"Nota Bene" means "note this well" or "take particular notice." We at the O'Quinn Law Library will be posting tips on legal research techniques and resources, developments in the world of legal information, happenings at the Law Library, and legal news reports that deserve your particular attention. We look forward to sharing our thoughts and findings and to hearing from you.

N.B: Make a note to visit "Nota Bene" regularly.

-Spencer L. Simons, former Director, O'Quinn Law Library and Associate Professor of Law

Thursday, June 28, 2012

The Outer Limits of Copyright Law -- Part 2

Intellectual property law is interesting because the issues it addresses arise in interesting places and in interesting ways. A good example of this is in the area of published laws. Are laws protected by copyright? Do they belong to someone? The case of Veeck v. Southern Building Code Congress Int’l, Inc. 293 F. 3d 791 (5th Cir. 2002) raised this issue.  

In Veeck, the towns of Anna and Savoy had adopted as their official building code the model codes promulgated by the Southern Building Code Congress (SBCCI).  When the plaintiff, Mr. Veeck, posted on his web site the towns’ building codes, the SBCCI requested that the codes be removed, claiming that Veeck had violated the SBCCI’s copyright.  Veeck filed for a declaratory judgment to determine whether he was in fact violating SBCCI’s copyright.  

The scenario in the Veeck case is quite common.  Rather than draft their own codes, federal, state, and local governments frequently adopt as law standards developed by private, not-for-profit  associations, such as the American Institute of Electrical Engineers or the International Code Council.  In fact, there are hundreds of privately-developed standards adopted in whole or in part by governmental entities. The problem for the private associations is that they frequently sell their standards for substantial sums of money.  If an association’s  standards become part of the public domain when adopted by a governmental entity, the association stands to lose a source of revenue. 

So what happens to an association’s copyright when a governmental entity adopts their standards into law? Veeck lost both at trial and on his initial appeal to the Fifth Circuit. However, the Fifth Circuit re-heard Veeck’s case en banc and found for Veeck .  The court held “that as law, the model codes enter the public domain and are not subject to the copyright holder’s exclusive prerogatives.”  The court based its holding on the “merger doctrine,” which provides that when expressed ideas merge with the expression, they become “facts” that cannot be copyrighted.  In addition, the court emphasized that public policy requires that laws be freely available to the public. The Supreme Court refused to grant cert. in this case. 

I came upon this issue through an article on boingboing.net. The article was written by Carl Malamud, who runs the web site Public.Resource.Org. Public Resource.org has an ongoing project in which they are posting these codes in PDF format on their web site.

This Fifth Circuit’s opinion is also noteworthy for the reason that they cited to an article by UHLC  Professor Craig Joyce ( L. Ray Patterson & Craig Joyce, Monopolizing the Law: The Scope of Copyright Protection for Law Reports and Statutory Compilations, 36 U.C.L.A. L. Rev. 719, 751–58 (1989)).

And now we return you to your normally scheduled programming. 

Tuesday, June 26, 2012

The Outer Limits. . . .of Copyright. Part 1

Bloomsday (June 16th) has passed, but I would assume that among James Joyce scholars and devotees the celebrating continues. Bloomsday is the annual celebration of the day-in-the life of Leopold Bloom immortalized in James Joyce’s novel Ulysses. Lovers of James Joyce are still celebrating because Ulysses and the other work published during Joyce’s life have been free from copyright protection since January 1, 2012. Still celebrating six months later? After what they had to deal with regarding the estate of James Joyce they may be celebrating this liberation for many years to come. Allow me to explain.

James Joyce died in 1941. Joyce’s estate, which controlled the copyrights to his published works traded hands until it ended up in the control of his grandson Stephen James Joyce (he like using his full name).  Works protected by copyright cannot be reprinted unless permission is granted by the copyright holder, and permissions are often granted, for a fee. When the persons requesting use are academics the fee involved is often nominal. Not with Stephen James Joyce at the helm of the Joyce estate. Stephen made the academic’s job of writing about James Joyce hell. Gordon Bowker referred to it as “Literature’s most tyrannical estate” in a piece appearing on the Daily Beast web site. In an attempt to prevent publication and protect the personal life of his grandfather, Stephen has sued, or threatened to sue numerous scholars, performers (including singer Kate Bush), and even the National Library of Ireland. The scholarly books that did not get published would fill library shelves. Publishers, writers, and all sorts of artists were scared off by lawsuits or the threat of lawsuits. The Joyce Studies Annual ceased publication due to Stephen James Joyce. Professor Robert Spoo of the University of Tulsa Law School quit editing the James Joyce Quarterly and went to law school to become, yes, a copyright lawyer. 

