder Mark Zuckerberg. The concerns were echoed by Democratic Senators Michael Bennet of Colorado, Mark Begich of Alaska, and Al Franken of Minnesota.

Facebook tried to assure Schumer that its latest idea won’t invade users’ privacy.

“We welcome a continued dialogue with you and others because we agree that scrutiny over the handling of personal data is needed as Internet users seek a more social and interactive experience,’’ a Facebook vice president, Elliot Schrage, wrote in a letter to Schumer.

Schumer called Facebook’s response inadequate and said his staff planned to meet with the company today.
In the meantime, Facebook users may want to change their privacy settings and be sure they are not handing out their passwords to phishing schemes. The privacy setting to opt out of this new "sharing" with the three other websites is inexplicably called "instant personalization" and is the last option on your privacy settings. If you receive strange spam messages from a Facebook friend, you might want to let them know you think their account has been corrupted and they might want to take it down.

Wednesday, April 21, 2010


There has been a lot of discussion at OOTJ and elsewhere about multitasking. Like many parents, I questioned my teenagers' ability to do homework while checking email, instant messaging, and watching television. I simply didn't understand how all tasks could be performed equally well. It turns out that there is a scientific basis for my concern. According to an article published recently in Science, the brain is configured to handle up to two tasks at a time, but no more. Click here for an abstract of the article; full text is available for a fee. The Science article was the subject of a piece that appeared on, a website that reports on scientific and technological advances for laypeople. The research showed that when confronted with two tasks, the medial prefrontal cortex (the part of the brain that is colored green in the illustration) divides--half of the region focuses on one task, and half focuses on the other task. If a third task is added to the mix, the brain seems to "forget" one of the three tasks and returns to a binary sitation it is equipped to handle. The brain is simply not designed to perform accurately more than two tasks at once.

Magna Carta Held Over in New York

The volcanic eruptions in Iceland may have paralyzed air traffic to and from Europe and cost the world economy billions of dollars, but there has been at least one good result, at least for visitors to New York--a precious copy of Magna Carta will be on display at the Morgan Library through the end of May rather than going back to its home at Oxford's Bodleian Library. The New York Times reports that airlines are reluctant to carry the 800-year-old document at a time when the "priority is to get people back home." The Morgan was able to pull together the exhibit with very little notice. This copy of Magna Carta is "one of 17 survivng originals produced in the 13th century that bear the royal seal." For more information about the copy on display at the Morgan, click here. The illustration shows King John signing Magna Carta at Runnymede in 1215.

Monday, April 12, 2010

Some Computer Security Folks Rethinking the Insanity

Yesterday's Boston Globe, in an article in the Ideas section titled "Please do not change your password," by Mark Pothier, reports on a guy who is perhaps going to change the way computer security wonks do their analysis. I certainly hope so! The subtitle of the article is: "You were right: It’s a waste of your time. A study says much computer security advice is not worth following." And that certainly sums up my own (and I think many users') feelings about all the hysterical messages we get from the IT security folks at work. Every message is equally high priority and every threat is rated equally disastrous. That's a little ridiculous, isn't it? Here are some snippets from the article, which is certainly worth reading in whole:

Now, a study has concluded what lots of us have long suspected: Many of these irritating security measures are a waste of time. The study, by a top researcher at Microsoft, found that instructions intended to spare us from costly computer attacks often exact a much steeper price in the form of user effort and time expended.

“Most security advice simply offers a poor cost-benefit trade-off to users,” wrote its author, Cormac Herley, a principal researcher for Microsoft Research.

Particularly dubious are the standard rules for creating and protecting website passwords, Herley found. For example, users are admonished to change passwords regularly, but redoing them is not an effective preventive step against online infiltration unless the cyber attacker (or evil colleague) who steals your sign-in sequence waits to employ it until after you’ve switched to a new one, Herley wrote. That’s about as likely as a crook lifting a house key and then waiting until the lock is changed before sticking it in the door.

