Stasis

Predictably enough, after five days of vacation-stasis I'm bored out of my mind. The lack of activity makes me anxious because I feel like I should be doing something, and I'm not. I already restored my habitat: cleaned my apartment, took out the recycling, watered my poor plants, caught up with neglected friends. What do I do with myself?

I decided to write a paper. In the hopes of getting it published. I figure this will be the last moment for a while that I'll have the time to write something academic. And all the attorney bios I've read list (at least one) published work!

Next week I'm vacationing to Maui; if I'm gonna write this paper I'll be challenging (again) the age-old rule that You Can't Get Any Work Done on the Beach.

Cheating

I confess I've been cheating on this blog with another blog!

I co-launched a new blog with a friend of mine. It's about the nuances of social interactions online. For example, I (as "Sansserif") posted on the differences between "LOL" and "haha!" during an IM conversation. My co-blogger ("Youareyou") has written on such topics as the irrationality of a new Facebook group called Six Degrees of Separation.

Here it is if you'd like to check it out: Webbed Footprint.

CC Birthday

A few photos of Larry Lessig from the CC birthday last night:

 
 
 

Yes, he did show up in person!

Happy Birthday Creative Commons

I'm off tonight to celebrate the 5th birthday of Creative Commons, Larry Lessig's brainchild that offers an alternative method of copyrighting creative works. Instead of "all rights reserved," it provides licenses requiring attribution, or non-commercial use, etc. (My blog is CC licensed, and Flickr lets you CC license your photos.)

Last year a friend and I were sorely disappointed when Larry appeared only as his avatar on Second Life. This year I'm hoping he'll actually show, since he's definitely in the area. I heard from a friend's girlfriend that his Contracts final at Stanford was so brutal he brought his students muffins.

Muffins aren't going to ease my disappointment if he doesn't make it again this year. Although I guess free alcohol might...

Double Check Mate

Another set of finals completed! I have no idea what I was thinking, setting myself up with four finals my 3L year. Actually I do know what I was thinking: I wanted to take more IP classes because I love IP and because I figured there wouldn't be much to learn. Next semester I got smart: I'll only have one final.

A final thought on multiple choice exams. There are some people who refuse to go over their answers because they're afraid they'll change an answer; they trust their first instinct. I always force myself to go over as many questions as I can (for this exam, consisting of 100 MCs, I had exactly enough time to review them all). This requires great will power, especially when it's your last exam of the semester and only about three people are still taking the exam by the end of the 2 and a half hours.

I almost always end up keeping the same answer on the questions I marked as 'questionable.' This last exam I changed a few other answers, however. One question followed several others about survival and wrongful death actions. It involved a 6 year old child whose mother had been in a coma for 2 months. What could the child collect for?
A. Lost support
B. Emotional distress
C. Mother's wages
D. Nothing.

The first time through I chose A, as in a wrongful death action. The second time around I realized: the mother wasn't dead, so the child couldn't collect anything.

Catching this one little trick made the entire agonizing review worthwhile.

The Night Shift

It's pretty well accepted that sleep is good for learning. (As previously discussed by me.)

Last night I had my first final in Sports Law. Every semester I have post exam stress disorder, most frequently in the form of dreams, as I've described here and here. I felt pretty excellent coming out of this final, and there was very little anxiety over it.

Nevertheless, last night I distinctly remember being in a quasi-sleeping/dreamlike state: I was rehearsing the names of cases from Sports Law and reviewing what they held. To me this represents direct evidence of my brain at work while I sleep! Amazing!

The best part is that I half-woke from this midnight review and, aware of what I was doing, promptly scolded myself: 'That final is over! No need to learn those cases, kid.'

Out of Line

What is up with some of these outlines? Granted, I'm pretty concise in my note taking - I'm no Transcriber. The most pages of notes I have this semester (not the most attentive semester of my law school career I admit) is 65 pages for Remedies. Some of my other classes have half that. That includes my dorky briefs for every case in the reading plus class notes.

Some of these kids have 70 page outlines! A friend said it best: can you really call that an outline?

My outlines have never been real favorites; my Remedies outline is only 19 pages. I've been accused of being "cryptic," but jeez, I try to keep my outlines within the boundaries of my attention span.

Ethical

The November MPRE (Multi-state Professional Responsibility Exam) scores were released today. Yes, I passed. Getting my score was a pretty intense experience though! My heart rate was up, hands shaking a bit. I can only imagine what it must feel like to check whether you passed the bar.

The experience was a bit confounding because the PDF lists your score...but not whether you passed. So you're all jacked up and Adobe opens up and the document pops up...and you're like, 'Wait, did I pass or what?' You're looking for big block letters, "PASSED," y'know?

Passing score in CA is 79. (Next year it will be 86.)

Penultimate Finals

Finals, nigh! I'm working hard and playing hard; balance is key. I've said it before and I'll say it again: reading period rocks. No class, the opportunity to narrow your focus onto one thing to the exclusion of everything else in your life...how often do we get the chance to do that? Clearly I'm a 3L, right? Already waxing nostalgic for this sweet academic life...

I would like to congratulate a very good (retired) blogger friend of mine LawyerLike on his recent bar passage! (Those crazy Canadians have a bizarrely rational system whereby they take a multiple choice test and then work for 9 months before being born again as lawyers. On the other hand, they have to call the judge "my lord.")

Good luck to everyone on finals!

Cat Fights

Exxon was sued at one point by Kellogg's, the cereal company, for trademark infringement. The mark at issue was Exxon's tiger vs. Tony the Tiger ("...the taste of Tony's Frosted Flakes...").

I really enjoyed the way Exxon's artist described the evolution of the tiger following the Exxon Valdez oil spill:

"Today's tiger is now cast in a more humanitarian role. He is polite to the elderly,* plants trees for ecology and has an overall concern for the environment."

Even better, however, is the asterisked footnote from the editors:
*"It is unclear if Exxon's tiger was rude to the elderly prior to this time --Eds."


Kellogg Co. v. Exxon Corp., 209 F.3d 562 (6th Cir. 2000).

High[Altitude]Tech

I traveled about half an hour outside of San Francisco yesterday for a hike in Muir Woods to a quasi-German Beer House. Surrounded by the bird song and the fresh air, with an amazing view, a friend and I found ourselves sitting at a picnic table...playing with his iPhone. I investigated its features for about 10 minutes before we caught ourselves, laughing at the irony.

So we lifted up the iPhone and took a picture of the setting sun.

 

Disease and Confession

Finals in about three weeks! I've been outlining all semester, but in a very lackadaisical way. Everyone talks about 3L-itis, or whatever you wanna call it. Whatever it is, I have it. I think it's exacerbated by the fact that by this point in the game, studying doesn't require as much effort. You just figure out how to do it efficiently and you spend so much less time doing it.

Same with reading, although I have a confession: I still brief the cases in my notes when I read for class. Embarrassingly dorky! They say by 2L year all you do is book-brief - take notes in the margins of the text and underline. The other day I had this scary thought: what if, when I get into law practice, I can't understand the cases I read without briefing them?? An argument in favor of book-briefing...?

The bar results have come out; everyone I know personally passed. My Facebook is bursting at the seams with congratulations. My school has had nearly 100% passage rate for the top 20% for years. In one year I will be an attorney.

On Billables

An attorney friend of mine:

"I make the same mistake with billing as I do with dieting. I tell myself, 'I'll make it up tomorrow,' but you never do."

What's Shakin'?

I failed to mention an entertaining moment in Sports Law last week. As you know, if you're in the Bay Area, we had a big, juicy earthquake around 8 pm last Tues.

I was in class, where we had a guest lecturer talking about NCAA rules. When the quaking began we all looked at each other and started murmuring, questioning whether it was a quake. At first it felt like the rumbling when you walk along a highway bridge-overpass, with large trucks speeding past, and then it increased to a back-and-forth shaking.

This quake was interesting because it was fairly prolonged; you had to time to process the movement, question it, acknowledge it, marvel at it, and then start to get nervous! We immediately checked the quake map link on Craig's List, and moments later it appeared as a 5.6. (The largest I've experienced in my two years here.)

Naturally, the guest lecturer continued her speech unfazed once the shaking ceased.

