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File-sharing & Social Capital

In the intellectual property / cyberlaw niche of the legal academy, I think it is fair to say that the litigation over Napster and Grokster has resulted in so much spilled ink that it is hard to keep up with the commentary. Indeed, while these are cases in my bailiwick, I never finished reading through the panoply of Grokster amicus briefs, much less all the law review articles on file-sharing.

What becomes quickly apparent from a skim of the literature, though, is that the policy questions entertained by lawyers in relation to file-sharing aren’t as interesting as they might be. Copyright is a doctrinally complex regime of statutes and caselaw. However, at its core, it presents a fairly simple policy story, one of economic incentives for greater production and distribution. In other words, through our legal policy lens, the song becomes a widget and the accepted policy goal becomes the production and distribution of more and more widgets. Thus, to the extent a complex legal doctrine permits it to come to the surface, the relevant policy question for file-sharing is whether it will provide the public with more or fewer song-widgets. It’s a bit disheartening that our intellectual property policy equates songs like American Pie, Hey Ya, and Toxic with three fungible barrels of crude oil–but perhaps judges, as Justice Holmes once opined, shouldn’t really be in the business of making artistic policy judgments.

As a result, though, what often gets left out of the myriad legal ponderings on file-sharing is the social dimension of the activity. This isn’t true across the board by any means — Rosemary Coombe, Mike Madison, and recent guest-blogger Joe Liu, for example, have written law review articles with a clear interest in how popular content “consumption” is actually something much more interesting than the term suggests. But because the legal doctrine of copyright rests on that reductive incentives story (with a constitutional basis), it likely seems to many legal scholars that there is little reason to pay attention to the cultural dimensions of intellectual property law.

That’s all by way of background to why I found this paper, presented at the CHI conference in April of this year, so interesting.

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Who’s Your Daddy?

family.jpgNepotism is at work in the legal academy. The next time you wonder how a professor with an unremarkable resume landed a job, check the family tree. You’re likely to find—sometimes even in the very same school—a professor parent.

Or spouse. Husband and wife professors complain about the burdens of finding work as an academic couple, but being married to a high-profile professor can be a significant career booster. Schools that badly want a professor will lower their standards and hire that professor’s spouse—or work things out so that the spouse can teach at another school in the vicinity. (The practice seems to be a benefit of heterosexual marriage: I’ve never heard of a same-sex couple being treated so favorably.)

Judicial clerkships are a route to teaching but here too nepotism is common. Judges are prohibited from hiring their own family members but the rule doesn’t extend to the family of a current or former law clerk. Husbands and wives, brothers and sisters, sometimes even parent and child, clerk for the same judge or justice—passing around the clerkship like it’s the family silver.

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The Ontology of Blogging

Dan’s critique of some of the interesting mistakes made by Pajamas Media is dead on, in my opinion. His post also calls attention to the fact that blogs and blogging have qualities that are not always grasped easily — even by businesses heralding the medium. For instance, here’s what PM says about blogs:

Readers unfamiliar with blogs are sometimes puzzled by the concept, thinking that they are mere online “diaries,” where egoists and sentimentalists record their thoughts and feelings. But the phenomenon of blogging is much more than that; it’s the modern equivalent of the Gutenberg revolution, a way of putting not just published material in the hands of the public—but publishing itself.

Sounds wonderful, but I’m going to agree and disagree with them a bit.

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Memory on the Sewanee Campus

sewaneeflags.jpgIt doesn’t take a lot of skill to predict that this New York Times article about the controversy over what we used to call “The University of South” and what’s now called “Sewanee: The University of the South” is going to generate, well, a lot of controversy.

First, some background. A few years ago, apparently motivated by a marketing study, the University of the South began emphasizing the “Sewanee” part of its name. Alumni have been concerned (to put it mildly) that it’s not just about the name, however. They think there is a lot more at stake on the campus–like how the University deals with its distinguished and complex history. At the center of that history is the University’s founder, Leonidas Polk. Bishop Polk was, also, a general in the Confederate States Army.

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Pajamas Media

pajamas-media.jpgA CSM article discusses the Pajamas Media, an entity that aims to gather together the best of the blogs under one umbrella:

If a single thought-provoking weblog can find a large audience, might 70 or more linked together start a revolution?

That’s what Pajamas Media hopes to find out. Backed by $3.5 million in venture capital, the nascent media company has gathered some of the most highly regarded bloggers on the Internet at one site (osm.org), hoping, as co-founder Roger Simon puts it, “to be the place for breaking Internet opinion.”

According to Pajamas Media, the goal is:

PJM’s mission is to expand the influence of weblogs by finding and promoting the best of them, providing bloggers with a forum to meet and share resources, and the chance to join a for-profit network that will give them additional leverage to pursue knowledge wherever they may find it. From academics, professionals and decorated experts, to ordinary citizens sitting around the house opining in their pajamas, our community of bloggers are among the most widely read and influential citizen journalists out there, and our roster will be expanding daily. We also plan to provide a bridge between old media and new, bringing bloggers and mainstream journalists—more and more of whom have started to blog—together in a debate-friendly forum.

Pajamas Media has thus far landed with a thud. Its website has been criticized as being too boring and corporate. People are claiming it is politically unbalanced with too many conservative bloggers.

