I’ve been so busy lately with dealing with the law library flood, prepping for my legal research class, and winding up some writing projects, I’ve been a little blank on blog topics.  However, a discussion of the federal court system in my LR class today recalled a really cool (to law geeks at least) blog I discovered this summer, Circuit Splits <splitcircuits.blogspot.com>. Maintained by Professor A. Benjamin Spencer of the Washington & Lee University Law School, it is a great resource for generating ideas for law review pieces, law review student notes, and bar association magazine articles. I've also mined it for examples to use in the classroom.  I can also imagine  SCOTUS watchers seeking to handicap the Supreme Court's selection for cert based on its data.

Spencer, a Civil Procedure specialist, also authors the Federal Civil Practice Bulletin <http://federalcivilpracticebulletin.blogspot.com>.  

 

Photo from Professor Spencer's Official W&L bio.

From today's Daily Docket:

 

The Second Annual Conference on Innovation and Communication Law, hosted this year by the University of Louisville Brandeis School of Law, came to a successful close on Saturday, August 22. The two-day conference featured over 50 speakers from four different continents around the world and from local law firms, discussing the role intellectual property and communications law play in the dissemination of information. Professors Cross and Smith, the faculty sponsors for the conference, want to thank everyone involved for their hard work which helped make the conference such a success. They would particularly like to thank Becky Wenning and Vickie Tencer for their assistance in planning and coordinating everything from the logistics of bringing in the speakers to arranging the event at the Marriott; and Jim Becker and Joe Leitsch for ensuring that the technology worked smoothly. They would also like to thank the many students involved in the conference as well, including Mike Swansburg, Mari-Elise Gates and Brian Stempian. None of this would have been possible without everyone's hard work. Well done and thank you! 

In consideration of the upcoming Conference on Innovation and Communication Law, today's post focuses on intellectual property, the Associated Press' new plan for "reclaiming news content online" and the dissemination of news information.

Last week, an AP memo leaked to the public. (The memo is attached below.)  In short, the AP's plan is to make broad assertions of intellectual property rights and aggressive monitoring of online content.  The memo discusses the aim of supporting journalism, but the AP's goal is to "ultimately unlock enormous revenue potential."  Hence, the title of the memo: Protect, Point, Pay - An Associated Press Plan for Reclaiming News Content Online.

To be sure, there must be copyright protection for content creators.  The reach of copyright protection, however, must be balanced against the need for a robust Fourth Estate protected by the First Amendment.  As the AP knows: "That Amendment rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public, that a free press is a condition of a free society."

The AP memo discusses "unauthorized" and "unlicensed" use of content, but that does not mean the use is illegal.  Facts are not copyrightable.  Fair use is a defense to alleged claims of copyright infringement.  Thus, there are legal obstacles to the AP's Protect, Point, Pay plan. 

Beyond the legal issues, there is a presumption in the memo that lacks foundation.  The AP memo states that one aim of the plan is to promote "authoritative journalism."  Without doubt, the AP has played a significant role as part of our nation's Fourth Estate.  But, large media conglomerates cannot claim onto themselves the label of "authoritative journalism." Sometimes traditional media drops the ball and new media outlets sometimes pick it up.

For example, in 2008, Talking Points Memo received the George Polk Award for breaking the U.S. Attorney firings scandal. Also, the traditional media's coverage leading up to the invasion of Iraq was so lacking in investigative depth and accuracy that companies like the New York Times published a mea culpa editorial. In short, neither traditional media nor new media can exclude the other from being considered "authoritative journalism."  They are two parts of a whole and the Fourth Estate needs them both . . . and more.

In any case, the media industry, citizens, courts and legislatures will continue to work to balance competing interests of intellectual property rights and the need for a robust Fourth Estate that ensures an informed citizenry.  During this process, "the last thing we should do is erect electronic walls that block the openness and democratic genius of the Internet."  Indeed, as John Nichols and Robert W. McChesney note: "The place to begin crafting solutions is with the understanding that the economic downturn did not cause the crisis in journalism; nor did the Internet."

