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What If Copyright Law Were Strongly Enforced in the Blogosphere?

copyright3a.jpgSuppose the mainstream media, fed up with the buzz bloggers keep getting and with bloggers criticizing their stories, decided to exact revenge. They initiate a vigorous copyright enforcement strategy, launching a barrage of lawsuits against bloggers as the Recording Industry Association of America (RIAA) has done to music file sharers. What would happen?

The blogosphere would be in for some tough times I bet. Bloggers frequently copy large chunks of mainstream media articles and some of us copy pictures we find on the Web. Bloggers don’t have a team of photographers and artists, so they snag images from the Internet. As for mainstream media articles, bloggers often quote very liberally because the mainstream media is notorious for creating dead URLs — articles often just disappear after a week or two. In other instances, articles get archived and can only be retrieved for a fee. The result is that a post discussing a mainstream media article with just a link or a small quote can become hard to understand when the article being referred to becomes unavailable. That’s why bloggers often copy significant portions of articles — so their posts can still be understood when the URLs to the articles go dead.

We bloggers have, to put it mildly, a very robust concept of fair use. Fair use of copyrighted material is a fuzzy concept, and judges use four factors to determine if a use is fair:

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1

The Contractual Freedom to Prohibit Football

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This buzzworthy newstory about celebrity pre-nups has a few examples of bizarre clauses that couples have agreed to before marriage:

• “Limiting the wife’s weight to 120 pounds or she must relinquish $100,000 of her separate property.”

• “Requiring a husband to pay $10,000 each time he is rude to his wife’s parents.”

• “Mandatory sexual positions”, “No mother-in-law sleepovers.” “Only one football game per Sunday.”

Attorneys quoted in the article suggest that all such provision are

“legal unless you’re dealing with custody of children or child support.” This might be right, but since these agreements are almost never evaluated in written opinions (the parties usually hired retired judges to ensure privacy) I’m not sure whether I’d be so definite. Of course it isn’t my area of law, but I usually teach my contract class that there are limits – public policy and otherwise – to what you can contract to, even in the pre-nup context. The one that really gets me here, of course, is “one football game per Sunday.” What kind of judge would enforce that kind of tyranny?

(Hat Tip: Huffington).

4

A Secret Defense Department Database of Protesters

protest1a.jpgFrom MSNBC:

A year ago, at a Quaker Meeting House in Lake Worth, Fla., a small group of activists met to plan a protest of military recruiting at local high schools. What they didn’t know was that their meeting had come to the attention of the U.S. military.

A secret 400-page Defense Department document obtained by NBC News lists the Lake Worth meeting as a “threat” and one of more than 1,500 “suspicious incidents” across the country over a recent 10-month period. . . .

The Defense Department document is the first inside look at how the U.S. military has stepped up intelligence collection inside this country since 9/11, which now includes the monitoring of peaceful anti-war and counter-military recruitment groups. . . .

The DOD database obtained by NBC News includes nearly four dozen anti-war meetings or protests, including some that have taken place far from any military installation, post or recruitment center. One “incident” included in the database is a large anti-war protest at Hollywood and Vine in Los Angeles last March that included effigies of President Bush and anti-war protest banners. Another incident mentions a planned protest against military recruiters last December in Boston and a planned protest last April at McDonald’s National Salute to America’s Heroes — a military air and sea show in Fort Lauderdale, Fla.

The Fort Lauderdale protest was deemed not to be a credible threat and a column in the database concludes: “US group exercising constitutional rights.” Two-hundred and forty-three other incidents in the database were discounted because they had no connection to the Department of Defense — yet they all remained in the database. . . .

There are more interesting facts in this lengthy article, including this one:

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4

Wikipedia vs. Britannica

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In a study by Nature, a science journal, expert reviewers found Wikipedia science entries to be not much less accurate than Encyclopaedia Britannica entries:

[A]n expert-led investigation carried out by Nature — the first to use peer review to compare Wikipedia and Britannica’s coverage of science — suggests that such high-profile examples are the exception rather than the rule.

The exercise revealed numerous errors in both encyclopaedias, but among 42 entries tested, the difference in accuracy was not particularly great: the average science entry in Wikipedia contained around four inaccuracies; Britannica, about three.

Here’s how the study was done:

In the study, entries were chosen from the websites of Wikipedia and Encyclopaedia Britannica on a broad range of scientific disciplines and sent to a relevant expert for peer review. Each reviewer examined the entry on a single subject from the two encyclopaedias; they were not told which article came from which encyclopaedia. A total of 42 usable reviews were returned out of 50 sent out, and were then examined by Nature’s news team.

Only eight serious errors, such as misinterpretations of important concepts, were detected in the pairs of articles reviewed, four from each encyclopaedia. But reviewers also found many factual errors, omissions or misleading statements: 162 and 123 in Wikipedia and Britannica, respectively.

One could view the results as reflecting well on Wikipedia. One could also view them as as reflecting very badly on Britannica.

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3

enjoyed the visit

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Since I’ve already overstayed my announced visit of a couple of weeks, I figure it’s time to go before I wear out my welcome. It’s been fun commenting on such diverse issues as images of property in landscape art, legal realism and fashion consulting, the Ann Coulter Talking Doll, 1950s and 2000s conservatism, the history of the book, state funding for preservation of cemeteries, and even a few unexpected topics–like suggestions for US News’ ranking system, horror movie director Wes Craven’s insights for law professors, the intellectual origins of Roe v. Wade in, of all places, Tuscaloosa, and Fanny and Ralph Ellison. Of course, nothing gets attention like navel-gazing, so I shouldn’t be surprised that the post that generated the most attention (not much competition here, really) was on the implications of law review citations for law school rankings.