With the published works of James Joyce moving into the public domain Stephen James Joyce no longer wields the power he once had. However, there are still questions that swirl around James Joyce’s unpublished works and manuscripts. Stephen James Joyce’s vigorous and aggressive defense of his grandfather’s works is understandable; Lawrence Lessig has said that “Stephen Joyce is using whatever power he has.” (It is worth noting that Lessig and Joyce tangled in litigation. See Schloss v. Sweeney, 515 F. Supp. 2d 1083 (N.D. Cal. 2007)). 

The effects of our copyright system often manifest themselves in the most unlikely places. The matter of James Joyce’s literary estate is a good example of this. 

We now return you to your normally scheduled programming.

Monday, June 25, 2012

Consumer Financial Protection Bureau launches Consumer Complaint Database

Last week, the Consumer Financial Protection Bureau launched the beta version of the Consumer Complaint Database.  This database collects credit card complaints from consumers and makes them available to the public via the Internet.  Various types of information is collected:  date of the complaint, location were the complaint originated (zip code), reason for the complaint, the type of response that the consumer received from the credit card company, and whether or not the response was timely.  No information which could reveal the identity of the person submitting the complaint is included.  However, the names of the offending credit card companies are included.  So, data is available to the general public that in the past was only available to the individual complainant, the credit card company, regulators, or the public through the Freedom of Information Act.

The website includes an especially helpful tutorial for those individuals who lack experience working with databases such as this.  When ready, click on the “All data” link on the website and begin scrolling or searching in the database.

Thursday, June 21, 2012

Spotlight on New Titles--A First Amendment Profile of the Supreme Court

John Cabot University Press has recently published A First Amendment Profile of the Supreme Court, (edited by Craig R. Smith), which is now on the O’Quinn Law Library’s new titles shelf (KF8742.F567 2011).  The nine chapters which comprise the heart of the book were written by different “budding and brilliant” young scholars.  Each chapter focuses on how the individual justices arrive at his or her position in First Amendment cases.  Throughout the book, the rhetoric of Supreme Court opinions is important.  The authors do not simply analyze the justices’ lines of argument, they look at the broader rhetorical strategies employed by the justices when rationalizing and making their decisions.  Each chapter has the same basic format:  A profile of the justice is developed based on what he or she said during hearings before the Senate Judiciary Committee and the positions he or she has since adopted in important Supreme Court cases.  These profiles are then analyzed in terms of Philip Bobbitt’s six “modalities” of argument:  historical, textual, structural, doctrinal, ethical, and prudential.  A concluding table sets out which modalities each justice uses for the foundation or support in making their arguments.  An index of the major Supreme Court cases cited in the book rounds out the volume.

Thursday, June 14, 2012

RSS Feed of Legal Apps

If you are looking for a way to stay on top of new legal apps, try subscribing to the Newly Released Apps RSS Feed from the MobileAppsforLaw.com website.  This website, maintained by Infosources Publishing, has a database of legal apps and the RSS feed contains information about apps that are added to the database.  This RSS feed is free to subscribe to, but it is important to note that the database provided by the website is not free.

The RSS feed will alert you to newly released apps related to law and legal research for a variety of mobile devices such iPhones, iPads, BlackBerrys, and Android devices. In addition, you can subscribe using a number of readers such as Google, Yahoo, and Outlook. To subscribe, visit the Newly Released Apps RSS Feed website.

Tuesday, June 12, 2012

National Registry of Exonerations

The University of Michigan Law School and the Center for Wrongful Convictions at Northwestern University Law School recently launched the National Registry of Exonerations, an electronic resource with information concerning approximately 900 exonerations in the United States since 1989.

The Registry allows users to browse the extensive list of exonerations by criteria such as name, race, state, crime, sentence, year convicted, and year exonerated.  For each one, it also provides information about whether the individual was exonerated with the help of DNA evidence as well as a breakdown of the causal factors that contributed to the wrongful conviction such as perjury/false accusation, mistaken eyewitness identification, and false/misleading forensic evidence. 

