MIRLN --- 8-28 May 2016 (v19.08) --- by Vince Polley and KnowConnect PLLC (supplemented by related Tweets: @vpolley #mirln)
NEWS | PODCASTS/MOOCS | RESOURCES | LOOKING BACK | NOTES
- Law schools as innovation hubs - the Global Legal Technology Lab
- Restraining order? Don't follow her on Instagram
- Judge scolds litigant for making Facebook account "private" during litigation
- Autonomous cars require a self-driven legal hybrid teams
- Immediate action for human resource departments on the Defend Trade Secrets Act
- Defend Trade Secrets Act of 2016: Markup and commentary
- Negotiating key cyber exclusions
- Disaggregation of legal information an opportunity for all
- Hail and farewell to the Google books case
- Understanding cybersecurity threats in law practice
- Did the Panama Papers end the honeymoon for law firms?
- Federal Circuit: Software and data structures are not inherently abstract
- Want a security clearance? Feds will now check Facebook and Twitter first
- Federal Acquisition Regulation; Basic safeguarding of contractor information systems
- Federal judge says internet archive's Wayback machine a perfectly legitimate source of evidence
- Coming soon: An online network exclusively for in-house counsel
- Free WiFi, phone chargers, cooler design - can NYC make buses hip?
- Elsevier buys SSRN
- Sci-Hub and academic identity theft: An open letter to university faculty everywhere
- Legal first: California court holds inaccessible website violates ADA
- Classified legislation: Tracking Congress's library of secret law
- The slippery business of plagiarism
- Apps in Law -- new website reviewing apps for lawyers
Law schools as innovation hubs - the Global Legal Technology Lab (Open Law Lab, 5 May 2016) - Today I had the pleasure of attending an exploratory meeting for a new initiative - the Global Legal Technology Lab . It's a network of law schools, legal technology companies, and other organizations interested in pushing forward new innovations in the legal system - particularly around access to justice. It grew out of meetings at University of Missouri - Kansas City Law School, that the Kauffman Foundation had supported to explore how innovation and technology could be brought to law. But it is not strictly a UMKC, MIT, or Kauffman project. It is meant to be a new network of law schools who build new technologies and launch projects that make the legal system more accessible, efficient, and empowering. Today was about exchanging ideas about projects, and thinking through how the Global Legal Technology Laboratory could operate. One of the driving ideas is to link projects across different schools and silos, stop duplication of efforts, and drive a stronger agenda of what the future of legal education and innovation should look like. The concept is that people at law schools can propose projects, draw upon the GLTL's resources to get more guidance, man/womanpower, and perhaps also funding. These projects could come from hackathons, classes, research, or otherwise. Instead of these projects stalling out after being identified and scoped, the GLTL should help keep their momentum and contribute to their implementation.
Restraining order? Don't follow her on Instagram (Newsweek, 10 May 2016) - A clothing designer allegedly attacked his ex-girlfriend last year in New York City, choking her, throwing her to the ground and dragging her by her hair, according to the criminal complaint charging him with misdemeanor assault. About a week later, the woman obtained an order of protection barring the designer, Nicholas Lemons, from contacting her, but he couldn't resist trying to keep tabs on her. Just four months after a Manhattan judge signed the order of protection, Lemons tried to follow his former flame on Instagram, court papers state-leading to another criminal charge the judge said was the first of its kind. Lemons, 34, was charged with criminal contempt in September 2015 for violating the order of protection that forbade him contacting his ex-girlfriend through any means, including electronically. The former model-who posed on the cover of Out magazine in 2006 wearing green briefs and a necklace-argued he didn't violate the restraining order because his follow request merely "triggered a notification by Instagram" and there was no direct contact. But Manhattan criminal court judge Steven Statsinger shot down that argument, ruling against Lemons and marking a new wrinkle in the intersection of the internet and the law. "The situation described here is exactly the same as if the defendant, using his iPhone, had asked Siri to place a call to the complainant, instead of dialing her number himself," Statsinger wrote in his May 2 decision . A Massachusetts family law attorney said he advises all his clients with orders of protection to stay off social media. "If you have to use social media, don't say anything about your ex and don't follow them. And don't ever, ever, ever say anything about the judge," says Alan Pransky , who is not involved in the Lemons case but has handled cases involving domestic violence and internet issues.
