Friday, December 19, 2008
Global Voices Online has published a story on this issue. A researcher studying jailed bloggers across the globe estimates between 20 and 30 Iranians have been jailed because of their blogging activities.
Tuesday, December 16, 2008
By scrolling down, a pdf of the RFP is available.
On the pdf, I think the focus of the grant is interesting, especially under the "Digital Evidence Forensic Examination Tools," subheading, where the DOJ is particularly looking for those who can do "Research and development of Macintosh-compatible computer forensic tools for State and local law enforcement agency application." In their list of "Additional Requirements," I was glad to see that they also want to see intellectual property issues addressed by whoever is successful in obtaining these grant funds.
Sunday, December 14, 2008
This is a link to Eric Goldman's blog wherein he summarized the Axact v. SNR New Jersey case involving two companies, one in the US, and one in Karachi, Pakistan. This case has piqued my interest and it has a rich set of documents available for analysis. Thus, I've decided to propose an article on this case for a special issue of a journal in our field.
Today I have spent a few hours reading through the court pleadings and documents. The most interesting order was produced 12-12-08 involving google, inc.'s agreement to remove the student term paper websites associated in the court pleadings with Axact from its search engine.
The documents can all be accessed through justia.com.
Saturday, December 13, 2008
I've been wondering when we might get over the "wow" phase on open source -- perhaps as the lawsuits start piling up, a more critical view will be struck regarding the discourse of the commons and the concept of "open source." Open source does not mean a free for all, it's turning out.
My interest in copyright law, in what it tries to accomplish, is linked to my broader interest in origins, and in discourses about origins, including human origins. Origins, as I've previously mentioned, is linked to the concept of "authorship." I've been following numerous publications that provide information on new RFPs -- funding opportunities. And so, I thought I'd collect this RFP on Human Origins from the NSF. The rest of this post is a direct quote from the RFP:
This competition is directed towards increasing our knowledge of the complex biological, physical, and behavioral interrelationships that led to the development of our species and that are responsible for both the shared and variable features that characterize living human populations. It recognizes that understanding of the processes and pathways of human evolution requires input from a wide range of disciplines which examine our species from multiple perspectives and across both time and space. Accomplishing this goal requires a large scale initiative which allows research activities that go beyond the smaller, shorter duration, single investigator awards that disciplinary programs have been able to provide in the past. The Human Origins: Moving In New Directions (HOMINID) competition will support large scale, long term, integrative research and infrastructure projects through awards of up to $500,000 per year for up to five years. Contingent on the availability of funds, the program expects to make two awards in each fiscal year. It is intended that HOMINID awards will provide for transformative approaches to long-standing questions about the history of our species. Infrastructure development is also eligible for support either as a stand alone project or as part of a research award. One goal of the competition is to develop a portfolio of awards that reflects the multiple approaches to the understanding of human origins. It is expected that the combination of awards will complement each other and prove to be mutually informative as they progress.
Links to the International Telecommunication Unit, the World Bank and the World Economic Forum, respectively:
Another resource said to collect (and sometimes publish) data about Information and Communication Technologies:
Followed by the Citizen Media Law Project
Friday, December 12, 2008
Thursday, December 11, 2008
Why do we use letters of recommendation?
Well, the answer is not simple, but the fact that we do use them provides empirical evidence in support of some of Latour's theory.
"Who will win in an agnostic encounter between two authors and between them and all the others they need to build up a statement S? Answer: the one able to muster on the spot the largest number of well aligned and faithful allies." (1986, Drawing things together, p. 23)
The letters do the work of bringing back things, your allies, and presenting them all in one place for your audience.
"If you wish to go out of your way and come back heavily equipped so as to force others to go out of their ways, the main problem to solve is that of mobilization. You have to go and to come back with the "things" if your moves are not to be wasted. But the "things" have to be able to withstand the return trip without withering away. Further requirements: the "things" you gathered and displaced have to be presentable all at once to those you want to convince and who did not go there. In sum you have to invent objects which have the properties of being mobile but also immutable, presentable, readable, and combinable with one another." (1986, p. 7, Visualization and Cognition).
Thus, I say, we have the letter of recommendation. A service like interfolio.com increases both the immutability and the mobility of these letters.
Here, letters of recommendation are symmetrical to the citations on a reference page. Those citations accomplish the same results, in that they bring the "thing" back to one location, and as they appear in the reference list, have the properties of being mobile but also immutable, presentable, readable, and combinable with one another.
Tuesday, December 9, 2008
An avian influenza outbreak would be a public health disaster, but for the World Health Organization to adequately prepare for that risk, member states must come to a resolution on intellectual property issues related to virus and vaccine sharing.