Herley also looked at the validity of other advice for blocking security threats, including ways to recognize phishing e-mails (phony messages aimed at getting recipients to give up personal information such as credit card numbers) and how to deal with certificate errors, those impossible-to-fathom warning messages. As with passwords, the benefits of these procedures are usually outweighed by what users must do to carry them out, he said.

It’s not that Herley believes we should give up on protecting our computers from being hijacked or corrupted simply because safety measures consume time. The problem, he said, is that users are being asked to take too many steps, and more are constantly being added as new threats emerge or evolve. Security professionals have generally assumed that users can’t have too much knowledge in the battle against cyber crime. But that fails to take into account a crucial part of the equation, according to Herley: the worth of users’ time.
Cormac Herley, Microsoft employee, introduced his paper, written in September, 2009. On Dec. 31, 2009, he was interviewed on Security Now, an IT Security webcast show.

I googled his name and TechRepublic, and find his paper is being talked over and winning converts like Michael Kassner, posting March 15, 2010, "Are Users Right in Rejecting Security Advice?" Back to the Globe article:
Herley’s paper gives “normal users a voice,” said Michael P. Kassner, a technology writer and IT veteran who wrote the TechRepublic piece. For too long, users have been asked to follow security instructions without being told why they are worth the time investment. “I’ve been a proponent of prioritizing” security measures, Kassner said. “The whole purpose of IT is to make people’s lives easier.”

The computer security community has long puzzled over why so many users fail to snap to attention when alerted to news about the latest threats, such as viruses, worms, Trojan horses, malware, and spyware. At countless conferences and seminars, experts have consistently called for more education and outreach as the answer to user apathy or ignorance. But the research of Herley and others is causing many to realize most of the blame for noncompliance rests not with users, but with the experts themselves — the pros aren’t able to make a strong case for all their recommendations.

Some advice is excellent, of course. But instead of working to prioritize what efforts are effective, government and security industry officials have resorted to dramatic boldface statements about the horrors of poor passwords and other safety lapses, overwhelming the public. For instance, the federal government’s website for computer safety tips,, includes more than 50 categories under the heading of “Cyber Security Tips.” Each category leads to complex sets of instructions.
“It’s nice to see the industry starting to grapple with these issues,” said Bruce Schneier, the author of “Secrets and Lies,” a book about computer and network security. In a blog posting last year, Schneier recalled a security conference at which a speaker was baffled by the failure of workers at his company to adhere to strict computer policies. Schneier speculated that the employees knew following those policies would cut into their work time. They understood better than the IT department that the risks of not completing their assignments far outweighed any unspecified consequences of ignoring a security rule or three. “People do what makes sense and don’t do what doesn’t,” he said. To prompt them to be more rigorous about computer protection, he said, “You want actual studies, actual data.”
So what does Herley think is really worthwhile computer security? Alas, good passwords, that you do change...
So which security measures offer a reasonable return on time and effort? Although coming up with a sensible list of security actions was not a goal of Herley’s research, he does have some suggestions based on personal experience. Start with bullet-proof passwords, he said, even if your employer requires you to periodically reinvent them or use too many (he juggles about three dozen as part of his work). Beyond that, he is big on one-time measures that offer ongoing benefits, like installing the latest software to shield against viruses and spyware (set it to automatically update). Two-thirds of computers have outdated software protection, according to a Microsoft spokesman. The company also recommends activating a firewall, which “functions like a moat around a castle.” Combined, such measures shouldn’t take more than 30 minutes, it said, and offer insulation from what is perhaps the biggest security menace of all: users.

“One of the main ways people get compromised is that they open the door to an attacker themselves,” said Herley. Someone might load software promoted as offering protection when it is actually spyware in disguise, he said, or they “open an e-mail attachment with a malicious payload....If this happens, it can be very bad. A piece of malicious keylogging software on your machine can grab all of your passwords: It makes no difference at that point whether they are strong or weak.”
The decoration of an evil worm is from a very long ago post on one of the computer "worm" attacks.

Friday, April 09, 2010

Justice Stevens Retires!

The New York Times article on Justice Stevens' announcing his retirement from the Supreme Court. Here is his letter to President Obama, stating he has

"concluded that it would be in the best interests of the Court to have my successor appointed and confirmed well in advance of the commencement of the Court’s next term” in October.