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Judge scolds litigant for making Facebook account "private" during litigation (Venkat Balasubramani, 16 May 2016) - This is a social media evidence ruling. Plaintiff filed a Fair Housing Act lawsuit alleging that a prospective landlord decline to rent an apartment after learning that two of plaintiff's children would be living with her. The lease denial allegedly caused emotional harm to plaintiff. Defense counsel flagged the issue of plaintiff's social media accounts early, warning plaintiff's counsel that plaintiff's social media accounts would be scrutinized and that she should be warned about "spoilage" [sic]. In the context of another motion, plaintiff acknowledged to the court that she had Facebook and Instagram accounts and that these accounts were "private". Shortly after this filing, defense counsel sought sanctions for spoliation and an injunction prohibiting plaintiff from accessing her social media accounts. [ Spoiler alert : the court denies the requested injunction.] In a supporting declaration, defense counsel averred that he had viewed plaintiff's social media accounts and observed posts "disappearing from view". In defendant's view, these posts were relevant to plaintiff's claims for emotional distress and might counter-indicate that she suffered emotional distress as a result of being unable to rent the apartment in question. The posts also allegedly demonstrated that plaintiff was not separated from her family, which was the supposed cause of her emotional distress. The court holds an evidentiary hearing at which two lawyers and the plaintiff testify. According to one of the lawyers for the defense, she accessed plaintiff's accounts at one point despite not being "friends" with plaintiff. She later looked at the accounts and saw many posts were missing. The Plaintiff also testified that, to her knowledge, she never deleted anything. She did hide a few posts from her timeline which appeared there because she had been tagged by others. She said she thought she originally set her Facebook account to private and she merely double checked this after defendant filed its spoliation motion. Counsel for plaintiff offered to provide to defense counsel a copy of plaintiff's entire Facebook account. * * *
Autonomous cars require a self-driven legal hybrid teams (ReadWrite, 10 May 2016) - Business and law have gone hand-in-hand since the concept of law was invented. Virtually every industry in the business world has its own set of unique legal issues. For the emerging business of autonomous vehicles - with all the regulatory hurdles and business model crossovers - it looks like it's becoming even more important to have a focused legal team. This is why many auto-industry serving law firms across the nation are forming special autonomous vehicle teams to better serve clients as they build their autonomous vehicle products and services and work them through the legal red tape to bring them to market. In a recent interview with Crain's Detroit business , Jennifer Dukarski from the Ann Arbor-based law firm Butzel Long described the work of its dedicated autonomous vehicle team as, "very traditional legal issues, but with very new context." While the debate rages on in states and throughout the Federal government as to what new laws and/or regulations need to apply to this new type of vehicle, companies depend on law firms to not only help them navigate the constantly-changing legal waters, but to take part in the business deals that help make innovation in the new space possible.
Immediate action for human resource departments on the Defend Trade Secrets Act (Patently-O, 11 May 2016) - Starting May 12, 2016 all employers will be required by Federal Law to provide a notice-of-immunity to employees and contractors "in any contract or agreement with an employee [or independent contractor] that governs the use of a trade secret or other confidential information." (If the DTSA is enacted as expected.) The Defend Trade Secrets Act (DTSA) amends 18 U.S.C. 1832 to provide limited whistle blower immunity. The headline for the provision is "immunity from liability for confidential disclosure of a trade secret to the government or in a court filing." Thus, an action that would otherwise count as trade secret misappropriation will be immunized if the disclosure: (A) is made (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. The statute is clear that the immunity extends to protect against both state and federal law; both civil and criminal allegations. Under the provision, employers are required to provide notice of the immunity "in any contract or agreement with an employee [or independent contractor] that governs the use of a trade secret or other confidential information." The statute suggests that this may be done via reference to a policy document rather than restating the entire immunity provisions in each agreement.
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Defend Trade Secrets Act of 2016: Markup and commentary (Patently-O, 12 May 2016) - President Obama has signed the Defend Trade Secrets Act of 2016 (DTSA) into law. The new law creates a private cause of action for trade secret misappropriation that can be brought in Federal Courts and with international implications. I have created a mark-up (with commentary) of the new law that shows how the DTSA's amendments to the Economic Espionage Act (EEA). * * *
Negotiating key cyber exclusions (Holland & Knight, 11 May 2016) - * * * The following is intended to cover some tips on how to negotiate the exclusion section of a cyber liability insurance policy. Although the tips below are limited to the exclusions section, it is not the only section of a cyber pol- icy that must be negotiated. * * *
Disaggregation of legal information an opportunity for all (Kevin O'Keefe, 11 May 2016) - Shaunna Mireau , Director of Knowledge Management and Process Improvement at Field Law, reports on an interesting development on the reporting of UK law.