In a prior blog entry, I began creating the "New Dean's Guidebook" in which I articulated rules for new deans to live by.  In this blog entry, I continue that effort.  Recall the initial two rules:

Rule # 1: Never forget that this is all about you. Oh, sure, the law school may have been there for decades (and, perhaps, more than a century). And, sure, there may be an existing faculty which has been toiling at the school for years. But, surely, those facts are irrelevant in the grand scheme of things. Also, don't be distracted by quaint faculty notions regarding the importance of teaching and educating, or relating to the importance of scholarship or service. This is all about you, your career, and your self-interest.  You should focus your decisions accordingly. After all, what else matters? 

Rule # 2: Make sure that the faculty knows who is boss. Indeed, you should regard anyone who speaks out against you, or opposes your ideas, as committing the functional equivalent of treason. Medieval kings were not simply regarded as heads of state, but as the embodiment of the state itself, and criticism of the King was subject to punishment. Moreover, since medieval kings were regarded as having been placed there by God, criticism of the King was regarded as not only treason but as a sin against God. It is important for faculty to realize that you were divinely appointed.   

 

So, here, is the new "guide" or "rule":

 

Rule # 3: Assume the worst regarding faculty motives (and impose "productivity penalties").  It's wise for a dean to assume the worst regarding faculty motives and to try to rein in faculty activities.  After all, aren't faculty only out for themselves?  So, one great idea is to impose "productivity penalties."  If, for example, a faculty member wishes to travel to do research or give a speech, make the faculty member pay 10% of the travel expenses.  Without such a penalty, there is a higher probability that faculty will abuse their travel funds by being too active in scholarly activities.  The reality is that far too many schools are worried about impressing others by encouraging their faculty to write books and articles and give speeches, and they thereby succumb to the hogwash and hoopla surrounding U.S. News rankings.  By imposing productivity penalties, law schools can make sure that faculty think twice before they do too much research or give too many speeches, and law schools can thereby rein in these disturbing trends toward increasing productivity and visibility.

 

More to come...

As the school year starts, professors and attorneys may be interested in reading Frank Tuerkheimer's short two-page piece (available to Westlaw subscribers only) in 58 Journal of Legal Education 531 (2008).  Tuerkheimer laments the editing out of attorneys' names in casebooks. 

As a former labor law attorney, I too always look for the attorneys' names when reading a labor law case.  Labor law is governed by federal law, and attorneys nationwide know each other.  It is also a field filled with history in which past attorneys' strategies have shaped the development of the law.  When teaching labor law last year, I looked up the attorneys' names for every case and shared what I knew about the attorneys with the class.

Yet, in other fields, such as Wills and Trusts, state law governs while the casebooks contain cases from across the country in different jurisdictions.  Thus, at least to someone like myself who has not practiced in that field, it seems less important for the professor to look up the attorneys on each case and share information about them with the class.  It does seem to mean, however, that the students will not then benefit from learning about the attorneys who have practiced and do practice in that field in their jurisdiction and the strategies those attorneys have successfully used. 

In such fields then, for practicing attorneys, the job of teaching the new associates, clerks, interns, and externs about the attorneys and the strategies in the field becomes even more important.  I hope you will all take a few extra moments here and there to fill in those students working in your office this Fall about this important information they may not be learning in class.

Today, we begin and end with college football.

Within days after releasing its new media policy, the Southeastern Conference announced it will consider some revisions to the policy.  Associate Commissioner Charles Bloom stated that the SEC already received complaints from 35-40 media members about the restrictions imposed by the policy.

The policy results from the SEC's and XOS Technologies' desire to protect the value of the new SEC Digital Network announced earlier this summer.

One provision that will be changed currently requires media members covering SEC events to be "full-time salaried employees" of their respective media entities.  Commissioner Bloom acknowledged that this provision is impractical considering the number of freelancers and collegiate media members that cover sporting events.