Mr. Obama, appearing in the Rose Garden Friday afternoon after returning home from a trip to Prague, pledged to “move quickly” to name a successor who, he said, would possess qualities similar to those of Justice Stevens: “an independent mind, a record of excellence and integrity, a fierce dedication to the rule of law and a keen understanding of how the law affects the daily lives of ordinary people.” Mr. Obama said he wanted someone who, like Justice Stevens, “knows that in a democracy, powerful interest must not be allowed to drown out the voices of ordinary citizens.”

The president said he had spoken briefly to the justice, and had thanked him for serving his country. “He will soon turn 90 this month,” the president said, “but he leaves his position at the top of his game.” (snip)

The White House has been quietly evaluating potential nominees for months. Among those rumored to be in contention for the nomination are Solicitor General Elena Kagan and several appeals court judges, including Diane Wood and Merrick Garland.

A soft-spoken Republican and former antitrust lawyer from Chicago, Justice Stevens has led liberals on a court that has become increasingly conservative. He was appointed by President Gerald Ford in December 1975 to succeed Justice William O. Douglas, who had retired the month before. He is the longest-serving current justice by more than a decade.

Before joining the Supreme Court, Justice Stevens had been an appeals court judge. He served in the Navy in World War II.

He joined the court when it included Thurgood Marshall and William J. Brennan Jr., who along with Justice Douglas had been liberal stalwarts of the Warren court era. Also serving were Lewis F. Powell Jr., a Nixon appointee who voted with the court’s conservatives on criminal justice issues but was a strong supporter of abortion rights, and Potter Stewart, the last of President Dwight D. Eisenhower’s four Supreme Court appointees, who, like Justice Stevens, was a moderate Republican from the Midwest. (snip)

Confronted with a court far more conservative than the one he joined, Justice Stevens showed the world what his colleagues already knew: that beneath his amiable manner lay a canny strategist and master tactician, qualities he used to win victories that a simple liberal-conservative head count would appear to be impossible. A frequent dissenter even in his early years on the court, he now wrote more blunt and passionate opinions, explaining on several occasions that the nation was best served by an open airing of disagreements.

Justice Stevens’s stature as the bench’s unlikely liberal voice grew greater as the Bush administration’s policies on terrorism and detainees translated into a string of cases that came before the court, and as the court itself moved further to the right, as Chief Justice John G. Roberts Jr. succeeded Chief Justice William H. Rehnquist in 2005 and Justice Samuel A. Alito Jr. took the place of Justice Sandra Day O’Connor the following year. Though he now found himself more often in the minority than any of his colleagues, Justice Stevens nevertheless helped shape the majority for a number of important decisions.

Justice Stevens’s plainspoken style has characterized the last years of his tenure. In cases involving prisoners held without charge at the American naval base at Guantánamo Bay, Cuba, and the mentally retarded on death row, his version of American justice propelled by common sense and moral clarity commanded a majority.

In perhaps the most significant case, Hamdan. v. Rumsfeld, he repudiated the Bush administration’s plan to put terrorism suspects held at Guantánamo on trial by military commissions. He concluded his 72-page majority opinion with the blunt statement that “the Executive is bound to comply with the Rule of Law that prevails in this jurisdiction.”
(quoted from the Times article). A very nice piece just popped up on NYTimes "End of an Era for Court and Nation.". In part, it reads:
The conventional view is that his leftward drift was a bitter disappointment to his sponsors. Mr. Ford had certainly cared about judicial ideology: As a congressman in 1970, he led the failed attempt to impeach Justice William O. Douglas for being too liberal, saying he had endorsed “hippie-yippie-style revolution.”

But Mr. Ford remained a fan of Justice Stevens.

“I am prepared to allow history’s judgment of my term in office to rest (if necessary, exclusively) on my nomination 30 years ago of John Paul Stevens to the U.S. Supreme Court,” Mr. Ford wrote in 2005.

There is some truth, backed by evidence in the political science literature, that Justice Stevens moved to the left over time. But there is also support for his view that it was the court that moved to the right.