The rest of this blog post is a quote from the grant:
Now living under a Constitution that codifies equal rights for women, Afghan women have an official framework to support their personal and professional development. With the exception of constitutionally mandated quotas for women’s representation in Parliament, however, all indicators of women’s status reveal that enforcement of constitutional rights lags far behind enactment. A combination of poverty and deprivation, ill health, illiteracy, discriminatory customary laws, harmful traditional practices, and physical and emotional abuse conspire to keep women at the bottom of society. To ensure they receive sufficient attention, women’s civil society organizations (CSOs) are needed to advocate on behalf of women and help mobilize resources, deliver essential services, and implement useful development activities. However, women’s CSOs cannot effectively undertake these tasks until they acquire a wide range of new skills—from assessing needs, designing responsive interventions, and implementing programs to managing operations, finances and people, building alliances and networks, planning strategically, and monitoring and evaluating performance—in addition to building capacity in the technical sectors in which they wish to work. The three-year $26.7 million “Afghan Women’s Empowerment through a Sub-grant Umbrella Mechanism” (AWE-SUM) program is designed to strengthen the capacity of women-led/focused CSOs to contribute to the social, economic, and political development of Afghan women through the provision of financial and technical assistance to support women-specific activities in the following areas: 1. Implementing activities that improve the status, safety and well being, human and legal rights, and livelihoods of Afghan women and girls; 2. Delivering services that directly address the social, political, and economic needs of Afghan women and girls; 3. Undertaking efforts to increase the participation of Afghan women in development as implementers, change agents and beneficiaries; and 4. Creating or strengthening mechanisms and channels by which Afghan women can access information, network, and take advantage of personal and professional development opportunities. Applicants will propose approaches to implementing the following Activity Components and indicate how those approaches will help accomplish the Activity Objectives: 1. Awarding sub-grants for technical and organizational capacity building of eligible organizations, including equipment, and for the activities of such organizations; 2. Assessing organizational and technical capacity needs of eligible organizations and developing responsive interventions; 3. Overseeing sub-grant implementation to ensure that in addition to successful implementation of activities, CSO institutional strengthening and technical capacity building within recipient organizations is achieved; and 4. To support the above components, developing and implementing a comprehensive communications plan and strategy to generate widespread interest in the sub-grant program among women’s CSOs and to develop and manage an information campaign about the program to inform other stakeholders. The following link will take prospective applicants who are interested in this high visibility program to the full solicitation. Click on #1, “Download Application Instructions.” http://apply07.grants.gov/apply/UpdateOffer?id=88
Internet, Mail, and Mixed-Mode Surveys: The Tailored Design Method (Hardcover)by Don A. Dillman (Author), Jolene D. Smyth (Author), Leah Melani Christian (Author)Hardcover: 500 pages Publisher: Wiley; 3 edition (October 12, 2008)
Wednesday, December 3, 2008
The Loveland Connection is reporting that a Colorado man has been charged with two counts of criminal libel after allegedly posting comments about a former girlfriend and her lawyer on Craigslist.com's "Rants and Raves" section:
The case in Loveland began when a woman approached the Loveland Police Department in December 2007 about multiple postings made about her between November and December 2007. At least one post suggests that she traded sexual acts for legal services from her attorney, according to court records. There's also mention about a child services visit made because of an injury found on her child.
Police obtained search warrants for records from Craigslist.com and other Web sites and identified J.P. Weichel as the suspect, the former boyfriend of the woman, who shares a child with her. In August, detectives confronted Weichel at his workplace, where police said he admitted to the postings because he was "just venting," according to the court file.
The full story and a link to The Loveland Connection is located here: http://www.citmedialaw.org/blog/2008/colorado-man-charged-criminal-libel-comments-craigslist
Wednesday, November 26, 2008
A brief overview is given on this space that provides links to further readings on reducing legal liability. http://www.citmedialaw.org/legal-guide/managing-your-site-and-reducing-your-legal-risks
The section on dealing with legal threats is especially helpful. It provides information on what to do if you receive a letter or communication threatening legal action.
The website also has some very smart advice on responding to correspondence threatening legal action. http://www.citmedialaw.org/legal-guide/responding-correspondence-threatening-legal-action
I think the one important thing to remember is to ask whether it is worth it to resist a legal threat and face possible litigation in a given context. While you might be justified in your use of material, do you have the time and resources to fight a law suit on principle for the publishing of material that may not be at all crucial to your success? Most of the time, for example, with respect to "fair use," you really don't know if it really really really is "fair use" until a court says it is. $500,000.00 later, it might not have been worth it. On the other hand, if individuals don't resist unreasonable legal threats once in awhile, speech really could be chilled, although in my research I didn't find that it was, yet, with respect to academics writing in educational digital contexts.
The Center for Internet and Society and
The Stanford Law and Technology Association
The Copyright Dispute: A Transnational Regulatory Struggle
Monday, Dec. 1, 2008
Lunch will be served
In the field of transnational copyright public and private authorities compete for regulating the subject matter. (Inter-)National copyright law is both complemented and confronted by private standardization of technology (such as Digital Rights Managment) as well as licensing (for example Creative Commons). In his talk, Leonhard Dobusch looks at different (organizational) types of actors in their struggle for influencing regulation in this highly contested field.
Leonhard Dobusch has received his PhD at Freie Universitaet Berlin and is currently a research fellow at the Max Planck Institute for the Study of Societies in Cologne/Germany that conducts advanced basic research on the governance of modern societies (see http://www.mpifg.de/institut/
At the institute he is part of a research group dealing with "Institution Building Across Borders". The research projects of the group are located at the interface between economic sociology, organizational theory and international relations with a strong emphasis on the links between rule-setting and law-making and close ties to the field of law and society. In particular and as a visiting researcher at Stanford's Center for Internet & Society, Leonhard Dobusch is working on "The Copyright Dispute: How New Transnational Actors and Standards Challenge Established International Control Regimes."
Tuesday, November 25, 2008
Lebovits, Gerald,Do's, Don'ts, and Maybes: Legal Writing Punctuation -- Part I(February 1, 2008). New York State Bar Association Journal, Vol. 80, No. 2, p. 64, February 2008. Available at SSRN: http://ssrn.com/abstract=1296061
Lebovits, Gerald,Do's, Don'ts, and Maybes: Legal Writing Punctuation - Part II(March/April 2008). New York State Bar Association, Vol. 80, p. 64, March/April 2008. Available at SSRN: http://ssrn.com/abstract=1296074
Lebovits, Gerald,Do's, Don'ts, and Maybes: Legal Writing Punctuation - Part III(May 1, 2008). New York State Bar Association, Vol. 80, p. 64, May 2008 . Available at SSRN: http://ssrn.com/abstract=1296126
Stern, Simon,Law and Literature Seminar, Draft Syllabus(November 8, 2008). Available at SSRN: http://ssrn.com/abstract=1297690
Monday, November 24, 2008
Today's Chronicle of Higher Education contains a headline: "In Lawsuit, New England College Says its Poetry Program was Stolen." The article reports: "New England College has filed a federal lawsuit alleging that the former director of its master’s-degree program in poetry stole faculty members and students from the New Hampshire institution and re-created the program at Drew University, in New Jersey." The full article is here: http://chronicle.com/jobs/blogs/onhiring/794
The Concord Monitor article is located here: http://www.cmonitor.com/apps/pbcs.dll/article?AID=/20081123/FRONTPAGE/811230350
The Monitor article quotes Peter Callaghan, "a Concord employment lawyer who regularly litigates cases in federal court," and hasn't worked on the case but has read the files, as stating: "if the facts are as New England College has alleged, the court will have to decide whether Macari was working for Drew University while she was being paid by NEC." He points out that employees are supposed to be working exclusively for their employers.
