March 2003 Archives

The Supreme Court today upheld Interest on Lawyers' Trust Account (IOLTA) programs by a five to four vote.

Here's a little background information on lawyer trust accounts. A lawyer may not combine or commingle a client's money with the lawyer's own money. Instead, the lawyer must keep client money in some kind of trust account. For example, imagine that you approach me to handle a legal matter for you, and I ask for a $3000 retainer. After you give me the check, that's still your money -- I haven't earned it yet because I haven't done any work for you yet. (Some lawyers try to get clients to agree that retainers are "earned when received," but some courts take a dim view of that practice and often limit lawyers' ability to do it.) I have to put that money in a trust account, and I can only take money out of it as I earn it. When I do earn that money, I have to send you a bill telling you that I've taken money out of the retainer. If the kind of legal work I'm doing brings in any money for you, I put that in the trust account, too. If I put your money in my accounts or my money in a client trust account, I break the attorney regulation rules, and the courts may discipline me.

I can have many lawyer trust accounts. I can go so far as to set up a separate trust account for each client. That would ensure that each client earns the interest on his or her money, so that would be a very good idea if I were controlling substantial sums of money for long periods of time. But what if I were only holding on to a few thousand dollars for a few weeks at a time? That wouldn't earn much interest at all, certainly not enough to justify the expense of creating and maintaining separate accounts. Then, according to the attorney regulation office, I can and should put the money in my "COLTAF" trust account. COLTAF stands for "Colorado Lawyer Trust Account Foundation." The interest on that account goes to COLTAF, which then uses it to fund legal aid programs. My COLTAF account is a "pooled" account, which means that I can put the money for different clients together in the account, as long as I have an accounting system that keeps track of how much money each client has in the account. Each client's money earns only a tiny amount of interest, so clients don't miss out on much income if I put money in my COLTAF account, and it saves me the trouble of opening a new account for the client or doing the arithmetic to figure out the client's interest on funds in a pooled account. (After all, the interest is a tiny fraction of what it would cost to figure out the client's bill with that interest in it or even to set up a separate bank account.)

Nonetheless, the COLTAF account does take a few cents -- and maybe more -- of what would have become client money and gives it to COLTAF instead. This sort of program in other states led to the case Brown v. Legal Foundation of Washington, No. 01-1325 (Mar. 26, 2003), challenging the State of Washington's IOLTA program. The Court had already held in Phillips v. Legal Foundation of Washington, 524 U.S. 156 (1998) that the interest income on lawyers' trust accounts was the "'private property' of the owner of the [account] principal," the client. Id., at 172, quoted in Brown, slip op. at 1.

Ted Barlow describes the number one reason -- well, okay, it's in the top three at least -- why I avoid talking about the war online.

It started to snow late Monday night, and continued until this morning. As of this morning, my town had officially reported 29 inches of snow. We made one trek (three blocks) to the half-functional grocery store, but otherwise we've been stuck at home. I may post a few photos later.

Denver International Airport has become home to a lot of stranded passengers. This is spring break season, when a lot of people come through the airport to reach Colorado's ski resorts, and the airport also serves (for now) as a United hub. I wonder what sort of impact this will have on United. [KUSA 9news report]

Meanwhile, I know I haven't blogged much of anything lately. I've been away from the computer, and I also tend to avoid simply linking to other resources without saying anything more. I also intend to say little to nothing about events in the Middle East, but I'm spending time paying attention to those events that I might otherwise have spent reading and writing on other topics.

An unexplained and very harsh form of pneumonia is spreading in Hong Kong and has been detected elsewhere. I found an AP story on the topic this morning, and since then there have been more stories. They're calling it "Severe Acute Respiratory Syndrome," which roughly translates to "Something unexplained that happens to the respiratory system on a nonpermanent basis," because they don't know what causes it.

Reuters, via Yahoo.

AP's Emma Ross, via Yahoo. "Mystery Outbreak May Be New Strain of Flu":

"If it really is the flu, it could be we have a new organism that could cause a pandemic," said Dr. R. Bradley Sack, director of Johns Hopkins' international travel clinic. "People immediately start thinking of 1917," the year a worldwide flu epidemic killed at least 20 million people.