In an interview last week, he said that every one of the dozen justices appointed to the court since 1971, including himself, was more conservative than his or her predecessor.

“We’ll wait and see to see if the most recent change fits that,” he said of Justice Sonia Sotomayor, who joined the court last year. “But prior to Sonia’s joining the court that was true with the possible exception of Ruth Ginsburg.”

Justice Stevens’s retirement gives President Obama a second opportunity to name a justice, and it means the nation is likely to see a confirmation battle for the second summer in a row.

But if Mr. Obama chooses another liberal, it will not alter the fundamental ideological balance on the court. Nonetheless, the loss of Justice Stevens’s personal charm, canny tactics and institutional memory can only leave the court’s more liberal wing in a weakened position.

Justice Stevens, who will turn 90 on April 20, is the longest serving member of the current Supreme Court by more than a decade. He became the senior justice in 1994 with the retirement of Justice Harry A. Blackmun.

That position matters. When the chief justice is not in the majority, the senior justice in the majority is given the power to assign the majority opinion. For the last decade and a half, that justice has almost always been Justice Stevens, and he has used the power with patience and skill to forge and maintain alliances in major liberal victories, often locking in Justice Anthony M. Kennedy’s swing vote by assigning the opinion to him.

Justice Stevens played a significant and often behind-the-scenes role in cases involving affirmative action, abortion rights and executive power. He grew disillusioned with the death penalty over the years, announcing in 2008 his conclusion that the death penalty violates the Eighth Amendment. But he went on to say that his conclusion did not justify “a refusal to respect precedents that remain a part of our law.”

And he wrote major dissents in two of the court’s most hard-fought recent 5-to-4 decisions, one ruling that the Second Amendment protects an individual right to own guns, the other that corporations may spend freely in candidate elections. In that second case, Citizens United, Justice Stevens for the first time showed his age on the bench, stumbling a bit as he read a 20-minute dissent.

But for all his influence, he was never well known to the public. When Americans were asked to name members of the Supreme Court in public opinion surveys, his name was routinely the least likely to be mentioned.

Justice Stevens was born to a prominent Chicago family that operated what was then the largest hotel in the world, the Stevens Hotel, with 3,000 rooms. During the Depression, the Stevens family struggled to stay afloat, and Ernest Stevens, Justice Stevens’s father, was charged with embezzling from the family’s insurance business.

He was convicted in 1933, but the conviction was overturned by the Illinois Supreme Court the next year. The wrenching experience informed the young John Stevens’s thinking about criminal law, and he was alert in his Supreme Court decisions to the possibility of prosecutorial misconduct and wrongful convictions.

Mr. Stevens attended the University of Chicago and Northwestern University School of Law. In between, he served in the Navy in World War II, signing up on Dec. 6, 1941. “I’m sure you know how the enemy responded the following day,” he likes to say, referring to the Pearl Harbor attack. He earned a bronze star for his work as a code-breaker.

After law school, he served as a clerk to Justice Wiley B. Rutledge Jr., the last of President Franklin D. Roosevelt’s appointees. Turning down an offer to teach at Yale Law School, Mr. Stevens returned to Chicago to practice law, specializing in antitrust cases. His career in private practice was punctuated by stints in government service, including as counsel to a special commission of the Illinois Supreme Court that led to the resignations of two state supreme court justices.

President Richard M. Nixon appointed him to the United States Court of Appeals for the Seventh Circuit, in Chicago, in 1970.

Justice Stevens maintained an active life outside the court, and did much of his work from a home in Florida, for years piloting his own plane there and back. He loved tennis, golf and bridge. (snip)

Justice Ruth Bader Ginsburg said that a secret to Justice Stevens’s outsized influence is the speed with which he provides useful comments on other justices’ draft opinions.

He took pride, he said last week, in writing his own first drafts.

“I really think it’s a good practice because you will find sometimes that it won’t write, and then you have to start over,” he said.

He wrote more than 600 dissents over the years, and he said last week that he felt an obligation to clarify points of disagreement. “There is a duty to explain your position if it isn’t the same as the majority,” he said, “and it’s just part of my thinking about what a judge should do.”