The problem as I see it, is the instructor involved, based on my reading of these news articles and not the case files at this point, was an adjunct. The news articles are unclear, but it appears that she was an adjunct at least part of the time when the events of the case unfolded. Adjuncts by nature often work at multiple institutions simultaneously. When I did this, it was common practice to use the same teaching materials at various institutions in order to work as efficiently as possible. It seems to me, by the nature of the beast, adjuncts always already work for "competing" employers simultaneously.
Apparently, at least according to the Monitor, "In a letter to the Drew University president, NEC President Michelle Perkins expressed concern that Macari had also made off with NEC's proprietary information like inquiry lists for recruiting future students."
What an interesting situation. A case like this should leave no doubt in any one's mind that the educational institution is indeed a business, in the most material way, and that evidence of its business nature can even been seen in the poetry department.
Wednesday, November 19, 2008
According to Edward Wong of the New York Times, a mummy find of global significance is challenging the master narrative of the peopling of China:
"One called the Loulan Beauty lies on her back with her shoulder-length hair matted down, her lips pursed in death, her high cheekbones and long nose the most obvious signs that she is not what one thinks of as Chinese."
The "Tarim mummies" on display at a museum in Urumqi, China, might indicate that a certain sometimes contested area of China was settled by people from the west rather than people from China's interior. The older mummy is 3,800 years old. Ancestors of the people from the west are taking this idea and using it to argue that "Xinjiang has belonged to the Uighurs throughout history."
"What is indisputable is that the Tarim mummies are among the greatest recent archaeological finds in China, perhaps the world" Wong reports that scientists have not been permitted to perform genetic testing on these mummies, due in part to the fact that the evidence they present, by way of complicating settled histories of the peopling of China, will challenge the status quo.
This controversy in China reminds me of that surrounding the Kennewic Man in the US.
Monday, November 17, 2008
The Code may be downloaded here:
The Media Education Lab at Temple University has also created some innovative curriculum materials—including “Schoolhouse Rock” style songs, case study videos and lesson plans. These items are available here:
Friday, November 14, 2008
In a recent post on
“Now more than ever, opportunities for dialogue and public participation are springing up through media outlets. With more powerful technologies come stronger connections. As Internet becomes more affordable and available, will digital media play a peacemaking or inflammatory role across lines that are seldom crossed? What will be the turning point?”
He looks at five media projects that have tried to answer these questions. Those projects are 1) the Institute for Reporter’s Freedom and Safety, 2) the Caucasus Center of Peacemaking Initiatives, 3) Internews, 4) the South Caucasus blogosphere and lastly everyone’s favorite 4) Facebook.
On the topic of blogs, Bogar writes:
“Bloggers in the
Evgeny Morozov, a journalist from the former
It would be sublimely naive—and condescending —to expect South Ossetians or Georgians to respond to intense shellfire by taking a crash-course in podcasting, even if they did have electricity and an internet connection. Tskhinvali and Gori were never going to be hubs of user-generated content from a war-zone.
However, once again, the question must be asked: How is blogging public media? Yes, citizens can log on and blog on to their hearts content, but what will that matter if nothing comes of it? With blogging becoming such a popular tool for self-expression, it will be interesting to see if the ripe moment emerges when Georgians, Azerbaijanis and Armenians really do have a reason to unite together. It is my guess the blogosphere will be the place in which it happens.”
My reaction at the present moment is hopeful that the blogosphere is a place where people from different countries will “unite together.” On the other hand, considering the increasing amount of international treaties, organizations, and agreements that try to regulate the global flow of information, including intellectual property, it sometimes seems an impossibility that any kind of harmonious union will occur. Yet again, I have read some work by Rosemary Coombe http://www.yorku.ca/rcoombe/ and Tatiana Flessas http://www.lse.ac.uk/collections/law/staff/tatiana-flessas.htm asserting that at least in part due to digital technologies, indigenous peoples worldwide have been able to unite towards some common goals, of for example, reclaiming cultural artifacts like funery objects.
Bogar’s full story, “Where Hostile Governments Meet Public Media,” is located here: http://www.centerforsocialmedia.org/blogs/future_of_public_media/where_hostile_governments_meet_public_media/
Who wrote these words first?
Hint: It was not Barack Obama.
For the average city-state the best constitution will be a mean between the rule of rich and poor; the middle-class will be supreme. No state will be well administered unless the middle-class holds sway.
It is harder to preserve than to found a Democracy. To preserve it we must prevent the poor from plundering the rich; we must not exhaust the public revenue by giving pay for the performance of public duties; we must prevent the growth of a pauper class.
Thursday, November 6, 2008
"ORDER granting Motion for Default Judgment in favor of defts. STUDENT NETWORK RESOURCES, INC., STUDENT NETWORK RESOURCES, LLC., AND ROSS COHEN against pltf. AXACT (PVT), LTD., in the amount of $353,373.00 and attorney fees and cost in the amount of $36,720.40; and that this case is closed." (The damages actually exceed $600,000.00.)