Experts discounted the possibility that terrorism is the source and believe it almost certainly is a contagious infection that spreads most easily from victims to their doctors, nurses and families through coughing, sneezing and other contact with nasal fluids.

Cory Doctorow (BoingBoing) blogged this e-mail that ran on Dave Farber's Interesting People" list.

The U.S. Centers for Disease Control and Prevention have put up a webpage that collects CDC resources on the outbreak.

We are, of course, still talking about a relatively small outbreak in terms of people presently directly affected. On the other hand, it seems to be a very virulent and harsh illness. I hope that the medical community's relatively early detection of the outbreak will at least somewhat soften the blow that this illness threatens.

Quite a few people have already linked to James Grimmelmann's excellent summary of the Boalt Digital Rights Management Conference. (This is to remind me to go back and read it more closely....)

I seem to have got cookies working properly so that the comments page will remember who you are if you want.

Please let me know if you encounter any problems with that function.

I was reading back a few entries in Kevin Heller's blog when I noticed something I must have skimmed over in the first read. In this entry, Kevin remarks, "Man, I miss law school."

When I was in law school, I joked that lawyers who said things like that scared me. Well, half-joked.

Okay, now that there's a little distance (both temporal and spatial) between me and law school, I'm happy to say that there are some things about law school I miss, and there are definitely some people from law school who I miss. But I sure can't say that I miss it on the whole.

Now I just need to pay all those student loans....

From now on, I think I have to do things like that in smaller chunks.

Late last year, the Creative Commons project announced that it had prepared several form content licenses designed to allow people who publish on the internet and in other media to publicly license their work. The Creative Commons organization aims to increase the amount of creativity that the public can share and draw upon in further creation. "Taking inspiration in part from the Free Software Foundation's GNU General Public License (GNU GPL), Creative Commons has developed a Web application that helps people dedicate their creative works to the public domain -- or retain their copyright while licensing them as free for certain uses, on certain conditions." [link] Nearly four months later, the experiment is still only just beginning both for the Creative Commons organization and for the artists who license their work under Creative Commons licenses.

I don't post as often as some do, but every once in a while I post something that's astonishingly long.

I expect to put the heavily revised version of my first entry on Creative Commons licenses here tonight.

Robert N. Diotalevi of the Legal Studies program at Florida Gulf Coast University has written an article titled "An Education in Copyright Law: A Primer for Cyberspace." You can find it here.

[via BeSpacific]

LawMeme reports that Pres. Bush has signed the Do-Not-Call Implementation Act into law. It's now P.L. 108-10. The Federal Trade Commission will implement a national do-not-call registry, which will allow people to opt out of receiving telemarketing calls. The Implementation Act gives the FTC authority to collect fees for the registry in order to fund the system.

The FTC has already revised its telemarketing rules at 18 C.F.R. 310.4(b)(1)(iii)(B), stating that

It is an abusive telemarketing act or practice and a violation of this Rule for a telemarketer to engage in, or for a seller to cause a telemarketer to engage in ... [i]initiating any outbound call to a person when... that person's telephone number is on the "do-not-call" registry, maintained by the Commission, of persons who do not wish to receive outbound telephone calls to induce the purchase of goods or services....

The rule excludes situations where the caller has express written permission, when the caller and person called have an established business relationship and the customer has not expressly refused telemarketing calls, and numerous calls for charitable, political, and other purposes. You can find a press release and sidebar links to the regulations at the FTC web site here.

The Act also directs the Federal Communications Commission to amend its rules in consultation with the FTC.

The GPO doesn't have the new law online yet, but the Library of Congress has the bill text. The drafting of section 2, the main operative section, provides an unfortunate example of why passive voice annoys readers.

U.S. Rep. Zoe Lofgren has reintroduced her act to curtail the overreaching potential of the Digital Millennium Copyright Act. Rep. Boucher is co-sponsoring. The bill is 108 H.R. 1066 and is being called the "Benefit Authors without Limiting Advancement or Net Consumer Expectations (BALANCE) Act of 2003." It has been referred to the House Committee on the Judiciary.

Mercury News article: here
Peter Suber's comments at Free Online Scholarship News: here
Bill text in PDF: here; status here.