Per a recent press release from ICLR (The Incorporated Council of Law Reporting for England and Wales): [ICLR] has started the process of disaggregating its law reports from the online services operated by LexisNexis and Thomson Reuters in Australia, Canada, New Zealand and the United States. Subscribers to these services based elsewhere in the world will not be affected. The process of removing ICLR content from these providers will take effect on 1 January 2017. Thereafter, the ICLR - the publisher of the English official series, The Law Reports - will provide its case law service directly to lawyers, judges, academics and students in these regions through its established online platform, ICLR Online. * * *
Hail and farewell to the Google books case (James Grimmelmann, 11 May 2016) - "The petition for a writ of certiorari is denied. Justice Kagan took no part in the consideration or decision of this petition." With that two-sentence order, the Supreme Court brought the long-running Google Books case to a close on April 18. After ten years, two lawsuits, one failed settlement , a parallel case against Google's library partners , and five landmark copyright decisions there is nothing more for the courts to say. Google Books is legal. Full stop. If the news felt a bit anticlimactic, it wasn't just because of the Supreme Court's dull legalese. Google's scanning project and the subsequent lawsuits once commanded the attention of the publishing and library worlds. But over the years they became peripheral. As Google copied some 20 million volumes from library shelves, the sky did not fall on publishers, or copyright owners. Rather, the end of the litigation merely confirmed a few realities of modern publishing. * * *
Understanding cybersecurity threats in law practice (Special Counsel, 12 May 2016) - Organized, financially motivated hackers have turned their attention on the latest soft target: law firms. Even before the Panama Papers leak, a number of high-profile breaches put the legal profession on notice. Why do hackers target law offices in cybersecurity attacks? Because they house some of the most sensitive information in the world. Although some savvy companies have established honey pots full of false data to mislead and misdirect cyber hackers, law offices typically lack such decoys. In fact, the honesty fostered by attorney-client privilege means law offices frequently guard information that is both very sensitive and quite authentic. "Hackers know they are probably getting the real deal," says Vincent Polley, president of KnowConnect PLLC and co-editor of the ABA Cybersecurity Handbook ." That means the information hackers do find [in law firm systems] is going to be even higher value than they might otherwise get." It's the 21st century equivalent of raiding Fort Knox. "What is a law firm's wealth? Proprietary information. Its clients' secrets," says Christopher F. Smith, director, cybersecurity strategy at SAS . "To a hacker, information is money. That's why law firms make such alluring targets." Below are some guidelines to better understand cybersecurity threats and attacks and coping with the situation. * * *
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Did the Panama Papers end the honeymoon for law firms? (Security Current, 16 May 2016) - Try and do an information security risk assessment of a law firm your company uses. Give them an InfoSec security questionnaire to fill out and request key information security documents. And if they host a lot of your sensitive data ask for a SOC2 report or even a penetration test report. What are the chances you will not get a major push back? What about your right to audit? Can you come onsite and validate some key security controls? Do you think law firms have had a free pass? Do you think the Panama Papers lawsuit will change anything? Do you think cyber crooks will take a peek at law firms more now - especially knowing how much sensitive data about people and corporations they may have? Is it all just about contractual terms and conditions? Many of the bigger law firms have indeed taken information security seriously and thus have a sound information security program in place. But, as is with many industries, the real challenges continue to haunt in particular the medium and small firms, some of which have significant engagements with many big companies putting sensitive data at risk.
Federal Circuit: Software and data structures are not inherently abstract (Patently-O, 12 May 2016) - In a rare win for a software patentee, the Federal Circuit has rejected a lower court ruling that Enfish's "self-referential" database software and data-structure invention is ineligible under 35 U.S.C. § 101 as effectively an abstract idea.[1] The apparent saving-grace of the claims here is that the improvement is directed to the database operation and is not tied to the business improvement or economic activity: In this case . . . the plain focus of the claims is on an improvement to computer functionality itself, not on economic or other tasks for which a computer is used in its ordinary capacity. Accordingly, we find that the claims at issue in this appeal are not directed to an abstract idea within the meaning of Alice. Rather, they are directed to a specific improvement to the way computers operate, embodied in the self-referential table.
Want a security clearance? Feds will now check Facebook and Twitter first (WaPo, 13 May 2016) - The government will start scanning Facebook, Twitter, Instagram and other social media accounts of thousands of federal employees and contractors applying and re-applying for security clearances in a first-ever policy released Friday. Federal investigators looking at applicants' backgrounds to determine their trustworthiness will not ask for passwords or log in to private accounts, limiting their searches to public postings. And when they find information that has no relevance to whether they should have access to classified information, it will be wiped from government servers, the policy promises.