A Stupid Game

I enjoyed parts of an article from Reuters on PirateBay, the Swedish P2P downloading website. In May of last year the MPAA claimed victory over Pirate Bay after Swedish authorities confiscated the site's computers, but PirateBay was up again three days later.

"Sweden is not a state in the United States," says one. "It is the opinion of us and our lawyers that you are ... morons."

***

Pirate Bay also wants to raise $50,000 to buy an island and create its own nation-state where piracy would be legal. So far it has about $20,000, Sunde said.

Its three founders face criminal charges related to piracy, but they're not worried because the stiffest sentence they could get in Sweden if found guilty is a $300 fine, Sunde said.

"I don't believe what we are doing is a crime," he said. "It is a stupid game," he added, referring to the legal proceedings.

You Don't Say

Bill Patry describes a study conducted by the Canadian government on his blog that indicates that P2P downloading actually increases the purchase of music:

"Our review of existing econometric studies suggests that P2P file-sharing tends to decrease music purchasing. However, we find the opposite, namely that P2P file-sharing tends to increase rather than decrease music purchasing."

"We find evidence that purchases of other forms of entertainment such as cinema and concert tickets, and video games tend to increase with music purchases."

Lathering Up

Two affiliated branches of the Lever soap company sued the US for failing to prevent the soap made in the UK from getting into the US. Apparently the soap was made slightly differently in the UK as it was in the US: the UK brand didn't lather as well.
The court explained:

"The manufacturing choice evidently arises in part out of the British preference for baths, which permit time for lather to develop, as opposed to a US preference for showers."

Lever Bros. Co. v. U.S., 877 F2d 101 (1989).

Is that true??

University of Oregon Resists the RIAA

The University of Oregon became the first University to challenge RIAA subpoenas seeking the identity of file sharers on the network as Recording Industry vs. The People describes.

The only way to really challenge a simple subpoena is by saying it's burdensome and over broad. Accordingly, the University's motion to quash says, "The University cannot determine whether the content in question was accessed by one occupant as opposed to another, or whether it was accessed instead by a visitor." The motion argues that interviews and forensic investigation would be necessary, thereby burdening the university.

In an interesting twist, Oregon's Attorney General Hardy Myers is representing the University, apparently the first time a State AG has done so. (The last Oregon AG became governor.)

I don't see it being very successful - there are only 17 names, and dozens of other universities have been able to do it - but I think it's a good thing to check the RIAA, and to force them to, well, tighten up their game. In the same way, counterclaims by incorrectly named defendants forces the RIAA to use greater care in pointing fingers.

More to the point, the AG's motion notes that they are not required to create these records, as opposed to produce them. This reminds me of the TorrentSpy case, where a federal district court judge "ordered the company to begin saving their logs since the company's servers 'save' the logs in RAM memory for about 6 hours before the info is tossed or overwritten. Essentially the magistrate judge Jacqueline Chooljian of California's Central District is ordering the company to hold onto information it normally decided to toss as part of its privacy policy promises to its users." (from Wired.)

Barack on Net Neutrality

This I like, from BNA Internet Law News:

NET NEUTRALITY BECOMING A PRESIDENTIAL ISSUE
If elected president, Barack Obama plans to prioritize
barring broadband providers like AT&T and Comcast from
prioritizing Internet content. Affixing his signature to
federal Net neutrality rules would be high on the list
during his first year in the Oval Office, the junior senator
from Illinois said during an interactive forum Monday
afternoon with the popular contender put on by MTV and
MySpace at Coe College in Iowa.
http://www.news.com/8301-10784_3-9806707-7.html

Direct Deposit of an Intern Salary

Next semester I'm interning for a start-up company, but my friend/boss asked me to do some research for him now. I agreed as I'm ravenous for the experience.

The due date approached on my work, but he gave me more time to complete it. A series of email exchanges:

Me: "Thanks for the extra time. This statute is ridiculous. You realize there's only about 5 people in this country who understand it? And I'm not one of them...yet."

Him: "For sure. When I was at [XYZ major law firm] and I had a hairy problem, I'd always remind myself that my clients weren't paying me [high hourly rate] to figure out the easy stuff!"

Me: "Point taken, I totally agree. So, how 'bout that [high hourly rate]? Direct deposit works for me."

On a related note, the other day I noticed, for the first time, this amusing verbal play: up-start vs. start-up. Depending on how well it does...

Go on...

I'd like to welcome a friend and classmate of mine to the world of blawging:

www.onetakestwo.blogspot.com.

Go on, give him a hit!

Truly Consensual

Notes from my Legal Ethics text...

The Model Rules of Professional Conduct have loosened a bit on allowing spouses to represent opposing clients (a prohibition now allows clients to give informed consent). One reason given is that approximately half of new entrants to the bar are women, and half of female practitioners are married to attorneys!

In 1992, California became the first state to establish a rule against attorney-client sexual relationships. The ABA has since adopted a similar rule, and the comments argue that the client's emotional involvement prevents them from giving informed consent to this combination of sex with a professional relationship. The text editors ask, "Does it follow that only emotionless sex is truly consensual?"

Deborah L. Rhode and & David Luban, Legal Ethics, 4th ed. (2004).

You learn something every day...

Booty: property necessary and indispensable for the conduct of war (eg, food, transportation, communication)

Pillage, or plunder: the taking of private property not necessary for the immediate prosecution of the war effort (eg, Marc Chagall painting taken by the Nazis).

Menzel v. List, 49 Misc. 2d 300 (NY 1966).

The plaintiffs fled their home ahead of the Nazis. The weird part is that when they returned 6 years later, the German authorities had left a receipt for the painting.

In the end, the plaintiff got her painting back, and the gallery got the present value of the work ($22,500) from the person from whom they'd bought the painting (for $4,000).

Why blog?

Why law students should start a blog.

Update:
The link above is aimed at law students thinking about solo practice, but it's still relevant. Also, I should add that when I was interviewing for my firm, I heard through the grapevine that a partner expressed pleasure upon hearing that I had a law blog! Granted, my firm is an IP boutique in Silicon Valley with (probably) less fearful views of the internet, but still.

So go for it.

McMark

For Trademarks, we read a case about a hotel chain that created a "McSleep" brand of hotels, and was subsequently sued by McDonald's for infringement. The court found a likelihood of confusion by customers, who would believe that McDonald's was affiliated with the chain.

In the notes following the case, the text editors got a laugh out of me when they considered the relatedness of the products: fast food versus hotels. They wrote, "No one who would have booked a night at a McSleep Inn would have slept on the floor of the local McDonald's restaurant but for the confusion." (This is true, but I think the point is that McSleep is capitalizing on McDonald's good will.)

Later, the editors note that McDonald's has since created some hotels in Switzerland; the travel brochures describe it: "Each room is feng shui-influenced and designed in subtly matched colors creating a soothing atmosphere." The editors add wryly, "Presumably that means no large portraits of Ronald McDonald over the beds."

10 Reasons You Raise Your Hand in Class

Prof has a seating chart and makes mysterious marks on it when she calls on you.

You only read one case from the assignment, so you need to strike preemptively.

You didn't read any of the cases from the assignment, and Prof just asked the "Do you guys think that's fair?" question.

Prof has been begging someone to answer the question for more than 60 seconds, and he's a likable guy.

Prof has been begging someone to answer the question for more than 60 seconds, and he's getting pissed off.

If you don't answer a question, you'll nod off.

Everyone around you raised their hands, so you have to assume that Prof just asked a survey question (eg, "How many people think...?").

You had a few beers for Happy Hour before class.

The buddy sitting next to you just got cold called, and you owe him one.

You're a 2L.

Bay Area Blawgers Unite

The High Tech Law Institute at Santa Clara Law School and Six Apart are pleased to announce Bay Area Blawgers 2.0, the second gathering of legal bloggers in the Bay Area. See a recap of the first gathering. This time, we'll spend an hour in a structured discussion starting around 6:15 (see some possible discussion topics). We'll spend the rest of the time schmoozing/chit-chatting.

When: November 5, 6-8 pm.

Where: San Francisco office of Fenwick & West, 555 California Street, 12th Floor, San Francisco, CA. Directions.