In the order, the court lists 544 (!!!) websites where term papers can be purchased and downloaded. (My intent is not to "facilitate access" to these websites--that's prohibited in the Court's Order -- my intent is to offer public expression on a matter of public concern to those of us teaching and interested in digital writing, regarding the fact that there could even be that many websites available to purchase term papers--this fact boggles my mind).
The order can be accessed here: http://docs.justia.com/cases/federal/district-courts/new-jersey/njdce/3:2007cv05491/208337/32/
I also have embedded a copy of the order in my most recent last blog post.
A docket of all the pleadings, including the original complaint is here:
This order is based on a default judgment, so I'd be surprised if it wasn't eventually challenged -- but those ole' default judgments -- this is why, I tell my students, due dates matter. You miss a due date in court proceedings and, well, if you're the attorney you better make sure your malpractice insurance is paid up.
The case is complicated - on 12-12-08 the pleadings now amount to about 37 documents or statements, including a recent order for google, inc. to remove the student term paper websites from its search engine.
Foucault says that the origins of anything is an ever receding point. However, we should still try to trace origins. Tracing origins necessitates the tracing of authorship, every time, even in science, because in science origin stories are still authored.
Saturday, November 1, 2008
The inaugural Conference on Intellectual Property (CIP) will be held on June 12-13th 2009 at Iona College in New Rochelle, NY, and will include keynote addresses by Laura M. Quilter, M.L.S., J.D. and painter Joy Garnett.
Whether it be the submission of student papers to plagiarism-detecting websites, the marketing of a movie that chronicles the challenges of a windshield wiper inventor, or the latest debates over the application of nonobvious intention, issues involving intellectual property in the academic, economic, legal, and technological fields challenge the very notion of ownership: what we own, how we own, and who may claim ownership. The purpose of this conference is to explore intellectual property, in a cross-disciplinary context, as both a concept and a reality relating to the professional fields whose concerns intersect in understanding its essence and implications.
We invite papers and panels dealing with any and all aspects of intellectual property, from the origins of eighteenth-century literary property debates to the viability and ethics of plagiarism and plagiarism detection, from the economic impact of patents to the technological advances that may make intellectual property obsolete. We especially encourage papers/panels that embrace a multidisciplinary or interdisciplinary approach.
CIP papers and/or abstracts will be included in a conference proceedings, and selected essays may be published in a proposed collection for a peer-reviewed press.
Papers/Panel abstracts should be submitted by February 5th, 2009 to Dr. Amy Stackhouse at email@example.com or Dr. Dean Defino at firstname.lastname@example.org. We look forward to a fruitful and collegial experience. For more information, please see the conference website at www.iona.edu/cip.
Laura Quilter is an attorney and researcher in technology and information law and policy. Laura's research and practice particularly focuses on the rights of information users, including consumers, libraries, creators, and scientists, and she regularly speaks and writes on these matters. She earned her law degree from Boalt Hall School of Law, University of California, Berkeley, in 2003, and her library science degree from the University of Kentucky in 1993. http://lquilter.net/
Painter Joy Garnett appropriates news and documentary photographs from newspapers, internet and other media, and re-invents them as paintings. Her work mines the tensions between the open-ended narratives of art, and ubiquitous media representations of real-life events. Ms. Garnett's work has been exhibited in museums and galleries around the world, including the Whitney Museum of American Art in NYC, the National Academy of Sciences in Washington, D.C., and the Witte Zaal in Ghent, Belgium, and reproduced in numerous publications, from Harper's to Cabinet magazine. In 2004, she was awarded a grant by the Anonymous Was a Woman foundation, and she currently serves as Arts Editor for Cultural Politics, a refereed journal published by Berg in Oxford, UK.
Technologies which are “naturally self replicating” fly in the face of US copyright law – or international intellectual property agreements as well.
Two technologies that are naturally self replicating that come to mind immediately are:
- The Human Body
- The Digital Webtext
Mapping on copyright law to “bodies,” the argument would go something like this. Under US copyright law, anything that is original and fixed is protected. Think about your mother. Was she original? Probably yes, if according to
Then there is you. Under
Intention doesn’t matter in copyright for the most part, because copyright is a strict liability law.
So, you ask yourself, are you substantially similar to your mother, and did you have access? Hum. Well I was talking about “bodies,” so I’m sure if you are the biological child of your mother, using various disciplining technologies of the medical field, someone could make the plausible argument in the affirmative to both inquires.
The reason I think of this twisted example, is because an international group, the International Union for the Protection of New Varieties of Plants (UPOV), is debating how to protect plant varieties. According to this article, the issue is as follows:
“Effective intellectual property protection on plant varieties is a challenge, as the technology is by nature self-replicating. Antonio Villarreol, managing director of GESLIVE, an association of plant breeders based in
‘From the first point of sale, control becomes diluted,’ said Chris Green, director of Senova, a crop development and plant breeding company. Farms save seed, rather than buying new seeds, and sometimes fail to pay royalties on the saved seed, for instance.”
Yep. The western model of naming, owning, and individuating does not work in cultures that just don’t see the world that way. And the reason copyright law doesn’t really do much in the context of Digital Webtexts, at least according to my research, is because, Digital Webtexts, like Human Bodies, are naturally self-replicating.
The full article is here:
An new group has been formed through the Arab League: the Arab Society for Geographical Indications (ASGI).
This society seeks to protect Arab products through international intellectual property agreements, namely TRIPS.
TRIPS, the Trade-Related Aspects of Intellectual Property Rights Agreement, a World Trade Organization agreement, defines Geographical Indicators in Article 22:
“indications which identify a good as originating in the territory of a member, or a region or locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin.”
Some example items:
Doan honey from
Mocha coffee from
Masafi from the
Olive oil soap from
Water from al Feejah spring in
Argan oil from morocco
These discussions of geographical indicators are always interesting because they embody examples of resistance to cultural appropriation, but this resistance is trying to be accomplished within the western paradigm of naming, owning, and individuating. I am always reminded as well, that although cyberspace connects us, in many ways our identities are still tied to place, topos, literally real property. I also find these discussions interesting because when I read the “origins” of items I am familiar with, my reaction is always: “I never knew that came from there”!