Federal Acquisition Regulation; Basic safeguarding of contractor information systems (FedReg, 16 May 2016) - DoD, GSA, and NASA are issuing a final rule amending the Federal Acquisition Regulation (FAR) to add a new subpart and contract clause for the basic safeguarding of contractor information systems that process, store or transmit Federal contract information. * * * This final rule has basic safeguarding measures that are generally employed as part of the routine course of doing business. DoD, GSA, and NASA published a proposed rule in the Federal Register at 77 FR 51496 on August 24, 2012, to address the safeguarding of contractor information systems that contain or process information provided by or generated for the Government (other than public information). This proposed rule had been preceded by DoD publication of an Advance Notice of Proposed Rulemaking (ANPR) and notice of public meeting in the Federal Register at 75 FR 9563 on March 3, 2010, under Defense Federal Acquisition Regulation Supplement (DFARS) Case 2008-D028, Safeguarding Unclassified Information. * * * This rule, which focuses on ensuring a basic level of safeguarding for any contractor system with Federal information, reflective of actions a prudent business person would employ, is just one step in a series of coordinated regulatory actions being taken or planned to strengthen protections of information systems.
Federal judge says internet archive's Wayback machine a perfectly legitimate source of evidence (TechDirt, 18 May 2016) - Those of us who dwell on the internet already know the Internet Archive's " Wayback Machine " is a useful source of evidence. For one, it showed that the bogus non-disparagement clause KlearGear used to go after an unhappy customer wasn't even in place when the customer ordered the product that never arrived. It's useful to have ways of preserving web pages the way they are when we come across them, rather than the way some people would prefer we remember them, after vanishing away troublesome posts, policies, etc. Archive.is performs the same function. Screenshots are also useful, although tougher to verify by third parties. So, it's heartening to see a federal judge arrive at the same conclusion, as Stephen Bykowski of the Trademark and Copyright Law blog reports : The potential uses of the Wayback Machine in IP litigation are powerful and diverse. Historical versions of an opposing party's website could contain useful admissions or, in the case of patent disputes, invalidating prior art. Date-stamped websites can also contain proof of past infringing use of copyrighted or trademarked content. The latter example is exactly what happened in the case Marten Transport v. PlatForm Advertising , an ongoing case in the District of Kansas. The plaintiff, a trucking company, brought a trademark infringement suit against the defendant, a truck driver job posting website, alleging unauthorized use of the plaintiff's trademark on the defendant's website. To prove the defendant's use of the trademark, the plaintiff intended to introduce at trial screenshots of defendant's website taken from the Wayback Machine, along with authenticating deposition testimony from an employee of the Internet Archive. The defendant tried to argue that the Internet Archive's pages weren't admissible because the Wayback Machine doesn't capture everything on the page or update every page from a website on the same date. The judge, after receiving testimony from an Internet Archive employee, disagreed. He found the site to a credible source of preserved evidence -- not just because it captures (for the most part) sites as they were on relevant dates but, more importantly, it does nothing to alter the purity of the preserved evidence.
Coming soon: An online network exclusively for in-house counsel (Robert Ambrogi, 18 May 2016) - Launching this summer is an online networking community where only in-house counsel will be allowed to participate. Called In the House, the professional networking site will be the online companion to the eponymous In the House networking organization for in-house counsel that has been operating since 2011. The purpose of the In the House networking site will be to provide members with a forum for freely exchanging ideas, asking questions, and requesting referrals in a confidential and secure environment. The new site will be formally unveiled at an all-day event for in-house counsel in New York City on June 20. The site will launch in late June or early July. The In the House organization was founded in 2011 by Christopher Colvin, then an attorney with an AmLaw 100 firm and now a partner at the IP law firm Eaton & Van Winkle . He saw in-house counsel as isolated from their peers at other companies and believed they would benefit from a networking forum. The organization sponsors educational and social programs for in-house lawyers and provides various practice-support materials and resources. It says it has 23,000 members. Access to the site will be free for any in-house counsel who registers. For an annual fee of $95, in-house counsel can purchase a full membership, which gives them access to the site, free attendance at live events, and other members-only materials. The site is being built on a platform provided by HighQ , a company that provides secure collaboration platforms and data rooms for law firms, investment banks and corporations. * * * From what little I know about this site so far, it sounds similar in concept to Legal OnRamp , a professional networking and collaboration site started in 2007 by the general counsel of nine blue chip companies, led by Mark Chandler, general counsel at Cisco. Its goal similarly was to create an online collaboration and content-sharing network primarily for in-house counsel, although membership could also be granted to outside counsel based on the fit of their practice and their willingness to contribute to the site. Legal OnRamp's CEO was Paul Lippe, a former general counsel who is now familiar to many for the column he writes for the ABA Journal, The New Normal . Legal OnRamp eventually morphed into a company, OnRamp Systems, that marketed several collaboration and analysis tools for corporate counsel and their outside firms. While the focus turned more to the products, the network continues to operate.
