Freeing Caselaw

This week announced a new initiative to make caselaw available for free on the web: In Re: State and Federal Cases and Codes

The goals of this project are:
The short-term goal is the creation of an unencumbered full-text repository of the Federal Reporter, the Federal Supplement, and the Federal Appendix.
The medium-term goal is the creation of an unencumbered full-text repository of all state and federal cases and codes.

John Markoff, The New York Times, A Quest to Get More Court Rulings Online, and Free: “The domination of two legal research services over the publication of federal and state court decisions is being challenged by an Internet gadfly who has embarked on an ambitious project to make more than 10 million pages of case law available free online.”
Tim O’Reilly, Radar, Carl Malamud Takes on WestLaw: “Carl Malamud has this funny idea that public domain information ought to be… well, public. He has a history of creating public access databases on the net when the provider of the data has failed to do so or has licensed its data only to a private company that provides it only for pay. His technique is to build a high-profile demonstration project with the intent of getting the actual holder of the public domain information (usually a government agency) to take over the job.”
Some other new caselaw search tools and archives include:
AltLaw: “AltLaw provides the first free, full-text searchable database of Supreme Court and Federal Appellate case reports. It is a resource for attorneys, legal scholars, and the general public.… AltLaw is a joint project of Columbia Law School’s Program on Law and Technology, and the Silicon Flatirons Program at the University of Colorado Law School. AltLaw was written by Stuart Sierra and Paul Ohm, with help from Luis Villa, and produced by Tim Wu.”
Justia provides free access to federal district court civil case filings.
vLex is now a subscription service that does offer free access to US circuit court opinions along with some facility to search for cases that cite particular US Code sections.
More commentary:
Denise Howell, Lawgarithms @, » Changing the way we find, reference, and talk about the law: ” In the long term, when the successors of and Tim Wu’s AltLaw ultimately make public case and statutory law searchable and cut-and-pasteable, and things like pagination morph into things like URIs, that’s a wrap for services like Westlaw and Lexis. Unless they figure out ways to do it first, better, and for free — but I wouldn’t bet on it.”
Brett Frischmann,, The world’s first free, public domain legal search engine: “Why hasn’t Google done with cases what it’s done with patents and books?  Is that on the horizon? Has it been done already and I just don’t know?”

Sorry, but no one involved is a winner

At Above the Law, David Lat gets the scoop of the year– Nixon Peadbody’s motivational song: Someone Deserves to be Shot Over This

Nixon Peabody: This Is Not a Love Theme Song: “[Nixon Peadbody representatives] emphasized that the song was internal to the firm and is protected by copyright. They also insisted that it is NOT a “theme song” — in any way, shape or form.”
Unfortunately (or perhaps thankfully), as ATL commenters note, some state disciplinary rules prevent attorneys from using theme songs as part of lawyer advertising. But, wouldn’t jury duty be more entertaining if trial lawyers did have theme songs? Of course, court would feel more like a baseball game, but it might entice citizens to want to serve on juries if the US Attorneys would give their opening statements after a few bars of “America, F^ck Yeah,” or a Manhattan ADA’s cross examination followed a bit of “New York, New York.”


I’ve just updated the blog software to Movable Type 4.0 and in attempting to update to the new templates, may have broken everything. Let’s see…
So far, I have managed to break everything. Victory!
Getting closer…
8/24: The update is not quite done, but the site seems to work well enough to post to the blog more or less. But the “permalinks” are all broken and they will be until after the weekend.

