Retired Reference Librarian formerly at DePaul University College of Law in Chicago.

There seems to be a convergence of stories recently about privacy and tracking lately.  If privacy isn’t dead it certainly seems to be fighting a losing battle while on life support.  Where to start?  There is a report in CNET on Vint Cerf’s statement, “Privacy may be an anomaly.”  The reason for that is the level of detail people are sharing through social media.  Another Cerf quote:  “Technology has outraced our social intellect.”  I find that hard to argue with that concept.  There are multitudes of ways to track people and their habits down to fine details.

An older story in Ars Technica tells that Facebook is working on a way to collect mouse movements.  As the story points out, it’s not uncommon for web sites to track where someone clicks on a page.  That’s one way to determine an ad’s effectiveness.  What Facebook intends to do is watch the mouse.  How does someone move along the page?  Where does the mouse hover and for how long?  Mobile views obviously do not use mice, but tracking in this context extends to tracking when a newsfeed is visible.  My understanding is that the Facebook like button is its own tracking device between sites whether one has a Facebook account or not.

The next item concerns the humble toothbrush, though it is symbolic of the so-called “Internet of things.”  The concept is promoted as a social good in that all of the dumb devices we use will become smart at some point and our interactivity with them will come with new conveniences.  Consider this statement from Salesforce CEO Marc Benioff as reported by ZDNET:

“Everything is on the Net. And we will be connected in phenomenal new ways,” said Benioff. Benioff highlighted how his toothbrush of the future will be connected. The new Philips toothbrush is Wi-Fi based and have GPS. “When I go into the dentist he won’t ask if I brushed. He will say what’s your login to your Philips account. There will be a whole new level of transparency with my dentist,” gushed Benioff.

Any marketer would gush over this level of personal detail.  It may benefit the doctor-patient relationship, but who else would have access to this information and how will it be used?  I’m not sure I would be comforted by doctor-patient confidentiality in these circumstances.  I’m sure it will all be in the terms and conditions for the device, or not, at least if the next story’s details are accurate.

A blogger in the U.K. has discovered that his LG smart TV sends details about his viewing habits back to LG servers.  Those habits also include the file names of items viewed from a connected USB stick.  There is a setting in the TV that purports to turn this behavior off (it’s on by default).  It doesn’t work as data is forwarded to LG no matter what the setting.  LG responded to this disclosure as reported in the story on Ars Technica:

“The advice we have been given is that unfortunately as you accepted the Terms and Conditions on your TV, your concerns would be best directed to the retailer,” the representatives wrote in a response to the blogger. “We understand you feel you should have been made aware of these T’s and C’s at the point of sale, and for obvious reasons LG are unable to pass comment on their actions.”

Or putting it another way, we don’t care if you’re put out by these practices.  Life’s good, as they say, depending on who has the power in these relationships.

When I think of Marc Benioff’s toothbrush scenario I can imagine smart devices coming with embedded chips that connect to the web automatically and upload information.  As of now the choice is ours as to whether to connect our devices to the web.  I have a DVD player that is web-enabled though I have not turned on that feature.  My TV set is huge, but also not connected to the web.  My choice, of course, and I may not be typical.  In fact, I’m sure I’m not.

I can predict that there will be a time when a web connection is going to be mandatory for some devices to even work out of the box.  It’s in every marketer’s interest if that came to be.  Or, if I wanted to be exotic, I can predict another pervasive wireless Internet that overlays the one we know and love.  It will just be for smart devices that will connect automatically for our “convenience.”  There may just be enough moneyed interests to make that happen.  Terms and conditions may or may not apply.

Mark

Google’s fair use victory over the Authors Guild is the company’s second recent copyright victory.  Way back in 2007 the English Premier League and others sued YouTube for copyright infringement after it displayed highlight clips of EPL matches and other uploaded videos.  What started with a 39 page complaint filed on May 4, 2007 ended with a stipulation to dismiss the case filed on November 7, 2013:

Pursuant to Fed, R. Civ. P, 41(a)(1)(A)(2), all remaining plaintiffs, through counsel, hereby stipulate to the dismissal with prejudice of all their claims asserted in this action, with each party to bear its own costs, expenses and attorneys’ fees.

The dismissal came months after the plaintiffs were denied class action status.  The story is in the Guardian.   So, the case ends after 6 years or so and 461 docket entries.  Win or lose, the lawyers get paid.

Mark

Judge Denny Chin ruled today in favor Google in the book scanning case.  The ruling is consistent with the results in the Georgia State electronic reserve case and the HathiTrust case in particular.   Judge Chin assumed that the Authors Guild established a prima facie case of copyright infringement at this stage of the proceedings.  He examined each of the four factors for the defense of fair use and found:

  • Purpose and character of the use (factor one):  Google’s use is “highly” transformative in that the word index helps readers, scholars, researchers, and other to find books.  Moreover, the manipulation of electronic text can help researchers discover historical trends in how words are used.  Google’s for-profit status is of slight concern because of the important educational purpose served by Google Books.  Factor one favors Google.
  •  Nature of copyrighted work (factor two):  The majority of books scanned are non-fiction.  Though fiction deserves greater protection, all scanned books were published and available to the public.  In any event, both parties in the case agree that the second factor is not determinative.
  • Amount and substantiality of the portion used (factor three):  Google scans the entire book.  Courts have held, however, that copying the entire work can be fair use in some circumstances.  Judge Chin notes that the key to Google Books is its ability to offer full-text search.  Google tightly controls and limits the display as snippets in response to a search.  Factor three weighs slightly against a finding of fair use.
  • Effect of use upon potential market or value (factor four):  The Authors Guild argued that Google Books would act as a market replacement for books.  Alternatively, a searcher can use multiple word searches to construct a book out of snippets.  Google enhances the book market as each display links to sources where the book can be purchased.  As such, it provides a way for authors to get noticed.  As for the snippet to books argument, someone would have to have a copy of the book in order to construct a copy from the online display.  In any event, this would not be possible as Google has blacklisted some snippets as never displayable.    The fourth factor weighs strongly in favor of finding fair use.