Free WiFi, phone chargers, cooler design - can NYC make buses hip? (CSM, 18 May 2016) - The Metropolitan Transportation Authority (MTA) has embarked on an ambitious plan to modernize public transportation in New York. On Tuesday, New York Gov. Andrew Cuomo (D) announced the first next-generation public transit bus had arrived in New York City. The bus is the first of 75 that will be launched this year to address a growing problem of out-dated and overcrowded transport in the region with more modern designs and digital features to satisfy an increasingly wired public. The MTA is the largest transportation network in the country, commuting over a 5,000-square-mile area with 15.2 million people. In total, the agency has a fleet of 5,667 buses that service more than on an average weekday, according to MTA statistics. Of those, 2,042 buses are now set to be replaced with new, high-tech models over the next five years. All of the new buses will have free WiFi for passengers and USB charging ports line the top of the buses above the windows. Thousands of buses new and old will also be fitted with new information screens. Also at the announcement event, a new free app that will allow riders to buy tickets for metro and train lines via their phones was shown to have successfully passed its first field test. It would be available for all riders by the end of 2016. The new buses and MTA eTix app are just one part of a bold and expensive ( $29 billion ) new Capital Project that was passed in October 2015 to revitalize the MTA.
Elsevier buys SSRN (Cory Doctorow on Boing Boing, 18 May 2016) - Elsevier is one of the world's largest scholarly publishers and one of the most bitter enemies that open access publishing has; SSRN is one of the biggest open access scholarly publishing repositories in the world: what could possibly go wrong? As renowned security academic Matt Blaze pointed out in a series of tweets , there is a common misconception about the role scholarly publishers play in research: the publishers don't pay a cent towards the research, nor do they compensate the researchers for publishing their work; but they do represent a huge cost-center for scholarly institutions in the form of subscription charges, which continue to increase far ahead of inflation. Scholarly publishers are in the business of charging money to show the public the results of research that the public paid to undertake. Elsevier says that nothing will change at SSRN, but there's good cause to be skeptical: it's like if Monsanto bought out your favorite organic farm co-op. Meanwhile, Scihub , a brazen and comprehensive repository of copyright-infringing papers from publishers like Elsevier, has become the major source of reference materials for millions around the world, with inbound links from technical discussions and the New York Times -- there's a confrontation on the horizon, there. Finally, Elsevier and the other scholarly publishers are potentially in a lot of legal trouble. Until recently, the typical academic employment agreement assigned all rights to scholars' work to their institution -- the university or college. But the contracts that scholars signed with the scholarly presses assigned copyright to them -- these are the copyrights that the publishers now assert when they fight over sites like Scihub. The problem is that if the scholars were in a work-made-for-hire situation with their employers, then they didn't have title to the copyright when they signed their contracts. That means that nearly all the publications in the journals before a certain year infringed on university copyrights. Since copyright is strict liability (that is, even if you think you're not infringing, you're still liable for damages) and since it's subject to high statutory damages ($150,000/work!) and since it lasts so long (meaning that all those works are still in copyright, still being infringed upon today), that means that the universities are owed several multiples of the total planetary GDP, each by all the major scholarly presses. That's a hell of a bargaining chip.
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Sci-Hub and academic identity theft: An open letter to university faculty everywhere (Scholarly Kitchen, 19 May 2016) - Dear Colleagues: All of you, upon being hired at your institution, were probably assigned a network ID and password. These constitute your network identification credentials - the way in which your campus's computer and security systems recognize you as someone with a particular set of rights to see, use, and manipulate information stored on the campus's network. Your ID and password are probably also what allow you to gain off-site access to licensed information resources purchased on your behalf by the library: online journals and databases, ebooks, and other scholarly products licensed for campus use. At some time in the last year or so, you may have been contacted by an organization called Sci-Hub , which has been providing free access to published scholarship by (among other strategies) gathering the network authentication credentials of faculty members at institutions around the world and using those credentials to copy licensed scholarly publications and create an open database of them. Sometimes Sci-Hub's representatives gather these faculty credentials by simply asking for them, and sometimes they reportedly send deceptive "phishing" messages designed to trick you into sharing those credentials. (Sci-Hub's founder denies that they do this "through the Sci-Hub website"; an interesting three-way email exchange between Sci-Hub, a university administrator who believes his faculty were targeted by Sci-Hub, and an interested third party can be found here .) So far, the Sci-Hub database reportedly contains roughly 50 million articles, most of them obtained by allegedly illegal means . You may well sympathize with Sci-Hub's goal of providing free access to high-cost scholarly and scientific information; after all, there are problems with the current system of scholarly communication, and the high cost of access is one of them. By freeing published scholarship from the chains of toll access and copyright protection and making them freely available to all, it can feel like you are helping a Robin Hood figure rob from the rich and give to the poor. However, by giving someone your network credentials, you're doing something else as well: you're sharing with that person the ability to do lots of interesting things that have nothing to do with providing access to published scholarship. Depending on how access is configured on your campus, these may include: * * *
Legal first: California court holds inaccessible website violates ADA (Frederick & Byron, 19 May 2016) - In what appears to be the first court decision of its kind, a California state court held not only that the Americans with Disabilities Act (ADA) applies to websites, but also that in the case of Colorado Bag'n Baggage, the website design and features were sufficiently inaccessible to blind users (using screen reader technology) that the site owner violated ADA as well as the California Unruh Act and is liable for monetary damages and injunctive relief. To review the full option, see Davis v. BMI/BMD Travelware, San Bernardino Superior Court, California, March 21, 2016. * * * Unfortunately, as the opinion is relatively brief, it does not shed much light as to the specific standards or requirements applicable to websites. For example, is WCAG 2.0 AA the standard as has been suggested by some commentators? Or some other standard?
