New Institute at Yale Law School

Yale Law alumnus and legendary constitutional lawyer Floyd Abrams has given his alma mater $3,000,000 to found an institute to promote free speech, free press, and access to information. The Yale Daily News article quotes Abrams on the reason for his gift:

'We live in a time of acute polarization of views in our nation ... It is of critical import that no voice be stilled and that government play virtually no role in determining who speaks and to what extent. The First Amendment makes us the envy of the world and it is worth learning and relearning why that is so.'

The Floyd Abrams Institute for Freedom of Expression will be overseen by the Law School's Information Society Project, which is led by Professor Jack Balkin. According to Balkin, the main beneficiary of Abrams's largesse will be the Media Freedom and Information Access clinic, a Yale initiative that assists journalists with "freedom of information and open access issues." Some of the donation will ge used to hire a permanent faculty member to lead the MFIA, as it is known, allowing it to "take on more cases and broaden its legal scope."

Amazon Eliminates the Middleman

Amazon has almost put both independent bookstores and chain bookstores out of business. Are publishers Amazon's next victim? The New York Times is reporting that Amazon has gone into the publishing business. This fall it plans to publish 122 books "in an array of genres, in both physical and e-book form. It is a striking acceleration of the retailer's fledging publishing program that will place Amazon squarely in competition with the New York houses that are also its most prominent suppliers." It is unclear to me whether Amazon will offer its authors the traditional services offered by publishers, i.e., editing and marketing, although the Times article states that Amazon is "gnawing away at the services that publishers, critics and agents used to provide." Traditional publishers have already cut back on editing (it's rare these days to read anything that wouldn't benefit from careful copy editing), so it's likely that authors won't lose much if they publish with Amazon. And the article points to efforts already under way by authors to market their work themselves, so they won't miss the marketing campaigns of traditional publishers as much as they would have in the days before authors and their readers could communicate directly. The article quotes Russell Grandinetti, an Amazon executive: "'The only really necessary people in the publishing process now are the writer and reader ... Everyone who stands between those two has both risk and opportunity.'" One question left unanswered by the Times article is royalties. It seems reasonable to assume that by forgoing the services of the traditional publishers and opting for Amazon, authors should be able to bargain for more generous compensation.

Occupy Wall Street, and its off-shoots

Occupy Wall Street has grown from a very small protest this past summer, thanks in large part to a brutal over-reaction by New York City police. On September 1, a small, sort of pre-protest was held, to test how it would be to hold peaceful, legal protests by occupying public sidewalks 24 hours in New York City. The protesters encamped relying on a previous decision, METROPOLITAN COUNCIL, INC v. HOWARD SAFIR, Commissioner of the New York City Police Department, et al., 99 F. Supp. 2d 438 (S.D. NY, 2000). Nine of the protesters were arrested when they refused to disperse. They videotaped the event, and I have to say the police were quite polite.

On September 17, Occupy Wall Street worked with US Day of Rage, which was, despite its name, launched a peaceful protest. In a well-planned and supported protest, the group organized an occupation of a growing swath of New York City to protest a variety of issues. The group has acted in a democratic fashion to allow the protesters to articulate what they think the protest is about, so the issues are sometimes shifting and sometimes murky. But most agree about the unequal distribution of wealth ("We are the 99" is one common slogan, referring to 99% of the population in contrast to the 1% that has the vast majority of the wealth).

Eventually, a few of the New York City police did act brutally toward some of the protesters, and were caught on video. These reports came out on September 25, and galvanized the protests in New York and elsewhere. Suddenly, the protest seemed much more important.

Occupy Boston sprang up (and last night was rousted out of its expansion onto the Rose Kennedy Greenway by Boston Police). On their website, they claim that there are now 120 Occupy sites throughout the country. I know there is one in Atlanta, Charleston, Chicago, Dallas, Humboldt (California), Knoxville, Los Angles, Oakland, Portland, Sacramento, San Diego, San Francisco, San Jose, Santa Fe. Actually, the cities in California have a shared website, Occupy California. To find out what is happening, you can check into Twitter and use the general hashtag #occupy.