If any of that wasn’t enough, Judge Chin had this to say:

In my view, Google Books provides significant public benefits. It advances the progress of the arts and sciences, while maintaining respectful consideration for the rights of authors and other creative individuals, and without adversely impacting the rights of copyright holders. It has become an invaluable research tool that permits students, teachers, librarians, and others to more efficiently identify and locate books. It has given scholars the ability, for the first time, to conduct full-text searches of tens of millions of books. It preserves books, in particular out-of-print and old books that have been forgotten in the bowels of libraries, and it gives them new life. It facilitates access to books for print-disabled and remote or underserved populations. It generates new audiences and creates new sources of income for authors and publishers. Indeed, all society benefits.

Take that, Authors Guild.  Speaking of whom, the Guild issued the usual “we’re going to appeal statement:”

Judge Denny Chin today ruled that Google’s mass book digitization project to be a fair use, granting the company summary judgment in the copyright infringement lawsuit brought by the Authors Guild in 2005.

“We disagree with and are disappointed by the court’s decision today,” Authors Guild executive director Paul Aiken said. “This case presents a fundamental challenge to copyright that merits review by a higher court. Google made unauthorized digital editions of nearly all of the world’s valuable copyright-protected literature and profits from displaying those works. In our view, such mass digitization and exploitation far exceeds the bounds of fair use defense.”

“We plan to appeal the decision.”

I’m sorry the Guild disagrees and is disappointed with the ruling.  I’m not.  The only question I have is why did it take this long to get to this point?  The opinion is here courtesy of Public Knowledge.

Mark

Inside Higher Ed is reporting about a study of law school faculty hiring practices that will appear in an upcoming issue of the Journal of Empirical Studies.  It’s called The Labor Market for New Law Professors (draft) and it is authored by Tracey E. George (Vanderbilt) and Albert H. Yoon (U. Toronto).  The authors studied hiring practices for the 2007-8 academic year.  The pattern of hiring appears that schools from all tiers would rather hire graduates from first tier institutions as faculty than lower ranked schools.  In fact, the articles states “nearly half of the new professors hired by accredited last schools in 2008 graduated from only three law schools, those of Harvard, Stanford and Yale Universities.”  This isn’t that surprising given a school’s drive to boost reputation and ranking.  Professor George, by the way, is a Stanford graduate.

The implication Inside Higher Ed draws is that these hiring practices belie a movement to teach practical skills in a changing curriculum when new faculty members are drawn from programs that emphasize theory.  I’m not so sure about this.  The study comes from the time that the job market started to collapse.  Schools tended to do what they always did back then, which was pretending there wasn’t a problem, or at least a lasting one.  Two things happened since then.  Enrollment collapsed (and continues to do so), and the American Bar Association is loosening the standards just enough for schools to experiment with the curriculum.  Some schools are reacting by adding transactional instruction in their classes.  It’s not a mass movement by any means but the market for law students may push that change further.

Other schools react by shrinking.  Some have bought out faculty or used other means to reduce the faculty roster.  It may seem conventional wisdom to think that reducing staff will solve the problem, but it’s not.  Paul Campos writes in a post on the Lawyers, Guns & Money blog:

As for expenses, these tend to be both homogenous and fixed, consisting largely of personnel compensation, in a context in which serious downsizing of labor costs can’t be undertaken without declaring a fiscal emergency — a move which has serious reputational costs — and physical plant operation. Costs that can as a matter of institutional politics be treated as variable — for example, library subscriptions, adjunct faculty, and low-status staff — are by comparison relatively small.

His full post is called “80% to 85% of ABA law schools are currently losing money.”  The greatest personnel expenditure in a law school is, of course, faculty salary.

I think the George and Yoon study is interesting.  They acknowledge in their draft that they study does not follow trends over time.  I would like to see a follow-up on faculty hiring practices that takes into account the last six years of the shrinking law school and how that has affected the composition of the law school faculty on skills vs. theory basis.

Mark

There is an interview with Judge Richard Posner that was published on The Daily Beast last Thursday.  Judge Posner states the obvious when he says he likes to write.  We learn that he isn’t interested in being considered for the Supreme Court:

At this point in your career, would you like to sit on the Supreme Court?

No. First I’m too old. I’m 74 and they don’t appoint people my age.

But you sound peppy.

Well, I don’t like the Supreme Court. I don’t think it’s a real court. I think of it as basically…it’s like a House of Lords. It’s a quasi-political body. President, Senate, House of Representatives, Supreme Court. It’s very political. And they decide which cases to hear, which doesn’t strike me as something judges should do. You should take what comes. When you decide which case to hear it means you’ve decided the cases ahead of time.