A full story on this topic is located in the Intellectual Property Watch
Thursday, October 23, 2008
Yet, I personally prefer a teacher who knows how to get power and use it to benefit me.
Check out slide 52 and I'm ordering Reich's new book.
A quote from the article: "A typosquatting Web site has an address almost identical to that of another Web site, and is designed to capitalize on internet users’ typos by exposing them to advertisements, according to Edelman, whose research focuses on electronic marketplaces and online advertising fraud."
The full text is here: http://www.thecrimson.com/article.aspx?ref=524698
Thursday, October 9, 2008
The article is " How to Read a Legal Opinion: A Guide for New Law Students," by Orin S. Kerr of the George Washington University Law School and it is only about 16 pages.
You can download it free here:
Thursday, September 18, 2008
I don’t mean to say this in a mean way, but boilerplate contracts are boilerplate for a reason. Because every clause in a contract needs to be there for legal reasons, so if you get too creative, or try to revise for “plain English,” you could end up creating a harmful situation. A contract is any agreement that’s bargained for in exchange – in the literal sense. John Rawls, a political theorist, writes about the “social contract.” But in a practical way, you can think about many daily interactions as contracts. You go to the local diner, sit down at the table, order a steak and eat it. The waiter brings you a bill and you pay. This is a contract in action. Every contract needs an offer, an acceptance, and something bargained for in exchange. There are express contracts and implied contracts. In the restaurant situation there isn’t a signed agreement, so it’s an implied contract. The offer is by the restaurant that you will get a decent, edible, non-toxic steak for $7.99 in return for your promise to pay. You don’t have to pay in advance because there is an implied contract, and an established business practice. The acceptance of the contract comes when you order your steak. The “something bargained for in exchange,” or the consideration comes because each party is promising to give up something. The restaurant gives up a steak, and also takes a risk that you won’t pay. And you trust that the steak will be good by eating it, plus you give up $7.99. You also give up your opportunity to eat at a different establishment. So that’s a contract action.
So if you contract with someone to create business documents (that could be defined as “goods” rather than “services”), and the end price is over $1000.00, your contract should be in writing in order to be enforceable.
What happens if you don’t create a written document (and there are requirements about this writing in that it must be signed by the party against whom it is enforceable, it must at least contain enough terms to show a contract has been formed), is that either party could try to get out of the contract, or not pay. It just causes a lot of potential problems with the transaction. Of course, there’s always legal exceptions to the writing requirement. But why go there?
I thought of these issues because as an outcome of my dissertation research, I designed a course for PW curriculum titled “Legal-Rhetorical Issues in Professional Writing,” and one of the books that I use in that course is _Working with Contracts: What Law School Doesn’t Teach You_,” Second Edition, by Charles M. Fox (2008). It came in the mail and as I flipped through the pages I caught this text: “In contract drafting, plagiarism is a virtue. A lawyer drafting a contract should always try to start with a form designed for the kind of transaction involved, or from a contract previously used in a similar transition . . . starting up a contract from scratch is more time-consuming than marking up a good form; precedents contain provisions that address issues in ways that are generally accepted in the legal and business communities; and boilerplate provisions that have been used and accepted in previous transactions are less likely to require careful review and negotiation” (p. 42).
This is a very, very different model of authorship than what we normally learn in school, with all the (over) emphasis on being “original” and not “plagiarizing” and attributing. This is a very interesting disjuncture to me.
Wednesday, September 3, 2008
Google's new web browser Chrome is fast, shiny, and requires users to sign their very lives over to Google before they can use it. Today's Internet outrage du jour has been Chrome's EULA, which appears to give Google a nonexclusive right to display and distribute every bit of content transmitted through the browser. Now, Google tells Ars that it's a mistake, the EULA will be corrected, and the correction will be retroactive.
To read the entire story, visit:
Saturday, August 23, 2008
Chaim Perelman talking about how justice is the first goal, and adherence to legal technicalities is the second goal
"It is a common, and not necessarily regrettable, occurrence even for a magistrate who knows the law to formulate his judgment in two steps: the conclusions are first inspired by what conforms most closely with his sense of justice, the technical motivation being added later. Must we conclude in this case that the decision was made without any preceding deliberation? Not at all, as the pros and cons may have been weighed with the greatest care, though not within the frame of considerations based on legal technicalities. Strictly legal reasons are adduced only for the purpose of justifying the decision to another audience. they are not adduced, as Mill suggests in his example for the purpose of making an expert formulation of the general maxims of which the governor had only a vague idea. Mill's scientism makes him think of everything in terms of a single audience, the universal audience, and prevents him from providing an adequate explanation for the phenomenon."
This passage reiterates what I found in my study as far as writers working towards justice in their composing decisions without necessarily referencing legal technicalities. Later, rationales or understandings emerged in order to fit the end decision into whatever the law provides. The sense of justice comes first, then the understanding of the law is fit into that by the writer. So whatever the law actually is, if we were ever able to know that, is fairly irrelevant. Instead, what matters is how the law is enacted, and it is enacted backwards from what one might expect. Those who compose laws doubtfully intend for individuals to just ignore them. You see how agency issues crop up in that the law as written has little agency.
As for legal reasoning, the way Perelman describes the magistrate's two step process also fits within our understandings of good lawyering, at least at the reactive stage rather than the planning stage. If a crime has been committed, the lawyer has to squeeze the law to fit the facts in the best way possible in order to argue his client's innocence. That's his job - in order to be "just" in the US legal system. On the other hand, lawyers who are advising clients *before* the possible crime will read across legal precedents and then extract a course of action that hopefully avoids the crime in the first place.