Justice Stevens never joined the “cert. pool,” the arrangement under which the justices share their law clerks and have them produce a single memorandum making a recommendation about whether the court should hear each of the more than 7,000 appeals that reach it each year. The memorandum is then used by all participating chambers.

Justice Stevens was for years the only justice to go it alone; Justice Samuel A. Alito Jr. left the cert. pool in 2008.

At first, Justice Stevens said, “I just didn’t join it because I thought it was not a time-saver, and I thought I could do the certs more promptly and more efficiently if I were not a part of the pool.” Later on, he said, he concluded that he was not sure “the cert. pool is the best mechanism for the court.”
There is a lot more great stuff in both of these articles. I urge you to visit both and read them in full, as well as dropping in on the various links to the individuals under possible consideration for nomination now... As my colleague who clued me in said, "let the games in the Senate begin!" Tip of the OOTJ hat to my Suffolk colleague Jeff Pokorak!

The photograph of President Barack Obama chatting with Justice J.P. Stevens and Justice Anthony Kennedy (with Justice David Souter, since retired, in the background)is from the second New York Times article, "Man in the News,End of an Era for Court and Nation."

Thursday, April 08, 2010

Google Grants Program to Use the Google Digitized Books

Google has opened a grants program to use its digitized books. According to the Chronicle of Higher Education, a March 31, 2010 article in Technology by Marc Parry,

... The company is creating a "collaborative research program to explore the digital humanities using the Google Books corpus," according to a call for proposals obtained by The Chronicle. Some of Google's academic partners say the grant program marks the company's first formal foray into supporting humanities text-mining research.

The call went out to a select group of scholars, offering up to $50,000 for one year. Google says it may choose to renew the grants for a second year. It is not clear whether anybody can apply for the money, or just the group that got the solicitation. (snip)

It's unclear whether professors awarded grants under Google's humanities program will be able to work with newer digitized volumes still protected by copyright. In 2005 the Authors Guild filed a lawsuit accusing the company of "massive copyright infringement." A proposed settlement of that suit, which has drawn criticism from the U.S. Department of Justice, awaits court approval. (snip)

Literature is one of eight "disciplines of interest" that Google has identified for its program. The others are linguistics, history, classics, philosophy, sociology, archaeology, and anthropology.

The effort seems largely focused on building tools to comb and improve Google's digital library, whose book-search metadata—dates and other search-assisting information—one academic researcher calls a "train wreck." These are some of the sample projects that Google lists in its call for proposals:

• Building software for tracking changes in language over time.

• Creating utilities to discover books and passages of interest to a particular discipline.

• Developing systems for crowd-sourced corrections to book data and metadata.

• The testing of a literary or historical hypothesis through innovative analysis of a book.

Breakthrough for Digital Humanities?
In part, the program reflects Google's self-interest. One of the company's imperatives is to encourage people to use its collections in creative ways, so that those collections "become essential parts of daily life," says Siva Vaidhyanathan, an associate professor of media studies and law at the University of Virginia and author of the forthcoming book The Googlization of Everything. But he argues that Google's support could also be a breakthrough for digital humanities.

Over the years, digital-humanities scholars have received sporadic support from organizations like the Andrew W. Mellon Foundation and the National Endowment for the Humanities. For example, the "Digging Into Data Challenge," recently organized by the NEH and other agencies internationally, is supporting research teams doing work such as a project to mine 53,000 18th-century letters to analyze how the effects of the Enlightenment can be observed in the letters of people of different occupations. Digital-humanities research, says Mr. Vaidhyanathan, is "full of great ideas and short on the tools needed to execute these great ideas," largely because of a lack of money.

But digital humanists will need to be wary of becoming dependent on Google, whether for research money or for the raw material of their work, Mr. Vaidhyanathan cautions. "The last thing we need is such a close relationship that the tools that scholars develop only work with Google-supplied data sets," he says. "That would be a tragic lock-in."

Submissions for the grants are due by April 15. Google is keeping the process so low-profile that details don't seem to even be available even on its own research Web site.