Catching Up: Miscellaneous Copyright Topics

Here’s a big bunch of unfiltered links about copyright-related topics that I have accumulated over the last couple of months. Most of these deserve more discussion, but are getting the short end of the stick.
Erik J. Heels, Drawing That Explains Copyright Law
Detroit News, Eminem suit targets Apple: “A ‘burning issue’ in the music industry today is whether the rights record labels hold to sell a recording artist’s CDs include the rights to authorize music downloads, or whether further permission is needed from the music publishers who hold the copyrights to the lyrics and sheet music.”
The Patry Copyright Blog, Bands and Partnerships: “It is common for bands to form a corporation or other juridical entity like a partnership. When preexisting works are transferred to such an entity, the ordinary provisions on individual ownership, duration, and termination of transfer apply. But what about works created after the juridical entity is created? This issue is presented, but not considered, in Lopez v. Musinorte Entertainment Corp., 2007 WL 579746 (9th Feb. 16, 2007).”, TorrentSpy lawyer battling ‘copyright extremism’: “Ira Rothken is technology’s answer to the radical lawyer, Silicon Valley’s version of Johnnie Cochran or William Kunstler. Tech start-ups sued by media conglomerates for copyright infringement typically call on Rothken, a medical researcher turned lawyer. He’s made a name for himself by bucking entertainment empires and by backing long-shot copyright cases, such as those involving RecordTV, ReplayTV and”
Coolfer: DRM: Who Wants What?
The Daily Swarm, Getty Images is listening through Paper Thin Walls: “Late last month, Getty Images – one of the leading visual image distributors that provides readily licensable photographs, video, artwork, and other creative content to websites and print publications around the world – announced the $42 million acquisition of Pump Audio, an online clearinghouse of pre-cleared music and sounds.”
Fred von Lohmann, EFF, YouTube Embedding and Copyright: “I’d say bloggers are generally pretty safe on this score, at least until someone notifies them that an embedded video is infringing.”, Federal Judge Clears Law Firm Accused of Hacking Opponents’ Web Archives: “A law firm did not violate copyright and computer anti-hacking laws when it used a Web archive search tool to recover old Web pages of its client’s adversary, says a federal judge.…’They did not ‘pick the lock’ and avoid or bypass the protective measure, because there was no lock to pick,’ Kelly wrote in Healthcare Advocates Inc. v. Harding Earley Follmer & Frailey, No. 05-3524. ‘Nor did the Harding firm steal passwords to get around a protective barrier. … The Harding firm could not ‘avoid’ or ‘bypass’ a digital wall that was not there.'”
Rufus Pollock, Forever Minus a Day? Some Theory and Empirics of Optimal Copyright: “The optimal level for copyright has been a matter for extensive debate over the last decade. This paper contributes several new results on this issue divided into two parts. In the first, a parsimonious theoretical model is used to prove several novel propositions about the optimal level of protection. Specifically, we demonstrate that (a) optimal copyright falls as the costs of production go down (for example as a result of digitization) and that (b) the optimal level of copyright will, in general, fall over time.”
Jeff Neuburger, Technology Law Update: Seventh Circuit YouTube Reference Thwarted by Major League Baseball: “Judge Evans closes his account of the incident with a citation to a video of the incident available on YouTube. Naturally we had to check out the video. But alas! The url returns an error message: ‘This video is no longer available due to a copyright claim by MLB Advanced Media.'”
Los Angeles Times, Can the music industry sue its way to profit?: “The entertainment industry’s legal successes against Napster, Grokster, etc., have failed to slow plummeting sales. How will cracking down on web radio be any different? Publisher Kurt Hanson and attorney Jay Rosenthal debate the economics of online music”
Los Angeles Times, AT&T to target pirated content: “The San Antonio-based company started working last week with studios and record companies to develop anti-piracy technology that would target the most frequent offenders, said James W. Cicconi, an AT&T senior vice president.”, Citing Supreme Court Precedent, 11th Circuit Reverses Major Copyright Ruling: “In a decision called ‘curious’ by an intellectual property expert, a federal appellate panel in Atlanta has reversed its circuit’s 6-year-old opinion in a major copyright case, declaring the ruling’s mandate on behalf of freelance photographers to be ‘moot.'”

Transparent Wikipedia

John Borland, Wired, See Who’s Editing Wikipedia – Diebold, the CIA, a Campaign: “On November 17th, 2005, an anonymous Wikipedia user deleted 15 paragraphs from an article on e-voting machine-vendor Diebold, excising an entire section critical of the company’s machines. While anonymous, such changes typically leave behind digital fingerprints offering hints about the contributor, such as the location of the computer used to make the edits.”
The data is available to search at List anonymous wikipedia edits from interesting organizations.
How do you properly attribute authorship to a collective work? Or does that go against the wiki-ethos, even if it means that articles are less likely to have a “neutal viewpoint.” If the Wikimedia Foundation ever needs to raise money, it could auction the rights “last edits” for articles for a certain period of time to the highest bidder. If such biased edits were published with attribution, those astroturf articles might be more honest and attributable sources than the more subtly biased “neutral viewpoint” articles.
This anecdote from law student blogger Above Supra perfectly captures the problem with Wikipedia as a source. 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.”

