February 11, 2007
The Potter Stewart copyright rule
C and I listened to the Open Source Radio podcast of their recent show on plagiarism and copyright, “The Ecstasy of Influence” this morning. It’s a wonderful piece rooted in discussion of what it is to “plagiarize,” and the ways in which our law and culture attack the issue. Check it out, I’ll wait.
About 3/4 of the way through, the host challenged Mike Doughty to draw the line between artistically-acceptable “ganking” of a progression or a hook from a song in order to expand on it in a work of your own, and unethical infringement/plagiarism. Mike elided the question, and Siva Vaidhyanathan backed him up by saying that we’re at the point in early 21st-century copyright questions where case-by-case determinations of when an “artist” goes to far are really the only credible way to determine whether sanctions are required. He didn’t say the words “I know it when I see it,” but he came pretty close.
For those who don’t make a hobby of reading up on obscenity law, “I know it when I see it” is Justice Potter Stewart’s infamous formulation of the legal test for how to separate obscene texts from non-obscene ones. In the legal community it’s become a semi-notorious example of a legal standard that’s so vague as to be useless to any person who isn’t Potter Stewart. It turned out to be extraordinarily difficult to apply,1 and ended up being replaced by the not-much-better “community standards” test.
If the “I know it when I see it” test is the exemplar of judicial unworkability, then what do we make of Siva’s diagnosis that that’s exactly where we are in the copyright infringement space? After a short period of despair, I realized that the IKIWISI terminology is useful to the extent that it helps move the copyright conversation away from our traditional conception of copyright as property and towards a liability rule. After all, if copyright owners understood that what they had was not an absolute right to control the work, but a right to try to convince Potter Stewart that the use was unjustified, we might see fewer of the behaviors we view as abusive. Compare this to the situation in obscenity law, where we were concerned not with the payment of a royalty, but with the prior restraint of entire texts. The vagueness of the Potter Stewart test seems a lot less troubling in that light.
Oh, I’m back, by the way. And I am aware of each of the following:
- I have not posted anything in almost six months.
- There are around 10,000 comment spams cluttering the site.
- Bill Haydon just died
1 It also led to the bizarre scene of the Court watching allegedly-obscene films in a special screening room, and the even more bizarre (and possibly apocryphal) tale of a clerk having to narrate the on-screen action to his nearly-blind boss.
Posted by Rob Courtney at 10:18 AM | Comments (0) | TrackBack
June 25, 2006
Reflections from the Bar/Bri midpoint
There are thirty days until the California bar exam.
When I speak to California attorneys about their experience with this exam, almost all have used the word “stamina.” It reads on this exam in two ways.
First, the exam itself a three-day siege. A certain amount of physical and mental endurance is necessary in order to avoid gibbering on day three.
Second and more importantly, exam prep (administered, for about 95% of law school grads, by Bar/Bri) itself is a challenge. 8–10 hours a day, 6–7 days a week, for just under two months. For me, for now, this is the more difficult stamina challenge.
It’s very difficult to feel any sense of accomplishment from bar study. One day pretty much blends into another, and benchmarks of progress are few and far between due to the very large number of subjects under analysis. The process can really start to grind. Last night, I ended up walking the streets at midnight, listening to Sigur Rós, in order to recover perspective. “What is the point?”
“You can’t learn everything” is repeated endlessly to applicants. But the expectation that you will try to learn everything is equally well-communicated. Our most recent practice tested us on exceptions to exceptions to rules—issues that have never appeared on a bar exam, but that do reflect settled law. Could it be tested? No one knows. Maybe, I guess. Maybe it will be tested, and I’ll get it wrong, and I will fail. Better make a flash card right now.
At dinner the other night, David said that the bar exam’s gotten harder just because there’s so much more law now than in the past. I guess that could be true but of course it doesn’t change the price of Bar/Bri books in China.
I have concluded that the only thing to do is to draw lines around each subject area, denoting the depth to which I am willing to study, and hold myself to those depths. Any deeper, and the cost/benefit of the dive no longer balances. I have a marriage to consider, and a move to the East Coast. Some of my classmates have infant children. Others are working full time jobs. For me, and for them, we just have to draw a line and rely on ourselves.