Who: Everyone is welcome, but this event principally will cater to active legal bloggers. People who have indicated they plan to attend: Tsan Abrahamson, Harry Boadwee, Robert Eisenbach, Sujatha Ganesan, Cathy Gellis, Eric Goldman, Beth Grimm, Chris Hoofnagle, Kimberly Kralowec, Ethan Leib, Susan Nevelow Mart, Deborah Neville, Dana Nguyen, Bruce Nye, Jay Parkhill, Aaron Perzanowski, Jason Schultz, Peter Smith, Chris Vail, Colette Vogele and Fred von Lohmann

Cost: Admission is free, but parking is not!

CLE: This event qualifies for 1 hour of general CLE credit. Santa Clara University School of Law is a State Bar of California approved MCLE provider.

RSVPs: RSVP are ESSENTIAL for this event because of security procedures at 555 California Street. RSVP to Eric Goldman ( egoldman@gmail.com ).

RIAA Subpoenas

What does it mean when the RIAA sends subpoenas to a University?

Here's a rundown from www.p2pnet.net.

"That a subpoena has been sent out doesn’t mean the person on the receiving end will act on it and indeed, increasing numbers of academics in the US are protesting as the labels continue to seriously disrupt classes and lessons by firing these documents at students, and by coercing school staffs into passing on the extortionate ’settlement’ letters to those whom they’re supposed to be teaching, not intimidating."

"Because the RIAA does not know the names behind the IP addresses, the letters ask the universities to deliver the notices to the proper students, rather than relying upon the ordinary legal mechanisms," says Charles Nessor, William F. Weld professor of law, Harvard Law School.

As p2pnet also reports, "By itself an IP number on a packet has only suggestive value and is not reliable evidence at all," says University of Chicago professor Mike O’Donnell.

RIAA, 1; Individual, 0

As I'm sure people have heard, the first of 26,000 law suits by the RIAA against individuals has come to a jury verdict: RIAA, 1; Individual, 0.

The jury awarded $220,000, or $9250 per song for 24 songs.

Most of the time, the RIAA convinces these individuals to settle, usually for around $3000. Jammie Thomas, this defendant, defended on the ground that the Kazaa account wasn't hers; in fact, that she didn't even have an account. Interestingly, she was convicted of making files available in a shared folder, not of actually copying them.

It's important to remember that other cases, which didn't got to a jury, have come out in favor of the individuals.

Digital Media Wire reported music company CEO Terry McBride as saying, “I bet the RIAA is going ‘yes, yes, yes,’ but I’m like ‘no!’ You can’t sue your fans one day and then ask them to come to a concert the next day. A lot of these copyright lawsuits are done in the name of the artist (by the record labels), but the artists don’t want that (kind of relationship with their fans).”

But I'm not entirely convinced; what does the RIAA have to lose? Do fans really associate the RIAA as the strong arm of their artists? I think the RIAA has taken on an identity of its own, alienated from both fans and artists. As the Electronic Frontier Foundation notes, "Millions have been paid to the RIAA, with no sign that a penny of that money has gone into the pockets of artists."

I think it's possible that the defense lawyers in these cases will eventually start winning, once they figure out the best way to try these cases in front of juries, similar to the turn of the tides in the tobacco litigation suits. From my brief and unscientific perusal of the news, Jammie Thomas has been martyred, and I think that indicates something about public opinion on P2P file sharing.

Church and State

California Maxims of Jurisprudence, on equity, seem quasi-religious to me:

Sec. 3512: One must not change his purpose the injury of another.

Sec. 3518: He who has fraudulently dispossessed himself of a thing may be treated as if he still had possession. [OJ was thinking of this one.]

Sec. 3520: No one should suffer by the act of another. [Do unto others....]

Sec. 3527 The laws helps the vigilant, before those who sleep on their rights. [God helps those....]

[This one, however, contradicts religion, I believe.]
Sec. 3530: That which does not appear to exist is to be regarded as if it did not exist.

Coffee

Dozing during court has become such a common occurrence that some jurisdictions use a three-step analysis to determine whether sleeping constitutes ineffective assistance of counsel:

1. Did counsel sleep for repeated and/or prolonged lapses?
2. Was counsel actually unconscious?
3. Were the defendant's interests at stake while counsel was asleep?

Chastity and Javelins

Some amusing notes from my Sports Law text:

Slandered athletes must prove actual damages, except in four situations that engender liability per se: accusations regarding 1) crimes, 2) loathsome diseases, 3) adverse affect on business, and 4) unchastity to a woman.

"Spectators run the risk of injury while observing a sports event. Spectator injuries can occur from foul balls, errant pucks, thrown bats, clumsy fullbacks, misthrown javelins, and so on."

Great imagery!

RIAA in Town

The RIAA has issued a subpoena to obtain the identity of students at the University of San Francisco.

Link to the Order

Other People's Money

Video of a project for Ethics class. A demonstration of the "Glass Table Method," used in the OPM case for forging the signatures on computer leases. (Starring my classmates, camerawork by me.)

Interview with a Band

My best friend on the East Coast got me on the backstage pass/guest list of my all-time favorite group of musicians: Medeski, Martin, and Wood with John Scofield, an avant guard jazz group that probably falls under the genre of jam band, playing with an old jazz legend.

I've never been backstage at the Fillmore, and I was excited to the point of nervous! I didn't want to be starstruck if I did get to meet them.

So yesterday afternoon I went online and started researching their tour, their most recent news, etc. I called a few friends to find out what the backstage scene at the Fillmore is like, and where our passes would take us. About halfway through this process, I realized, to my chagrin, that I was 'studying' for this show like I'd study for a law firm interview!

The show was fantastic. I got to rub elbows with the band in the backstage room at the set break and after the show. Unfortunately the Fillmore is cracking down these days on photography (maybe due to the Bill Graham Archives lawsuit) and made me check my camera. However, I did accomplish this, which more than made up for it! (Click to maximize.)

 

Their most recent album cover, signed by the whole band!

Team

Yesterday in Sports Law I noticed with amusement that my professor (a football buff) referred to the class sign-in sheet as "the roster."

Uncertain Security

There's this weird phenomenon that goes on in the law school library. No, I'm not referring to studying. I'm talking about laptop-watching. You're sitting at a table with a complete stranger; this person is clearly a fellow law student, but you've never seen her before in your life. As she gets up to go to the bathroom, she says, "Would you mind watching my stuff?" And you smile, nod affirmatively, and then dutifully keep half an eyeball on her laptop.

Every time I do this (and I've been on the other side too), I shake my head. Why would a stranger care about your stuff? But personally, I can't help myself: if someone puts her most valuable possession under my watch, I gotta respect that responsibility.

Calling Shotgun

Was watching Seinfeld the other day, and Jerry was doing a skit on 'if the legal world obeyed the rules of children.' When you're a kid, all you have to do is call it.

"Your Honor, my client got there first."
"And did he call it?"
"Well, no, your Honor but-"
"If he didn't call it, that's it. Case closed."

In Trademark class, we were discussing the way you can reserve a mark by filing an Intent to Use application, which holds a mark for a period of time while the company develops the product. To obtain the mark, the company must subsequently use the mark in commerce. My professor noted that it doesn't matter if someone else uses the mark before the ITU turns into a mark registration. I got a laugh when he said:

"An ITU application is like saying, 'You can't use this mark. I called it.'"

[Later]: And isn't that what Locke was all about? "First in time equals first in right."

Home Field Disadvantage

During my Art Law class today, my professor put a PowerPoint slide up with two photographs. A magazine had commissioned a photographer to take a photo of a famous basketball player. The magazine and the artist couldn't come to an agreement, so the magazine found another photographer to take a remarkably similar shot.

As my professor put the slide up, he admitted he was embarrassed, but that he couldn't remember who the basketball player was.
"Does anyone know who this is?" He asked.

Silence from a classroom of about 30 kids.

"This is a law school Art Law class..." someone noted.

A Few Comments

About my interview process...

There are 4 things I was never asked:

- Why I wasn't on Law Review.
- Why I've never worked at a big law firm, even though I'm a 3L.
- What my weaknesses are.
- Where I want to be in 5 years.

Here's a few random pieces of advice:
Read this classic book: Guerrilla Tactics for Getting the Legal Job of Your Dreams. It's embarrassingly cheesy, but the info is great. Just reading it will give you confidence and make you feel prepared.