In a related movement, Lawrence Lessig and Mark McKinnon have called for for a Constitutional Convention to be hosted at Harvard. The post linked here actually appeared last spring, so this movement began earlier than the Occupy Wall Street, but it arises from the same frustration.

Washington is hopelessly addicted to money and thus to the status quo; drunk with power and incapable of getting sober and fixing itself. It’s time for an intervention—by the states.

Politically, we two disagree on just about everything. But the one thing we do agree on is that the institutions of government in Washington have become corrupt, held hostage by well-funded special interests. It’s no wonder that only 17 percent of the American public in a recent Gallup survey said they had a favorable opinion of Congress. American voters believe, and rightly so, that corporations, labor unions and moneyed special interests have a chokehold on politicians. Voters are disillusioned and discouraged because they don’t believe Washington represents the will of the people. And the recent Supreme Court decision in Citizens United v. F.E.C.—which permits unlimited independent corporate campaign expenditures—will only make this worse.

And so too many throw up their hands and say, “We give up. Congress won’t fix itself. And there’s nothing that we can do about it.”

But there is something we can do. We, the People, can take back the power we gave to Congress. We can take it back through the states.

The framers left open a path to amendment that doesn’t require the approval of Congress: a convention. Article V of the Constitution requires Congress to call a convention to propose amendments if 34 state legislatures demand it. Any proposed amendment would then have to be ratified by both houses of 38 state legislatures (three-fourths of the states).

(snip) Even if 34 states don’t call for a convention, history teaches that a real threat is often enough to get Congress to act. The only amendment in our history that changed the structure of Congress (the 17th, making the Senate an elected body) was proposed by Congress because the states were close (just one state short) to calling for a convention. If nothing else, the possibility of a body they can’t control is enough to get Congress to pay attention.

Some will resist the idea of a convention because they fear a “runaway” in which fringe elements would take over the agenda and propose radical amendments. But the framers anticipated such a danger and established a very high bar against it. Amendments are ratified by legislatures (or state conventions), not by referenda. And if even one chamber in 12 state legislatures refused to ratify an amendment, it would die. There will always be twelve solid blue states and twelve solid red states in America. There’s thus no danger that one extreme can overtake the other. Conventional wisdom will argue that constitutional conventions or amendments are just impossible. Just like it was impossible to wrest a republic from the grip of monarchy or abolish slavery. Or impossible to elect Ronald Reagan or Barack Obama. But conventional minds are always wrong about pivotal moments in a nation’s history. And this is a pivotal moment in ours, when a movement to restore democracy is possible.

Indeed, the movement has already begun. Legislators in South Carolina, Virginia, Oregon, Rhode Island and Florida are already throwing sparks that could soon become a brush fire across the country. More and more are coming to see that if reform is necessary—as most all of us, whether from the right or left believe—this is the only way.

Interestingly enough, when I searched for information on Occupy Wall Street, the top item returned was a Wikipedia entry reminding readers of Article Five of the Constitution, giving the citizens the power amend the Constitution or to call a constitutional convention. It was a sponsored link.

Wikipedia's new QR Pedia codes

The New York Times reports on a totally cool new use of QR codes pioneered by Wikipedia. On September 28, Wikipedia announced on their Wikimedia blog an easy method for users to generate QR codes for Wikipedia articles, and paste them where needed. OTJ readers probably already are familiar with QR codes and know that they can be easily read by smart phones, which then will display the wikipedia article, or whatever is linked to the code. The phone has a setting that tells the QR code what language is required for Wikipedia's article. If there is not a copy of the article in your preferred language, it will select "the most relevant article instead." It would be interesting to test the relevance selecting software! But the Wikimedia article explains that the multilingual feature allowed the Derby Museum and Gallery in England to install labels that worked to support visitors from all over the world (here is a link to the map showing their visitors for this project), at very low cost. This is a terrific and very useful new way to use QR codes that could extend the reach of libraries (we keep our fingers crossed that nothing gets linked to sites that get vandalized!). The image of a QR code is from http://megcanavan.wordpress.com/tag/qr-codes/