Judge Posner’s view of the Supreme Court is interesting, but that’s not the real news for me.  As to the matter of pets he says:

Well, I’m a very big cat person. Used to like dogs, then I switched. I have a big crush on my current cat. I like animals generally. I’m very soft about animals. My cat is a Maine Coon named Pixie. What’s unusual about her, besides being beautiful and intelligent, but she’s affectionate. Very unusual in cats. She likes to give us nuzzles and be with us. Her little face falls if either of us leaves the house. She’s very social. She appears to recognize members of our families, kids and grandchildren. She’s a real sweetie. It’s one of the reasons I work at home a lot now. The nature of my work is such that I don’t really have to be in the office unless I’m hearing cases. I spend probably at least half the time at home working. Everything I need, I have with me or have electronic access to. One reason is that the cat wants us at home.

Well, meow.

Mark

LexisNexis prevailed in a case from the Sixth Circuit that was released a few days ago.  The issue concerned whether the arbitration clause in a contract for access to LexisNexis databases allowed for class arbitration.  The ultimate answer to that question was no.  The underlying issue in the case that triggered the lawsuit and appeal had to do with the practice LexisNexis employed in its flat fee access plans to attorneys.  I’ll let the Court explain it:

        LexisNexis (a business division of Reed Elsevier) provides legal-research services, primarily on-line. In 2007, Craig Crockett and his former law firm—Dehart & Crockett, P.C.—subscribed to a LexisNexis Subscription Plan. The Plan allowed subscribers unlimited access to certain legal databases for a flat, monthly fee.  Subscribers could access other databases for an additional fee. According to Crockett, LexisNexis told subscribers that a warning sign—such as a dollar ($) sign—would display if the subscriber was about to use a database outside of the Plan.

Several years after signing up for the Plan, Crockett complained to LexisNexis that his firm was being charged additional fees without any warning that the firm was using a database outside the Plan. LexisNexis allegedly insisted on payment of the additional fees anyway.

Those of us in academics working with our subscriptions to Lexis and Westlaw are very familiar with either premium databases not appearing or alternatively messages stating the desired content is not part of the current subscription.  It makes me wonder, assuming the allegations are true, why Lexis can’t manage flat fee plans.  Of course, we’ll never know since the dispute is heading to arbitration.

Though the Court is not sympathetic to Mr. Crockett’s legal arguments concerning how the arbitration clause in the contract is read (precedent is against him), it does offer this cautionary advice to prospective commercial consumers:

Crockett’s remaining argument is that, if read not to permit classwide arbitration, the arbitration clause is unconscionable. The clause is indeed as one-sided as Crockett says: the clause favors LexisNexis at every turn, and as a practical matter makes it economically unfeasible for Crockett or any other customer to assert the individual claims that Crockett seeks to assert here. The clause provides that any arbitration of any dispute concerning LexisNexis’s charges must occur in Dayton, Ohio, where LexisNexis is headquartered. The customer must pay his own legal fees, even if the arbitrator concludes that LexisNexis’s charges were improper. And unlike many corporations that require arbitration of disputes with their customers, LexisNexis makes its customer split the tab for the arbitrator’s fee.

The idea that the arbitration agreement in this case reflects the intent of anyone but LexisNexis is the purest legal fiction. But all of these things—the one-sided nature of the arbitration clause, and its adhesive nature—were also present in American Express Co. v. Italian Colors Restaurant, 133 S. Ct. 2304 (2013). And there the Supreme Court held that, all of those concerns notwithstanding, the absence of a class-action right does not render an arbitration agreement unenforceable. Id. at 2309 (The solution to Crockett’s problem is likely a market solution; as the district court observed, Westlaw’s agreement with its customers lacks any arbitration clause, much less a clause of the sort at issue here.)      Under Italian Colors, therefore, the agreement here is not unconscionable.

The case is Elsevier, Inc. v. Crockett, et al. (6th Cir. 12-3574, November 5, 2013).  Copies of the opinion are here and here.  Hat tip to Michael Ginsborg for the links.  As Paul Harvey would say, now you know the rest of the story.

Mark

The Court issued one opinion yesterday.  The case is Burt v. Titlow  (12-14) and it concerns the effective assistance of counsel as raised in a habeas corpus proceeding.  Vonlee Titlow was convicted of first degree murder in Michigan.  The record indicates that she poured Vodka down the throat of her Aunt’s husband after which her Aunt smothered the victim.  Titlow’s first attorney arranged a plea deal with prosecutors to plead guilty to manslaughter in return for testifying against her Aunt.  Three days before the Aunt’s trial, Titlow retained a different lawyer who tried to alter the terms of the deal for an even lower sentence.  The prosecution refused.  Titlow had maintained her innocence and decided to go to trial.  She was convicted of second degree murder and given a sentence of 20-40 years.

The Michigan Court of Appeals upheld Titlow’s conviction and denied a claim on ineffective assistance of counsel for her second lawyer.  The claim was that the second attorney advised withdrawing the guilty pleas while not spending enough time learning the details of the case.  The appellate court held that the attorney’s actions were reasonable given Titlow’s protestations of innocence.  The record also shows that Titlow’s prior attorney had discussed the evidence against her in detail and explained that it could support a conviction for first degree murder.

The federal district judge denied habeas relief on deference to the reasonableness of the Michigan Court of Appeals’ decision.  The Sixth Circuit reversed.  It noted that the explanation for withdrawal provided by the second attorney at the hearing on the plea was that the jail time offered was higher than the Michigan guidelines.  As such, the Appellate Court’s rationale was unreasonable.     

The Supreme Court reversed.  It held that the Sixth Circuit unreasonably substituted its judgment for that of the state courts.  The record supports the factual finding that the plea was withdrawn after Titlow proclaimed innocence.  There was no evidence in the record of the advice the second lawyer gave to Titlow.  The standard presumes competency.  Titlow did not overcome that presumption.