This CNet article by John Borland says that several companies plan to avoid building digital rights technologies into chips in hopes of attaining the necessary functionality through software.

Despite a move away from building the rights-management tools deeply into chips, chipmakers' strategies remain widely varied. Given the long lead time in designing and building chips--often 18 months or more--this is one sign that DRM support is likely to be scattered and haphazard for some time to come.

Giant Texas Instruments has long eschewed hard-coding DRM technology into its chips, for example, despite the potential speed and memory gains.

"Our philosophy has always been that DRM should be software," said Randy Cole, chief technologist for Texas Instruments' Internet audio business. "The advantage to that is that it's changeable in the field."

What that means is that if a consumer is able to break through the antipiracy technology on a device such as an MP3 player, it can be restored automatically the next time the device is connected to the Net, Cole said.

This doesn't mean "no DRM," but it may mean "more flexible DRM," and allows for the possibility that companies could revise bad DRM technological standards without obsoleting recent equipment. However, the article notes, major players like Intel and Microsoft still plan to pursue hard-coded DRM implementations.

David Weinberger says that Larry Lessig told the SXSW conference that the Creative Commons project will release new kinds of licenses tomorrow. I'm looking forward to seeing them.

Speaking of which, how about that -- a mention over at the Creative Commons! Thanks! I guess that means I'd better finish up the next revision of my earlier posts on the topic.

We're back in Denver and recovering from a weekend of visiting with friends we hadn't seen in a long time, including a busy day of skiing at Steamboat yesterday. That was my first time skiing on a 'real mountain' instead of a hill in Wisconsin. We enjoyed a gorgeous landscape, warm weather (a high temperature mark of around 40F), and better snow than I'd ever skiied on before -- though that wouldn't take much. I hadn't skied in 12 years, so I spent a while trying to get back whatever 'ski legs' I might have had as a teenager. I only had one rough fall, though, and the ill effects of that only lasted a short while, though it led me to appreciate my helmet. Next year we'll have to get into the mountains some more. It's just another thing we'll have to add to the "when we can afford it" list.

Jonas mentions the report of a certain bar and restaurant owner who got fed up with his laptop computer and shot it in the bar.

"In police reports, Doughty said that he realized afterward that he shouldn't have shot his Dell but that at the time it seemed appropriate."

I have to say that I'm not surprised that this happened. It got my attention, though, because it happened just about five miles from here.

When I last wrote about the Creative Commons licenses, I did not go so far as to talk about the sorts of factors that might guide people in making licensing decisions. Here, for your comment, is a draft with some ideas I've sketched out. Right now I've got four categories of considerations. Can you recommend others that I might include? Please note that I'm trying to talk about the factors people consider without myself passing judgment on their merit or appropriateness. That is, I do not want to take the angle, "You should value this consideration and therefore should decide for/against the license." I only want to say, "You might want to ask yourself whether and how much this concept or issue matters to you, because it might affect your decision."

I'll be out of town tonight and tomorrow, but I'll respond to comments on Sunday afternoon.

People make copyright licensing decisions in different ways for different reasons. Only the author can make the final assessment of whom to give permission to copy, display, or perform the author's work and for what reasons. I can only talk in broad terms about some of the reasons people might or might not choose to license works under a Creative Commons license. However, I don't want readers to get the impression that I'm saying that certain categories of people with certain interests should choose a certain license. All I want to do here is to talk about some of the factors authors might weigh against each other, in order to spur the imaginations of readers. If you use this for anything at all, use it as a starting place and not an ending place for your thoughts about licensing.

Let's start by remembering the starting position of licensing: people may not make copies of copyrighted material without permission from the person who holds the copyright. When you publish material on the web, you offer an "implied license" for me to download a copy and display it on my computer screen -- why else would you put it on the internet? -- but you don't give me permission to do anything else with it. Now, why might you give people broader permission to copy and use your work? Why might you not?

Although fair use allows people to copy parts of what you say for the purposes of comment and criticism, you might want to make it clear to readers that you want them to copy all of what you say if they want to. It might mean much more for you to see your creativity passed around from person to person than it would mean to hold out in hopes of obtaining money from a commercial publisher for a more limited, controlled release. The Creative Commons licenses are designed to allow an author to offer his or her works for people to pass around as much as they like, as long as they follow certain rules.