In a 2006 paper, Ken Myers discusses fitting Wikipedia into the ยง230 safe harbor, Wikimmunity: Fitting the Communications Decency Act to Wikipedia: “In the wake of the Seigenthaler biography controversy, many commentators suggested that Wikipedia should be able to escape liability for defamatory content pursuant to the immunity provided for in 47 U.S.C. Section 230(c)(1), enacted by Congress as part of the Communications Decency Act of 1996. Unfortunately, those commentators do not provide a detailed roadmap to that conclusion.”

Censorship, Extortion and Discrimination, Oh My!

Some more examples of what happens to internet-based communications when they filter through various points of control.
In the Machinist blog at Salon, Farhad Manjoo reports on British ISPs attempting to shake down the BBC, Is network neutrality a fake issue? Not if you want to watch the BBC: “As several British papers reported over the weekend, large ISPs have threatened to shut down people’s access to the BBC’s online videos — unless, of course, the BBC pays the ISPs a fee.”
AT&T’s censorship of “controversial political speech” in a Pearl Jam concert was apparently not an isolated incident. The Daily Swarm is collecting reports of other streams of performances where AT&T edited poltical speech out of webcasts, The Blue Room: Who else did AT&T censor?
Eliot Van Buskirk is also covering the story in detail at his Wired blog: Crew Member: Previous AT&T Show Had “No Politics” Policy: “A crew member who worked on a show webcast by AT&T confirmed that there was a policy in place to remove artists’ political comments from shows before they were webcast.”
The Los Angeles Times reports, AT&T apologizes for censoring performer webcasts: “In response to fans who claimed that the audio silencing of Vedder’s sung remarks about Bush at Lollapalooza were not unique in the history of AT&T’s Blue Room live webcasts, an AT&T spokeswoman on Friday said: ‘It’s not our intent to edit political comments in webcasts on the Unfortunately, it has happened in the past in a handful of cases. We have taken steps to ensure that it won’t happen again.'”
In an imperfectly competitive world without regulation, network providers have the power to not only choose to restrict certain political speech, but also to affect competition in related markets. At NewTeeVee, Jackson West discusses the problem that p2p online video network Joost faces in the US– lack of bandwidth The Joost Problem: American ‘Broadband’: “The fundamental problem that Joost faces is the fact that the broadband available to North American households simply isn’t fast enough for them to provide image quality comparable to digital cable or satellite, much less high-definition video.” And while broadband providers might add bandwidth, they might also have the incentive to discriminate against other bandwidth-intensive content providers who compete with their own offerings. After all, bandwidth isn’t cheap. West continues, “Why should companies like Comcast offer the kind of high speed broadband enjoyed in Europe and Asia when it would simply enable companies like Joost to compete with the company’s own digital video offerings?”

Catching Up: Wireless Network Neutrality

Tim Wu, Wireless Net Neutrality: Cellular Carterfone on Mobile Networks: “The wireless industry, over the last decade, has succeeded in bringing wireless telephony at competitive prices to the American public. Yet at the same time we also find the wireless carriers aggressively controlling product design and innovation in the equipment and application markets, to the detriment of consumers. Their policies, in the wired world, would be considered outrageous, in some cases illegal, and in some cases simply misguided.”
Tim Wu, Slate Magazine, Why the iPhone isn’t really revolutionary: “The iPhone’s style and user interface are pathbreaking, and (as the iPod proved) aesthetics do matter. But the iPhone is—so far—not a product that will turn any industry inside out. Seen as a phone, the iPhone is striking. Seen as a small computer, it’s limited, and compromised by the existing business models of the wireless industry. Saying the iPhone is a pointless gadget is a bit too strong. But it isn’t yet a revolutionary device.”
The New York Times, When Mobile Phones Aren’t Truly Mobile: “WIRELESS carriers in the United States are spiritual descendants of dear Ma Bell: they view total control over customers as their inherited birthright.”
Susan Crawford blog, The iPhone hearing: “This morning the House Commerce Committee, chaired by Rep. Markey (D-MA), is holding a hearing about a range of wireless issues:  the role of states in providing consumer protection in this market, and the role of Congress and the FCC in protecting innovation.  Markey’s focused in particular on early termination fees and portability generally.  He’s also concerned that the carriers are exerting too much control over the features and functions of wireless devices.  ”

