David J. Ensign's blog

Closing the Book on Reading?

An article in the latest issue of the Chronicle of Higher Education (Americans Are Closing the Book on Reading, Study Finds, v. LIV, no. 14, Nov. 30, 2007, p. A12) reports that the National Endowment of the Arts conducted a study that determined that literacy is declining in America. The NEA issued a report that indicates that 15- to 24-year-olds spent just seven minutes per weekday on voluntary reading in 2006. "[P]eople between the ages of 35 and 44 devoted only 12 minutes a day to reading." The article says that it's not just books that people are failing to read, but that as a nation we're reading "less and less of everything, in any medium." The article points to the obvious impact declining literacy has on our workforce. Just as obvious is the fact that this will adversely affect the quality and preparedness of students to succeed in graduate study.

More about print vs. electronic information...


In my most recent blog entry, I said that digital information is more attractive and user-friendly than traditional media, especially print. Let me clarify. In Legal Research, we teach students that print and electronic sources are both useful, and that sometimes print sources are actually easier to use than electronic. My comment really meant to reflect the perception of many students. We are now teaching a generation of students who have principally performed research online, and seldom, if ever, using print. We often hear students ask if we really expect for them to perform research assignments using books. (Assignments require use of both print and databases.) Because of this, I was surprised when Prof. Barbara Bintliff, law librarian at the University of Colorado, sent a message through the law library directors' listserv that says that as part of a review of their legal writing program, she heard students request more instruction in using print resources. They indicated that their clerking experiences led them to use books much more than they thought they would. This was followed by several messages from other directors who agreed with Prof. Bintliff and said that their students also wanted more instruction in print. Prof. Richard Leiter at the University of Nebraska suggested that libraries that were over-zealous in replacing print sources with electronic would ultimately regret it.


I agree with many of my colleagues that print is still an incredibly efficient way to package and distribute information. There are many instances where it's easier and faster to find information in print, and also easier to place it in context because the hierarchical nature of information is represented in a more apparent fashion in print. That said, who wants to go back to poring over multiple volumes of Sherpard's citators to verify information, or consulting LSAs and Federal Registers to update federal regulations? The real challenge in Legal Research is to somehow convey to students who have grown up with Google that real research takes more than ten minutes to perform, and that much worthwhile information does not flicker on a screen.

International Music Score Library Project, or The Problem with Wikis


The November/December issue of Online Magazine includes an article on the "Top Ten Sites for Researching Music" (vol. 31, no. 6, pp. 15 - 21.) One of the top ten sites is the International Music Score Library Project (IMSLP), which is, or rather I should say was, "a virtual library of public domain music scores" that anyone could contribute to, "with the understanding that scores under copyright cannot be uploaded." As current as this magazine issue is, Prof. Robin Harris of the library staff noticed that the site is already down. I called it up and found online a long open letter. The letter says that the founder and project manager of IMSLP was experiencing two problems. One, he says that he is a college student and he was experiencing difficulties managing the site adequately. This included problems of server maintenance and implementation of new features. Two, he had received two Cease and Desist letters from Universal Edition. I assume that if he is receiving such letters, contributors must have uploaded scores that allegedly are not in the public domain. One problem with wikis of this sort is that the public does not understand public domain. Many people assume that works are in the public domain when in fact they are not. The Project Leader, "Feldmahler," mentions in his letter receiving pro bono assistance from "two outstanding university law teams" and he also thanks a copyright review team, but there is no indication what purpose or function these teams served. Another problem is that this site appeared to require a lot of time and effort, but was apparently run on a shoestring. Feldmahler mentions great efforts on the part of many people, but he emphasizes that he, "a normal college student, has neither the energy nor the money necessary to deal with this issue..." other than to "take down the entire site." "I very unfortunately simply do not have the energy or money necessary to implement the terms in the cease and desist in any other way." Unfortunately, in copyright, many times you get as much justice as you can afford.


This situation illustrates a problem that libraries face every day. If we pay for information in traditional formats, it is not as attractive and user-friendly as it is in digital format. It also takes up a lot of space, and requires effort and money to process and maintain. If we pay for information in electronic form, we don't own and control the media; we're only licensing it. If a company goes out of business, as did IMSLP, or if the information provider decides to change the scope of coverage, then we're out of luck. We can buy the information both in traditional and electronic forms, but if we do that we're using finite resources to duplicate information, which means we aren't providing our patrons with access to the breadth of information that we could.