And it does not appear to be wide open. According to the call for ideas obtained by The Chronicle, Google is requesting proposals from "select researchers and faculty members." That presumably includes Google's book-digitization partners within academe. (Administrators at two of those partners, Michigan and the University of Illinois at Urbana-Champaign, confirmed that Google had solicited them.) Daniel J. Clancy, engineering director of Google Book Search, says the grant money will support about eight researchers. He referred further questions to a colleague, Jon Orwant, who was unavailable for comment.

Another unanswered question is what relationship this program will have to Google's long-term plans for enabling research on its digital books. The proposed legal settlement would permit the use of millions of in-copyright works owned by universities for "nonconsumptive" computational research, meaning large-scale data analysis that is not focused on reading texts. One or two research centers would be created for this work, and Google would back the effort with $5-million.

By comparison, $50,000-maximum research awards are fairly small scale. "The difference might be that the center might support longer-running, larger-scale projects—and probably more collaborative," says John M. Unsworth, dean of the Graduate School of Library and Information Science at Illinois. "The scale of the Google research awards suggests a single-investigator model."

So should researchers worry about being co-opted by Google?

"It's not like the tobacco industry sponsoring cigarette research," Mr. Jockers (Matthew L. Jockers, English professor at Stanford's English department) says in an e-mail message. "Google's profit model vis-à-vis the book-scanning project is pretty clear. ... That Google will also sponsor humanities research and give researchers access to the corpus does not, in my opinion, create any of the conflicts of interest that one finds in other kinds of sponsored research."
Meanwhile, artists and photographers have suddenly demanded a settlement similar to the Authors Guild Settlement that is pending. A post from David Kravets at reports on April 7, 2010 that a suit brought by the American Society of Media Photographers and others claims Google should compensate them because the company is violating their copyrights. the link takes you to a PDF of the complaint filing a class action suit: American Society of Media Photographers, Inc.,et al, and others similarly situated v. Google, filed in the Federal District Court for the Southern District of New York (Docket no. 10-cv-2977). The suit asks for a jury trial a damages for every count of infringement of copyright on the images owned by the class members. The Wired article quotes a spokesman, and essentially concludes that the lawsuit is about gaining an equal piece of the Google Settlement pie, after being shut out of the Authors Guild deal:
“If there is going to be a system developed to manage the compensation for these types of books, we felt visual artists need to be represented,” Eugene Mopsik, the executive director of the American Society of Media Photographers, said in telephone interview. “We have been totally excluded. We want a seat at the table.”
Justia is an excellent resource for the filings to date in the Google Books Settlement. Here is the Google Book Settlement Administrative Site, and the Google Book Settlement Site itself. Here is the Authors Guild Book Settlement Resources Page. I am guessing that Judge Chin probably has a headache right now. Who volunteers to Fed Ex him some aspirin?

The decoration is courtesy of

Wednesday, April 07, 2010

Who Would Have Thought It?

When I think of Keith Richards, long-time lead guitarist for the Rolling Stones, the first word that springs to mind is not bookworm. And yet that is what he claims to be in his forthcoming autobiography due to be published in October. This article from the Times Online describes Richards's childhood in the "post-war-austerity of 1950s London" when he "found refuge in books before he discovered the blues." As an adult, he has put together a substantial of books which he once attempted to organize according to the Dewey Decimal System; he gave that up, however, when it proved to be "'too much hassle.'" He believes that the public library is "a great equaliser," a role it has definitely played in the United States. This article reveals a side of Richards that I did not know existed.

FCC Cannot Enforce Net Neutrality

In Comcast v. FCC, the U.S. Court of Appeals for the D.C. Circuit ruled unanimously that the FCC lacks the authority to block internet providers from controlling content. Here is the full text of the case, docket number 08-1291. The Boston Globe's Hiawatha Bray has an article in today's issue. I always take Bray's analysis seriously:

The court ruled 3 to 0 that the Federal Communications Commission exceeded its authority in 2008 when it ordered cable giant Comcast Corp. to lift limits on some kinds of Internet traffic. The decision was a setback for advocates of “Net neutrality,’’ the idea that Internet providers should be required to treat all data alike. And it could mean that the FCC lacks the authority to implement its recently released plan to deliver broadband Internet service to every American.