For example, suppose that I have an essay that I'm happy to have people passing around. I only want to make sure that they identify me as the author, that they don't try to add to it or make their own changes to it, and that they don't make money off of the process (because in the unlikely case someone is going to make money off of this work, I want in on the deal). I may well find that the "Attribution-NoDerivs-Noncommercial" Creative Commons license fits very well with my goals. It lets them pass the work around while I retain the legal power to demand that they properly attribute it to me. If I have different goals or fewer concerns, a different Creative Commons license may better fulfill my goals.

Suppose, however, that I want to be able to require people to copy my work only from my own website, and I want to have the legal power to halt further copying if I decide to release a newer edition or retract the essay. First, let's keep in mind that fair use doctrine will still allow people to quote content from my essay, even if I can stop all further licensing of the work. But still, suppose I want to retain whatever control over distribution the law will give me. In that case, the Creative Commons licenses' propagation clause will frustrate my goals. For example, one substantial reason this article is not licensed under a Creative Commons license is that I'm still working on it -- and I may always be. I want to know and control where copies go so that when I rethink something and make major changes, there's less out of date or incorrect material floating around.

I may also want to limit who may use my work and for what purposes. Fpr example, if I am a photographer, I may be very pleased to find my photo displayed on a charitable organization's website, and much less pleased to find it displayed on the website of a racist organization. If I have licensed my photo to all comers for all non-profit purposes, both of these organizations may copy and display it. Only if I have retained the power to grant licenses to people on an individual basis will I be able to choose the charitable organization and exclude the racist one. Is this likely to happen to most people who release their work online? Probably not, but it's still something to consider.

Meanwhile, remember that even restrictive licensing will not prevent people from copying some of the material to the extent that it helps them comment on or criticize the work. Comment and criticism lies close to the heart of fair use. Fair use doctrine includes the idea that people may not copy more than they need in order to make their critical points, but within those vague limits, they will still be able to copy. Restrictive licensing will not allow anyone to "lock down" work against criticism. If someone publishes a scathing weblog entry that turns out to be a frightfully bad idea, fair use will almost certainly let me blockquote at least some (and probably only part) of that content in the context of commenting on it, even if the author decides to retract and delete the entry.

Some writers have chosen to apply the Creative Commons licenses to their webpages and/or weblogs because they believe that it best reflects the prevailing intellectual ethic in their academic community. A Creative Commons license makes it easier for others to copy interesting work and share it with others in the community. When the community places a high value on the sharing of ideas and expression, the Creative Commons license represents a positive gift to the community. Of course, it doesn't hurt in terms of reputational reward, either; the author may take advantage of easy word-of-mouth distribution while the community notices and appreciates it. Fair use doctrine facilitates some scholarly copying, but a Creative Commons license may bypass the question of fair use for many purposes.

Commercial publishers, including the publishers of most academic journals, want to be the first to publish the material they print. In many cases, they also want to be the last. In academic publishing circles, a lot of prestige can come from being first. Academic publishers also tend to demand the author's entire copyright, though they may license rights for certain uses back to the author as part of the copyright transfer agreement. Many academic journals -- especially in the sciences -- have taken to charging astonishingly high prices for print and digital editions. Publishers will not be eager to compete with a free Creative Commons licensed edition of the same article that anyone can download from the author's webpage (or from the webpage of anyone else who holds the Creative Commons license in the work).

Cory Doctorow recently released his novel Down and Out in the Magic Kingdom online under a Creative Commons license as well as in book form through a commercial publisher. We'll never really be able to tell exactly how this decision has affected book sales revenues for Doctorow and his publisher. However, it's almost certain that he dramatically increased the circulation of the book, at least over the short term. The decision also brought him -- to use his own terminology -- substantial amounts of 'whuffie,' reputational reward. The idea of 'whuffie' and discussions about reputational economics probably would not be nearly as popular in online circles if there were no online, Creative Commons licensed edition of Down and Out.

