Archive for October, 2006
david giacalone - October 31, 2006 @ 10:58 pm
· Resources-Consumer
On Halloween, the word “party” conjures up masks, costumes and poseurs — and looking less than your best can garner applause. At court, however, parties need to show some discretion when deciding how to look for their appearances.
The article “The Beauty Bounty,” in the new Nov.-Dec. 2006 issue of Harvard Magazine reminded me today to talk about how the pro se litigant dresses and otherwise preens for court. The article discusses the paper “Why Beauty Matters,” by economists Markus M. Mobius of Harvard and Tanya S. Rosenblat of Wesleyan University, in American Economic Review, 2006, vol. 96, issue 1, pages 222-235 (abstract; prepublication pdf. version; summarized in NYT article, April 6, 2006). Professors Mobius and Rosenblatt took the fact that attractive people earn higher wages than ordinary-looking people and designed an experiment to “decompose” the root causes of the beauty premium (which was 12 to 17 percent in their study). The professors found that employers have a visual stereotype that more attractive people are more productive; beyond that, attractive people are themselves more confident (probably because of a lifetime of positive feedback); and they also have better conversational skills.
This study is obviously not directly applicable to litigants at court. However, we can say with some certainty that human beings in the judicial system have similar positive “visual stereotypes,” and respond well to those who are self-confident and have good conversational skills. The best evidence of a visual stereotype is the fact that court after court, across the nation (and even in Canada), stresses the importance for the self-represented of making a good impression by their appearance. For example:
-
The Kern County [CA] Superior Court has a A Guide for Self -Represented Litigants that states:”What should I wear to court? Court is a business type of environment. Dress as if you are going to a job interview. Be clean and neat. Shorts, tank tops and flip-flop sandals are not allowed.”
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The West Virginia Courts, in “Going Solo“, emphasize in their first tip: “Make a good impression: If you dress nicely, it tells the judge that you respect the courtroom and care about your case.”
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In Massachusetts, the Plymouth County Probate and Family Court has as its second of Ten Suggestions (after “be on time”): DRESS IN A WAY THAT SHOWS RESPECT FOR THE COURT. You do not need to dress like a lawyer or buy new clothes. Do, however, dress in a dignified way. Unless it is an absolute emergency, avoid wearing jeans, T-shirts, shorts, tank-tops, sleeveless athletic shirts, cut off shirts, and undershirts in the courtroom.
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Similarly, the Superior Court of Arizona, offers Tips on Self-Representation that advise: “The Court is a very traditional and polite place. When you are representing yourself in Court you are trying to persuade a judge or a jury that you are right. So you must act, dress, and speak in a way that helps you with your case. Here are some tips: [listed first] When you come to Court, dress as professionally as possible. This means clothes that are neat and clean, and without holes. You should be clean and neatly groomed.”
Personally, I was amazed when I first walked into the Schenectady County, NY, Family Court, in 1988. The hallways and courtroom were far less “courtly” than I had expected. More surprising, I had never seen so many “wife-beater” sleeveless t-shirts, tattoos, and unsightly legs in short pants, in one place, in my entire life. However, in a decade going to that Court (for hundreds of cases), I never noticed a beauty premium. The two presiding judges were especially fairminded, which might account for that result. But, I might have been unaware of the bias. If you are a practitioner with extensive courthouse experience and would like to share your perceptions and perspectives, please leave a comment.
Meanwhile, don’t count on the judge being blind to aspects of your appearance that are within your control. Dress neatly and “respectfully.” Don’t overdo it by trying to be fancy or alluring. Appearing in a Model Litigant Costume that looks like an act might not win you any prizes.
p.s. After reading about the Mobius-Rosenblat study, Media trainer
TJ Walker pointed out the importance of a confident voice in making any presentation. He notes “It’s a lot easier to develop a beautiful voice as we get older than it is to develop a more beautiful face as we age.”
update: See Courtroom Composure from Divorce Guide for Modern Women.