I’d hoped to comment a little on recent articles (like Kenneth Mack’s brilliant article on “Civil Rights Lawyering and Politics Before Brown“) and books in legal history, though my day job interfered with putting us as many posts as I’d hoped. So let me put in a brief mention for a wonderful book, which I recently read: Laura Kalman’s Yale Law School and the Sixties.

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Blogging and the Road Ahead: What Next?

future3.jpgBlogging is still in its developmental stage. Several of us here at Concurring Opinions have been thinking about ideas to try out in the future. We want to make this the most interesting blog it can be. Are there any nifty things we should be trying out?

At a very general level, I believe that most blogs have one or more of the following elements:

1. Content — providing information and opinion.

2. Links— providing links to interesting stuff on the Internet; serving as a useful filter and resource for locating material to read.

3. Community — developing a community; fostering extensive discussion among readers.

Many blogs combine all of these elements, but each blog has a different balance between them. How is our balance here at Concurring Opinions?

Blogging is an experimental and dynamic medium of communication. It is also interactive. So that’s why we’re posing these questions to you. What do you recommend for the future of Concurring Opinions? Are there possibilities we should be exploring? And more generally, are there possibilities in blogging that aren’t being explored sufficiently in the blogosphere?

Related Posts:

1. Solove, Blog Posts: Conversation or Publication?

6

The Atticus Challenge

atticus.jpgOne of the joys of private practice is that I get constantly peppered with mail from the local bar associations asking me to join this or that group or threatening me with dire professional consequences if I don’t get my CLE all done on time. A recent flyer from the Virginia Bar Association, however, has risen to a new level of non-sequitor advertising in professional junk mail. This is what the front page of the flyer says, word for word:

The Atticus Challenge

Did you know that…

Atticus Finch of To Kill a Mockingbird is the most famous movie hero of all time?

Why?

Because he is the paradigm gentleman, father, citizen, public servant and lawyer

“Stand up Miss Jean Louise, your father’s passin.”

Every lawyer should be so respect as to have something like that said about him or her.

What would Atticus do?

Atticus would be a member of the Virginia Bar Association and challenge all Virginia lawyers to give of their time and talent to volunteer bar services — because it is our duty and our heritage.

Answer Atticus’ Challenge

Become a lifelong and active member of the Virginia Bar Association and encourage at least one other lawyer to join.

I am not quite sure where to begin or what to say, other than “What the @#$$%?!” To be sure Atticus was a laudable hero (in a book before a movie, by the way), and I am sure that lawyers would do well to strive to emulate his better points. I am at a loss, however, to see what that has to do with becoming a member of the Virginia Bar Association (which is different, by the way, from the Virginia State Bar, the licensing authority for attorneys in the Commonwealth). As I recall Atticus’ great virtues lay in his honest and willingness to represent an unpopular client who was falsely accused. He stood up against racial bigotry, spoke truth to power, and seems to have been a good daddy to Scout into the bargain. I don’t recall, however, the part of the story where he proudly joined one of the state’s lawyer clubs…

11

The Jurisprudence of Courthouses

sct1.jpgI have a theory about English and American courthouse architecture, which is interesting but probably wrong. I start out by noting that the most prestigious courthouse in the United States — the U.S. Supreme Court building — is a quintessential example of classical architecture, self-consciously modeled on the buildings of ancient Rome. The classical model, of course, has been hugely influential in American civic architecture. In contrast, the most prestigious courthouse in the United Kingdom — the Royal Courts of Justice in London — is a sterling example of neo-gothic architectures, self-consciously modeled on the buildings of the Middle Ages. The neo-gothic model, of course, has been very important for English civic architecture, most notably perhaps in the Houses of Parliament. Why did Americans go for Rome and Englishmen for the medieval?

royalcourts.jpgThere are lots of possible answers: America is a republic, and hence Republican Rome is a natural source of inspiration, while England is a monarchy whose legitimacy rests of long-established practice. The French Revolution is another possibility. Having spent twenty or so years fighting first Revolutionary France and then Bonaparte, nineteenth-century Englishmen were disposed to think of neo-classicism as a precursor to chaos, war, and tyranny. Revolutionary iconoclasts smashed the sculpture of St. Denise, self-consciously desecrating the medieval symbolism of the French state. The English responded by valorizing their medieval roots. Hence the Royal Courts of Justice. Let me suggest, however, that there is also a jurisprudential angle.

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2

Welcome to the Blogosphere

To Joel Jacobson, and his new blog “Judging Crimes.” Jacobson, an assistant attorney general in New Mexico, has a number of great posts up already, including this empirical investigation into deterrence and the Fourth Amendment. Here is a taste:

The Supreme Court has repeatedly told us that the suppression of evidence deters wrongdoing by police. Lower court judges accept this as fact for a very good reason: the Supreme Court says so. But the rest of us can be little more skeptical. Using the sabermetric principle that if a phenomenon exists, it must inevitably show up in the statistics, I looked for evidence that the judiciary’s fourth amendment jurisprudence has had a deterrent effect.

My working hypothesis was that if the exclusionary rule has any overall tendency to deter police from making unconstitutional searches and seizures, the number of cases in which the legality of a search/seizure was challenged should have peaked relatively soon after 1961 and then gone into a steady decline. As more and more officers were deterred, it seems reasonable to suppose, ever-fewer would still need deterring.