That’s inconsistent with the Bar/Bri mindset. Their paced study program recommends up to twelve hours’ study every day. That might help me pick up some extra points, but would turn me into a shell. To that extent, the Bar/Bri program is bad and unhelpful. It’s guidance, of a sort, but it’s not realistic or consistent with maintaining the stamina actually required.
So that’s where I am right now.
Posted by Rob Courtney at 12:52 PM | Comments (1) | TrackBack
June 20, 2006
More on OmniOutliner + Law School
Erik Schmidt is a 2L at Santa Clara Law School; like me he loves OmniOutliner for law school. Erik has taken it all the way, though, and is rocking a full-on kGTD system. Check it out for another view of the cathedral.
Posted by Rob Courtney at 08:47 AM | Comments (2) | TrackBack
June 19, 2006
Open source test taking
You can take the California bar by hand if you want to, but after three years’ hard PowerBooking my handwriting has become pretty much illegible. People like me have to use laptops.
You can’t use a (G4) Mac though.[1] To promote security and discourage in-test peeks at notes and outlines, California requires installation of a program called ExamSoft.
My non-expert understanding of this program is that you install it with Administrator rights on a PC running Windows. Then, on test day, you can load up ExamSoft and have it reboot the machine in “Exam mode”. What ends up happening is that upon reboot, ExamSoft takes over your boot routine so that you don’t get Windows as you’re accustomed to it—you get ExamSoft’s test-taking software, and nothing else. By taking over the shell, ExamSoft is able to stop the user from accessing any of his other files or running any other programs. You take the test, and ExamSoft saves your exam encrypted on the drive.[2] Then you reboot out of ExamSoft, back to your normal computer.
You won’t be surprised, Reader, to learn that this system is not without critics. There are reports of it crashing in exams, which really is a terrifying prospect. But more then anything it seems a G– – d– – systems maintenance nightmare. Even if the software works, and doesn’t crash on the exam, the thought of installing this thing, knowing that it’s going to be rewriting boot routines, etc., gives me the heebie jeebies.
On the other hand. people will cheat on this exam unless prevented. The stakes here are high enough for even the most honorable among us to be tempted. Either the bar exam needs a soup-to-nuts reconsideration to take that into account,[3] or some stop-gap is needed.
So I’m giving this solution to ExamSoft: port your app to Linux. License Red Hat or roll your own distro, and distribute the product on CDs or by direct download ISOs to applicants. Then, on exam day, just have everyone boot off the CD. We applicants will gladly pay the price; ExamSoft can get a controlled operating environment—no more system conflicts from people installing Bonzo Buddy or running otherwise non-standard OS installations[4]—and the bar gets the satisfaction of insulating the profession from digital reality for a few more years. And the best part? Linux runs on just about any processor architecture. So those of us with old G4s could play, too.
What do you say, ExamSoft? It’s too late for me of course; I’ve gritted my teeth and installed ExamSoft on a ThinkPad borrowed from my Dad (Happy Father’s Day!), and come July I’ll be engaged in any number of pagan rituals in the hope that they’ll keep my computer from crashing on those three magical days. But future generations could really benefit from a little progressive thinking now. And it would convert ExamSoft from a systems integrity scofflaw to a cutting-edge innovator in one swoop. Win-win.
fn1. Hypothetically you could use ExamSoft on an Intel Mac running Windows XP. One of my classmates is considering this on his new Mac Book. fn2. ExamSoft confers other benefits too, like letting the bar examiners push the bar exam out to applicants’ computers several weeks before the actual exam. It’s eerie knowing that the entire exam is sitting there, encrypted, on the PC on my desk. fn3. It does, by the way. But that’s another topic. fn4. People with non-standard hardware might run into a hiccup or two. But that shouldn’t be a problem—at this point in time, neither ExamSoft nor anyone else wants applicants to use their 802.11x cards or other peripherals. If the screen, disk, keyboard and mouse work, you’re pretty much money.Posted by Rob Courtney at 09:02 PM | Comments (0) | TrackBack
April 28, 2006
OmniOutliner for Law Students
Three years ago, before setting out for SLS, I did a bit of gearing up. I bought a then-new 12" PowerBook G4 (still rollin’), an extra power adaptor, Office v.X—the basics. But without a doubt the most crucial purchase was OmniGroup’s fantastic OmniOutliner. I had used OO before, in my work at CDT, but it was in academia that OO really became a standout. If you are a law student and you use a Mac, you owe it to yourself to get this program.
