This song is your song!

Well, well, well... it seems that Ludlow Music just might have jumped the gun on their claim against JibJab for copyright infringement. It seems (as reported in this Wired News article) that Guthrie actually published the song in 1945 in a songbook, meaning the copyright expired in 1973. When Ludlow filed their copyright in 1956, the clock was already ticking on the copyright, so when Ludlow renewed it in 1984, they were 11 years too late. Good work by the EFF!!

I think now we should flood the net with amateur versions of the song, royalty free!

Tips for Law Students and New Lawyers

Matt Homann, of the [non]billable hour is guest blogging at Notes from the (Legal) Underground and offers us Five Indispensable Tips for Law Students and New Lawyers.

It's chock full of great technology advice and I agree with much of what he says. Personally, I would also add:

1. Try a Tablet PC before you buy one. Although Matt is up on them, I had the opportunity to try one out, and I just didn't think it was all that spectacular. You pay a premium for the technology, and personally, I would wait until it gets better.

2. Outliners are your friend. Even if you don't use CaseMap/NoteMap, do find yourself an outliner that you like and are comfortable with. I see many of my classmates taking notes in Word, and I wonder how they can keep their notes organized in a way that is intuitive without slitting their wrists in the process.

I've actually been using a really awesome little tool called WikiPad for my note taking and briefing. It lets me organize my class notes, case briefs and outlining all in one place, and in a way that makes sense to me, and that's the most important thing: organization tools don't do any good if you don't like them and use them.

3. Learn the power of the PDF. Ernie the Attorney has another blog, called PDF for Lawyers, which unfortunately, doesn't get updated nearly often enough. Acrobat is an amazing tool for electronic document management (my wife, a practicing attorney, is a PDF whiz who uses them for all kinds of filings, forms, etc.). Use it!

3... 2... 1L!

Today I started orientation, so I guess I am officially a "One L". Since I work in an academic environment, I understand a little bit about the hurdles that have to be overcome in order to roll technology out in a campus environment. However, is there really an excuse to be paying tens upon tens of thousands of dollars in tuition and "technology fees" and not have wireless access.

Actually, there is wireless access, I'm picking up a number of networks in the area, but of course, they all require keys, keys that I don't have. Grrr.

Honestly, there isn't much of an excuse for not having wireless in the classroom at a major law school these days.

Update: I just flagged down one of our "trainers" and he informed me that the infrastructure is in place, it just hasn't been "rolled out" yet. I suppose that makes me feel a little better. Well, not really, but maybe a touch.

Update: I wonder how many copies of Windows XP Professional the bookstore sold today. There were a number of people who had XP Home, or Windows 2000, and they were sent down to the bookstore to purchase XP Pro. Thankfully, I not only had it, but I'm already running Service Pack 2. Of course, that means that for basically the first hour, I'm sitting here blogging, while they are walking everyone else through the SP2 installation. On an interesting hardware note, I see exactly 2 Compaq notebooks, 1 IBM, and the rest are entirely Dell.

Final Analysis: That was a complete waste of my time. I do completely understand the need for making sure everyone is on the same page and has the correct technology, but they should have allowed people to "test out" or something. Or they could have said "You need to come with Windows XP Professional, Service Pack 2 and Office 2003 installed, if you need assistance installing these, make an appointment beforehand" It would have shaved 2-3 hours off the orientation, easily.

Google, Attorneys and Ethics

There’s a really interesting discussion about an attorney in Kentucky, Ben Cowgill, who purchased a Google AdWord to promote his new law practice. No big deal, you might say, except that the term he purchased was “Peter Ostermiller” his local competition.

Now, there has been a huge outcry about the ethics of this move. Mr. Cowgill, ironically, represents attorneys who are facing ethics charges. Kevin O’Keefe at Lexblog,com compared his actions to "standing in front of another lawyer's office with a sandwich board saying, `Would you consider coming down to my office instead?'"

This really isn't the same as standing in front of a competitor's practice with a sandwich board directing clients to your firm at all. A much more accurate analogy would be taking out an ad in the same section of the yellow pages as your competitor. That's hardly illegal, or unethical. I think the problem here is the confusion about what Google is and what it is not. Certainly both men have websites which are indexed and searchable via Google. Similarly, AdWords purchased from Google are not exclusive. So, how is this different from competitors buying billboards on the same stretch of highway, or paying retail chains for adjacent shelf space? I personally don’t think it is any different.