Saturday, August 16, 2008
What percent of a population do I need to select in my random selection in order to have adequate representation of the population?
On the percentage issue - Juswik et al. (Writing Into the 21st Century An Overview of Research on Writing, 1999 to 2004, Written Communcation, 2006) in their article discuss percentages for purposes of validating coding - a 10% sample (assumed then to represent the larger population).
"Inter-rater reliability on the exclusions was high at 97.5% based on a sample of 10% of the studies." Juzwik et al p. 460
"A sample of 10% of the studies was taken for an exact inter-rater reliability on the coding of the studies that were included in our database. This reliability check determined that the initial coder and the reviewer agreed on 97.5% of the articles that were included in the study, on 96.0% of the age codes, and on 91.0% of the problem codes." Juzwik et al p. 463
In "The ‘Doing boy/girl’ and global/local elements in 10–12 year olds’ drawings and written texts," Qualitative Research, 2007, by Pat O'Connor, University of Limerick, he used about 10% of the population of texts to study but did not say it in terms of percentages:
"In this article, the focus is on a randomly selected sub-set (n = 341) from the total sample of 3464 texts written by those aged 10–12 years." (p. 234)
Another useful article on the topic is:
Collins et al.
A Mixed Methods Investigation of Mixed Methods Sampling Designs in Social and Health Science Research
Journal of Mixed Methods, 2007
On page 273 is Table 2 which lists typical sample sizes and some rationale.
My further explanation included the following with respect to my dissertation:
That percentage (I used of 20%) in part reflects that I wanted to get over 400 participants in order to have certainty of + or - 5%. I was estimating how many teachers and students I'd get from each program - I had about 250 programs. So if I started with 20% and 10 people from each program responded, that would give me 500 respondents. However, as summarized below, I had to do about 60% of the population through the use of insurance samples.
That said, when I was working with texts at a research center, it was understood that you needed at least 10% to have a chance at having a representative sample. But, I've never found this rule in writing because it's more complex than that, ultimately. It depends on how much variability there is in the entire population. The more variability, the larger your sample size should be because then that variability will have a greater chance of being captured. As always, whatever you do you have to be able to contextualize your choices and findings in the data analysis.
The issue is how big do you need the sample to be in order to get a representative sample? -- A sample that represents the same characteristics as in the entire population. In my study, the only characteristics I had available to check this was program type - PhD, Masters, Four Year, Two Year, and Certificate.
I was able to show that the final group of respondents fairly closely reflected the larger population's characteristics. Except PhD programs over-responded. You just have to talk about that then in the data interpretation.
The larger the sample, the greater the chance you will have a representative sample. So if your entire population is 50% women and 50% men, and your sample ends up being the same, you know that at least in this one respect, it's representative.
I also had two additional "insurance" samples selected in case I got skewed responses on the first try, or in case I for some reason had a low level of response. Ultimately, I had to select three phases of 20% of the entire population because of lack of response with my initial attempt at 20%. I believe I was close to 60% and was concerned that I'd end up having to select the entire population rather than the randomly selected population. Depending on your situation, I recommend thinking about having one or two insurance samples ready to be selected in addition to the initial sample.
The percentage you choose might also be matched against the number you want in the end (confidence level) - based on that table in Lauer and Asher's book -- page 58.
From Earl Babbie: "The larger the sample selected, the more accurate it is as an estimate of the population from which it was drawn." p. 193 10th edition. This is a book I'd recommend for any student working on this kind of research because Babbie explains random selection and lots of other research methods in really easy to understand terms.
"The kind of sampling procedure used also affects sample size. As we gave mentioned, for the same level of precision, stratified samples usually require fewer people than the simple random sample, and cluster samples usually require more" (Survey Research, 2nd edition, Backstrom and Hursh Cesar).
In my study, I did a stratified sample taking 20% of each of the five categories. That was 20% of the whole as well. But I ended up having to do this 3 times in order to get close to my desired 400.
Later I went on to say:
I've never seen a publication actually give a minimum percentage of the population that needs to be selected in order to have a representative sample. I would say that you need between 10 and 20% of the entire population. But level of confidence goes by the *number* in the sample rather than the *percentage* of the entire population. However, percentage of the entire population does matter because the larger the percentage obviously the more representative. I mean, it can never be a simple solution like a percentage because it all depends on the context . . .
The area that might be informative is mass media or comm. arts. I'm attaching the sampling chapter from Riffe, Lacy, and Fico's book. It might be helpful in explaining all the nuisances of your question and why no one is willing to just say you are safe if you pick at least 10%. The language I underlined on page 105 might be relevant. They actually mention 20% as being a magic number in that if you have it (or more than 20%), your confidence level goes up even though your actual number of samples is not that high. Lauer & Asher talk about this as well in their book when they discuss the "correction factor" pp.58-59-60 . Riffe et als. book is cited as well in _What writing does and how it does it_ in case you need to tie any of this into our field.
In a study I worked on previously, Stewart Whittemore and I took 10% of the entire population of texts in order to get inter-rater reliability. I remember being in the same quandary there with respect to how many texts I needed to select in order to have a reliable coding scheme. I could find nothing firm in writing. Bill Hart-Davidson just said 10% minimum, if I remember correctly-- but those texts were very very homogeneous because they'd been written based on a prompt. In part it was ultimately an issue of labor, time, and money, like a lot of these decisions. I don't think I've ever seen anything written up with less 10%.