There were some questions of ethics, such as the attorney agreeing to represent Titlow in exchange partially for publication rights.  The Court said of that:

He may well have violated the rules of professional conduct by accepting respondent’s publication rights as partial payment for his services, and he waited weeks before consulting respondent’s first lawyer about the case. But the Sixth Amendment does not guarantee the right to perfect counsel; it promises only the right to effective assistance, and we have held that a lawyer’s violation of ethical norms does not make the lawyer per se ineffective.

That statement reminds me of another opinion where the Court stated: ‘A defendant is entitled to a fair trial but not a perfect one.’ Lutwak v. United States, 344 U.S. 604, 619.  Take it from the Supreme Court, perfection isn’t everything.  In fact, it may not be anything.

Justice Alito delivered the opinion of the Court and was essentially joined by all Justices except Justice Ginsburg who wrote an opinion concurring in the judgment.  Justice Sotomayor wrote a separate concurring opinion but otherwised joined the Court in full.

Mark

The Supreme Court issued its first opinion of the October 2013 Term on Monday.  The Court had earlier dismissed the writ of certiorari in Madigan v. Levin (12-87) on October 15th.  The Madigan case was the first argued in the current term.  The case at hand, though, is Stanton v. Sims (12-1217).  It was apparently decided on the basis of the petitions and record as the case did not come up for argument in October.  It involves whether a police officer is entitled to qualified immunity for injuries to a property owner when pursuing an individual on to that property when the individual is only subject to being charged with a misdemeanor.  The District Court said yes to that question and was reversed by the Ninth Circuit.  The Supreme Court agreed with the District Court and reversed the Ninth Circuit.

Officer Stanton was investigating reports of an individual with a baseball bat in La Mesa, California.  He identified himself as a police officer and called for one individual to stop and that individual ran onto the property of Drendolyn Sims.  Stanton gave chase and kicked open a closed gate leading to the front yard of Sims property.  Sims happened to be behind that gate at the time and suffered an injury to her forehead and shoulder.  She filed a §1983 lawsuit alleging a violation of the Fourth Amendment.

The District Court held that Stanton’s entry onto her property was justified by the need to pursue the individual and by the lesser expectation of privacy Sims had in the curtilage of her property.  The Court also ruled that Stanton was entitled to qualified immunity because there was no clearly established law that put Stanton on notice that his conduct was unconstitutional.  The Ninth Circuit relied on one Supreme Court case and circuit precedent in another case to reverse.

In reversing, the Supreme Court said the Ninth Circuit misinterpreted the meaning of Welsh v. Wisconsin, 466 U.S. 740 (1984).  The Court distinguished Welsh as there was no hot pursuit on that record compared the instant case.  The other case, United States v. Johnson, 256 F. 3d 895 (9th Cir. 2001) (en banc) did not involve circumstances of hot pursuit.  Moreover, there were two District Court cases out of the Ninth Circuit as well as two California Appellate Court cases that disagreed with the logic the Ninth Circuit applied in this case.  On that basis, the Supreme Court held that there was no clearly established law that would give Officer Stanton notice that he was violating the Constitution.  Officer Stanton was entitled to qualified immunity.  The opinion was issued per curiam.

Mark

The news hit the feeds on Sunday:  Lou Reed was dead.  The news was surprising but not necessarily shocking.  Recent pictures showed Reed a bit frail at best.  He had a liver transplant not too long ago and apparently died from liver complications.  He was a unique talent who wrote unique songs.  His career began before the Velvet Underground with a band called The Primitives.  They had a minor hit in 1964 called The Ostrich featuring Reed on guitar and vocals.  He also co-wrote the song.  It’s available on YouTube.

Lou Reed’s music fit into little pockets of my life.  I had DeeJay’d at a punk bar in Chicago called LaMere Vipere in 1977.  The bar had gone punk from a gay disco.  The first song ever played in the new format was the live version of Sweet Jane from the Rock And Roll Animal album.  The second was Television’s Marquee Moon.  I arrived in New York City for the first time a few years before that.  I had taken the Broadway Express and walked out of Pennsylvania Station to a hot summer day in August.  It was 95 degrees as I headed south to the Village.  The smell of the city rose upward with the steam from the broken sidewalks.  My first thought was that I understood the music of Lou Reed much better all of a sudden.

I met Jackie Curtis at one point and we hung out for a while.  I have a 90 minute tape of one of our conversations somewhere in a box in my basement.  I asked Jackie about the reference to her in Walk On The Wild Side (“Jackie is just speeding away….).  She said she first heard the song when passing a record store that was playing it over street speakers.  She said she stopped, listened, and then she cried.  Jackie signed a matchbook from Max’s Kansas City for me.

I’ve seen Reed perform live four times, probably more than any artist.  The show that comes immediately to mind was on Thanksgiving night in 1975 at the Academy of Music.  It was billed as an evening with Lou Reed.  Was it ever!  I think it was probably the longest show in history, or at least it seemed that way to me.  I was still excited at the end of the first hour. By the time the third hour ended I wondered if the show would ever end.  My memory, hazy as it is, is that the show went on for another hour or more after that.  A review of one of his shows in the Chicago Reader said that Lou Reed had taken laid back and turned it into face down on the floor.  I knew just what they meant.