Solicit 30 minute phone conversations from alumni at other firms. Ask them the questions you would get asked if you got an interview, or pieces of information you could put in a cover letter. For example: What do you think is different about your firm? Why did you choose it? Your last question should always be: Do you know anyone else you think it would be good to talk to? Keep the network chain going.

Get in contact with an associate at the firm you want to work for. Cold-email them asking for a phone convo if you have to. If you click with them, they can become your greatest asset and ally at the firm. Plus, the firm will find out; it demonstrates your legit interest.

I talked with a ton of people...every one of them was kind and helpful and gave me at least one piece of incredible advice. You just never know what valuable info you're going to get, which is why you should talk to as many people as possible. And it gets you in the practice of giving your pitch in a professional and smooth way - what area of law you're interested in, your background, etc.

News

I confess I've been sitting on a piece of news that merits a post. I didn't want to blog on it until it was finalized:

I accepted an offer!

I'm not sure yet whether I should name the firm here, so I'll hold off for now until I figure that out. But I wanted to share the news.

I think this is my dream job. Great people, doing exactly the type of work I want to be doing, for money I didn't have the guts to dream about.

Yahoo!'ing

Here's a list of words that have gone into the public domain via genericide, or the loss of trademark protection by the ubiquitousness of the term. These words were originally trademarks, but they were so successful that they named the product for all time - the danger of a perfect name.

Zipper
Escalator
Thermos
Cellophane
Yo-yo
Linoleum

Some say "Google" is on its way to genericide because of the way it's used as verb for "searching." Personally I think it's safe for now. When I say I'm going to "google" something, I don't use Yahoo! to do it. Do you?

I recall reading (but forget where) about how word processing programs assist in the maintenance of trademarks by auto-format capitalizing the first letter of major brand names. The idea being that a capitalized proper noun is more trademark-y than a regular word. Similarly, if you type "google" in MS Word, it will be red-underlined; the suggested correction is "Google."

Juicing

I got a kick out of this piece from my Sports Law text:

"In sports employment contracts, another unique feature is the concept of "juice." Juice is the ability to write your own ticket based on unique skills or rampant popularity. The more juice a player possesses, the greater [his or her] ability to modify [his or her] employment contract...."

I dig that the authors put that in the book. That's the kind of lingo I wish all my texts included.

But: living in the Bay Area (home to Barry Bonds, of course), I can be forgiven for thinking the authors were going to define the term a bit differently!

Going and Going and Going

I used to use this site, Going.com, but I ended up cancelling my account. They recently hooked me again, ironically using the same technique that made me quit in the first place. (Going.com is an event planning site like Yahoo!'s Upcoming.) They have these sneaky ways of creating an account for you before you realize it.

I deleted my account originally because I was offended by these tricks, and because of the inefficiency they engender. For example, I had multiple accounts with them because I'd forget which email address I used to create the account, and whenever I accidentally entered the wrong email address during login, it created a new account for me. That resulted in the inevitable multiple newsletters, email notifications, etc. (The default settings were, naturally, to receive all newsletters. When I tried to login to change these settings, I couldn't remember which email address I used, and ended up creating more accounts...you see how the cycle would get frustrating.)

So they hooked me this time because they're promoting an event that you can get into for free with an RSVP. To RSVP, you enter your name and email address - which, you guessed it, creates a Going.com account.

However I was pleased to see their privacy settings have improved since I was last a member. (Click the screen shot below). The tiered privacy levels are good, although the default settings are as broad as possible. I particularly like the ability to prevent others from tagging you in photos, and that the default is on a high tier.

For that I'll give them another chance.

 

LOLcat on Freeze Frame

 
This is in reference to a previous post concerning the forthcoming [read: nonexistent] class action suit against Sony for product liability on a model of TV remote controls. Hat-tip to a Canadian.

On an Unrelated Note...

I've been frustrated recently by a text messaging issue. I have an old phone (three years old) of which I'm fond, by virtue of its absolute simplicity (no camera, no internet) and long-lasting battery (2-3 days without a charge). It's a Samsung, and it has survived the tempting trend waves of the Razr and other pop phones.

However I receive text messages from friends with much more sophisticated equipment, PDAs and Blackberries. Uninhibited by the constraints of predictive typing, they send long text messages that surpass my phone's capabilities. As a result, I often get texts in several installments, like chapters. This week I experienced something even more offensive: I received a two-text installment, where the second text was actually the attachment of the original message!

Did I suddenly befriend a cadre of technophiles? Did my friends upgrade phones? Have I been avoiding voice conversations? I'm not sure, but for whatever reason my sent and received texts numbered 250 this month, compared to 80 last month.

I did come to the eventual solution to this problem: time to get a new cell phone.

Hot Chip

This won't come as a surprise to anyone currently in the game, but it's remarkable how hungry Silicon Valley is for patent attorneys right now. Computer Science and Engineering degrees will take you places. Almost every firm coming to our school for On Campus Interviews "prefers" students in the top ten percent, with law review and moot court. However, firms requiring technical degrees prefer students in the top third of their class, with no extracurriculars necessary.

Scan My iTunes, Please, part II

Update on the privacy policy of my new fave site, SonicLiving:

I asked: "What's your policy on the artist/album information you collect (when SL scans a user's iTunes, for example)?"

Answer: "We only track artists (not album info). For the time being when you remove an artist from your Wishlist, the info is permanently erased and no record is retained. In the near future we will begin tracking artists that have been removed so that we don't re-add artists when folks rescan their iTunes/ Pandora/last.Fm."

Hat-tip to a privacy guru who motivated me to find out, and kudos to Elle at SL for her clear and prompt response. My next feedback will ask them to post their policies!

UPDATE: Elle says they are working on getting their policies finalized and posted ASAP.

A Cat's Reasonable Expectation of Privacy

The privacy guru at work had his cat run away this week. He was agitated for several days, flyering the whole neighborhood, complete with maps, with color-coded sectors delineated, and team of co-workers and interns on lunch break. Inevitably, the issue came up of RFID'ing the cat (who, BTW, did not have tags). As a privacy guy, his feelings about RFID's are understandably strong, but when it came to his beloved pet, his response was: "I don't care about my cat's privacy!"

Even more inevitably, the office email thread turned up several amusing links that I'll share here on lost cats:

Cat Has Camera On So We Can See What He Does: Nuff said.

Cat Tracker: "Allows you to easily and remotely monitor the location of your cat via your cell phone/mobile phone anywhere in the world with suitable GSM coverage."

Finally, we interns played a practical joke on this particular attorney when he left for retreat by "breaking into" his office. (We had a key.) One of the interns created this brilliant lolcat for him.

Update: Forgot to mention - he found the cat!

Public Disclosure of Private Tusks

A friend of mine passed on this link from Quizlaw.com about a dentist who played a practical joke on his assistant and was sued for it.

"Meanwhile, the far more entertaining story today involves a dentist who thought it would be hilarious to stick some phony pig’s tusks in his assistant’s mouth while she was under anesthesia. He took the tusks out before his assistant woke up, but he took pictures, which eventually circulated around the office and were given to the assistant during her office birthday party. So, his assistant — who clearly has absolutely no sense of humor — quit her job and sued the dentist."

Check it out to see how the story ends!

Scan My iTunes, Please

A friend of mine introduced me to sonicliving.com, a site that will scan your iTunes and create a calender for you with the dates those artists are playing near you. Privacy issues aside (but who's gonna manually enter 458 artists?), it's brilliant.

I got a kick out of this note, seen while editing my "personal info" preferences:
"We'll never share your personal info, unless you listen to crappy music."

Hot Tub

Nice article from Slate on the 9th Circuit.

"I had a law school professor who referred to California law as "hot tub law"; part of the disdain for the 9th surely derives from national skepticism of all things Left Coast."

And:
"Now let's look at how often the Supreme Court decides that the 9th got it wrong. Last term, the Supreme Court's reversal rate for 9th Circuit cases was 90.5 percent. Yikes—that's huge! But wait, for on-the-merits cases, the Supremes reversed the 3rd and 5th Circuits all of the time last term. Cases from state appellate courts fared no better: They also had a 100 percent reversal rate. Overall, this past term the Supreme Court reversed 75.3 percent of the cases they considered on their merits. The pattern holds true for the 2004 and 2005 terms as well, when the Supremes had overall reversal rates of 76.8 percent and 75.6 percent, respectively."