Laptops in the Classroom

The latest issue of the ABA Journal has an article regarding an issue that has been much-debated at Louisville Law (Jill Chanen, Profs Kibosh Students' Laptops, A.B.A.J., Nov. 2007, at 16). The article cites Chicago-Kent and Duke as examples of law schools that once required students to own and use laptop computers, but which have recently dropped the requirement. Reasons for dropping the requirement include distracting other students because of watching pornography or gambling online during class, and students becoming less engaged in class because of slavish dependence on notes. Laptops have almost become a de facto requirement at Louisville, mostly because of the wireless network and because of administration of exams by computer. In reviewing classes, I have observed students emailing, looking at Facebook or MySpace, and shopping online. Some faculty would like to turn off wireless feeds in order to eliminate distraction. Others argue that students have always been distracted by crossword puzzles, Sports Illustrated, and notes to friends. I confess that I don't know the solution to this dilemma. I think that it's true that online access represents a particularly attractive distraction to students, one that is much more compelling than pre-laptop distractions. On the other hand, most students appear to use their laptops responsibly, and I'm sure they are a valuable tool for note taking and examinations. As an instructor, I prefer reading printed exams to handwritten exams, although I haven't noticed much difference in grade distributions. I will probably continue to permit my students to use laptops in class, until I see a deterioration in classroom performance.

Lenz and Goliath

On Oct. 26, ABC News reported the story of 18-month-old Holden Lenz, whose mother Stephanie had videotaped him dancing as the Prince song "Let's Go Crazy" played on a CD in the background. She posted the 29-second video on YouTube and within four months, twenty-eight people had viewed the video. Universal Music Publishing Group, which owns the rights to the song, filed a take-down notice and Lenz received a warning from YouTube that further copyright infringement could lead to cancellation of her account. She also received a threatening letter from Universal. According to the ABC story, Prince is especially aggressive in searching the Internet for unauthorized use of his music. Lenz appealed the takedown notice, and YouTube has reinstated the video. Because of its notoriety, the video has now been viewed 100,000 times. Lenz has filed a lawsuit against Universal for abusing the Digital Millennium Copyright Act. Regardless of the outcome of that lawsuit, this and other recent stories makes it clear that in the foreseeable future videos on YouTube will be more closely scrutinized for infringement. It will be interesting to see how the nature of the site will change as a result.

Social Networks Influence Litigation


Prof. Metzmeier brought to my attention an article in the Oct. 15 issue of The National Law Journal ("Litigation Clues Are Found on Facebook," p.1) The impact of social networking is a subject we have discussed for quite some time, but in a different context. We have long been warning students that anything they place on Facebook or MySpace can be accessed by potential employers. When employers find incriminating photographs or descriptions of bad behavior on these sites, they often refuse to hire applicants who they see as unstable or using poor judgment. The article in NLJ describes how postings on these sites have influenced the outcomes of trials. The article says that one father succeeded in securing joint custody because his wife had posted sexually explicit comments on her boyfriend's MySpace page. "In another case, a husband's credibility was questioned because, on his MySpace page, he said he was single and looking." The article recounts enhanced sentences for defendants accused of DUI, because their pages on social sites contained photos of them drinking, or comments about getting drunk after arrest. Many times, people assume there is a cloak of confidentiality surrounding their sites and those of their friends. They don't appreciate the public nature of the sites or understand how the information might be regarded by people who are not within their group of online friends. This article makes it clear that everyone should be aware of the potential consequences of placing personal information on a social network site.