I have a lot of Reed’s music in my collection.  I think my favorite album is probably Berlin.  Rolling Stone reviewed it twice in two successive issues, calling it the best album since Sgt. Pepper and then the biggest piece of trash to ever been released.  One of my bands covered the title track in several live performances.  Others in my favorites category are Rock and Roll Heart, The Bells, Sally Can’t Dance, and Coney Island Baby.  His later stuff is good as well though I did not care much for The Raven or his collaboration with Metallica (Lulu).  My friends and I have argued about that.  But that was the music of Lou Reed.  It either grabbed you or it didn’t, and when it did, well, it really did.

Other little tidbits I remember include the first Velvet Underground “reunion” in 1972 when Reed, John Cale, and Nico performed in Paris.  The CD was released in 2004.  I have a tape of the performance from before the official release that included a hotel room rehearsal.  I don’t if Reed and Cale knew they were being taped but they said some very mean things about Nico along the way.  Speaking of mean things, John Cale would recount in one of his biographies that Reed would shoot a little too much heroin while riding around in limousines in New York.  I get the impression that Reed was lucky to be alive after some of his “experiences.”  There is also Victor Bockris’s unauthorized biography, Transformer.  The irony was that even though Reed cooperated with Bockris even though he portrayed Reed as a relatively unsympathetic character.  Such is Lou Reed.

We’ll miss you Lou though your music will live forever.  There is nothing quite like it.  Some of your music is not possible to cover since it’s so uniquely you.  In your own words, oh babe I’m going to miss you know that you’re gone, one sweet day.  I’ll end this with a video clip of one of the most unlikely and unnecessary covers of Perfect Day, one featuring Lou Reed with full orchestra in a duet with Luciano Pavarotti.  It truly is an OMG moment.

Mark

Things I’ve read lately on the Internet that have piqued my interest include an article on The Atlantic by Bruce Schneier called The Battle for Power on the Internet.  Scheier argues that institutional power wielded by government and corporations have caught up with hackers and formerly (relatively) powerless advocacy groups when it comes to use and control of the Internet.  It’s an interesting read in that he leans to institutional control as the likely winner in the long run.  Corporations and government work together in a public/private partnership to track Internet usage.  One uses the information for marketing and the other for surveillance.  This is, in contrast, to the early days of the network when anonymity ruled.

We’ve seen the Internet destroy re-fashion certain industries such as news delivery, music and media, and Schneier touches on these to the extent that industry and government work with each other to minimize piracy in intellectual property, enforce trade restrictions, and track activities.  That last one gets prominent attention, although Schneier doesn’t take a stand on whether this is good or bad.  One of his examples shows how the rebels in Syria use Facebook to organize resistance.  The Syrian government uses Facebook activity to identify individuals for arrest.  In the end, those with technical proficiency will be in the best position to endure changes.

It’s always been my opinion that the more convenience technology offers, the more we are likely we are to be tracked and monitored.  I’m not paranoid about this.  It’s almost impossible to use an electronic device or service without creating a transactional record.  I think we are well past the point of limited archives that evaporate after a short time.

My solution would be to have a clear understanding of what information is collected, for how long, how it’s used, and who has access to it.  I don’t mean to support vague and wordy privacy policies either.  There should be a clear law or policy that requires that this information be spelled out.  Schneier suggests that neither a police state nor an Internet utopia is likely.  As he puts it, “figuring out a stable middle ground is hard.”  He states these kinds of issues are primarily political questions and will be sorted out that way, no matter how technology develops.

Mark

Windows 8.1 became available last week to consumers wishing to upgrade their Windows 8 installations.  The update is free and is only available as a download through the Windows store.  I have a Windows 8 machine that is dedicated to music production.  My so-called productivity machine runs Windows 7 with no plans to upgrade to Windows 8.1 for the foreseeable future.  I am one of the Metro Modern Interface haters, though I’m not pathological about it compared to some of the comments I’ve read in tech stories.  All of my audio/video applications are based in the desktop.  I made the upgrade last weekend.

Aside from the download (about 3.5 GB), a lot of the actual installation happens behind innocuous screens that ask for patience or state “almost done” or words to that effect.  SkyDrive is deeply integrated into Windows with an option in the install process to use it or not (which Microsoft does not recommend).  I declined as I didn’t need cloud storage for everything I do.  Raw recorded multi-channel music files can be in the hundreds of megabytes each and I don’t need to waste the bandwidth to access them.

Microsoft seems to lean on machine owners to log into their systems using a Microsoft account, though there are ways to maintain a local account on the machine.  If a local account already exists, there is an option on the “create a Microsoft account” screen that includes a link to “Continue using my existing account.”  See the illustration and instructions here and here.

Depending on preferences, there are steps to disable Bing search as part of the desktop search, if one doesn’t want it, and steps to boot directly to the desktop (right click on the desktop taskbar and look for the option under navigation).  There are better options for grouping apps on the Start Screen.  The Start Button also returns with my favorite feature.  Right clicking on it brings up several options, including one to power down without having to invoke the charms list on the right side of the monitor.  The Start Button is worth it for that feature alone.  One other point worth mentioning is that antivirus software such as McAffee does not work with Windows 8.1.  The install process silently removes any installed antivirus software and replaces it with Windows Defender.

I understand what Microsoft is doing here by creating an operating system that can share information seamlessly over Windows powered devices.  It makes sense in a world where people use phones, tablets, and desktop machines and need that convenience.  It’s lost on me since a) I don’t use social media, so I’m not constantly sharing anything, b) have only one Windows 8 capable computer with no current plans to buy another, and c) use all of my applications via the desktop with a mouse and keyboard.  I appreciate the fact that Microsoft has built in settings that can be changed to disable most of the new features. I’ll be posting links to the better articles that offer Windows 8.1 tips over the next few days.

