University of Louisville Law Faculty Blog

Book digitization and copyright

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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.

Viacom's Answer to YouTube (And Doesn't Involve a Copyright Lawsuit)

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Viacom, owner of cable's Comedy Central channel, took a lot of flak from netizens when it forced Google to pull videos from its popular Daily Show with Jon Stewart from YouTube. Yesterday, it debuted its creative answer: a website with every episode of the show from its inception in 1999. The website, sponsored by Hyundai, is free, requires no log-in, and (like YouTube) allows fans to embed clips into their email, web pages, blogs, as well Myspace and Facebook pages.

This represents a surprisingly sensible approach to an intellectual property challenge. Viacom controls the usage of its property, while giving users much of the usability of YouTube with higher quality footage. And they pick up a little change (Hyundai's mini-ads) that wasn't realistically available through silly per-use schemes. Let's hope they extend the principle to other programs (like the Colbert Report)...

As an example, here's Jon's practical method of predicting how the Supreme Court will rule in a case:

 

Is a Garden Display a Copyrightable Work?

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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).

The Contract That Made Ellen Cry

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Not being a daytime TV watcher, I would not have normally seen the footage of Ellen Degeneres' tearful story of how a Pasadena animal shelter had taken back a dog she had given the children of a co-worker. That is, I wouldn't have except NBC chose to include it in last night's Nightly News with Brian Williams. Besides being confused as how this fit in with the ominous story that preceded it concerning a mutual defense pact between Iran and Russia, I also wondered about what kind of contract would allow the Mutts and Moms animal adoption agency to do this? Luckily Access Hollywood--a legal resource almost as reliable as YouTube--has posted the contract between Ellen and the animal rescue/adoption agency.

In a conversation around the coffee pot before either of us had seen the actual instrument, Professor David Ensign, who teaches copyright, surmised that the contract was likely more of a license than an agreement to transfer property, analogizing it to a shinkwrap license for software. On reading it, I think he was quite right, although it is an odd document and was certainly not copied from West's Legal Forms.

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Senate Hearings on Mukasey Nomination.

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Hearings by the Senate Judiciary Committee on the nomination of Michael B. Mukasey to be attorney general of the United States begin today at 10.00. They will be televised on C-SPAN 3 and simulcast on the C-SPAN website. The Washington Post legal analyst Andrew Cohen previews the testimony in today's Bench Conference column.  Mukasey's responses to the Senate Judiciary Committee's standard questionare for nominess can be found here, but there were few surprises (Mukasey's career on the bench is well-known).

Deaning's Seven Virtues

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OK, ok, so the number may not be exactly seven. However, the one question that people have asked me is why I focus on decanal sins so much, particularly the "deadly sins." Aren't there decanal virtues?  The simple answer is "yes."

I was thinking about titling this entry "In Praise of Tom." In general, I do not intend to write about individual deans. This blog is not about individuals, but rather is about decanal issues. But I'm going to make an exception in this case (as well as in one later blog).

The "Tom" that I'm referring to is no longer with us.  No, no, he isn't dead. He has simply left the decanal and law school ranks to become a university president.  But he is "gone" in the sense that we no longer have the pleasure of seeing him.  Of course, the "Tom" that I'm referring to is Tom Galligan (however, I'll refer to another "Tom" in a later entry).

So, why do I link this Tom with "decanal virtues?" Galligan was an extraordinary dean because he eschewed decanal narcissism and focused on ways to promote and further his faculty and his institution. Unlike some deans, Tom realized that a law school advances through the collective efforts of its faculty and staff.

Of course, I never had the pleasure of serving under Tom.  However, I sensed that his faculty held him in like regard. When the Louisville deanship came open, I remarked to a friend at Tennessee that I had my eye on Tom (who was stepping down as dean at Tennessee) as our new dean. She told me in no uncertain terms that I had better not think about taking him away from them.

Even though I did not serve under Tom, I saw his virtuous traits from my position as Executive Director of the Southeastern Association of Law Schools. Whenever I'd send out a request for panelists, I would receive an immediate response from Tom touting one of his faculty members. The net effect was that a lot more of Tom's faculty ended up on important panels than might otherwise have happened. In addition, he was unfailingly thoughtful in SEALS discussions and never allowed his ego to get in the way. 

I am pleased to say that there are lots of other deans like Tom in our region.  However, Tom was a pleasure to work with and is missed in the region (and, I'm sure,  especially at Tennessee). 

An Excellent Book

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As someone who is very interested in mental health issues in general and mental health in legal academia in particular, I highly recommend Elyn R. Saks's new book The Center Cannot Hold:  My Journey Through Madness (Hyperion 2007).  It is amazing saga of a woman who has had an outstanding leal academic career despite coping with schizophrenia, the most severe of all the mental illnesses.  It undercuts the stigma of mental illness, and overall is a memoir anyone interested in mental illness or the world of legal academics should be sure to read.