In response, Pajamas Media founder Roger L. Simon explains in the CSM article:

Simon promises a livelier front page that will pose a controversial question such as “Should the UN run the Internet?” and then let its bloggers have at it from all sides. The site employs editors in Los Angeles, Sydney, Australia, and Barcelona, Spain, so that it can be updated 24 hours a day. And it’s streaming in feeds from conventional news sources while developing its own “fact checking” system to ensure the quality of its information.

Some of my thoughts and reactions:

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Law & Order

I’m a Law & Order fan. I love all of them: Original, Criminal Intent, Special Victims, and Trial by Jury. I also like the re-runs—even when I’ve seen an episode before there are always enough twists and turns and details to get my attention.

I’ve often gone to watch scenes being filmed in lower Manhattan. A neighbor in my building is a script checker for the show and so on occasion I’ve also been able to sneak a peek at draft scripts left in the recycling bin.

Though in real life no criminal case is resolved in one hour, Law & Order is pretty good on the substance of the law. The precedents mentioned are typically real cases. The rulings by the judges (at lightening speed) are often correct. I tell my students they can learn a lot by watching.

One curiosity is that most of the judges on Law & Order are black women. This is not realistic. Even in New York City black female judges are few and far between.

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Markel in Slate

My friend and our former co-blogger Dan Markel has a new essay out in Slate on the death penalty that is well worth reading. Dan analogizes the recent news about wrongfully executed Ruben Cantu to the movie “The Life of David Gale.” In the essay, Dan links to his relatively new Harvard CR-CL piece about retributivism and the death penalty, which is also worth a read (although it will take somewhat longer to digest than the Slate piece.)

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History of the Book

widenerreadingroom.jpg

Folks here at concurringopinions have been talking a lot about books recently–Nate Oman’s had posts on the appeal of law books (particularly old ones) and law reviews and Dan Solove’s posted about the open library. I find student-edited law reviews problematic in some ways, and the smell of old books doesn’t do much for me. But there is magic, imho, in libraries. Libraries are great enlightenment vehicles of improvement. They’re the places that knowledge is collected and disseminated. (And that’s why I find the stories about segragated libraries particularly important in understanding our history.)

I remember the excitment I used to feel on walking in Van Pelt Library as an undergraduate. The entire world of knowledge, it seemed to me at the time, was open to anyone who had the inclination and time to visit it. In keeping with the Supreme Court’s administrative law opinions of the early 1970s, like Overton Park (about the importance of getting information in front of regulators), I thought that the knowledge in those books held most, if not all, of the keys to a better society.

Sometimes, if I get to the University of Alabama’s library early enough on a Saturday (so there aren’t many other people around), and I’m working on an original project, and the light strikes the windows in the great reading room just right, that enthusiastic eighteen-year old I remember appears again, even if only for a short while.

When I’m thinking about old books, I’m partial to library catalogs. Because they give you a sense of the ideas that people had access to and the kinds of ideas they found appealing. The 1853 library catalog of the University of Georgia is available on the Georgia library’s webstite. Through the magic of the internet, you can see exactly what the catalog looked like. And you can also see what books were in the Georgia library. Historians in recent years have been talking a lot about the “history of the book.” They ask who was reading books, who was writing them, and how books were useful in transmitting ideas.

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A common-law right to attend Eagles games

Also in Eagles news (all strange, all the time) is this story: “Man spreads mother’s ashes on Eagles field.” The man in question, Christopher Noteboom, claims he chose Eagles field because his mother was a lifelong fan of the team. Noteboom is being charged with trespass. The police chief seems unsympathetic to Noteboom’s claims, points out that a number of fans were probably terrified when a strage man began spreading an unknown powder at the football game.

Did Noteboom also secure for himself a right to attend Eagles games? Guest blogger Al Brophy has written about the ancient common-law rights of family members to visit the graves of loved ones. Perhaps Noteboom can offer a settlement — drop the charges, and I won’t press my common-law rights of access to a grave. (And if he does try to press them, we may see a very interesting grave-rights case).

Meanwhile, I’ll be busy this weekend, spreading ashes at the Met, the Philharmonic, Madison Square Garden, Yankee Stadium, the Four Seasons . . .

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Senator Specter on Terrell Owens

My state’s senior senator, Arlen Specter, who has lots on his plate, held a news conference this morning:

[He said that] it was “vindictive and inappropriate” for the league and the Eagles to forbid [their] all-pro wide receiver [Terrell Owens] from playing and prevent other teams from talking to him.

“It’s a restraint of trade for them to do that, and the thought crosses my mind, it might be a violation of antitrust laws,” Specter said, though some other legal experts disagreed.

“I am madder than hell at what he has done in ruining the Eagles’ season,” the Pennsylvania Republican said. “I think he’s in flagrant breach of his contract and I believe the Eagles would be within their rights in not paying him another dime or perhaps even suing him for damages.”

But Specter said, “I do not believe, personally, that it is appropriate to punish him (by forcing him to sit out the rest of the season). He’s not committed a crime, he’s committed a breach of contract. And what they’re doing against him is vindictive.”

There are several statements here that are interestingly wrong. One worth thinking about is the idea that the Eagles are punishing Owens by enforcing the contract’s “conduct detrimental” clause. On one level this can’t be right – the Eagles are paying their employee for not working, hardly an onerous result. But theory notwithstanding, reading the arbitrator’s decision, it sort of feels like punishment. Doesn’t it?