Of course, there’s no shortage of praise for OmniOutliner, and all the other outliners for OS X, out there, most notably Ted Goranson’s unbelievably-exhaustive About This Particular Outliner. This note, then, is addressed to current/future law students looking for a note-taking/outlining system.
In my experience most law students instinctively embrace outline-based note taking. This is because the outline format preserves structure; when used properly it comprises not only what the professor said, but the path taken to get there. Preserving structure is tremendously important when it comes time to build an outline in preparation for finals. If I’ve taken good notes, and I’ve used outline form, I have a record of how the course material is structured in the professor’s mind. In my experience, 60–70% of succeeding in law school is developing a structured understanding of how the pieces fit together, and it’s a far easier journey when you’ve got a map of how one other smart person brought it all together.
OmniOutliner is extremely good at this structure-preservation, better than anything else I’ve used. It’s true that Word can make outlines, and it even has a (little-used) Outline Mode and, on OS X, there’s (even-less-used) Notebook Mode. Either are better than nothing, but neither is great. Outline Mode is designed to help you structure large documents using Styles, and it actually works pretty well once you’ve got a set of styles you can live with (the defaults are unusably horrendous). But because it’s designed with Word’s WYSIWYG document philosophy[1] in mind, users spend far too much time futzing with font sizes, indents, tabs, etc., and that’s distracting. Notebook Mode was made part of Word when Office 2004 hit, and by that time I was firmly esconced in OmniOutliner. It might be great, but after a few minutes with it I found its “Just Like A Paper Notebook” paradigm frustrating. My $2,400 computer owes me better than to replicate paper.
OmniOutliner, on the other hand, is a structure machine that encourages you to stop thinking about what your notes will look like when you print them out, and think about their content instead. Using it properly is like entering thoughts into a high-end database with a whole variety of ways to view, output, print, and manipulate them later on. It’s easy and intuitive to collapse parts of the outline to get a sense of the big picture, or to expand it rapidly for detail. Like Word, OmniOutliner offers some text styling capabilities; I use them to highlight text, mark citations, or note that this part of the notes is a direct quotation from some case, statute, or treaty. It’s also fast, highly usable, pleasant to look at and fully-documented.
It goes without saying that OmniOutliner is very good at the other important academic activity for law students, outlining. All the points I made about structure above come in here too.
I strongly recommend downloading OmniOutliner and checking it out. To see what I’m talking about, I’ve uploaded an archive of my notes for Trademark last term and the outline I studied from.[2] This is what worked for me; it might or might not work for you. If you’re a law student or a lawyer and you find errors in either, please remember that the notes are exactly that—raw and unrefined—and the outline was only one part of my study process; I actually did fairly well in Trademark.
fn1. If you’ve got some time to burn, check this time-honored rant against WYSIWYG generally, and Word particularly. fn2. The notes and outline are made available under a Creative Commons Attribution-NonCommercial license.Posted by Rob Courtney at 12:46 PM | Comments (0) | TrackBack
March 02, 2006
Scoundrel
Last night in Negotiation class, we were discussing settlement in a breach of contract case. My side was claiming overtime expenses stemming from the other side’s late performance… my adversary asked across the table if I was positive that the entire claimed overtime was attributable to the delay.
I said yes—but in truth I knew that over 40% of what we’d claimed was actually attributable to human error and, according to the facts “this fact would almost certainly be revealed in litigation.” What I did was entirely unethical under the Model Rules. Those Rules didn’t even occcur to me while we were at the table.
Posted by Rob Courtney at 01:12 PM
February 16, 2006
Email never dies
If you are a young lawyer, try not to send emails like these. You will regret it.
Posted by Rob Courtney at 01:29 PM