Very Sick

Researched the recent Fair Housing v. Roommates.com, __ F.3d __ (9th Cir. 2007), 2007 U.S. App. LEXIS 11350 decision today. Roommates.com is a house mate locater based on some criteria that likely violates the Fair Housing Act (allowing users to select whether they would live with children, or soliciting roommates based on race, for example). The issue in this case, however, was whether the website was protected by section 230 of the Communications Decency Act. Section 230 immunizes service providers like websites from liability if they are mere passive conduits for information. (Think search engines.)

In describing the site, Judge Kozinski wrote, "More friendly folks are just looking for someone who will get along with their significant other [FN10] or their most significant Other.[FN11]"

Here is footnote 10:

10 "The female we are looking for hopefully wont [sic] mind having a little sexual incounter [sic] with my boyfriend and I [very sic]."

Priceless.

And, to enable full Kozinski-opinion appreciation, here's FN 11:

11 "We are 3 Christian females who Love our Lord Jesus Christ . . . . We have weekly bible studies and bi-weekly times of fellowship."

UAE Black Boxes

A "whoa!" article about putting black boxes in all cars in the United Arab Emirates. The box "allows satellites to track each and every driver in the UAE and automatically issue speeding and other tickets for the slightest transgression."

Blog Survey

A Ph.D. candidate in sociology at the University of Massachusetts, Amherst is doing a survey on blog privacy.

The privacy terms irked me a bit:

"Your responses will be kept confidential, with any identifying information being disaggregated from survey answers. It is possible that your research record, including sensitive information, may be inspected and/or copied by the study sponsor (and/or its agent) or by federal or state government agencies, in the course of carrying out their duties. If your record is inspected by the study sponsor (and/or its agents), or by any of these agencies, your confidentiality will be maintained to the extent permissible by law."

I'm no expert, but I wish it said our information "will not be disclosed except as required by law."

As to the rest, at least she's honest.

Update: I did the survey. Nothing on it that I worried about the Feds finding out about. ::smile::

Chemerinsky

This Tuesday I jet-set down to LA to hear Erwin Chemerinsky speak for the LA Intellectual Property Law Association. I wanted to hear Erwin, because he's such a rock star in law school academia. (He's also repping Valerie Plame and Joe Wilson in their civil suit against the government.) He identified several trends in the Supreme Court: 1) The extreme decline in the number of cases the Court takes. It's usually around 100, but the decline began with Rehnquist and has dropped to new lows (68 if I recall) under Roberts. 2) The increase in the length of the opinions. One recent case spread to 160 pages. (How, he asked, was a Con Law editor supposed to edit that into a one-day assignment for students?) 3) The rise of Kennedy in the role of the Court. In some 23 5-4 decisions this term, Kennedy was the majority - the 5th vote - in every single one. A historical first.

I was thrilled to chat with Erwin afterwards, too. He's adorable! Bowl haircut like a little boy, the glasses, infinitely sweet and humble. We watched the end of the All Star game together at the hotel bar. He said he very much misses LA, until he gets on the 405.

I also wanted to do some networking, but it didn't work out as well as I planned because I got a stomach virus a few days before. Nauseous, fevered. (I'm pretty sure I did not hallucinate this odd coincidence: In another part of the hotel, I saw the sign for a conference by the Korean-American Pediatric Association on astroviruses gastroenteritis. AKA, the stomach flu.) Being a bit strong-willed I insisted on going anyway.

They seated me at a table with a law firm whose name I immediately forgot in my fevered state. But nevermind; although my image of networking is always of Spiderman shooting a random streamer of webbing, I think the process is more like that of a traditional spider: the slow building of a web, where over time the repeated exposure to the same people connects you.

What's In a Name

While researching, I stumbled across the name of a JD candidate who authored a paper. I wonder about the impact of this surname on business:

[Jane] Lawless.

Worse still, I can imagine the endless comments this poor law student receives...

Your World. Delivered. To the NSA. On the iPhone.

Your World. Delivered. To the NSA. On the iPhone., originally uploaded by lawgeek.

Title says it all...

Pirate Booty

New decision out today from the 9th Circuit, Perfect10 v. Visa. The majority (Judge Kozinski dissented) affirmed a motion to dismiss on claims of secondary copyright infringement (inter alia). Perfect 10 is a website that provides adult photographs, and they have a long history in the courts of attempting to expand contributory liability. In this case, they sued Visa for copyright infringement, claiming that Visa was liable because the company processes payments for copyrighted images stolen from Perfect 10's site. The majority basically found that processing the payments was too attenuated a causal chain to support secondary liability.

Kozinski vigorously dissented, arguing that because payment was essential to the transaction, Visa was materially contributing to the infringement (here the distribution of copyright-infringing works). Or, as he eloquently put it, "If cards don’t process payment, pirates don’t deliver booty."

UPDATE: Experts where I work suggested that Kozinski's dissent was due in large part to the fact that this was a motion to dismiss. There are at least some set of facts that might allow this case to go forward.

Private

On Friday I attended a privacy conference at Boalt. The purpose was to get people on the ground into the same room as people in the ivory tower. However, as one attorney commented privately, "It's everyone telling other people what work to do." I did see that: researchers saying, "We need articles on this," and practitioners saying, "We need studies on that," and still others interjecting, "There's already a study on this, and there's already a paper on that." But if nothing else, it accomplished one thing: everyone was exposed to what everyone else was doing.

Most of the attendees knew 2/3rds of the people there from countless other workshops and were consequently jaded to the whole experience. But I, being young and uninitiated, found it all pretty interesting. Plus there were some names there, people whose law reviews I've cited to or whose names I knew. Eg, I got to meet Dan Solove (yes, I will toss out the short form!).

Some random highlights:
Everyone seemed in agreement over making it a Federal crime to use a social security number as an authenticator. Companies should be able to use it as an identifier (this name matches this information), but they shouldn't be able to use it as proof of authenticity (Eg, prove you are who you say by providing your SSN.) Suggestions: use a combination of personal data to verify one's identity, such as date of birth, mother's maiden name, and previous address.

In a discussion of click-wrap agreements (you download a program and accept all the terms of the contract by clicking "I agree"), I saw that the common terminology "notice and consent" was replaced by "notice and choice." The implication being that the default should be choosing, not agreeing to the terms.

Some lessons from the environmental movement could perhaps be imported into the privacy realm. Eg, privacy impact statements, public shaming of companies, regulation in the form of covenants. But the environmental movement has Al Gore. Privacy needs a celebrity!

DIY Sources

The other day I was working on my draft of an amicus brief. I had to begin by explaining some fundamentals of the internet, such as describing the difference between a static and dynamic IP address (I've changed the facts to protect the innocent). I've read cases where the judge footnoted to a Wikipedia article, so I checked out the Wiki definition of the terms I wanted to use. As it happened, the definitions didn't adequately cover the issue.

What did I do? Naturally, I signed into my Wiki account and edited the entry. Only then did the absurdity of citing to a 'customizable source' hit home.

Needless to say, I didn't use Wikipedia as a source for the brief.

EC-huh?

One of the attorneys where I work asked me the other day if I had taken any classes that dealt with ECPA ("Electronic Communications Privacy Act"). ECPA (usually spoken as "eck-puh") was enacted to extend privacy protections to electronic communication on computers, like the Wiretap Act protects phone calls. The Act is notoriously opaque, so it's difficult to get an intern up to speed on it quickly. I winced when he asked.

"To be honest," I said, "I know enough about it to know that I don't know anything about it."
He visibly brightened and exclaimed: "You do know ECPA!"

Daniel Solove (internet privacy guru who blogs on Concurring Opinions) on ECPA: 72 Geo. Wash L. Rev 1264, 1292-93.
"If one is not willing to study ECPA like a biblical scholar studies the Bible, there is little hope of figuring out ECPA."

And an amusing jab at Orin Kerr (who blogs on The Volokh Conspiracy):
"Kerr, who can probably recite the ECPA by memory, and perhaps even in verse, admits that it its surprisingly difficult to understand."

Grades

All my grades are finally in. I'm pleased; I couldn't be happier. Ok, that's a lie: I would've liked to CALI something. (CALI awards are given to the student with the highest grade in a class.)