An Outrageous Dictionary

When Webster's Third New International Dictionary was published fifty years ago, it caused a ruckus. In his piece, "When a Dictionary Could Outrage," published in The New York Times Book Review on September 25, Geoffrey Nunberg describes the reaction to "what critics viewed as a lax admissions policy." Some of the criticism focused on the addition of neologisms such as "litterbug" and "wise up." Some of it focused on the editors' refusal to condemn "ain't." And some of it focused on the decision to draw illustrations from "down-market sources like Ethel Merman and Betty Grable." To the modern ear, this sounds like elitism, but at the time the critics of Webster's Third included not only writers such as Dwight Macdonald and Wilson Follett, but also the popular novelist Rex Stout (of Nero Wolfe fame), who had the detective "feed his Third to the fire a page at a time while declaring it 'subversive and intolerably offensive.'"

As Nunberg points out, it's hard to imagine a new edition of a dictionary causing such an uproar today. When I left home for college in 1969, one of the things I was sure to pack was my brand new dictionary, a standard high school graduation gift of the era. Does anyone still bring a dictionary to college? "The dictionary simply doesn't have the symbolic importance it did a half-century ago, when critics saw the Third as a capitulation to the despised culture of middlebrow ... That was probably the last great eructation of cultural snobbery in American public life." I have to confess I consult the Urban Dictionary more often than I consult traditional printed dictionaries in order to look up words and terms (frequently somewhat obscene) used in the mass media and by my students. Nunberg gives a number of examples of classic dictionaries that have responded to fears of irrelevance by lowering their standards of admission; they keep up with changing times and "don't keep words waiting in the vestibule long." Such words and phrases as "wassup," "BFF," "muffin top," "freegan, "geek chic," and "staycation" now appear in venerable dictionaries such as the O.E.D. The Internet is in many ways the ideal medium for a dictionary. Online dictionaries can be updated constantly and cheaply, they can incorporate audio and video to illustrate the use of words and model correct pronunciation, they can be accessed easily by users of handheld devices, and open-source projects such as the Wex legal encyclopedia and dictionary demonstrate that they can be the result of group collaboration.

Scholarship Myths

The Chronicle of Higher Education has a wonderful short article by Becky Supiano on the Top Ten Myths about Scholarships. The article reports on Mark Kantrowitz, who publishes financial aid/scholarship location websites FinAid and FastWeb, and has published a book, Secrets to Winning a Scholarship. He was speaking at the National Association for College Admission Counselling (NACAC) meeting in New Orleans this September, and the article reports on his talk. I think academics won't be terribly surprised at most of the myths debunked, but it's a nice list, and worth visiting, especially if you or a family member is searching for ways to pay for college. It's certainly worth passing along to the world.

Net Neutrality Regulations set to take effect November 20

The FCC finally is publishing its long-awaited Net Neutrality rules. When they announced them last December, Verizon and jumped in and sued to stop them right away. The court said, there weren't any regulations yet to sue about, because they were merely proposed regulations, and Verizon should comment on them, not sue.

But the comment period is over, and the regulations were published last Friday. (that link takes you to a nice, brief article in PC World that summarizes the regulations and gives a bit of history on how the regulations came to be, as well as including a link to the Federal Register itself) Most commentators expect Verizon and others to sue again to block the regulations. We will see what happens.

"Net neutrality" is a principle that states that all internet traffic should be given equal treatment by internet access providers. There is a desire by providers to ration traffic, and create fast and slow lanes. And there are some rational-sounding arguments, if the entire network's traffic is being slowed by a handful of heavy users' demands. But the fear is that a lack of transparency in the practices will allow the providers to use their power to favor their own traffic (think of Comcast), over competitors, to charge more for premium service, or to disallow certain types of traffic that they disfavor, like large downloads of video. What triggered the FCC to issue the regulations was Comcast throttling any BitTorrent traffic passing over its network. The FCC tried to censure Comcast, which appealed to a court. The court ruled that since there were no regulations barring such behavior, the FCC had no grounds to penalize Comcast. The FCC decided to write some regulations on the issue.