View the ABC News story at http://abcnews.go.com/TheLaw/story?id=3777651 

Judge Judy and Copyright

I like Judge Judy. She has to resolve a case within 10 minutes or so, so she cuts through the formalities, drags out her "preponderance of the evidence" yardstick, and cautions litigants not to pee on her leg and tell her it's raining. Most of the cases involve jilted lovers, former roommates, and family members with loans that have gone bad. Last night, she heard a case where a school teacher hired a man with a sound studio to record some children's songs. The man agreed to do so, was paid the price he originally quoted, but then didn't produce the recordings. The copyright issue was kind of murky. The plaintiff school teacher made it sound like she had written the songs. The defendant claimed that he "obtained the copyrights" and that he wanted to use them himself, which suggested that maybe he had obtained licenses to use songs that the teacher had not written. Judge Judy decided the case based on contract; the teacher had paid $650 to obtain recordings, the defendant took the money but did not produce the recordings, and so the teacher was entitled to the return of her payment. Judge Judy said that the teacher was just seeking the return of her payment, so there was no need for her to determine who was entitled to use the copyrights (sic). Obviously, this case was really not about copyright law. I liked it because it brought to people's attention that the use of music requires some sort of permission. I know that many teachers assume that any educational use is fair use. In reality, I know that many of the things they want to do with copyrighted works, while being class-related and not benefitting them personally, don't qualify as fair use. Maybe next week Judge Judy will tackle an antitrust action.

Future of the book?

Those who are convinced that the ebook is the shape of things to come should check out the new Sony Portable Reader System pictured on p. 148 of the latest issue of Wired (Nov., 2007).  It boasts enough memory (192 meg) to hold 160 books and is thinner than a CD jewel case, according to the description.  It has simple controls, a four-way navigation button and a page turner.  Retail price is listed at $299.  In the photo, it is VERY slick-looking -- the kind of gadget that anyone with an ounce of techno-lust would be anxious to try.  Will it replace the book?  My prediction is that it will not in the foreseeable future.  For one thing, the book is still an incredibly efficient way to package information. For another, there is still fear among information providers that digital media are too prone to mass reproduction and distribution.  They are more comfortable with the control they exercise over print media.

Book digitization and copyright

An article in today's New York Times ("Libraries Shun Deals to Place Books on Web," by Katie Hafner) reports that many libraries are reluctant to subscribe to Google's program to digitize books and upload them to the Internet because they don't like the idea that one commercial enterprise might control so much information content, and because Google's agreements have been somewhat restrictive. Instead, some libraries are signing on with the Open Content Alliance, a nonprofit effort. There are copyright implications to these projects, of course. The article doesn't mention the lawsuit filed against Google by the AAP, but it does say that most efforts to digitize print are aimed at books in the public domain, and that Google plans to provide limited access to materials that are still protected by copyright. Open Content Alliance plans to concentrate on materials in the public domain, but the end of the article says something curious. Internet Archive, which appears to be a parent organization to Open Content Alliance, has announced "that it would start scanning out-of-print but in-copyright works to be distributed through a digital interlibrary loan system." Copyright duration is not determined by availability. In sec. 108, limitations on the rights conferred to copyright owners in sec. 106 anticipate that libraries will not reproduce works if the reproduction is systematic. It must be "isolated and unrelated." Clearly, establishing a central repository of copyright protected works for interlibrary loan purposes suggests a systematic effort. There are at least two other problems with this scheme. Needless to say, the Internet Archive will find at the wrong end of an infringement suit before too long.

Is a Garden Display a Copyrightable Work?

A recent article in BNA's Patent, Trademark & Copyright Journal reports a case (Kelley v. Chicago Park District, N.D. Ill., No. 04 C 07715, 9/14/07) that presents several interesting issues related to copyright law. Kelley is a "noted artist" who created a display of wildflowers in a Chicago park. For several years, he maintained the display under a permit, and continued to maintain it after the permit expired. Eventually, the park district fenced the area and removed the plantings. Kelley claims that his wildflower display qualifies as a sculptural work, and is protected by the Visual Artists Rights Act. The main issue, of course, is whether an arrangement of living plants can qualify as a sculptural work. One issue that might influence this determination is whether the display is a continuing work -- one in being since inception -- or whether each year Kelley created a new work, because it required extensive "cutting, trimming, and replanting" in order to maintain. Reading the article, I wondered if the threshold issue of whether plantlife qualifies as a tangible medium of expression was considered. If, instead of a public park district, this garden had been maintained on private property, the case would illustrate an important conflict between property rights and intellectual property. If Kelley prevails, would it mean that private property owners might lose their ability to exclude others from land, if such a work is established there. The article can be found on p. 694 of the Oct. 12, 2007 issue of Patent, Trademark & Copyright Journal (Vol 74, number 1838).