The publisher's requirements issue may be less significant for people who are only contemplating using the Creative Commons license for more casual publications like weblogs. The question may come up only if the author posts drafts of professional articles (or draft chapters of fictional work, or poems that he or she intends to publish, etc.) to the weblog. The topic will certainly come up, though, if the author wants to release the very same material online for free and in print for charge.

If the free online scholarship movement gains steam in the next several years, the face of academic publishing may also become much more friendly to Creative Commons licensing. Meanwhile, authors who depend on commercial publishers for academic reputation building or financial income should keep in mind the rights that their publishers are likely to demand.

I've been busy lately, and I'll be out of town this weekend, so blogging will be light. I mean, even lighter than usual. I decided to apply for a position that required me to prepare a second writing sample, so I've been working to excerpt a second piece on copyright that I wrote last spring. I've found quite a challenge in pulling together short writing samples, because the topics I've researched in the last year haven't lent themselves to brief yet thorough explanation. The excerpt I eventually pulled together covers cases that applied the four-factor fair use test in U.S. copyright law, and I may eventually use that as the basis of a post on that topic here.

I know, I say I'm going to post a lot and then I don't get around to it very quickly. I haven't dropped the Creative Commons licensing topic, though. I wrote and nearly completed a major revision of my earlier entry. It came out very long and looked too much, well, like a lawyer wrote it. So, I'm rewriting it again. I'm trying to find the balance between offering detailed explanations and boring people to death, trying to find the right level of abstraction.

Following up on my post the other day: I don't think the merger clause creates a parol evidence problem when an author specifies outside the license text what works the license will apply to. The parol evidence rule, at least in a majority of states, doesn't apply to contemporaneous writings. Adding a limitation to the license's scope outside the license text still seems to conflict with the express language of the merger clause, but there's nonetheless an ambiguity about the scope of the license that needs to be resolved, and a contemporary writing on that very topic offers good evidence for that purpose. [See what I mean -- you probably wouldn't want to read a long entry with lots of sentences like these in it.] The merger clause can't will away that ambiguity.

Denise Howell pointed out that someone could still contest a limitation of the scope of the license, and she's right. There's always a risk of disputes. It probably wouldn't even be an utterly frivolous argument for someone to make. The fact that someone will most likely lose a dispute in the end rarely precludes him or her from being a considerable pain in the meantime, especially since there's no guarantee that they'd lose.

I don't want to lose sight of the real world, though. Therein lies the challenge -- guessing at what about these licenses is going to turn out to be important for the people in the real world who use them. I could spend a lot of time writing about nuances that will never make a practical difference. With an experiment like this, it's hard to know what'll really turn out to be important in the end. I know the propagation clause is important, because it lies at the core of one of the goals of the entire licensing scheme and is one of the most dramatic features of the license, so you can bet I'm going to talk about that. It's more tricky to predict what sorts of things, if any, may lead to disputes. I'm still trying to decide how much detail to spend on the scope-of-license question.

I made some Creative Commons license propagation clause art, if anyone dares call it that. I wouldn't. I just did, of course, but I was kidding.

C.C. License and Work Propagation

Copying Anna's Work: Who has a legitimate copy and license?

You don't remember Jennifer and Dan from the hypothetical scenario in my first entry on the topic. Dan's new. He gets a license through the propagation clause. Jennifer's new too, and she's a rulebreaker. She didn't give Anna credit for her work. Bad Jen. No license for her.

Yes, I'm blogging too late. Here's hoping I don't regret it.

Ernie makes a very good point about legal writing followed by another very good point about lawyers in general.

Declan McCullagh reports in a CNET article that U.S. Rep. Zoe Lofgren (D-Cal.) has or soon will re-introduce legislation that would limit the DMCA's anticircumvention provisions (12 U.S.C. § 1201) so that they would not apply to circumvention for purposes that constitute fair use or noninfringing use under ordinary copyright law. Her legislation would expressly permit "in order to perform or display the work, or an adaptation of the work, on a digital media device, if such performance or display is not public." The legislation would also expressly apply the first sale doctrine to digital media, though it's not clear that doing so would negate restrictive provisions in digital media licenses. Link to the draft she submitted in the last Congress here.