The regulations that finally made it through the process, are moderate, and focus on transparency as opposed to trying to completely bar providers' control of traffic:

As written, the rules do three broad things for customers: * Add transparency to how broadband providers--both wired and wireless--manage networks * Prohibit wired broadband providers from blocking lawful content, applications, services, and non-harmful devices. Wireless providers are also barred from blocking lawful websites or applications that compete with voice or video services. * Forbid wired broadband providers from discriminating in the transmission of lawful network traffic.

(from PC World "FCC Publishes Net Neutrality Rules," By John P. Mello Jr., Sep 23, 2011). Note the different rules for wired compared to wireless customers. Also note that a provider can slow ALL the traffic on their network at peak times, as long as they don't discriminate by either type of material or the sender (like BitTorrent).

The FCC commissioners who voted on the regulations last year broke down along party lines -- three Democrats voted for, and two Republicans voted against. One of the Republicans has since left the FCC and gone to work for Comcast. Many Republicans in Congress are decrying the regulations and vowing to pass legislation to block the new rules. President Obama has promised to veto any such law, according to an article by Reuters.

On the other side, consumer activists are just as disappointed in the regulations, praising that as a starting point, but wishing for much stronger regulations. Public Knowledge made a short statement, to that point, and urging Congress to allow litigation to move forward, to "resolve intricate legal issues without political interference." Corporations have poured a lot of money into Congress on this matter. The Associated Press reports that AOL

spent $130,000 lobbying the federal government during the second quarter on issues such as Internet regulation, computer security and privacy, according to a quarterly disclosure report. That's less than the $141,300 the New York-based company spent in the first quarter. AOL didn't report lobbying expenses for the year-earlier period.

Here is a terrific "What it means to you, the consumer" from PC Magazine, written last December, when the regulations were first proposed. The article is still very good and worth reading. Net Neutrality rules will certainly affect ALL users of the Internet, so pay attention to what is happening!

Hathi Trust sued over Orphan Works Project mistake

The Chronicle of Higher Education alerts readers in a brief article dated September 14 in the Research section, "In Authors' Suit Against Libraries, an Attempt to Wrest Back Some Control Over Digitized Works," by Jennifer Howard, to a law suit filed on Sept. 12 by the Authors Guild among others against Universities of Michigan, California, Wisconsin, Indiana and Cornell and and the Hathi Trust over their Orphan Works Project. At the Authors Guild website, you can get an announcement and description of the suite along with a link to a PDF of the complaint, filed in the Southern District of New York. Apparently, the Authors Guild, joined by similar authors groups from Australia, Quebec, and the United Kingdom searched through the list of orphan works at the Hathi Trust site, and found a number that they could trace to existing authors. Rather than send corrections to the universities and Hathi Trust, which they specifically request, the authors' organizations filed suit (see the text from the University of Michigan Orphan Works page):

For Copyright Holders - We Want to Hear From You! If you are a bona fide copyright holder – or the authorized representative for a copyright holder – for a title on the Orphan Candidate list, contact us to let us know about your copyright in the book. Kindly fill out this PDF, and send it to us to help us respond as quickly as possible. We will include the copyright information in our record for the book and ask for your instruction on how and whether we may provide access to the digital version. Many copyright holders, especially scholars, are eager to make their out-of-print books available for reading in the HathiTrust. We offer that as an option for any copyright holder who wishes to do so. Copyright holders may identify themselves at any time. Even if you contact us after the 90-day period, we will honor your wishes.

(you should visit the page because the text size and layout makes the bolded text I am emphasizing here even more prominent.) On the other hand, some of the "orphan works" included in the original list were apparently ludicrously easy to link to existing authors. So to some extent, the Hathi group brought this on themselves through sloppy work. there is an article at Library Journal by David Rapp that quotes the University of Michigan released statement that argues that the flawed release of the orphan works list actually achieved the aim, though they will revisit the methods and refine them to

create a more robust, transparent, and fully documented process, we will proceed with the work, because we remain as certain as ever that our proposed uses of orphan works are lawful and important to the future of scholarship and the libraries that support it.

Sign the Consumer Caucus Petition!