Mark

As I have noted in other forums, one of the ways American law schools are reacting to smaller classes is to eventually reduce the size of the faculty.  There is another approach in academia generally and it’s documented in a short essay on Slate titled “I Quit Academia,” an Important, Growing Subgenre of American Essays.”  Even tenured folks can find the work unpalatable despite the money and alleged job security.

Also on Slate is an article reprinted from Inside Higher Ed called “Classroom Confidential: Should professors have any expectation of email privacy?”  A faculty member at the University of Wisconsin-LaCrosse responded to students who could not access the Census.gov during the shutdown that Republicans and Tea Partiers were responsible for the lack of access.  Like anything sent to a third party, it made it into the wild and caused quite a stir.  The lesson?  Don’t say anything in email that one would be embarrassed if public.  A good example is this story from Inside Higher Ed, “Iowa TA Accidentally Sent Class Nude Photos.”  Oopsie.

Getting back to law, Harvard Law School announced that the Harvard Law School Program on the Legal Profession has started a Law Research Centers Papers series within the Legal Scholarship Network (LSN).  Papers related to the program are here.  The HLSP web site is here with links to papers and other publications.

Mark

Illinois is just one state in a long line that has imposed sales tax collection on out-of-state retailers when there are in-state affiliates that refer sales to that out-of-state retailer via links on the in-state affiliate’s web site.  These laws are pretty much aimed at Amazon and any other large retailer that use the same arrangements.  The Illinois General Assembly passed its own “Amazon tax” in 2011.  It was challenged by the Performance Marketing Association, Inc. Unlike the result in other challenges in other states, the PMA won at trial with the decision affirmed by the Illinois Supreme Court in a 6-1 opinion released last Friday.

The PMA argued that the tax collection requirement was discriminatory and as such was a violation of the Internet Tax Freedom Act (ITFA) (47 U.S.C. § 151 note (2000).  The provision which limits the collection of discriminatory taxes on electronic commerce as prohibited reads:

“(A) any tax imposed by a State or political subdivision thereof on electronic commerce that—

* * *

(iii) imposes an obligation to collect or pay tax on a different person or entity than in the case of transactions involving similar property, goods, services, or information accomplished through other means.” 47 U.S.C. § 151 note.

The distinction the Court draws comes from the fact that tax collecting requirements are not imposed on out-of-state retailers who enter into advertising campaigns with Illinois publishers and broadcasters.  The PMA argued that the taxing requirement comes into effect simply through a link on a web site which can be international in scope.  The Court agreed with this:

Under paragraph 3 of the definition section of the Use Tax Act, retailers who enter into contracts with Illinois publishers and broadcasters for advertising “disseminated primarily to consumers located in this State,” i.e., locally, are obligated to collect use tax. But Internet advertising is different. As the parties’ joint stipulation of facts states: “The home page and other publicly-available pages of any Internet website can be accessed from a computer, or other digital device, located anywhere in the world that is connected to the Internet via wire or radio signal. Thus, information appearing on a webpage is available and disseminated worldwide.” (Emphasis added.) Illinois law does not presently require out-of-state retailers who enter into performance marketing contracts for “offline” print or broadcast advertising which is disseminated nationally, or internationally, to collect Illinois use tax. However, under the Act, out-of-state retailers who enter into such contracts with Illinois Internet affiliates for the publication of online marketing—which is inherently national or international in scope and disseminated to a national or international audience—are required to collect Illinois use tax. In this way, by singling out retailers with Internet performance marketing arrangements for use tax collection, the Act imposes discriminatory taxes within the meaning of the ITFA.

The case is Performance Marketing Association, Inc. v. Brian Hamer, Directory of Revenue 2103 IL 114496.

Mark

It’s an old story on Salary.com, covering jobs that are evolving or going extinct.  Librarian was the first in the slide show and the verdict was “evolving.”  The short version of the rationale included this statement:  “The new librarian is a digital archivist, savvy with searches, keywords and helpful websites.”  We’ll sure.  Those of us in law libraries understand the subject specialties and literature in detail when working with lawyers, faculty, students, and public patrons know that it is a bit more than that.  Nonetheless, in the spirit of Friday Fun, I offer my own short version of the Song of the Reference Librarian:

I can’t believe they pay me to Polly-waddle Google all day.

I sit on my butt in front of a screen and Polly-wolly Google all day.

Fair thee well, fair thee well, I’m Polly-wolly Googling all day.

I move a mouse and point and click, Polly-wolly Googling all day.

I’ve seen that Shirley Temple movie collection ad one time too many, and that’s what it turned into for me after probably the 100th time on screen.  Oh, and I had to Google the original lyrics so I could spell “wolly” correctly.  Librarians will still be around mining the Internet, if for no other reason than to show patrons that there is more to useful information than Wikipedia.    

Mark

I assume everyone is sitting on pins and needles over whether the government will be pushed into default by Congress’ seeming inability to fund the government and/or raise the debt limit.  I admit that I’ve probably spent more than a few minutes over the past few days wandering the chattering class web sites while nervously thumbing my latest TIAA/CREF quarterly statement.  I’m not going to take a stand on how this is going to (or ought to) turn out.  The latest news is that the Senate leadership has reached a funding agreement with House Speaker John Boehner going along with allowing a House vote.  Perhaps my and more than a few others’ retirement balances are safe for a few more months.  I’ll be happy when the legislation is signed into law.