Meanwhile, Dan Gillmor's column in the Mercury News reports that U.S. Sen. Ron Wyden (D-Ore.) wants DRM-secured and other copy-protected media to bear prominent labels to that effect.

A little thinking out loud here-- or rather, thinking in blog:

While rewriting my earlier post analyzing the impact of various Creative Commons license terms, I decided to add a section suggesting that one might resolve the question of how to indicate how much content one wants to license by simply saying so. I thought, perhaps one could just add some text under the license graphic on the main page.

Then I noticed that the Creative Commons license has a very typical merger clause:

This License constitutes the entire agreement between the parties with respect to the Work licensed here. There are no understandings, agreements or representations with respect to the Work not specified here.

Would this exclude a statement outside the the "four corners" of the agreement that indicates how to interpret the term that specifies "the copyrightable work of authorship offered under the terms of this License"? On its face, it appears to, but my hunch is that it doesn't. There's still an ambiguous term to be deciphered, and that term ('the Work') even appears in the merger clause. The "parol evidence" rule only excludes prior or contemporaneous agreements when the parties intend that the agreement be "fully integrated," and it has an exception for using earlier agreements or contemporary statements to explain the final writing. Even though merger clauses are meant to trigger the parol evidence rule, this one probably doesn't -- at least as to the meaning of 'the Work.'

Still, I wonder if there's a risk of disputes.

</thinkinblog>

Now it looks like they may soon have the same kinds of water disputes out east that we've got out here. [NYTimes article] Virginia and Maryland are fighting over the Potomac river, and other eastern states may find themselves arguing about the right to withdraw river water soon, too.

I was intrigued by the fact that the Potomac dispute arises from a 1632 grant of water right by King Charles I. Douglas Jehl's article for the New York Times begins,

In 1632, King Charles I granted Maryland the right to the Potomac River "from shore to shore." For the most basic of reasons, that is something Virginia, on the Potomac's south bank, is now fighting to overturn.

The rest is here. (Free registration required, as usual.)

Last year, I began using Microsoft Word 2000 because the journal and the law clinic both used it. I recently installed WordPerfect because I remembered that it would give me more control over the little details (hooray for Reveal Codes!), and the version of WordPerfect 9 I had was able to generate PDF output.

It's been a bit of a bumpy road. I'm using WordPerfect 9 (2000) with Service Pack 3 running on Windows XP. My printer is a Samsung ML-1450 laser printer. The first quirk I encountered was that WordPerfect didn't seem to think that I had any printers installed. It pops up a dialog saying "Cannot print without printer installed." Windows reveals that there are three printer drivers installed, and my printer is selected as default. It did this even when I told it to print to PDF.

Then I discovered that I could get it to print if I first put it in Print Preview mode. I could also get it to export to PDF by doing that first. However, the resulting PDFs looked awful. The spacing between letters varied dramatically for no apparent reason, even sometimes appearing to split words in two. I did not find that at all att ractive.

Then, thanks to a recent entry on Ernest Svenson's PDF for Lawyers blog, I remembered that Ghostscript exists. Ghostscript is a general, multipurpose tool for working with PostScript files. I'd used Ghostscript on Linux frequently, but I'd never used it on Windows. I went to Samsung's webpage to download a PostScript driver for my printer. (That was a nightmare because Samsung's driver downloads page doesn't have a listing for my printer even though they carry drivers for it. Google found it.) While my printer won't actually print PostScript, the driver generates a .ps file according to my printer's metrics. I set it up to print to a file, then used the Ghostscript GSview program's "Convert" function to convert the PostScript file to a good-looking, good-printing PDF. What's more, I should be able to do that with the output from any Windows program. I'll have to test how it handles different fonts.

In any event, I at least have a good PDF copy of my resume, which is what I was after the whole time.

Someday, I'll buy Acrobat. But for what I need to do now, this arrangement will get the job done.

Creative Commons has added comics that aim to explain in simple terms the options that the Creative Commons licenses present for creators.

It's good that they try to spur people's imaginations a bit more about how the various Creative Commons license rights and reservations might work for them. This is very important to anyone who might consider using a Creative Commons license. On the other hand, I've still found nothing on the Creative Commons website that thoroughly addresses the question "what if I change my mind?"