I am reproducing below the petition of the Caucus of Consumer Advocacy to the AALL Board. Please read the petition, and if you agree with the position of the Caucus, sign it by emailing your approval to Michael Ginsborg at michaelginsborg@yahoo.com. The names of all signatories will be kept confidential, as explained in the petition. Time is of the essence. We have a short deadline by which to gather signatures (September 16th) to allow AALL time to place the petition on the agenda of the Board meeting for November 3rd-5th. The Caucus's statement of purpose must be strong and unequivocal so that we can be effective consumer advocates for law libraries.

Request To Support A Petition For An AALL Consumer Advocacy Caucus

We are a group of over 50 AALL members who need your support in a crisis affecting all types of law libraries. Our libraries cannot indefinitely sustain the escalating costs of unfair and anticompetitive business practices by some sellers of legal information. AALL has unique promise to champion the interests of legal information consumers. We have matched its promise with an opportunity. In April, we registered to become an AALL Caucus on Consumer Advocacy. AALL members have achieved earlier successes at consumer advocacy. Based on their examples, we proposed several consumer advocacy initiatives as our goals. AALL's leadership initially raised concerns about our goals. We were told that our Caucus would violate antitrust law and make policies on AALL's behalf. To answer these objections, we changed our
statement of purpose. Former AALL President Joyce Janto subsequently approved our revised statement for an Executive Board vote. AALL President Darcy Kirk recently rejected it and offered a substitute that compromises our effectiveness. We need your support as we petition the Board to reverse Darcy's decision and approve our revised statement of purpose. We ask that you endorse the following petition to the Executive Board. We will instruct the Executive Board to keep signatory names strictly confidential.

A Petition Of Undersigned AALL Members To AALL’s Executive Board

As AALL members, we petition AALL’s Executive Board to approve this statement of purpose for the creation of the AALL Caucus on Consumer Advocacy: "The AALL Caucus on Consumer Advocacy will recommend to AALL that it petition appropriate governmental bodies for specific remedies to anticompetitive and unfair business practices by legal information sellers." We do not consent to any disclosure of our names as signatories. Disclosure could allow legal information sellers to retaliate against us by singling out our employers for less favorable business relations.

Reasons For The Petition

1. The Caucus has a strong factual basis for its proposed purpose.

2. Although AALL has three venues on “vendor relations,” none can effectively address unfair and anticompetitive business practices in the legal information industry. First, the Vendor Colloquium did not discuss consumer advocacy, and the membership had no opportunity for digital participation in any of its sessions. Caucus members asked a Vendor Colloquium task force to consider our proposal of a robust consumer advocacy equal to AALL’s promise. The
task force did not respond, closing an opportunity for their participation. Second, CRIV does admirable work to help individual institutions resolve complaints against legal information sellers. But CRIV can not use information from these complaints to advocate for a change in AALL policy. Third, despite significant anti-consumer practices in the industry, AALL’s Vendor Liaison has reduced related membership concerns to a problem in public relations. In March 2011, Vendor Liaison Margie Maes reported that unidentified “vendors” were “frustrated with the airing of public complaints,” but hoped that a “vendor relations program” would “stem the flow of that negative communication.” (March 25-26, 2011 AALL Executive Board Meeting Board Book, Tab 17)

3. We need a new approach. Caucus members seek the opportunity to independently influence AALL policymaking in a matter of high importance to the membership. An AALL Caucus would provide AALL members a forum to fully exchange their views on consumer advocacy, and a transparent venue to reach consensus on a policy recommendation to the Executive Board. The Caucus would not decide policy for AALL or act on its behalf. Caucus members seek only to have their voices heard; to open a new outlet for member participation in AALL; and to collaborate with AALL’s leadership in developing an effective consumer advocacy.

4. Over 50 AALL members have twice requested AALL’s recognition of the Caucus. Valuing AALL as their best ally, they have worked with its leadership to develop an acceptable statement of purpose. Former AALL President Joyce Janto provisionally approved their latest submission, but her successor, Darcy Kirk, has rejected it. Darcy suggests that the Caucus accept yet another statement of purpose: "The purpose of the Caucus on Consumer Advocacy is to provide a forum for AALL members to exchange ideas and information regarding the legal information industry and to represent its members’ interest and concerns within AALL."