Classified legislation: Tracking Congress's library of secret law (Lawfare, 19 May 2016) - Most citizens assume that all of the law Congress writes is public. That is not, in fact, true. Our general norm of publishing law has a significant and largely overlooked legislative exception: classified addenda associated with three annual national security acts. If a four decade-old practice holds, the Intelligence Authorization Act (IAA), the National Defense Authorization Act (NDAA), and the Department of Defense Appropriations Act (DODAA) now moving through Congress will all do part of their lawmaking inside these classified documents. Usually, when people discuss secret law, they are referring to classified or otherwise unpublished presidential orders, Justice Department memoranda, or Foreign Intelligence Surveillance Court decisions. In a recent article , I conclude that this claim of secret law's existence is generally credible and important, and that secret law is being produced by Congress as well. To date, Congress's classified lawmaking has received scant attention outside of a small circle of legislators, committee staff, White House and agency officials, and budgeteers. Yet the public record shows that these addenda govern enormously consequential classified U.S. government activities, including surveillance, covert action, and the use of missile-armed drones. By using the term "secret law" to describe what Congress is doing here, I do not mean to suggest anything nefarious. Having served in all three branches of government, including in the Intelligence Community, I have the greatest regard for the public servants who draft and implement secret law, and for the very real national security considerations that drive its creation. I mean only that there is a body of law that meets the following definition: legal authorities that require compliance that are classified or otherwise unpublished. In this post I outline the origins, purposes, and dilemmas of these classified legal authorities, and the varieties of legislative references to them. I summarize the findings of my empirical analysis , recently published in the Harvard National Security Journal . The addenda are an example of a broader three-branch phenomenon of non-published law that we can reasonably term secret law―one with which the nation needs to come to terms. * * *
The slippery business of plagiarism (InsideHigherEd, 24 May 2016) - Plagiarism is a widespread problem around the world. It can take various forms - copying and pasting text without acknowledging its source, "recycling" or self-plagiarism (presenting the same paper several times as original), purchasing papers from an agency or a ghostwriter and submitting them as one's own. With the benefit of new technologies, cheating is booming, such that some countries are describing a 'plagiarism epidemic'. In the United Kingdom, for example, almost 50,000 university students were caught cheating from 2012 to 2015. This is only the reported cases - how many more cases remain undetected? Students, especially those who come from corrupt environments where plagiarism is prevalent but ignored or seen as a trivial offense, need better guidance about the consequences of violating the rules of academic integrity. For example, during the academic year 2014-2015, the Department of Immigration in Australia cancelled 9,250 international student visas - plagiarism was one of the reasons cited in addition to other forms of academic misconduct[2]. Students need to understand that plagiarism during the course of their university studies could have significant repercussions - not only in the short-term, but also for their future careers Some famous politicians have been implicated in plagiarism scandals. Following the public scandal revolving around plagiarism identified in their dissertations, German Defense Minister Karl-Theodor zu Guttenberg resigned in 2011 and German Education Minister Annette Schavan in 2013. Evidence of plagiarism was found in the dissertation of Ursula von der Leyen, the current German Defense Minister. Igor Danchenko and Clifford Gaddy, scholars at the Brookings Institute, found extensive plagiarism in the dissertation of Russian President, Vladimir Putin, "Strategic Planning of the Reproduction of the Mineral Resource Base of a Region under Conditions of the Formation of Market Relations (St. Petersburg and Leningrad Oblast)," which he'd successfully defended at the St. Petersburg Mining Institute in 1997. U.S. Vice President Joe Biden was thwarted by a plagiarism scandal that dated back to his law school years and that ended his 1988 presidential campaign. [ Polley : In 2006, I spotted evidence of repeated plagiarism in a draft article submitted by a law professor . Talk about modeling bad behavior.]