More information about the Registry can also be found in the organization's report: Exonerations in the United States, 1989-2012.

Thursday, June 7, 2012

Fastcase App Now Available on Android

Fastcase has announced that it's app is now available for Android devices. This is good news for Android users, because before this announcement, all comprehensive legal research apps have required an Apple device. The Fastcase app, which is now available on GooglePlay and the App Store,  provides access to case law and statutes, which can be searched or browsed, and the app is free to download and access after registration. For subscribers to the desktop version of Fastcase, the app will sync with the desktop version. Hopefully, Fastcase will make this free app available for all mobile devices in the near future.

Wednesday, June 6, 2012

Texas.gov Mobile Website Available

According to an announcement available on BusinessWire, Texas.gov is now available as a mobile website for all devices. The search feature will allow the user to locate information regarding government services such as renewing a driver license or requesting a birth certificate. The site also allows several services to be browsed by topic (referred to as the most popular searches) although the user will likely find the search feature to be the most effective way to navigate this site. Currently, the App Store and GooglePlay both have this app available but those without Apple or Android devices can simply type: Texas.gov into their web browser and it will automatically display the mobile website.

Tuesday, June 5, 2012

Yet Another Lexis Advance Polemic: A Reply to Sellers & Gragg

I must admit that I have experienced several moments in my life where I felt like I was playing the character of John Adams in the musical 1776, wondering "Is anybody there? Does anybody care? Does anybody see what I see?" In each of those moments, I could see that I was being pulled down a disastrous path and knew there was a better path to take, but the group of people pulling me would not listen, or could not understand, when I tried pointing out the perils that awaited us if we continued down the road we were on or the benefits of an alternate route. Unfortunately, reading the latest "Back and Forth . . ." column in the current Law Library Journal has raised those feelings once again.

Entitled "WestlawNext and Lexis Advance" (2012 Law Libr. J. 25, 104 Law Libr. J. 341), the latest exchange between Christine L. Sellers and Phillip Gragg promises to "discuss and debate the emergence of [the titular products], and consider their impact on legal research, law school instruction, and the practice of law." And I must admit, they do a commendable job of explaining some of the problems inherent with these products. Here are some of my favorite moments:

  • "[T]his is the crux of the problem: a product that does not require thought as an input in the research phase will leave the lawyer captive to the automated, thoughtless results that flow out of such a system." (¶ 8, at 342)
  • "The 'Googlization' of legal research . . . expects less of the user. It assumes a lack of skill and understanding . . . , and attempts to reduce complex and nuanced problems to the lowest common denominator. If legal research, analysis, and writing ever become full [sic] automated, lawyers will become little more than clerks." (¶ 13, at 344) (emphasis added)
  • "We must hold our students to higher standards so that a search product that results in an answer of the lowest common denominator does not result in a student whose skill approximates the lowest common denominator." (¶ 14, at 344) (emphasis added)
  • "For those of us who are advanced searchers and know where to look for things, a results list with everything in it is too much. I don’t want to have to dig when I know what source the answer will be in." (¶ 17, at 344) (emphasis added)
  • "Every search seems to result in 10,000 results—as if this were a good thing." (¶ 18, at 344)
  • "I cannot in good conscience abdicate my responsibility to teach a student as many paths to information as possible. Lay your burdens down and seek redemption at the temple of simple solutions? No, the law demands more, and I can’t ignore that.” (¶ 26, at 346) (emphasis added)

You, gentle reader, are undoubtedly confused right now. The lead paragraph above seemed to be drenched with pessimism, and yet, I've just positively quoted extensively from the column. Why the incongruity?

Well, in modern rhetorical style, those quotes above have been taken out of context. All of the statements above were expressed in the midst of a discussion specifically regarding WestlawNext, a discussion, mind you, that dominates the majority of the column. For example, the last quote above is preceded by the following:
"[C]onsider that WestlawNext seems to be asking users the question: 'Why do you need knowledge and understanding when you have me?'" (emphasis added). You see, what I find most frustrating is that, for some reason, Lexis Advance seems to be getting a free pass from many in the legal community despite the fact that it is, at this time, in no way a better (and, indeed, in many respects, a much worse) product than WestlawNext.