5. Darcy objected to the "negative tone" of the Caucus’ latest purpose and faulted the Caucus for suggesting "actions regarding policy." She says that her substitute purpose “does not prevent [the Caucus] from from making recommendations to AALL regarding petitions.” But it would prevent the Caucus from candidly declaring its real purpose - to recommend a consumer advocacy petition.

6. AALL’s leadership could apply similar objections to any activity our Caucus might otherwise pursue, especially given the recent history of changing positions by AALL Presidents.

7. Darcy's rejection of the Caucus' proposed purpose would harm AALL in the following ways:
a. It would violate the implied right of members to engage AALL in matters they find fundamentally related to its mission;
b. It would violate AALL’s principle of transparency and openness;
c. It would create a chilling effect on Association speech, as members will not be allowed to discuss consumer advocacy issues, must less pursue them, for fear that AALL will not approve of candid discussion;
d. It would create the appearance that AALL is afraid of candor in matters that affect sellers of legal information;
e. It would deprive members the indispensable status and perceived “protection” that AALL recognition confers on an activity that some legal information sellers can be expected to disapprove; and
f. It would deter members from otherwise acting together to pursue their vision of a robust consumer advocacy.

8. These harmful consequences prevent Caucus members from accepting Darcy's substitute purpose. So unless the Board reverses Darcy's decision, the Board will deny over 50 AALL members an opportunity they eagerly want to participate in their Association; will deprive other AALL members the benefits of allowing the Caucus to organize; and will undermine member trust and interest in the Association.

Textbook Pirates! Yo-ho-ho...

The Chronicle of Higher Education for Sept. 2, 2011 , p. A17, "New Web Site Unabashedly Trades Free Digital Copies of Pirated Textbooks" by Jeffrey R. Young (News | Technology) reports that textbook pirates encourage students to scan textbooks & post them. Some visitors are posting e-textbooks on the site which includes links to BitTorrent and step-by-step instructions on how to use it. The textbook pirate site is called LibraryPirate, currently hosted in Ukraine, where it does not violate copyright laws. The anonymous owner claims he also maintains a backup to site in case it's shut down, and can have it back up and running in another country very quickly. He also says he was Inspired by the earlier similar site which was shut down 3 years ago, Textbook Torrents. The owner of LibraryPirate claims to be motivated by moral concern for students

I want to bring about permanent changes to the textbook industry. The exorbitant price of a textbook shouldn't hinder students' ability to do well in a class. I believe there is a moral objective at play here.

Edward McCoyd, director of digital policy for the Association of American Publishers was contacted by author of the Chronicle article, and replied that the LibraryPirate website unfairly "...penalizes the people who are producing the materials." He pointed out that e-textbooks often are reduced by as much as 60% off the price of print versions. McCoyd referred the author to a fact sheet on the web site run by his publishing association, called Cost Effective Solutions for Student Success (or CESSS), which has a report at --- http://www.solutionsforstudentsuccess.org/faq#pricing stating:

According to Student Monitor’s Lifestyle & Media – Spring 2011 Report, for the Fall 2010 – Spring 2011 academic year, the average student spent $534 for printed textbooks. To put that figure into context, that number is: 50% less than the $1,068 students spent for their mobile phone 60% less than students spent on movie tickets 27% less than what students spent for gasoline

I cannot imagine how much my students would froth at the mouth reading this. I am not surprised students are willing to pirate textbooks after reading self-justifying stuff like this. It may be perfectly true if you work out math, but that is not going to make students at all happy about the fact or the organization that brought it to them! There is much more useful stuff there about how much it costs to bring a science textbook up to date and then bring out the new edition, for instance. I do understand that publishers need to be compensated, and to compensate the authors, and editors, and all the reviewers, and many other people involved in the publishing industry. But they really need somebody to proof-read and edit their webpages! This particular piece is only going to alienate and enrage the people they are trying to reach! Can you say FAIL?

The image of the guy poking himself in the eye is from a Brilliant! Biomed newsletter at http://www.brilliantbiomed.com/2010/02/things-you-can-learn-by-poking-yourself.html (the article REALLY is about things you can learn by poking yourself in the eye!)