A short-statured friend of mine (who, BTW, CALI'd Forensic Evidence), received an A in another class as well. When he told me this, I asked if it was a solid A. He replied, "Yeah, I don't do minuses. Horizontal stripes make me look even shorter."

UPDATE: I CALI'd my Intellectual Property Seminar course.

Happy Birthday Betamax

As a friend of mine informed me, today is the birthday of the Sony Betamax (born 1975), the subject of the infamous landmark case for fair use, Sony v. Universal. I shared this with the IP attorneys here at work via email; one responded:

"Alas, poor Betamax, I knew him, Horatio: a fellow of infinite jest,
of most excellent fancy: he hath borne me on his back a thousand
times..."

Age and Experience

Week two...

I'm enjoying my local underdog status. The other interns are from all over the country, but they uniformly hail from top-tier schools. As in Harvard, Boalt, U Michigan, etc. I do have a significant advantage, which is that I'm going to be a 3L and most of them are 2Ls. I've taken a ridiculous amount of relevant courses. I know what everyone is talking about when they drop DMCA code sections.

I confess some apprehension, however. Maybe I'm supposed to be doing something else, something more 3L-ish? To my readers expressing envy for my cozy work environment, I should add: it's unpaid!

Trademark Parlance

I asked a friend of mine what he was doing tonight. He said he was hanging out with some "non law school friends." (Ouch!)

I don't think of most of my friends as legal or civilian anymore (including the law school friend above, [wink]). But maybe that's because I moved out here knowing no one. I didn't have a preexisting group of people to classify schoolmates against.

But I definitely have friends who evolved beyond the law school arena. I would say they acquired secondary meaning.

On an Unrelated Note...

I learned two tricks in the past two days on my computer, both embarrassingly foundational.

1. In Word: You can move text from one document to another by drag-and-dropping into the minimized window on the task bar. (Instead of cut-and-paste.)

2. In Windows: You can find a program quickly in "All Programs" by typing the name of the program. (Why aren't they alphabetized? Or is that another setting I haven't found?)

Week in Review

I started my internship this week at an organization committed to rights in the online world. A few details:

- In the bathroom, there's a familiar sticker on the toilet, clearly pulled off a laptop: "Designed for Windows XP." (Another one on the bathroom mirror: "You Are Under Surveillance!").

- During meetings, everyone brings their computer (we all work in the office from our personal laptops). People freely work, email, and IM during these conferences. In fact, my work email points to my personal email account, and people send email to the staff email list all day. Nevertheless, it's very hard to suppress the urge to minimize my Gmail window when someone walks by.

- We interns were advised that we can sit in on any meeting going on because they are "open source," although with a "CC license," someone quipped. (Creative Commons).

- Discussions of ordinary life quickly evolve into pertinent legal discussions. For example: There's a soda machine in the office. One of the interns suggested that it would be cheaper to have a fridge that we bought soda to put into it. One of the attorneys suggested money could then be placed into a fund and distributed to the soda companies according to the frequency with which their soda was purchased. (Referencing, of course, the subscription-based online music proposal.)

- Everyone wears jeans and sneakers. A row of bikes hang from a rack inside the building, next to the pool table. A giant dog is leashed outside our legal director's office. And I mean GIANT, as in the size and shape of a medium-sized bear.

- It may be stating the obvious, but everyone uses a Mac. And staff transportation (in addition to the bikes) includes six Priuses.

How's That Again?

Oldies but goodies, from "Disorder in the American Courts":

ATTORNEY: Are you sexually active?
WITNESS: No, I just lie there.
___________________________________________________________________

ATTORNEY: What gear were you in at the moment of the impact?
WITNESS: Gucci sweats and Reeboks.
___________________________________________________________________

ATTORNEY: This myasthenia gravis, does it affect your memory at all?
WITNESS: Yes.
ATTORNEY: And in what ways does it affect your memory?
WITNESS: I forget.
ATTORNEY: You forget? Can you give us an example of something you forgot?
___________________________________________________________________

ATTORNEY: What was the first thing your husband said to you that morning?
WITNESS: He said, "Where am I, Cathy?"
ATTORNEY: And why did that upset you?
WITNESS: My name is Susan!

Poetry in Motion

Latest case order high jinks from my friend BZZZ:

Like the Law Is After You

A friend suggested I cure my PESD by getting out of town ("like the law is after you," he teased). I had the same idea, so here I am in the warm faux-reality of Los Angeles.

My mother is in my apartment in SF, visiting indefinitely. We get along well, and I did everything I would have done if she weren't there, but somehow I couldn't relax. My personality changes slightly with every person I interact with - I think most people do the same - and this includes my mother. We all have a mother-persona, one that can be uncomfortably intermingled with our childhood persona. Struggling to overcome my instinct towards regression...it was a little exhausting. I know I'm nearly an adult, and yet to my mother I am necessarily a child.

The result was that even in my own home I couldn't be myself. In two weeks I start my internship, and I think it will all improve then, when I have a place to remember that I am not a child.

Blinking

Several days into summer break. Of course I have no effing clue what to do with myself. The post exam stress disorder (PESD, described here by Otherwise Occupied) is rearing its ugly head too. Last night I dreamed I couldn't get my exam software to work. It was time to start the exam and everyone was waiting for me. I didn't have enough desk space, I couldn't find the ethernet plug, etc.

The end of exams: I feel like I've been staring at a computer screen for four hours, and I just looked up, and I'm blinking, but everything is out of focus and hyper real.

So Help You God

Got a kick out of this, from a recent article in the New Yorker:

"When, in 1986, the Indian government sued for the return of a twelfth-century bronze Shiva that had been looted from a village in Panthur, it did so on behalf of the offended god himself: Shiva was named as a plaintiff in the case."

Wondering About the Story Behind This One...

My last exam, Evidence is on Saturday morning. I'm reading through my (117 pages of) class notes, and I came across this peculiar California rule:

"A cop in an unmarked car with no undies on isn’t competent to testify."

On an Unrelated Note...

Remember the good old days when no one knew how to secure their wireless network? You didn't need internet because you could jump on your neighbors' connection. No one cared; really, it cost your neighbor nothing to let you share.

These days my network list is filled with those little lock icons. I'm paying monopolistic Comcast a ridiculous $60 a month for high-speed internet access. Nobody wants to share their connection. I've seen the rise of vindictive WEP'ing. For example, one of my neighbors' network is called "Don't Even Try it Jess." A friend of mine had a roommate who didn't pay for wireless because she "never uses it." When my friend caught her on it, he changed his WEP and renamed the network, "You Never Use It."

Sign-Spinners, II

Sign spinners:

Sign-Spinners

One of the essay questions on my Copyright exam asked whether Bikram yoga could be copyrighted. As a matter of fact, it already is - my professor won the case.

I saw this post on TechDirt about an ad company attempting to patent the moves by street-corner sign-spinners in Los Angeles. (If you've seen it, you know what I'm talking about. I'll try and find a link.)

I don't know why they would patent it - maybe the article is wrong - when it seems to me they'd have a good chance of copyrighting it. An original sequence of fixed, unprotectable moves in the public domain (AKA "facts") can be copyrighted as a "selection and arrangement."

UPDATE: Check out this poster's comment on the work-for-hire problems that a sign-spinner would face if s/he went to a different company!

Copyright, Sex and Violence

For my Entertainment and Media Law exam, we get to bring in a "crib sheet." A single sheet, both sides, must be handwritten. Not allowed to use vision enhancement devices, such as magnifying glasses. Brutal manual labor. I don't know how I feel about this quasi-closed book quasi-open book technique. Actually, I'd be totally down, except for the brutal manual labor part.

 
 

Oddity

Lawyers Rioting in Pakistan. No, seriously.

Sleep

To all my fellow law students verging on finals, here's a good article in the NY Times about memory recall. Another study demonstrates that sleeping after you learn helps your brain remember and intuit:

Sleep On It

Semantics

After a discussion about law school outlines with a certain Canadian, as well as a minimal amount of research, I noticed a minor difference in terminology that, I think, says a lot about Canadians and Americans.

For an outline, law students will often create a step-by-step procedure for analyzing certain issues of law. For example, when deciding whether a 4th Amendment violation has occurred, the analysis goes: 1) Is it a search? 2) If it's a search, was there a warrant based on probable cause? 3) If there wasn't a warrant, did the search fall within another exception? And so on.