Apps in Law -- new website reviewing apps for lawyers (iPhone JD, 26 May 2016) - Apps in Law is a new website which launched this week and which highlights the best apps for lawyers. The site is published by Brett Burney , an e-discovery consultant based in Ohio who has long had his thumb on the pulse of legal technology. Burney was the chair of ABA TECHSHOW in 2015, and because Burney and I have given presentations together in the past, I know first-hand that he knows his stuff - especially when it comes to Apple technology. The format of Apps in Law is to provide a short, focused review of helpful apps, accompanied by a short, fast-paced video showing off the app. The website debuts with reviews of GoodReader (one of the most useful apps in my law practice), Noteshelf, Week Calendar and iAnnotate.
NOTED PODCASTS/MOOCS
Long Now (11 May 2016) The Long Now Foundation is making its video archive of the Seminars About Long-Term Thinking (SALT) freely available on its website and on the new Apple apps , allowing people to stream the SALT Seminars on Apple TV and their iOS devices. The free iOS apps feature videos of The Long Now Foundation's latest Seminars, including those by author and Nobel prize winner Daniel Kahneman; author Neil Gaiman; English composer and record producer Brian Eno; oceanographer Sylvia Earle; biotechnologist, biochemist and geneticist, Craig Venter; WIRED's founding executive editor Kevin Kelly; author and MacArthur Fellow Elaine Pagels; Zappos CEO Tony Hsieh; biologist Edward O. Wilson; author and food activist Michael Pollan; and psychologist Dr. Walter Mischel, creator of The Marshmallow Test. The Long Now Foundation Seminars, which are hosted by Stewart Brand, are online and available in the iTunes store as a free app and audio podcast . The iOS app initially launched with 50 Seminars, with new videos added monthly as part of the Foundation's ongoing lecture series. The Seminars are free to watch, and are made available through the generous donations of the members and sponsors of The Long Now Foundation. [ Polley : I've been a paying member here for years; their monthly seminars are usually fantastic; they do not typically address legal matters, but I highly recommend them; I'm planning on visiting their space The Interval when I'm in San Francisco for the ABA Annual meeting.]
RESOURCES
Samuelson on copyright's Merger Doctrine (MLPB, 10 May 2016) - Pamela Samuelson, University of California, Berkeley, School of Law, is publishing Reconceptualizing Copyright's Merger Doctrine in volume 63 of the Journal of the Copyright Society of the U.S.A. Here is the abstract: Under the merger doctrine of U.S. copyright law, courts sometimes find original expression in a work of authorship to be "merged" with the idea expressed, when that idea is incapable of being expressed, as a practical matter, in more than one or a small number of ways. To be true to the principle that copyright law does not extend its protection to ideas, courts have held in numerous cases that the merged expression is unprotectable by copyright law. This Article, which memorializes the 2015 Brace Lecture, identifies and dispels eight myths about the merger doctrine, including the myth that the doctrine was borne in the Supreme Court's Baker v. Selden decision. It also discusses merger in relation to other copyright doctrines, such as scenes a faire, originality, and the exclusion of processes embodied in copyrighted works. Finally, it considers various functions of the merger doctrine, such as averting unwarranted monopolies, policing the boundaries between copyright and patent law, and enabling the ongoing progress of knowledge.
Intelligence services, peer constraints, and the law (Lawfare, 10 May 2016) - Zachary Goldman and Samuel Rascoff recently released Global Intelligence Oversight: Governing Security in the Twenty-First Century . The edited volume "is a comparative investigation of intelligence oversight systems in democratic countries, which focuses on some of the new dynamics shaping and constraining intelligence services, and the range of purposes a holistic approach to oversight should serve." This week, Lawfare is hosting a mini-forum where contributing authors discuss their chapters. As Lawfare readers know, the post-9/11 years have been replete with substantive public debates about the legality, morality, and public wisdom of various U.S. intelligence activities, ranging from the NSA's electronic surveillance to the CIA's detention, interrogation, and rendition program. Nor have the intelligence activities of other states been immune from scrutiny: surveillance by the UK's Government Communications Headquarters, Israel's alleged targeting of Iranian nuclear scientists, and Russian and Chinese cyber-espionage have all come under the microscope. Alongside debates about the substance of intelligence activities are debates about the role and efficacy of intelligence oversight in constraining and modulating these intelligence activities. When most people think about intelligence community oversight, they tend to focus on domestic actors and to analyze overseers prescribed in law: parliamentary committees, inspectors general, and courts. These days, they might also think about the media and non-governmental organizations, which play a less formalized but important watchdog role over intelligence activities. Yet even this range and quantity of oversight frequently proves insufficient and unsatisfying in capturing some of the most prominent forces that shape and regulate intelligence activities.
