Managing Your Site and Reducing Your Legal Risks

Some really good resources are available at the Citizen Media Law Project for individuals who are maintaining websites.

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.
http://www.citmedialaw.org/legal-guide/dealing-legal-threats-and-risks

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 Copyright Dispute: A Transnational Regulatory Struggle

This annoucement posted by Amanda Smith on a listserv I subscribe to makes me wish I lived near Stanford:

The Center for Internet and Society and
The Stanford Law and Technology Association

present
Leonhard Dobusch

The Copyright Dispute: A Transnational Regulatory Struggle

Monday, Dec. 1, 2008
12:50-1:50pm
Room 280B
Lunch will be served
http://cyberlaw.stanford.edu/node/5856

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/institut_en.asp for details).

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."

Good Punctuation Lets the Reader Hear & Feel the Language

I'm linking a couple very well written, smart articles recently posted to SSRN by Gerald Lebovits of St. John's School of Law. These articles are about "legal punctuation," but in fact are really about any punctuation and written in a way that my students might find useful. I expect I will use these next semester as readings. My favorite insight of Lebovits is his idea that good punctuation lets you hear, feel, and understand language. I don't recall ever reading it said like that in any of these FYW textbooks I've been using. I generally believe that FYW students are not really used to the idea that their writing makes their reader "feel" things. For one, you have to have empathy in order to understand that, or at least have gone through some periods of de-centering in your life. It's not that FYW students haven't done that, it's just that some of them are young. However, the average age of my students is 28. I also think practice matters a lot, because if you haven't experienced the reaction a reader can have to your writing, it's hard to explain. If you don't read a lot, you yourself don't have experience "feeling" things based on someone else's writing. So you're missing the needed perspective in order the generate the feelings you want to generate in others, in your own writing. But, in the textbooks I've been using, punctuation is always presented as a set of rules. He has some examples where he moved the punctuation around in order to emphasize different things in a sentence. These articles might be very useful for anyone teaching writing.

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

Draft Syllabus on Law and Literature

Simon Stern, Faculty of Law at the University of Toronto, has recently posted a draft syllabus for his law and literature course.
Stern, Simon,Law and Literature Seminar, Draft Syllabus(November 8, 2008). Available at SSRN: http://ssrn.com/abstract=1297690

College Sues Saying its Poetry Program was Stolen

Poetry, if anything, definitely depends on the concept of the "single author" in order to remain legitimate. So it makes sense to me, that if any program were to allege that it has been stolen by another institution, it would be a poetry program. I just can't imagine something like this happening with a "digital rhetoric" program, for example, although I suppose it's possible.

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.

The Dead Tell a Tale China Doesn’t Care to Listen To

http://www.nytimes.com/2008/11/19/world/asia/19mummy.html?_r=1

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.
http://en.wikipedia.org/wiki/Kennewick_Man

Code of Best Practices in Fair Use for Media Literacy Education

After two years of work, the Code of Best Practices in Fair Use for Media Literacy Education has been released. This work clarifies how copyright and fair use apply to the work of media literacy educators at all levels: graduate programs at universities, teacher education programs, undergraduate colleges and community colleges, K-12 schools, and non-school settings such as youth development and community-based programs.

The Code may be downloaded here:
http://www.centerforsocialmedia.org/resources/publications/code_for_media_literacy_education/

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:
http://www.mediaeducationlab.com/

Freedom of the (Blog-) Press

In a recent post on American University’s Center for Social Justice Website, Micael Bogar poses these questions in the context of examining freedom of the press in areas where there is resistance:

“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 South Caucasus are multiplying overnight. As Internet access becomes more common and the first post-Soviet generation grow older, blogs in this region flourish. Bloggers such as Onnik Krikorian from Armenia, Anna Dolidze from Georgia and Emin Huseynzade from Azerbaijan all blog in English, and provide inspiration to many South Caucasian citizens searching for alternative sources of media.

Evgeny Morozov, a journalist from the former Soviet Union, wrote an article titled Citizen War Reporter: The Caucasus Test back in August that addressed issues citizen journalists within this region face.

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/

The Middle-Class will be Supreme

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.

544 term paper websites . . .

In the order I have linked below -- summarized by Justia as follows:
"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:

http://news.justia.com/cases/featured/new-jersey/njdce/3:2007cv05491/208337/


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.

Copyright owner obtains maximum statutory damages, compensatory and punitive damages, and attorneys' fees in an Oct. 21 ruling

Authorship and Origins

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.

The simple connection between authorship and origins is that both are strategies for ownership. A claim to authorship is a claim to ownership. An origin story as well, is a claim to ownership. If a certain peoples originated in a certain geographical location, than that gives them a claim to ownership. There are also claims to the ownership of one’s origins. The claim that human kind originated in the Garden of Eden at the hand of god, is a claim to ownership of the history of human beings, ownership of the correct, real, true story. A claim to authorship is a claim to being the originator of something. If I claim authorship in this blog or that power point, than I claim that it originated in me. This is the simple connection between authorship and origins. They aren’t the same thing, but they are connected.

The inaugural Conference on Intellectual Property (CIP) will be held in June

John Walter posted info on this intriguing sounding conference on techrhet. I was not familiar with the spectacular and provocative work of Joy Garnett. Her work is something worthy of further exploration and analysis by folks in rhetoric & comp.

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 astackhouse@iona.edu or Dr. Dean Defino at ddefino@iona.edu. We look forward to a fruitful and collegial experience. For more information, please see the conference website at www.iona.edu/cip.

Keynote Speakers:

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/professional/briefbio.html

http://lquilter.net/index.php

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.

http://www.firstpulseprojects.com/joy.html

"Naturally Self Replicating": Human Bodies and Webtexts (and plants)

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:

1. The Human Body
2. 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 US law via the Feist opinion, she exhibited or contained a “modicum of creativity.” Was she fixed? Well probably for the most part at least on the outside. OK, so we can pretend that your mother was copyrighted.

Then there is you. Under US law, an item can be copyright infringing if it is substantially similar to the pre-existing item, and its creator had access to this pre-existing item. It doesn’t have to be conscious awareness, just access at some time. The case in point is the George Harrison – Chiffons case where Harrison’s “My Sweet Lord” was alleged to infringe on “She’s so Fine.” While Harrison did nothing intentionally, he did admit that he listened to the Chiffons when he was growing up, so the court found copyright infringement because “My Sweet Lord” was substantially similar to “He’s So Fine,” and Harrison had access even though he didn’t really consciously remember that until prompted during court testimony.

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.

But US copyright law will obviously never be applied in this situation. The reason is that it would too visibly acknowledge that bodies are propertied, which is actually true. But the fact the copyright law can’t apply also is because human bodies are “naturally self-replicating.” Copyright law tries to assign exclusive rights to reproduce an artifact to its creator.

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 Spain, said there were cases in which seeds from proprietary fruit varieties purchased in a market (where purchasers would never see the technology use agreement) had been replanted and propagated.

‘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:

http://www.ip-watch.org/weblog/index.php?p=1298

Doan Honey, Mocha Coffee, Olive Oil Soap

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 Yemen (Doan is a famous valley in the Hadramout area)

Mocha coffee from Yemen

Oman’s Halva

Masafi from the United Arab Emirates

Olive oil soap from Nablus in Palestine

Water from al Feejah spring in Syria

Lebanese tabbouleh

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

http://www.ip-watch.org/weblog/index.php?p=1289