In this particular column, for example, the authors begin with several claims that, at least to me, seem to misleadingly paint Lexis Advance in a positive light, either directly or by way of contrast with WestlawNext:

  • "LexisNexis . . . had the advantage . . . of watching the very mixed reaction to WestlawNext and the heavy-handed way in which West attempted to foist it upon the masses. . . ." (¶ 3, at 341)
  • "LexisNexis learned from Westlaw's mistakes with WestlawNext, and that was strongly encouraged and noticed by both librarians and bloggers." (¶ 4, at 342)
  • "Westlaw is attempting to force this on us, whether we like it or not, and not in a subtle way." (¶ 5, at 342)
  • "The impression I got from our LexisNexis representative, and others I've met at conferences, is that the emphasis seems to be on the customer." (¶ 6, at 342)

There are three points I would like to make. First, the authors correctly point out that much more has been written about WestlawNext than Lexis Advance. However, Mr. Gragg is kind enough to admit that he did not take the time to actually track down much of what has been written about Lexis Advance, and even the two sources (both from 2010) that Ms. Sellers cites focus on the product's marketing, not its actual value as a research tool. The sad fact is that most of what has been written about Lexis Advance is from bloggers who focused on the rollout, transparency of pricing, and superficial aspects of the product ("ooh, look, it has a single search box, just like Google!") and/or simply parroted LexisNexis marketing materials regarding Lexis Advance.

Second, nearly every statement made by the authors about WestlawNext also applies to Lexis Advance:

  • "When the very early objections to the introduction of [Lexis Advance] were made, the company merely delayed their time line for rollout. Then, when it started to move forward again, the company used the same tactics—a clumsy, forcible introduction." (¶ 5, at 342)
  • "What I really noticed was the positive response [Lexis Advance] first received from the bloggers invited . . . to preview the product." (¶ 10, at 343)
  • "The launch felt like a top-down. [LexisNexis]'s management would have done well to listen to their soldiers in the field, and most important, their customers who spend enormous sums for access to their products." ((¶ 11, at 343)
  • "In short, I don’t feel [Lexis Advance] is a threat to librarians; it's a threat to lawyers." (¶ 14, at 344)

Finally, we need to stop focusing on the meaningless (and by "meaningless", I mean how it's marketed) and start focusing on its value to the legal community, its usability!! If we're going talk about pricing, let's first talk about its pricing structure, not its transparency! Perhaps Mr. Gragg is correct and "everyone is going the way of WestlawNext [and, presumably, Lexis Advance]" (¶ 26, at 346). But why?! Why do we have to accept, nay, be satisfied with an inferior product?! He identifies the "two central issues: (1) Does the cost of a new product or technology outweigh [its] benefits? . . . And (2) Does the new technology produce a better, more well-rounded and practice-ready attorney?" (¶ 25, at 346). One may infer from his remarks that he might answer both questions with a "No" when it comes to WestlawNext, but neither he nor Ms. Sellers even begins to address those issues as they apply to Lexis Advance. I don't want to put words into their mouths, but I cannot see how the answer to both questions can be anything but a resounding "No!" when it comes to Lexis Advance.

Yes, little has been written about Lexis Advance in comparison to WestlawNext, but puff pieces such as this do not help! The reality is that, as of this writing, Lexis Advance, as a legal research tool, cannot compete with lexis.com, Westlaw, or WestlawNext (and probably not other tools such as Bloomberg Law or FastCase, although I must admit I have not used either of them yet). Maybe the promised coming enhancements to Lexis Advance will finally make it capable of being used for quality legal research, but until then, I cannot help but feel betrayed by a community that refuses to critically examine a product that is being forced upon us.

And maybe I’m wrong! Maybe these products (both Lexis Advance and WestlawNext) are the greatest advancements in legal research in the last 20 years. Maybe I'm just being a "fuddy-duddy". But if that is the case, then I implore you, please, explain to me why I'm wrong. Show me the errors of my ways, 'cause if someone else doesn't start providing actual critiques of these products, I'm going to have to keep on going.

For those who are unaware of my previous postings on Lexis Advance, see "Some First Thoughts on Lexis Advance for Law Schools (Part 1)"; "Some First Thoughts on LALS (Part 2)"; "Some First Thoughts on LALS (Part 3)"; "A Second Look: Lexis Advance Revisited (Part 1)"; "A Second Look: Lexis Advance Revisited (Part 2)"; and "Lexis Advance 'Certification'?".