Fashion First

The Wall Street Journal reports about the trademark problem Joseph Abboud faces when he goes into competition with Joseph Abbod: What’s in a Name? Not Much, He Hopes: “When designer Joseph Abboud announces his new menswear label today, he’ll face an unlikely competitor: Joseph Abboud. The 57-year-old designer, whose penchant for earth tones and textured fabrics made him a favorite of professional men in the 1990s, sold his trademark for $65 million in 2000. So when he launches his new line, which will include $3,000 shearling coats, he won’t be able to use his name. Instead he’s chosen the name jaz, which he says is a riff on jazz.”
Susan Scafidi, Counterfeit Chic, A Rose By Any Other Name: “Still, why do so many fashion designers, in particular, risk having their names amputated? Surely the pleasure of seeing the letters printed on a few inches of ribbon isn’t that compelling.”

Cloning Fast Food

First, they copied the lobster rolls, next, the burgers. Jason Perlow finds another case of a restaurant cloning the total look and feel of another, more established competitor. Off The Broiler, Burger Battle In North Jersey: “What I encountered shocked and rocked me to the core. Yes, it’s independently owned. Yes, the burgers are decent. However, I didn’t count on the place flat out, unabashedly and unashamedly copying another recently opened burger restaurant, Five Guys in Hackensack, an excellent chain burger franchise originating from the Washington DC area. And when I mean copy, I don’t just mean stylistically copying the food. I mean copying it right down to the restaurant decor, the uniforms of the staff, the menu, the food presentation, everything.”

Pearl Jam is still around and relevant?

AT&T sponsored a webcast of the Lollapalooza festival in Chicago last weekend. But, AT&T’s “content monitor” decided to cut parts of a song where Pearl Jam made reference to the President. Pearl Jam, Lollapalooza Webcast: Sponsored/Censored by AT&T?: “

When asked about the missing performance, AT&T informed Lollapalooza that portions of the show were in fact missing from the webcast, and that their content monitor had made a mistake in cutting them.
During the performance of ‘Daughter’ the following lyrics were sung to the tune of Pink Floyd’s ‘Another Brick in the Wall’ but were cut from the webcast:
– ‘George Bush, leave this world alone.’ (the second time it was sung); and
– ‘George Bush find yourself another home.’
This, of course, troubles us as artists but also as citizens concerned with the issue of censorship and the increasingly consolidated control of the media.”

Gigi Sohn of Public Knowledge discusses this as a problem of trust and the dangers of allowing internet access providers to prioritize the bits moving through their networks– speech is always a casualty. Public Knowledge Calls AT&T Censoring of Pearl Jam ‘Appalling’: “How can we trust a company that promises not to interfere with content on the Internet when it has its corporate finger on the button to cut off political criticisms it doesn’t like? The admitted censoring of a Pearl Jam performance is just one more reason why content should be protected against the actions of a company looking out for itself, rather than for consumers and the free flow of information over the Internet.”
David Isenberg considers that this is a perfect example of the different ways that net neutrality advocates and telecom providers view and frame the concept of a neutral internet. Net neutrality advocates see it as an issue of free speech. Telecom providers see it as an issue of the freedom to conduct business. AT&T Censors Pearl Jam . . . and?: “”We Netheads must understand that to the telcos and cablecos, its all about the money. Talking to them about First Amendment Rights don’t mean squat. To them, its all about the money. As long as it is in their interests to discriminate — to charge what the market will bear on each transaction — discrimination will create barriers to free speech and innovation. Because to them, it is all about the money.”
Derek Slater, EFF, How Ma Bell Fought for Your Privacy – 80 Years Ago: “Once upon a time, nearly eighty years ago, AT&T fought at the Supreme Court to stop the government’s warrantless surveillance of Americans’ private communications. How times have changed.”