Apparently Canadian law students call this a flow chart. In my American law school experience, we call this an attack plan. And you wonder why everyone loves Canadians.

Something's Gotta Give

I was hanging out at a classmate's apartment the other day studying my Copyright outline on my laptop. He was supposed to be working on a paper, but I noticed he was continuously wandering around his place, tidying things up.

"Constructive procrastination?" I asked. He looked nonplussed. "Cleaning up your place to avoid writing the paper," I clarified. He nodded.
The one glaring mess in his place consisted of an almost impenetrable mountain of dirty dishes in his sink.
"What about those dishes?" I asked helpfully. He looked at the mountain and shuddered.

A little while later he was back behind his laptop, typing away.
"Writing my paper to avoid doing the dishes," he admitted.

Jack Valenti

I feel obliged to note the death of the famous pro-copyright lobbyist Jack Valenti. He famously told a congressional panel in 1982, "I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone." (Today more than 50% of the film industry's profits come from video and DVD sales and rentals.)

We had a guest speaker in my final Copyright class who happened to mention that Jack Valenti attended the oral argument of a famous Supreme Court case. (Valenti tried to stroll past the metal detectors; the guards hauled him back, saying, "Yeah, we know who you are. You still gotta go through security.") For the sake of the guest speaker's privacy I won't mention the case. The guest was a fabulous story teller. I'll try to do justice to a few of his tales about his visit to the Supreme Court.

He said that as he looked up at the bench, one chair appeared empty. It was Justice Thomas, who had cranked his chair all the way down so that he could tilt his chair backwards. He sat there, almost horizontal, with his eyes closed, never asking a single question.

At the time, Chief Justice Rehnquist had just gotten out of the hospital for surgery and had an open chest wound. Whenever the court became silent, he said you could hear this sucking sound. It was Rehnquist, literally breathing out of a tube protruding from the hole in his chest. Our guest added:

"Every once in a while you'd hear someone cough, but no one seemed to be coughing. And then you'd see Rehnquist dab at his chest with a handkerchief."

Flick Link Fame

He definitely doesn't need my paltry hit contributions after this, but cheers to my buddy LawyerLike for getting linked on IMDb.com. (Scroll down to the very bottom). How cool is that?

Not Prepared

Today is the last day of classes, so as you could imagine, some people have slacked on doing the reading. After several, "I'm sorry, I'm not prepared," this student's response got a chuckle:

"I respectfully pass on that question, Professor."

My Stomach Hurts

Got hit with The Fear today, like a punch in the stomach. Last week of classes.

My first exam will be a take-home, where you get 24 hours to complete it. Universe limited to class materials. This is my first take-home - can anyone offer any advice? Is there a way to prepare?

The weather is deliriously beautiful. Most people seem to think that makes it harder to study, but I prefer it. Keeps my mood up.

This is where I study:
 

Excusable Neglect

This is probably all over the blogosphere already, but a friend of mine forwarded it to me this morning. Click on the image to blow it up:

 

Purifying the Pool of Knowledge

Last night an old friend and I talked about our hesitation to publish our work. He's in the middle of a Philosophy PhD program at Fordham, and he admitted that he reviews some real crap that people publish.
"Whenever I start writing a paper, I always intend to publish it," I said. "But when I'm done I realize that I really haven't contributed anything new to the pool of knowledge."
"There's so much work out there that doesn't add anything," he agreed. "Not only that, work that doesn't contribute anything to the pool actually pollutes the waters. Bad articles are pollution."
"Exactly. Junk-work muddies the waters and makes it harder for everyone else to find the good stuff."

This reminded me of a blog entry I read by Daniel Solove on Concurring Opinions. He writes:
"The reality is that most law review articles aren't all that great. This is to be expected. In nearly any field, much of what is written isn't all that great. We'd be lucky if 10% is really good. Up the production level, and you get a lot more mediocre and bad work, and only a little more good work. What's happening, in other words, is that the worthwhile articles are becoming needles in an ever-growing haystack."

He suggests that we need a system where the industry recommends the cream of the crop. I endorse this. I'm thinking of the methods of StumbleUpon.com, where law review articles could be given a "thumbs up" if readers find them worthwhile. Like Stumble, the system would allow readers to comment on the articles (think of the potential for debate!). Similarly, users wouldn't be able to "bomb" their own article - they can only vote once, and a writer can't thumbs-up his/her own article. Stumble doesn't "rank" sites per se, and actually I think that would be something to implement for law review articles.

Cons: Researchers might focus too heavily on the highly-rated works, skewing the pool towards older articles. But that would make the discovery and use of new or obscure works more exciting!

Intellect

A substitute professor and practicing lawyer, on dismissing class 20 minutes before the end:
"It always improved my intellect to leave class early."

The Weekly Law School Roundup #66

Thanks to Evan Schaeffer's Legal Underground for the shout-out in The Weekly Law School Roundup #66!

Privacy and Mexican Food

Final exams loom. I only have one closed-book exam, a strange imbalance for me. My profs all dropped the last-minute-aside: "I told you guys the exam is open-book, right?" I'm probably the only person who's been furiously memorizing the elements of the privacy torts, but the peace-of-mind throughout the semester would have been nice. Then again, who am I to look a gift horse in the mouth...?

Actually, I am going to look. I'm saying it: I hate open-book exams. I don't learn or retain the information as well because I don't study it as hard. I've been outlining and studying my damn outlines since the start of the semester, so it's an advantage for me when other people have to cram it all at the last minute. I like memorizing. It's one of those rare tasks that rewards time spent. Pure sweat-'o-the-brow, unlike everything else in the law.

Speaking of the privacy torts...intrusion upon seclusion, public disclosure of private facts, false light, and right of publicity. They remind me of a routine on Mexican food by comedian Jim Gaffigan. "It's all the same ingredients," he says.
Describing his time working at a Mexican restaurant:
Customer asks, "What's in the burrito?"
Gaffigan: "Cheese, tortilla, meat or vegetables."
"And what's a quesadilla?"
Gaffigan: "Cheese, tortilla, meat or vegetables."
"How about a tostada?"
Gaffigan: "Cheese, tortilla, meat or vegetables."

These privacy torts are a bit like that: "False statements, injury, malice or intent." Throw defamation in there and you've got a menu.

Sign Language

Yesterday I was at school, waiting in the rotunda for class to start. I was listening to my voice mail on my phone, and one of my profs passed by. I'd been emailing with her earlier in the day, and as she passed she gave me a questioning look and mimed writing with a pen. She was asking, "Did you get my email response?" I nodded and gave her a thumbs-up.

This got me thinking about the evolution of sign language. If I'd been trying to convey that message, I would have fluttered my fingers on an air-keyboard.

Another one: If you were driving a car and you wanted directions from someone stopped at a red light, you'd probably make the old roll-down-your-window gesture. This despite the fact that more and more cars have automatic windows. That seems way more effective than trying to mime someone pressing a window button, right? I wonder if someday people will be wildly pin-wheeling their fist at another car and think, "Jesus, where did this come from?"

On EMI's Move

EMI, one of the "big four" recording giants will offer its music without DMRs on iTunes. Tracks will cost $1.29.

This is old news by now, but I posted a link to this nice analysis on my Cyberlaw class TWEN, and wanted to share it here too.

On An Unrelated Note...

I know (and care) almost nothing about theater, but this article by Charles Isherwood about "Grey Gardens" is positively fascinating.

On the way some American Idol losers, for example, are making it big:
"Maybe this new mood enshrining failure as the new success is related to the last decade or so of dissatisfaction with the country’s ostensible political winners, and the policies they’ve pursued. But it surely reflects a population embarking on the new century with a perhaps not unhealthy dent in its self-esteem." I'm thinking of Al Gore...

And:

"Few will leave the theater thinking: Little Edie Beale, c’est moi! But everyone of a certain age (say 30) has probably lived through a few of those startling moments when you take stock of your life as it is and wonder: How did I get here, exactly? When did the curves come that moved me away from one destiny and toward another? I guess it all must have happened during intermission."