Democratic US Representative Ed Markey of Malden, a Net neutrality advocate, blamed the ruling on the Bush administration. “Today the court threw out the previous Commission’s shoddy legal theories,’’ Markey wrote in a statement. “In light of the court’s ruling, I encourage the current Commission to take any actions necessary to ensure that consumers and competition are protected on the Internet.’’

It’s unlikely that the ruling will have any immediate impact on consumers. Comcast said yesterday that it will not resume the controversial limits on Internet traffic that spawned the legal dispute. But some Internet activists fear that Comcast and other broadband companies could delay or block data transmitted by business rivals, or data streams containing controversial political ideas.

Gigi Sohn, president and cofounder of Public Knowledge, a Washington lobbying group that favors Net neutrality regulations, said the court ruling “essentially takes away the FCC’s ability to protect consumers.’’

But Scott Cleland, chairman of, a trade group financed by broadband Internet providers, said the ruling allows providers to manage their networks without undue government interference. “Comcast was simply trying to ensure quality of service to its customers when confronted with the problem of bandwidth hogs,’’ Cleland said.

In 2007, Comcast began restricting the use of a file-sharing technology called BitTorrent, saying users of the service transmitted so much data — including music and video files — that they were slowing down the entire network. Users said Comcast had no right to single them out for discriminatory treatment, noting that other heavy Internet uses were not restricted.

The FCC agreed, issuing a cease-and-desist order compelling Comcast to halt its restrictions. The company complied, but appealed the decision to the US Court of Appeals for the District of Columbia, arguing that there was no federal statute giving the FCC authority over the company’s Internet service. Yesterday, a three-judge panel of the appeals court unanimously agreed.

“We are gratified by the Court’s decision today to vacate the previous FCC order,’’ Comcast spokeswoman Sena Fitzmaurice said in a written statement. “Our primary goal was always to clear our name and reputation.’’

Even those who want tougher regulation of broadband Internet services agreed that the FCC was on shaky legal ground. In 2002, the agency decided that Internet services would no longer be treated like the highly regulated telephone industry. “The FCC was saying we don’t want to regulate broadband Internet access,’’ said Sohn.

So in the Comcast case, the FCC couldn’t rely on the laws that gave the agency specific authority to regulate phone companies. Instead, the agency argued that it had “ancillary authority’’ derived from general policy statements included in the 1934 Communications Act. But the court held that those policy statements were not sufficient to give the FCC authority over Internet providers.

The FCC could reverse the 2002 policy decision and declare that Internet services will be regulated like telephone companies. James DeLong, visiting fellow at Digital Society, a free market-oriented think tank, said such a move “would set off a long, long legal donnybrook, though . . . I think the agency would ultimately win.’’

Also, Congress could pass a law to expand the FCC’s powers, such as the Internet Freedom Preservation Act, cosponsored by Markey, but languishing since July in the House Committee on Energy and Commerce.

Meanwhile, the court ruling could mean trouble for the FCC’s national broadband plan, which was released last month. Sohn said that due to the court ruling, the FCC has no authority to implement key portions of the plan, like the use of $15.5 billion from the telephone universal service fund to build new broadband services. “Anything that requires the FCC to regulate broadband Internet access is at risk,’’ Sohn said.
The Net Neutrality fight is intense and highly politicized, since there are huge amounts of money at stake. The Internet providers want very much to be able to control without regulatory interference which data they give preference to speeding over their information highway segments. And knowledgeable consumers resent bitterly that those internet providers are suddenly banning or putting the brakes on their data -- usually video material, but it can include music packets as well. They argue that the control may one day easily extend to blocking or slowing packets from rival providers. Here is a fairly even-handed lay-out of the debate. And the link here takes the reader to PC World's Tony Bradley, in a Sept. 22, 2009 editorial about the issue, which gives you a flavor for just how bare knuckle the battle has been, and how much it is about power and control of valuable assets, no matter how the speakers might dress it up in philosophical rhetoric. It also makes clear the back story to yesterday's decision, which was exactly between Comcast and the FCC, and those are the characters in the editorial.