What is an account? It is typically a _text_, a small ream of paper a few millimeters thick that is darkened by a laser beam. It may contain 10,000 words and be read by very few people, often only a dozen or a few hundred if we are really fortunate. A 50,000 word thesis might be read by half a dozen people (if you are lucky, even your PhD advisor would have read parts of it!) and when I say ‘read’, it does not mean ‘understood’, ‘put to use’, ‘acknowledged’, but rather ‘perused’, ‘glanced at’, ‘alluded to’, ‘quoted’, ‘shelved somewhere in a pile’. At best, we add an account to all those which are simultaneously launched in the domain we have been studying. Of course, this study is never complete. We start in the middle of things, _in medias res_, pressed by our colleagues, pushed by fellowships, starved for money, strangled by deadlines. And most of the things we have been studying, we have ignored or misunderstood. Action had already started; it will continue when we will no longer be around. What we are doing in the field – conducting interviews, passing out questionnaires, taking notes and pictures, shooting films, leafing through the documentation, clumsily loafing around – is unclear to the people with whom we have shared no more than a fleeting moment. What the clients (research centers, state agencies, company boards, NGOs) who have sent us there expect from us remains cloaked in mystery, so circuitous was the road that led to the choice of this investigator, this topic, this method, this site. Even when we are in the midst of things, with our eyes and ears on the lookout, we miss most of what has happened. We are told the day after that crucial events have taken place, just next door, just a minute before, just when we had left exhausted with our tape recorder mute because of some battery failure. Even if we work diligently, things don’t get better because, after a few months, we are sunk in a flood of data, reports, transcripts, tables, statistics, and articles. How does one make sense of this mess as it piles up on our desks and fills countless disks with data? Sadly, it often remains to be written and is usually delayed. It rots there as advisors, sponsors, and clients are shouting at you and lovers, spouses, and kids are angry at you while you rummage about in this dark sludge of data to bring light to the world. And when you begin to write in earnest, finally pleased with yourself, you have to sacrifice vast amounts of data that cannot fit in the small number of pages allotted to you. How frustrating this whole business of studying is.
And yet, is this not the way of all flesh? No matter how grandiose the perspective, no matter how scientific the outlook, no matter how tough the requirements, no matter how astute the advisor, the result of the inquiry – in 99% of the cases – will be a report prepared under immense duress on a topic requested by some colleagues for reasons that will remain for the most part unexplained. And that is excellent because _there is no better way_.
From Reassembling the Social, pages 122-123
Thursday, August 14, 2008
The Michigan Court of Appeals just held, in an opinion that will be published (as in formally published in a court reporter book -- opinions which aren't published are actually "published" but only informally. Unpublished opinions are not supposed to be precedential however they are used all the time to make arguments), that a release parents signed on behalf of their child was not necessarily binding. It involved a kid jumping off a slide and breaking his leg, after properly using the slide 5 times. This was for a child's 5th birthday party. The facility stated it would have supervision and that the facilities were safe. Yet they had parents sign a release. The trial court had held against the parent and dismissed the case. But the Michigan Court of Appeals reversed and remanded back to the trial court.
OK, now I have to find a way to connect this to the theme of my blog. It's this. Who gets to author the child? Who can bind the child? In this case, the Michigan Court said basically that a parent has no authority simply by virtue of the parental relation to waive the child's claims. This is really interesting and I always have kept it in the back of my mind when I sign all those many, many releases I sign for school and sporting events. The releases might not be enforceable. The case also raises issues of violating the Michigan Consumer Protection Act because the party provider misrepresented what it was selling, possibly. The Michigan Consumer Protection Act is really useful. I almost think I should teach it in FYW because I know my students tell tales all the time of how they were ripped off and I'm always seeing violations of the MCPA.
One of my students wasn't hired for a day care job because she wore hearing aids. Clearly this was a violation of the Elliot Larsen Civil Rights Act.
My point is, as stated in my dissertation, the law has questionable agency. Some of the consumer protection laws, and laws that protect civil rights, I really think the average citizen would benefit from being pretty familiar with them. And if you're someone who drafts releases or contracts, well, there's some ethical as well as legal issues to think about.
The liability case is here: http://www.michbar.org/opinions/appeals/2008/081208/40179.pdf
Wednesday, August 13, 2008
Timmer describes the case:
"The case was filed by a literary agent, Barbara Bauer, who apparently ran afoul of a small horde of Internet users . . . it seems likely her problems started when her name appeared on a list of the 20 Worst Literary Agents, hosted on the now-defunct site 20worstagents.com. According to accusations made there, Bauer was on the list because she'd inflated her credentials and never successfully closed a deal; she was also called a 'scam artist' and a 'con.'"
Other blogs picked up this discussion and exaggerated some of the terms used to describe Bauer. " Bauer quotes different blogs as referring to her as 'that lunatic.'" Eventually some of the statements about Bauer circulating on the web showed up in Wikipedia. This is how Wikipedia became a defendant in Bauer's lawsuit.
Section 230 of the Communication Decency Act says: "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."
Tuesday, August 12, 2008
Ardia's posts are going to cover the material in the Citizen Media Legal Guide.
Friday, August 8, 2008
According to the Globe article: "The case is not unprecedented, but it is a reminder that anonymous postings on the freewheeling Internet can be traced, legal analysts say."
The article goes on the say: "The women say Ryan made sexually charged slurs about them on the Web, including a false claim that one of the them had a sexually transmitted disease. The lawsuit also says Ryan encouraged further attacks on the other woman and used anti-Semitic language."
During the last few months I've read a couple reports as well as a book that discusses problems with developing appropriate sense of ethics in law students. This case is very revealing on that point. The alleged defamatory statements were made to AutoAdmit, "an Internet discussion board about colleges and law schools that draws 800,000 to 1 million visitors per month."
I won't go into the lurid details of what the posters said - you can read it in the Globe article if interested. I just think the situation might serve as an interesting case study for use in the writing classroom as far as "anonymity" on the web. And, this story also points to the fantastical view that women have achieved "equality" in the legal sphere. The studies that wonder why women lawyers often drop out of practice after having spent so much time achieving their degrees might find a partial answer in this story. I don't know. There's certainly a potential dissertation that could be developed from just this incident alone!