The fate of other provisions offensive to the media, however, is not yet resolved.  For example, under the policy released last week, television stations may only broadcast highlights from games for a mere 72 hours after the conclusion of a game.  (The entire policy is attached to this post.)

This incident is just one example of how an aggressive assertion of intellectual property rights (or contractual rights) can result in a public relations backlash.  With the uncertainty of how far courts or legislatures will go to protect broad assertions of intellectual property rights in the digital age, however, this is surely not the last or only incident.  For a somewhat snarky example, read this "rewritten" AP article that is intended to show how the AP makes a similarly overbroad assertion of intellectual property rights in its news articles.

 

Finally, on a purely college football note, I am thankful that former University of Louisville Cardinals Running Backs Coach, Tony Alford, has joined the University of Notre Dame Fighting Irish coaching staff.  The Fighting Irish and Charlie Weis need all the help they can get with the running game.  Coach Alford's record suggests that he is the right man for the job.

 

Today I received the following:

 

Dear Jim,

We have wrapped up the semester, and I wanted you to know that in our last class, the students repeatedly talked about how helpful your talk was to them; understanding the impact of illness at a personal level really helped them understand in a way a text or lecture never could. Thanks, and more thanks for this wonderful service you have done. And enjoy your sabbatical! 

Dru Kemp, Ph.D., L.C.S.W.

Adjunct Faculty, Kent School of Social Work

This past weekend, I volunteered at the Forecastle Festival, an annual event that is equal parts music, art, and activism.  The festival was founded in Louisville by JK McKnight eight years ago and has grown from a small crowd at Tyler Park to a large gathering of several thousand people at the Belvedere. It's been praised by Outside Magazine as "One of the Top 25 festivals of 2009" and SPIN Magazine as "One of the Top 101 things to do in America".

Last year, I was moved by Robert F. Kennedy, Jr.'s keynote address that encouraged  the sunburned crowd to "think globally and act locally" by becoming caretakers of the Ohio River. This year's keynote address was delivered by Christopher Childs, an environmental activist and former Greenpeace spokesperson, who wove education and spirtitual themes into his presentation. Following his talk, he signed copies of his book The Spirit's Terrain: Creativity, Activism, and Transformation.

In addition to an inspiring keynote and a plethora of great bands, highlights from this year's festival included an art exhibit by Louisville-born artist Rebecca Norton that was presented by Ohio Valley Creative Energy and a mandala comprised of natural flora and fauna that grew and evolved as festival attendees added to the creation. New additions included Lexington's March Madness Marching Band, a Heine Brothers Coffee cart, tarot card readers and face painters, a disco tent, an Oxygen bar and a booth set up by the law school's Student Animal Legal Defense Fund that included petitions, photos and information about the group's activities.

Hearings of the Senate Judiciary Committee begin today.  The committee will decide whether to recommend that the full Senate confirm President Obama's nomination of U.S. Circuit Court Judge Sonia Sotomayor to fill the vacant seat that David Souter held prior to his retirement at the end of the Court's business in June.  They will be televised in their entirety on C-SPAN.

C-Span also has an interesting poll on its website that covers the American public's general knowledge of the Court [Link to PDF].  A recent CBS Poll finds that 62% of Americans are undecided on the Sotomayor nomination; the C-Span poll gives some reasons why that might be the case.  C-SPAN found that 49% of American cannot name single Supreme Court justice.  Only half know that the court has nine justices and 59% couldn't name the first woman to the high court.  Regarding Sotomayor, 57% could not even name who Obama nominated.

The Founders tried to insulate the Supreme Court from the whims of the mob.  They have succeeded--the mob couldn't pick a justice out of a line-up if he or she was wearing robes and carrying a gavel! 

 

 

Today I spoke to around 20 students in the psychopathology class in the Kent School of Social Work.  This was my third time to address a section of this course, and it was as enjoyable as always.  I was asked many excellent questions by this highly motivated group.