The link displayed for Mr. Cowgill when users searched for Mr. Ostermiller wasn't misleading, it was clearly marked as advertising, and obviously it might be of value to someone searching for that type of legal service. The only real argument I've heard that I buy in this case is from Carolyn Elefant, who notes that Mr. Ostermiller should have the first right to use his own name (in essence a trademark) as his own search term. But his failure to do so does not make Mr. Cowgill's behavior unethical, and in fact, there was nothing to prevent him from doing so.

I do agree that Mr. Cowgill stepped into a hornet's nest on this one, and it would have been wise to avoid the issue altogether. However, there seems to be a lot of confusion out there about what Mr. Cowgill really did, which is to simply purchase an ad that would be displayed in the same place as a competitor’s ad. I’ve read several blawgs about how it’s this kind of action that gives lawyers a bad name, but in reality, I think what gives lawyers a bad name is over-reaction and hyperbole.

Supreme Court Decisions

It was a busy day yesterday at the Supreme Court (I refuse to use the “SCOTUS” acronym, it just sounds so wrong). Among the decisions published were Rumsfeld v. Padilla, Rasul v. United States, and Hamdi v. Rumsfeld. There are some excellent discussions of these cases out there, which would be of value for all Americans to read. They provide some insight into how the court will approach protecting our Constitution during this war on terror, and frankly, more American’s should take an interest in protecting their Constitutional Rights.

There’s a great blog, SCOTUSBlog, which tracks Supreme Court decisions, and offers some good insight, despite the horrible name. And Tung Yin offers some interesting analysis over at the Yin Blog.

The Court copped out on the Padilla case, dismissing it on a technicality. Of course, it was split along the typical conservative/liberal 5-4 vote count. Can you guess who voted each way? I’ll bet you can. Essentially, they ruled that Padilla had not named the proper respondent in his original suit, claiming that habeas challenges should have the warden of the facility where the prisoner is held as the proper respondent. I doubt we’ve heard the last of this case.

The Rasul case, commonly known as the “Gitmo” detainee case, was a bit of a blow to the administration, but was a clear victory for the power of the courts. In a 6-3 vote (Rehnquist, Scalia, Thomas dissent) the court ruled that the habeas statute does extend to detainees in Cuba, which essentially means that all the enemy combatants in Guantanamo Bay have the right to have their appeal heard.

By far the most interesting of the rulings is Hamdi, which was one weird breakdown on the vote. The majority opinion was written by O’Conner, and joined by Rehnquist, Kennedy and Breyer. Souter and Ginsberg wrote their own opinion, but joined the majority on the fact that U.S. Citizens should be given the right to challenge their classification as an enemy combatant. Now, how’s this for strange-bedfellows!? Scalia and Stevens wrote that the government only had two options: get congress to suspend the writ of habeas corpus (yeah, right) or that barring that, the government should charge him with treason, and proceed as normal through the court system on those charges.

I’m glad the court found that detainees have a right to at least plead their case; it does help promote the values we espouse here in America to the rest of the world. I mean, either they are prisoners of war, in which case, we need to follow the Geneva Convention, or they are criminals who should be processed through our legal system. I’m disappointed that the court found congress did give the president the power to declare people “enemy combatants” but at least there is some remedy for them.

As for the Hamdi case, again, at least some of the rights of a U.S. Citizen are protected, and I suspect this will have some bearing on the Padilla case eventually as well, but I think Scalia and Stevens were correct: with a U.S. Citizen, he should be tried as a U.S. Citizen, and the government should have no rights to “reclassify” someone as an enemy combatant, essentially stripping them of their rights as an American.

Interesting cases…

This is What's Wrong with America

The New York Times has an article about Creekstone Farms. Creekstone had a very lucrative business selling premium beef to the Japanese market. Their business took a nose-dive after the case of U.S. mad cow.

Creekstone struck a deal with their Japanese clientèle: they agreed to test all of their cows for mad cow, and the Japanese agreed to start buying their beef again. Now, the USDA has prohibited Creekstone from performing the tests! The USDA is claiming that it will set a bad precedent and that as a result, other US producers will have to start testing all their beef too (god forbid).

So, here we have a government agency, bowing to pressure from the beef lobby to stop a private business from voluntarily increasing their safety standards.

Unbelievable.

The "Duh" of Shrinkwrap Licenses

Ever wonder just how it is that you buy a piece of software, and then, after already having spent the money on it, you are forced to "agree" to a license you never had a chance to review beforehand? The 'Duh" of Shrinkwrap Licenses.