Here is the brief filed by Comcast in Comcast v. FCC

Here is the Respondent's (FCC's) Brief from Comcast v. FCC.

Amicus brief in support of Respondent FCC.

Comcast Intervenors Brief (amicus)

An excellent blog entry at Obsidian Wings about the case by a segment of the amici law professors, with links to other blog entries on the topic.

The decoration is a Georgian era print of bare knuckle boxers from England... courtesy of in case you want to buy a copy.

Friday, April 02, 2010

Loyola Marymount raises all law student grades

The Chronicle of Higher Education reports that Loyola Law School Los Angeles (aka Loyola Marymount) is modifying their grading system to help their students be more competitive and better reflect the quality of their students. That means they are raising all the student grades by a third of a grade point, magically transforming A into A+, B- into B, and so forth. Dean Victor J. Gold is quoted:

"We concluded that the grading curve was sending incorrect information about our students, and, frankly, it was putting them at an unfair competitive disadvantage in a pretty tough job market," he said.

Stuart Rojstaczer, a retired Duke University professor who has studied grade inflation and created an online database about it, said that changes like Loyola's can open more job opportunities for students.

"There are employers that have GPA cutoffs," he said, "and by inflating grades, you increase the number of students who meet those GPA cutoffs."

Mr. Rojstaczer, who was an associate professor of earth and ocean sciences at Duke, is a co-author of a recent article, "Grading in American Colleges and Universities," (link here for full text of article for $15.00; or, a very rich website maintained by Rojstaczer which has much related information)that analyzed grading patterns since the 1960s. The article—written with Christopher Healy, an associate professor of computer science at Furman University, and published last month in Teachers College Record—noted an overall increase of about a tenth of a point in average GPA's per decade.

Loyola's change will affect current students and alumni who graduated in 2007 or later—the classes that received grades based on a letter-grade system beginning in 2004. Before 2004, the law school operated under a numerical grading system.

Mr. Gold announced the faculty's approval of the new grading system in a memorandum to students last month. That memo found its way onto several blogs this week, including Above the Law and NPR's Planet Money, where it was greeted with considerable skepticism.

But Mr. Gold defended the revised grading curve as more accurately reflecting the institution's academic rigor. Indicators show that its students are "among the highest-quality students," the dean said. With a passage rate of 85 percent among students taking the bar exam last summer, the law school ranked seventh out of the 20 California law schools approved by the American Bar Association.

Although employers often gauge law students' academic achievement based on their class rank, Mr. Gold said, some governmental agencies will not consider hiring students with less than a B average.

"And when you start out your students with an average of B-, which is what our old first-year grade average was, you automatically exclude them from employment with those agencies," he said.

"We're not trying to make them look better than other comparable students at other schools. We just want them to be on an even playing field."
The image of the guys inflating a balloon is courtesy of Oregon State University. Just seemed appropriate. I'm afraid Above the Law is rather harsh about the decision:
Loyola students are having difficulty getting jobs. In response, did the administration consider dropping tuition? Nope. Instead, they just gave everybody an extra third of a grade — retroactively, no less. That’s not just inflation; that’s a rewriting of history.

Really, are employers out there going to fall for this? Loyola hopes so….

I’m happy — I’m thrilled, even — that law school administrations are noticing their graduates cannot get jobs in this economy. Admitting you have a problem is the first step towards correcting the problem. But of all the things a school might do to help students get jobs, artificially inflating grades retroactively seems like the most shallow and cosmetic “solution” possible.

Loyola’s rationales for the change are that, I don’t know, (1) somehow its students are just as accomplished as kids at more highly-ranked California law schools, and (2) an easier grading curve reflects a higher-quality student body (snip)
It descends from there into high snark, so you'll have to go read it for yourself -- it's highly entertaining and makes you hope devoutly that YOUR law school (or one you care about) never gets highlighted in ATL!