One of the casualties of the shutdown has been government web sites.  Sites have either been down or available with messages saying they are not being updated due to the shutdown.  The Federal Trade Commission site still features a stark page stating the site is not available.  Sites that are available but with messages stating they are not being updated at present include the White House, the Department of Justice, and other major cabinet departments.  I’m happy to report that the Library of Congress web site appears to be functioning though it has a message saying it is not being updated.  Earlier reports indicated that the LOC was one of the first sites to become totally unavailable.  Thomas and FDSys are working as well, though the latter says it is processing congressional material in any event, even if it’s not posted immediately. The Federal Register is kept current to some extent.  Thomas, by the way, is not going to be with us much longer.  A message on that site says the Thomas web address will redirect to FDSys starting in November.

The Supreme Court is still going despite the shutdown.  The latest message on the Court’s web site says everything will continue, including public access to its building at least until the 17th of October.  We’ll see how normal everything becomes once the appropriations are made.

 

Mark

Karen Sloan at the National Law Journal is highlighting a new public blog written by law school deans.  The idea is to regularly offer a dean’s perspective about the current state of law schools into the public discourse.  I think it’s about time.  As the article notes, law school deans have occasionally published pieces on blogs and major news outlets, often to sharp criticism.  Many deans may have been surprised by the reaction to their pieces.  This outlet, on the other hand, gives them a chance to respond to critics and continue the conversation about law school trends.

It’s one thing to express views to ABA regulators in private.  It’s certainly another to take a public stand on the nature of the curriculum, law school debt, and the job market. Frank Wu is quoted as supporting the idea:  “We’re playing defense, and I don’t want to keep playing defense. My message to my decanal colleagues is, ‘You’ve got to do this.'” I agree, provided that the contributors are candid enough.  Posts that say things aren’t that bad should be backed by realistic arguments and evidence to that effect.  And when things are bad, well, there should be responses that address the problems.

The article is unclear as to whether the blog has begun publishing.  The blog, however, is located here.  Posts started to appear on October 4th.  Let the discussion begin

Mark

Google and Facebook are getting to be more and more like each other when it comes to taking advantage of user information.  Google announced today that it will show a +1 and picture of the friend who gave the recommendation in ads and searches.  These are called “shared endorsements.”  Google does offer a mechanism to opt out.  There is a check box in Google Account settings that reads “Based upon my activity, Google may show my name and profile photo in shared endorsements that appear in ads.”  The box is checked by default.  Unchecking it prevents sharing.  Press reports on the new setting are in PC Magazine and ZDNet.  The new setting goes into effect on November 11.

Facebook is making a change to privacy settings on the social network as well.  It is removing the ability for an individual to hide their timeline from search by name.  Facebook had eliminated the setting a while back for those who had not selected it.  This action now removes the opt-out for the less than 1% of accounts that selected it, calling it “and old search setting.”  The site suggests using other privacy settings to limit information that can be seen by others.  I can image there are indignant individuals who use Facebook but resent the lack of control over privacy.  Then there are individuals who have genuine privacy concerns, such as hiding from stalkers or abusive ex-’s.   The report in Ars Technica has the details.

Mark

If anyone is wondering about the mechanisms available to raise the debt ceiling, the Congressional Research Service has the details.  See the report The Debt Limit: History and Recent Increases (September 25, 2013, RL31967) by D. Andrew Austin and Mindy R. Levit.  A companion report is Votes on Measures to Adjust the Statutory Debt Limit, 1978 to Present by Justin Murray (February 15, 2013, RL41814).  And while we’re on the subject of turmoil in the government, here’s Shutdown of the Federal Government:  Causes, Processes, and Effects by Clinton T. Brass (September 25, 2013, RL34680).  Note that two of these reports were conveniently issued five days before the government closed.

Mark

The Supreme Court’s 2013 term begins today with arguments in two cases.  That’s not the news.  New York Magazine has published an in depth interview with Justice Scalia.  Most of the press focuses on his statements about religion and homosexuality.  Salon leads with the headline Scalia: I believe in the Devil.  That part of the conversation isn’t particularly revealing or shocking given that Scalia is a good Catholic.  As he points out in the conversation, even Jesus believed in the Devil.

Slate focuses mostly on Scalia’s attitudes on homosexuality.  Its headline reads Is Scalia in Denial About His Own Homophobia?   Scalia says that he doesn’t hate homosexuality.  He acknowledges that Catholic doctrine teaches that homosexuality is wrong.  The Constitution does not require the people to adopt one view of it or the other.  That is mild compared to the antagonistic statements the Justice has made in other public occasions which are linked in the article.

Here are my favorite parts of the interview:

Let’s put it this way: Do you think the same level of scrutiny that applies to race should apply to sex?

I am not a fan of different levels of scrutiny. Strict scrutiny, intermediate scrutiny, blah blah blah blah. That’s just a thumb on the scales.

But there are some intelligent reasons to treat women differently. I don’t think anybody would deny that. And there really is no, virtually no, intelligent reason to treat people differently on the basis of their skin.

And:

It was recently reported that the justices don’t communicate with one another by e-mail. Do you go online at all? 

Yeah. Sure, I use the Internet.

You’ve got grandkids. Do you feel like the Internet has coarsened our culture at all?

I’m nervous about our civic culture. I’m not sure the Internet is largely the cause of it. It’s certainly the cause of careless writing. People who get used to blurbing things on the Internet are never going to be good writers. And some things I don’t understand about it. For example, I don’t know why anyone would like to be “friended” on the network. I mean, what kind of a narcissistic society is it that ­people want to put out there, This is my life, and this is what I did yesterday? I mean … good grief. Doesn’t that strike you as strange? I think it’s strange.