Wednesday, August 6, 2008
Wednesday, July 30, 2008
Digital Course Packs Case - University Asserts Soverign Immunity, Fair Use, Discovery Process Begins
I’ve been following the Cambridge University Press et al v. Patton et al (Patton et al are being sued in their official capacity representing the University of Georgia) – a case where publishers challenge the use of digital versions of publications provided to students through various digital management systems – electronic course reserves, Web Ct, and so on. The publishers initiated their lawsuit with a complaint; the university’s filed their formal Answer, and the parties are now initiating the “discovery” process – discovery is a term of art use to describe the formal process of gathering evidence.
All of the legal proceedings are being collecting here:
I summarized the original complaint and the publisher’s claims here:
And I’ve mentioned the Answer, or the university’s position here:
I’ve had time to more closely read the university’s Answer and so I provide an update.
On April 15, 2008, publishers, Cambridge University Press, Oxford University Press, and Sage Publications, filed a complaint in the US District Court for the Northern District of Georgia, Atlanta Division, against various representatives of Georgia State University regarding what the publishers allege to be “pervasive, flagrant, and ongoing” (p.3) infringement of their copyrights.
While many of the “infringing” examples cited by Cambridge et al. include the digital distribution of only one chapter of a work, the publishers argue that the amount copied “vastly exceeds . . . fair use in an educational setting” (p.3). It appears from the complaint that most of the information supporting the plaintiffs’ allegations was gleaned from accessing GSU’s online library course reserves. According to plaintiffs, these reserves, including links to instructors’ syllabi as well as digital copies of copyrighted course readings, were freely available not just to students, but to the public in general, at least until the university responded to a request from plaintiffs to address the issue. The university subsequently required students use a password to access the materials.
The complaint lists the various practices by GSU and its faculty that the publishers object to. Such practices include:
1. Creating anthologies by mixing together various readings under the professor’s directions: “practice of anthologizing” (p. 18).
2. Constructing classes such that students never “set foot in a bookstore or expend . . . a single cent” (p. 5) in order to participate in a course.
3. Using copyrighted materials without proper permission or payment of fees (the copyright clearance center is suggested as a viable alternative).
4. Construction of “digital course packs” used semester after semester.
5. GSU’s copyright guidelines, which they argue “plainly exceed legal boundaries” (p. 17)
In its response (“Answer”), the university admits that various chapters were provided by sundry faculty to students in digital format. (The university provides 18 defenses total, all of which I will not recite here):
“GSU admits that students in the Spring 2007 term of Professor Belcher’s course “Qualitative Research” ( AL8961) were given access to five digital excerpts from the second edition of the Handbook of Qualitative Research, edited by Norman Denzin and Yvonna S. Lincoln and published by Plaintiff SAGE Publications” (p. 11).
The Answer goes on to list in great detail exactly what was and was not available to students in digital format. However, the university denies that it was creating digital anthologies, as alleged by the publishers.
With respect to having digital copyrighted materials available in a public space for all to access with no password, the university states: “GSU admits that a software mistake was discovered in May/June 2007 and that this software mistake enabled views without a password to access Course Researches Pages through clicking one of more of the other columns on a Course Research Index page . . . GSU contacted the software vendor to repair the mistake so that only students who are given a specific password by the instructor can access the pages” (p. 16).
Throughout the Answer, the university asserts that it relies on fair use for its use of digital materials.
An interesting aspect of the lawsuit that has arisen is the status of the legal entity being sued. While I state that the university has filed the Answer, it has done so through the attorney general of the State of
"GSU denies that
Due to GSU’s legal entity status as “The State,” in its Answer it thus asserts sovereign immunity under the 11th amendment of our Constitution:
"The Judicial power of the
I will just say here that the concept of sovereign immunity is extremely complex and has been interpreted variously and sometimes inconsistently. It will be interesting to see how the court deals with this, in the event the case is not settled before the production of a judicial opinion. I like to think about sovereign immunity because it plays with our ideas of authorship. I don’t usually see myself, as an employee of a public teaching institution, as “The State,” with respect to my writings in the scope of employment. There are some really interesting intersections between authorship concepts, work-for-hire, and our status as “The State,” (as opposed to “the individual”) that have been largely unexplored in rhet/comp.
Other defenses that GSU raises are the statute of limitations and laches. Both concepts deal with time – that is, both argue that too much time has expired before the injured party took legal action, and provide a remedy that bars either fully or partially, the lawsuit. Laches is an equitable doctrine, and the statute of limitation (usually three years for copyright law), is a legal doctrine. Chaim Perelman, writing on Aristotle, points out that Aristotle categorized equity and law, saying something along the lines that equity is the crutch of the law – i.e. it comes into play with the “law is lame.”
William Patry has a nice summary of the difference between the statute of limitations and laches.
Laches and the Statute of Limitations
Both the publisher and the university are filing their discovery documents as well as trying to narrow the issues. (In rhetoric we might call upon stasis theory with respect to this narrowing of the issues). The legal documents also point out that settlement conferences have been or will be scheduled (usually a requirement nowadays).
I will continue following the suit.
Wednesday, July 23, 2008
From the George Lucas Educational Foundation Article:
"Today, the project has become a veritable global phenomenon, and because of it, thousands of children from more than forty countries have exchanged pictures, stories, and goodwill, turning a half-inch-thin storybook character into a cultural icon. Flat Stanley look-alikes have even been photographed with Clint Eastwood on Oscar night, soared aboard a space shuttle, and visited heads of state around the globe. But now, as the project enters its thirteenth year, Hubert might be forced to pull the plug on the popular project.
Citing legal challenges from the estate of Jeff Brown, the late author of the original Flat Stanley book, Hubert posted a message on the project home page that reads, 'Sadly, the Flat Stanley Project may be forced to end.' Letters of support illustrating the project's -- and the character's -- far reach have since poured in."