What Consumers "Buy" When They Buy Digital Media (Public Citizen, 21 May 2016) - Aaron Perzanowski of Case Western Reserve and Chris Jay Hoofnagle of Berkeley have written What We Buy When We 'Buy Now', 165 University of Pennsylvania Law Review (Forthcoming 2017 ), Here's the abstract: Retailers such as Apple and Amazon market digital media to consumers using the familiar language of product ownership, including phrases like "buy now," "own," and "purchase." Consumers may understandably associate such language with strong personal property rights. But the license agreements and terms of use associated with these transactions tell a different story. They explain that ebooks, mp3 albums, digital movies, games, and software are not sold, but merely licensed. The terms limit consumers' ability to resell, lend, transfer, and even retain possession of the digital media they acquire. Moreover, unlike physical media products, access to digital media is contingent - it depends on shifting business models, the success and failure of platforms, and often on the maintenance and availability of DRM authentication systems years after the consumer clicked "buy now." This article presents the results of the first-ever empirical study of consumers' perceptions of the marketing language used by digital media retailers. We created a fictitious Internet retail site, surveyed a nationally representative sample of nearly 1300 online consumers, and analyzed their perceptions through the lens of false advertising and unfair and deceptive trade practices. The resulting data reveal a number of insights about how consumers understand and misunderstand digital transactions. A surprisingly high percentage of consumers believe that when they "buy now," they acquire the same sorts of rights to use and transfer digital media goods that they enjoy for physical goods. The survey also strongly suggests that these rights matter to consumers. Consumers are willing to pay more for them and are more likely to acquire media through other means, both lawful and unlawful, in their absence. Our study suggests that a relatively simple and inexpensive intervention - adding a short notice to a digital product page that outlines consumer rights in straightforward language - is an effective means of significantly reducing consumers' material misperceptions. Sales of digital media generate hundreds of billions in revenue, and some percentage of this revenue is based on deception. Presumably, if consumers knew of the limited bundle of rights they were acquiring, the market could drive down the price of digital media or generate competitive business models that offered a different set of rights. We thus turn to legal interventions, such as state false advertising law, the Lanham Act, and federal unfair and deceptive trade practice law as possible remedies for digital media deception. Because of impediments to suit, including arbitration clauses and basic economic disincentives for plaintiffs, we conclude that the Federal Trade Commission (FTC) could help align business practices with consumer perceptions. The FTC's deep expertise in consumer disclosures, along with a series of investigations into companies that interfered with consumers' use of media through digital rights management makes the agency a good fit for deceptions that result when we "buy now."
LOOKING BACK - MIRLN TEN YEARS AGO
(note: link-rot has affected about 50% of these original URLs)
Court rules Google cache constitutes fair use (EFF, 25 Jan 2006) -- A federal district court in Nevada has ruled that the Google Cache feature does not infringe U.S. copyright law. The ruling clarifies the legal status of several common search engine practices and could influence future court cases, including the lawsuits brought by book publishers against the Google Library Project. Case name is Field v. Google. Decision at http://www.eff.org/IP/blake_v_google/google_nevada_order.pdf
[ Polley : amusing that this EFF link has rotted!]
MySpace moves into digital music business (Reuters, 2 Sept 2006) -- MySpace, the wildly popular online teen hangout, said on Friday it will make its first move into the digital music business by selling songs from nearly 3 million unsigned bands. MySpace is the latest company to try to take on Apple Computer Inc.'s iTunes Music Store, but unlike many other start-up rivals, it already boasts 106 million users, as well as the backing of parent company News Corp. "The goal is to be one of the biggest digital music stores out there," MySpace co-founder Chris DeWolfe told Reuters. "Everyone we've spoken to definitely wants an alternative to iTunes and the iPod. MySpace could be that alternative." In the past year, MySpace.com has become the single most visited Internet address among U.S. Web users, according to Hitwise, with mainly teenagers and young adults using the site to socialize, share music and photographs. Before the end of 2006, De Wolfe said MySpace will offer independent bands that have not signed with a record label a chance to sell their music on the site. MySpace says it has nearly 3 million bands showcasing their music. Songs can be sold on the bands' MySpace pages and on fan pages, in non-copyright-protected MP3 digital file format, which works on most digital players including Apple's market-dominating iPod.
NOTES
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SOURCES (inter alia):
1. The Filter, a publication of the Berkman Center for Internet & Society at Harvard Law School, http://cyber.law.harvard.edu
2. InsideHigherEd - http://www.insidehighered.com/
3. SANS Newsbites, http://www.sans.org/newsletters/newsbites/
4. Aon's Technology & Professional Risks Newsletter
5. Crypto-Gram, http://www.schneier.com/crypto-gram.html
6. Steptoe & Johnson's E-Commerce Law Week
7. Eric Goldman's Technology and Marketing Law Blog, http://blog.ericgoldman.org/
8. The Benton Foundation's Communications Headlines
9. Gate15 Situational Update Notifications, http://www.gate15.us/services.html
10. Readers' submissions, and the editor's discoveries
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