And:

How picky are you about which law schools they [law clerks] come from?

Well, some law schools are better than others. You think they’re all the same?

Now, other things being equal, which they usually are not, I would like to select somebody from a lesser law school. And I have done that, but really only when I have former clerks on the faculty, whose recommendations I can be utterly confident of. Harvard, Yale, Stanford, Chicago, they’re sort of spoiled. It’s nice to get a kid who went to a lesser law school. He’s still got something to prove. But you can’t make a mistake. I mean, one dud will ruin your year.

And for whom does he write opinions:

My tone is sometimes sharp. But I think sharpness is sometimes needed to demonstrate how much of a departure I believe the thing is. Especially in my dissents. Who do you think I write my dissents for?

Law students.

Exactly. And they will read dissents that are breezy and have some thrust to them. That’s who I write for.

We glean other facts.  He admires the new Pope, politics in Washington is a lot more ideological since he came to the bench, and he doesn’t care too much about how history will treat him.  That alter point is the angle in story in The Atlantic.  In other Supreme Court coverage, Slate has an additional story, Elena Kagan Will One Day Control the Supreme Court.  Here’s a sample:

Kagan didn’t just go hunting with Scalia once. She became a hunter. She quipped to the students about shooting a doe after a recent unsuccessful elk-hunting trip in Wyoming—just because there was nothing bigger around to kill. The students went silent. When she was nominated, many Harvard students wanted Kagan to be the Great Liberal Hope who’d do combat with the court’s formidable conservatives. Now she was proclaiming, “I love Justice Scalia!”

Though the Court starts its new term, there is this ominous note at the bottom of the Court’s home page:

The Court will continue to conduct its normal operations through October 11. The Court building will be open to the public during its usual hours, and the Court will hear the scheduled oral arguments.  A further update will be provided in the event the lapse of appropriations continues beyond October 11.

The Court’s term may be affected by the “partial government shut down.”

Mark

I alluded earlier in the week that I would comment from time to time on media, and that included Scooby-Doo.  Since it’s a Friday, I’m going to take that opportunity.  I’m a big fan of animation.  There are a lot of quirky shows on these days (Regular Show, Adventure Time among others).  One of the more amazing shows is Scooby-Doo Mystery Incorporated.  The show uses the Scooby-Doo gang and the mystery solving meme that’s existed since the late sixties.

This version of Scooby-Doo, though, goes well beyond the-monster-is-really-a-guy-in-a-rubber-mask.  The 52 episodes contain numerous subtle and not so subtle references to pop culture that makes one do a double-take at times.  Consider the casting.  One recurring character, Mister E (get it?) is voiced by comedic icon Lewis Black.  Science fiction author Harlan Ellison played himself in an episode that focused on the world of H.P. Lovecraft in extreme detail.  Udo Kier voiced the character of Professor Pericles, a super intelligent but evil parrot.  Kier has worked with many important directors and appeared in Andy Warhol’s Frankenstein among other films.  Sheriff Stone is voiced by Patrick Warburton who may be best known for playing Joe on Family Guy.

The pop culture references built into the show are both diverse and amazing.  One episode, The Battle of the Humungonauts, is an homage to the Toho Studios film The War of the Gargantuas.  Toho is the studio that brought us Godzilla and other Japanese monsters.  It even features the song “Stuck In My Throat” from that film.  Devo incorporated the song as a closer to their live act in the late 70s.  Another episode, Art Of Darkness, features artist Randy Warsaw, a parody of Andy Warhol, and a band called Sunday Around Noonish.  The song the band performs is a spot-on parody of the Velvet Underground’s All Tomorrow’s Parties.  It’s played twice, in fact, with Scooby-Doo replacing the Nico character when she is indisposed by a piece of animated artwork.  Sample lyric:  “And what would you do if you met a caribou?”  The Lou Reed character was the villain.  It turns out he only wanted to play Polka music.  One episode takes place in the red room from Twin Peaks.  A significant character is the dancing man who is voiced by the same actor from that show.  I can’t list everything, so I would suggest checking the Wikipedia page that details each of the episodes and references.

The story arc tells the tale of Mystery Incorporated seeking a lost treasure supposedly buried underneath their town of Crystal Cove.  In reality, the treasure is a crystal sarcophagus containing a trapped alien, identified as one of the Anunnaki, and an evil one at that.  He has manipulated mystery solving groups for the last 500 years in order to free himself at the imminent coming of Nibiru.  Velma references Zecharia Sitchin at several points in the series to explain this plot point.  Anyone who is familiar with late-night radio dealing with paranormal subjects (I’m looking at you, George Noory) will be comfortably aware of this story element.

Scooby and the gang collect artifacts throughout the episodes that lead to the ultimate confrontation with the evil alien.  Along the way we are treated to emotional relationships between members of Mystery Incorporated, underwater Nazi bases, violent ends for major characters at times, and even a little bit of parallel universe theory.  And Harlan Ellison makes another appearance at the end that neatly ties up all of the loose ends.  My reaction to this show is that one has to be at least 50 to get all of the references, and at an elevated level within the blogosphere to appreciate them.  This is definitely not your standard Scooby-Doo.

Ok, what does this have to do with libraries?  Library and archival holdings are significant plot points that move the story along.  One episode’s villain turns out to be the town librarian.  So there.  The show is out on several DVDs.  It stands up to repeat viewing.

Mark