Argument Killer

Last night I entered a bar in LA and had taken approximately one sip of my drink before I found myself in the middle of a conversation on illegal file-sharing. Someone mentioned that Columbia University was named the worst movie piracy school - my friend and I looked at each other and winced (we're alums), and that's what started the conversation between the three of us. My man in LA works for a talent agency, the other guy is an actor, and I of course represented the legal element. We all began arguing our respective positions, but surprise, surprise, we suddenly found ourselves in perfect agreement: I said the words "subscription-based model!"

Enter Conflict

It is with great pleasure that I welcome my friend Conflicts of Law to the world of blogging!

Go on, give him a hit.

More On COPA

Just read ACLU v. Gonzales (March 2007), the latest Child Online Protection Act struck down in PA by Judge Reed.

I don't have kids, so I admit my position isn't entirely informed, but this freaks the hell out of me:

"AOL, for example, offers a feature called AOL Guardian, which provides a parent with a report indicating which Web sites a child visited, which sites were blocked, the number of emails and instant messages a child sent, and to whom a child sent email or instant messages. Some of the products, such as Contentwatch's filter, have features that permit parents to monitor their child's Internet activities remotely, for example, while they are at work, and some products even send email alerts to parents when inappropriate material is accessed by a child so that, if a parent so desires, it can supervise their child's Internet activities even when they are not physically with the child."

I agree with Kennedy: "Indeed, perhaps we do the minors of this country harm if First Amendment protections, which they will with age inherit fully, are chipped away in the name of their protection." (Texas v. Johnson, 491 U.S. 397).

They referenced a bunch of the plaintiff websites in the case who have sexually explicit sites. Reading the case online, I had a moment of annoyance: Why didn't Westlaw hyperlink these sites? LOL.

Attacking Iran?

I hate to be a fear monger, but is Gulf War II about to expand?

A Russian news service reported that the US is prepared to launch missiles at Iran:

"Russian intelligence has information that the U.S. Armed Forces stationed in the Persian Gulf have nearly completed preparations for a missile strike against Iranian territory," the source said.

I news-googled "ready to strike Iran," and sources from both Canada and Kazakhstan are reporting it...!

Did You Buy a Sony Triniton Remote...?

An amusing chat on my IM with my friend LawyerLike. Definitely check out his post about it too because he's more witty than me. :) Our Gmail chat was off-record, so the following is from memory.

Background: LawyerLike and I were discussing the major purchases he plans to make once he starts his job. He said he was considering a new TV, particularly because his remote is finicky.

LL: I'll hit a button and it will randomly mute the TV!
Me: Whoa!
Mine does the same thing!
Must be a Sony design flaw.
LL: Sony Triniton??
[I grab my remote.]
Me: LMAO, yes!
LL: Number RM-Y116?
Me: Dead on!
LL: This is crazy!
Me: Are you thinkin what I'm thinkin?
CLASS ACTION
LL: Hahahhah.
The only question is who's going to blog about this first...

In conclusion, if anyone else experiences this muting affect from their Sony Trinitron remote, contact me or LawyerLike for a free consultation on whether you qualify for the class.

UPDATE: LL technically won the race to the blog post.

Geeks

On Wednesday I drove down to Santa Clara U for a Bay Area Blawgers gathering (Eric Goldman's recap here. The group comprised lawyers, law students, guys from Google and Sun Micro, law professors, blawg readers.

One of the themes I saw come up again and again was the power of blogs to connect lawyers to civilians. So many lawyers expressed their pleasure at giving information to people who couldn't afford or couldn't interpret the law themselves.

Humor highlight, for me anyway: A guy from EFF asked the group if anyone had received DMCA take-down requests for content on their site. The guy from Google grinned sheepishly and raised his hand. (Viacom...)

Talking about why he had come to this meeting, an attorney said, "I read a lot of blogs, and I wanted to see what bloggers look like!" Our host responded, "Sorry to disappoint you...."

A few years ago when I started blog-reading, I got so much flack from my friends for the geek-factor. Blogging has definitely become more main stream (MySpace has a blogging function). Nevertheless, when I told a buddy of mine (28 years old) where I was headed, he smirked.

When he saw me on IM a little while later, he wrote, "I thought you were at the geek fest?"
"I am," I replied.
"Of course. On your laptop at the geek fest."

Of course!

Icecream

Another quote from my fave judge, Judge Kozinski of the 9th Circuit:

"NetGate [an ISP] then took what might be described as the 'Baskin-Robbins' approach to subpoena compliance and offered defendants a 'free sample' consisting of 339 [email] messages." (From Theofel v. Farey-Jones, 359 F.3d 1066.)

Marvelous analogizing.

Vanity

Unrelated side note:
The other night as I drove home, I found myself behind a silver Mercedes bearing a vanity plate with "GAVIN" on it. After chasing him a few minutes, I finally pulled up along side. I swear it was Gavin, our Mayor of San Francisco.

I'm trying to determine if Gavin has a vanity plate with his name on it. Who else?

FalseyTake-Down Requests

Last night I went to a bar where EFF's client Jeff Diehl threw a party. (They achieved an embarrassingly successful settlement against a man who filed fake DMCA take-down requests against Diehl's website. Full release here.)

I didn't see the whole event, but I did witness an extremely odd performance by a guy sporting what he dubbed a "thimbletron." Gloves with thimbles on the tips of his fingers - touching his be-thimbled thumb to another finger altered, stopped, or started a music soundtrack. (I overheard someone say, "This guy will probably be an EFF client soon.")

In other news, EFF is also suing Viacom on behalf of MoveOn.org and Brave New Films. Viacom filed a take-down against a film spoof on GooTube. EFF argues the film is a fair use parody of the Colbert Report.

Offer

I accept!

I got an offer from the organization I want to work for. I'm effing thrilled. Elated. All that. Went and celebrated with my mentor from San Jose. He's been great...connecting me to people, inviting me to big firm events like Tuesday night in Palo Alto. But whatever about all that - he believed in me. That was enough. That was what I needed. My boy in LA, he believed in me too. Gave me the confidence to go into this interview with the right attitude. Believing in myself, knowing I am exactly the kind of student who should be working at a place like this. My mind so in line with their mission, lacking only the refinement of experience.

Obviously it's unpaid (all the good internships are)...anybody have any funding ideas? I checked PSLawNet, but the only applicable grants deadlined earlier this month.

Right Side of Everything IP

I had a big interview today for a rad nonprofit that I won't name for fear of...jinxing myself. This entity litigates on the right side of everything IP. It went well; I'd heard horror stories from 2 friends who interviewed there. They did sit me in a room with two attorneys and ask me issue questions, but I wasn't intimidated because I'm half-drowning in the issue. Yeah, you guessed it: I dropped that I'm writing a paper on Grokster and the convo went smoothly from there. At the start I felt a little nervous. When one attorney innocently asked me what I thought about Grokster, I launched into a discussion on the impact of inducement on contributory and vicarious liability as causes of action, thick with "substantial noninfringing use."

I told them honestly that I have a few more interviews in the next two weeks, but that I wanted to work for them the most. They'll let me know in a week.

Oh, and the kicker is that rumor has it they've never hired a legal intern from my school before.

Light Bulb

It's Saturday night, I know. But I'm working on the 25-page paper on Grokster (gotta present on it on Tuesday). Luckily I checked EFF's site (the Electronic Frontier Foundation) and felt relief that someone has completely solved the P2P file-sharing problem. Eventually I will recover from the marvelousness of it and try to pick out some flaws, but for now I'm blinded by the light:

Charge people $5 a month to download as much DRM-free music as they want, using any P2P apps or websites they want. EFF suggests that broadband providers could tack the $5 onto monthly payments. As long as the price is low, people will pay for the peace of mind and convenience. They note that the film industry first sold VHS movies for $90 until learning that a lower price cuts down on piracy. The juicy details: Voluntary Collective Licensing.

Five dollars looks right too, considering that Peter Jenner said $50 per year is "how much each music fan who buys music would have to pay in order for access to every song ever recorded while maintaining or increasing music sales." Full entry from Wired. I wonder how much I spend on iTunes a month...

Couldn't the film industry do the same thing? $10 a month... Software? $15 a month... Full text books online? $20 a month... A class-based online world, where only the wealthy can afford total information access? As long as you can pick-n-choose your services, or choose to pay for a single product, the price would remain reasonable. People could still burn CDs, but I think the convenience might outweigh it. Anything's better than what copyright holders are getting now, right?

Thoughts on this? What would the collective licensing future look like?