Parsing Senate Ethics

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Like "military intelligence," "Senate ethics" is a phrase in search of a joke. The recent decision of Sen. Larry Craig (R-ID) to remain in the Senate despite a recent decision of a Minnesota judge upholding his misdemeanor guilty plea (see the Hennepin court's website for the ruling), now appears to have shifted the controversy over his arrest in an airport restroom to the Senate Ethics Committee. Why? The short answer is that the embarrassed Republican leadership has referred the case to the ethics committee, the only Senate committee with equal representation from the majority and minority parties. (The Democratic majority, which sees more hypocrisy than high crime in the matter, appears to be giving the Senate majority enough rope to perhaps hang itself).

The long answer has to do with the Constitutional powers of the Congress to discipline its members and how they have evolved over the years. At first blush, the case hardly looks like a ethics matter--indeed the Senate Ethics Code <http://ethics.senate.gov> has great detail on financial disclosure, gifts, travel reimbursements, honoraria, outside employment, conflicting interests, post employment restrictions, campaign activities, and mass mailings but nothing on misdemeanor disorderly conduct. However, the Senate has long taken the view that its power to discipline is more expansive than the ethics code, and that it is only limited by Article I, Section 5 of the U.S. Constitution states in part that: "Each House may determine the Rules of its proceedings, punish its Members for disorderly behavior, and, with the concurrence of two thirds, expel a Member."

In proposing a permanent standing committee on ethics in the Senate, Senator John Sherman Cooper (R-KY) noted that the new Select Committee on Ethics was intended ‘‘to be free to investigate anything which, in its judgment, seemed worthy, deserving, and requiring investigation’’ 34 and ‘‘would not be limited to alleged violations of Senate rules, but it would take into account all improper conduct of any kind whatsoever.’’ 34 110 Cong. Rec. 16,933, (1964) cited in Senate Ethics Manual, Select Committee on Ethics, United States Senate, 108th Congress, 1st Session (2003 Edition) (Supersedes All Prior Editions) 13.

Just as Sen. Cooper drew on the example of the Senate's censure of Sen. Joe McCarthy (R-MN) in fashioning the committee's broad powers, the Craig matter may strike an important precedent, no matter how trivial the case looks now. If the Senate ethics committee is used merely as a political tool for forcing out members who embarrass their party, it seriously diminishes its role as a quasi-juridical and nonpartisan body that seeks to restore the public's faith in Congress as an institution. Especially when its message is that heterosexual sexual misdemeanors (like Sen. David Vitter's (R-LA) self-admitted use of prostitutes) are acceptable, but homosexual sexual misdemeanors are not...

 

More on Deaning's "Seven Deadly Sins"

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In a prior entry, I mentioned Dean Steven Smith's brilliant article, "The Seven Deadly Sins of Deaning." These are the "sins" that will "will rot a deanship. They may destroy the trust that allows a dean to function, dissipate the opportunity for the law school to make progress under a dean, or interfere with the collegial environment that supports learning and discovery."

One of the "sins" that Dean Smith identifies is "narcissism."  He notes that: "Narcissism may be the mother of deadly sins. Many other sins arise when deans merge the school with their own identity. They begin to see the law school as 'all about them' or egocentrically confuse the success others achieve as their personal success. Perhaps monarchs could get by with viewing personal disloyalty as treason against the state, but deans cannot. A dean should be committed to the law school, but no matter how long a dean serves, how influential, or how good the dean is, the law school is never 'the dean's.' It has a separate identity that the dean must expect to share continuously with many others."

When the Lawyer Thinks the Client Plans to Perjure Himself: Words from the Kentucky Supreme Court

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The Kentucky Supreme Court recently provided very useful guidance on a very uncomfortable problem of criminal representation. A real representational conundrum occurs when a lawyer believes that a client plans to take the stand and perjure himself or herself.

In Brown v. Commonwealth of Kentucky, 226 S.W.3d 74 (Ky. 2007), the Kentucky Supreme Court has attempted to shed some light on proper conduct, especially in the criminal context.  

The Court acknowledged the lawyer's ethical obligation under Rule 3.3 by stating that the attorney must bring the conflict to the trial court's attention. To do so the lawyer must make "[a] clear statement of the nature of the problem" but need not give a "detailed evidentiary statement of the disagreement."

The lawyer should proceed in this way only if she "in good faith" has "a firm basis in objective fact for her belief, beyond conjecture and speculation, that the client will commit perjury. "

The Court directed the attorney to follow the instruction of the trial court. The Court noted that allowing the defendant to testify in narrative form is acceptable, with the lawyer present to provide representation such as objections to cross-examination and with regard to matters not involving the perjury.  

The Court found that in the matter before it the criminal defendant was deprived of the right to counsel because the defendant's lawyer left the courtroom during the defendant's testimony and thus could not make objections with regard to the cross-examination.