Voluntary Collective Licensing

The EFF has published a "Let the Music Play" whitepaper which outlines their suggestion for Voluntary Collective Licensing of Music File Sharing. It's a very well reasoned and workable idea. So the music industry will reject it out of hand. But it's worth a read, because to me, it's the most reasonable suggestion I've heard to solve the "filesharing" issue.

Meet Dudley Hiibel

Meet Dudley Hiibel. He's a 59 year old cowboy who owns a small ranch outside of Winnemucca, Nevada. He lives a simple life, but he's his own man. You probably never would have heard of Dudley Hiibel if it weren't for his belief in the U.S. Constitution.

One balmy May evening back in 2000, Dudley was standing around minding his own business when all of a sudden, a policeman pulled-up and demanded that Dudley produce his ID. Dudley, having done nothing wrong, declined. He was arrested and charged with "failure to cooperate" for refusing to show ID on demand. And it's all on video.

On the 22nd of March 2004, the U.S. Supreme Court will decide whether Dudley and the rest of us live in a free society, or in a country where we must show "the papers" whenever a cop demands them.

[Via Boing Boing]

Aaron's Wrong

Aaron Swartz: The New York Times Upfront asked me to contribute a short piece to a point/counterpoint they were having on download. (I would defend downloading, of course.) I thought I managed to write a pretty good piece, especially for its size and audience, in a couple days. But then I found out my piece was cut because the Times had decided not to tell kids to break the law. So, from the graveyard, here it is.

In this piece, I think Aaron misses the ethical issues entirely, and draws an analogy between file sharing and libraries that simply doesn't hold up. In his piece, Aaron states:

"Stealing is wrong. But downloading isn't stealing. If I shoplift an album from my local record store, no one else can buy it. But when I download a song, no one loses it and another person gets it. There's no ethical problem."

Stealing is more than just denying someone availability. When you shoplift from a store, it impacts the store (which has already paid wholesale for the item) and sometimes the artist (as occasionally, and I know this for a fact from book writing, that shrinkage is forced back on the distributors who in turn, punk it back against my royalties). The person it affects the least is the consumer who wanted to buy it but couldn't because it was ripped off first.

As someone who makes a living from my creative output, I actually agree that there is nothing wrong with downloading. The act of downloading isn't illegal at all nor should it be. The questions arise from the content you are downloading, not the act of downloading

Aaron's library analogy fails miserably; Library's first purchase the books they loan out. And they loan the books, they don't let you keep them forever. To imply downloading is analogous to libraries is a leap of logic right off a cliff. If everyone who offers a file for download (be it text, video or music) first purchased it, and then if everyone who downloaded it only used it for 7 days and deleted it, then and only then would downloading be like a library. Some may try to argue that, like a library, in the downloading scheme at least one person has purchased the content. However, that fails as well. In the library system, each library purchases a copy of the item to be loaned out (often purchasing multiple copies of popular items). The New York Public Library doesn't get a photocopied version of The DaVinci code from the Chicago Public Library and start loaning it out to patrons.

The problem here is that by treating the ethical issues surrounding file sharing and downloading so callously, Aaron does more harm than good. It's no wonder the New York Times didn't run his piece. It doesn't tell kids stealing is okay, it doesn't even really examine what stealing is. And downloading is not necessarily stealing, but it's not necessarily all rainbows and lollipops either.

There are real issues to be addressed as technology allows information to be exchanged more easily among consumers. Pieces like Aaron's don't do anything to really address those issues... they preach to the choir about the virtues of filesharing while ignoring legitimate criticism from those in opposition. If we proponents of filesharing and downloading hope to really change the world, we should stop spinning our wheels with ill conceived rhetoric, and address the real issues at hand.

Creative Commons

If you are a creative individual (and most everyone bothering to read this blog is) then you need to know about the Creative Commons.The Creative Commons is the creation of Lawrence Lessig, the Stanford School of Law, Harvard Law School, and many others, that allows people to license their works in ways that actually make sense. You can create something, be it text, music, video, images, etc. and then pick out a Creative Commons license that makes sense for you; options for licensing include granting all rights, granting all non-commercial rights, or combinations thereof. It's sort of the creative equivalent of the GPL/Open Source thing software developers have been using for their projects, and I think much good can come of it. Check it out.

GPL: License or Contract?

Today, Groklaw has an excellent piece on the GPL, which does a good job of discussing why the FUD surrounding the GPL is unwarranted, and talks about the difference between a contract and a license. This is of critical importance, not only to software developers, but anyone who deals with a product that is principally intellectual property vs. some tangible thing. Check it