JohnCannan - October 31, 2006 @ 10:54 am
· Resources-Consumer, Resources-Practitioner
Law librarians, while they can’t give advice, are great sources of information on legal information. They can evaluate or find ways to evaluate resources to determine when they are helpful and when they are not. So here is a librarian’s tip on how to evaluate legal sites on the Internet. The American Bar Association has published “Best Practice Guidelines for Legal Information Site Providers.” These are for providers but they also show what you should expect from a legal information site. With these in hand, you will be able to better evaluate legal information web sites and separate the wheat from the chaff…
MaryWhisner - October 30, 2006 @ 4:53 pm
· Resources-Consumer
In Give Me Back My Credit Denise Richardson relates how her credit was ruined by a series of arithmetic errors by her bank (and the bank’s refusal to take responsibility). She also explains a variety of laws that affect consumers.
Paul Bland, at the Consumer Law & Policy blog, gave this book a very enthusiastic review, calling her story “powerful” and her legal explanations “straightforward and very readable.” Check out Ms. Richardson’s website for resources and links as well as information about the book.
Mr. Bland also recommends Evan Hendrick’s Credit Scores and Credit Reports, and Remar Sutton’s guide to car buying, Don’t Get Taken Every Time.
[Editor's Note: we want to give credit to Denise Howell for putting so many treats this week for shlep in her Bag & Baggage Howell-o-ween II edition of Blawg Review #81.]
david giacalone - October 29, 2006 @ 7:31 pm
· News Items, Resources-Consumer, Resources-Practitioner
update: see our Jan. 1, 2007 posting on Universal Unbundling in California for more information on the benefits of unbundling and the extension of limited representation to all civil cases in California and New Hampshire.
The Massachusetts Supreme Judicial Court has okayed a pilot project that would make it easier for lawyers and pro se litigants to enter into limited scope (”unbundled”) representation agreements in Probate and Family Court proceedings. [via Robert Ambrogi's LawSites] As the MA Trial Court Library’s pro se webpage explains:
Beginning November 1, 2006 and continuing for 18 months, attorneys will be permitted to provide limited assistance to pro se litigants in the Hampden [Springfield] and Suffolk [Boston] Probate and Family Courts only. “The Project will permit attorneys to assist a pro se litigant on a limited basis without undertaking a full representation of the client on all issues related to the legal matter for which the attorney is engaged.” Attorneys may limit the scope of their representation, including appearance and drafting documents.
Unbundling advocates (such as Forrest Mosten) have long argued that such limited-scope representation (or “discrete task lawyering”) is (1) a win-win situation for lawyer and consumer, and (2) already permitted under current ethics rules (e.g. ABA Model Rule 1.2 Scope of Representation; and Comment to Rule 1.1 Competence) . The rub has been whether courts would prevent a lawyer’s withdrawal from a case once making an appearance on behalf of a party. The Massachusetts order sets forth a procedure for permitting that withdrawal when the lawyer has been retained on a limited basis. Similar rules already exist in several states, including:
- - Florida: Unbundling Rules (discussed in this ABA Journal article)
- - Nevada: Rules of Practice of the Eighth Judicial District Court of the State of Nevada, Rule 5.2.
- - As shlep has reported, court self-help centers in Idaho and Nevada compile lists of attorneys willing to take family law matters on a limited-scope basis. If you know of similar lists, let us know.
- update (Nov. 27, 2006): At Legal Profession Blog, Mike Frisch (Georgetown Law’s Ethics Counsel) reports on the state of unbundling in Arizona, saying “Arizona must be included on the survey of states that allows some limited-scope representation and ghost writing of briefs.” Mike also links to a very useful webpage on Unbundling in Alaska. Presented by the Alaska Bar, it defines unbundled services and its benefits, and has a very nice listing of the kinds of “discrete tasks” that a lawyer might do for a “limited representation” client – including over a dozen tasks.
afterthought (Dec. 5, 2006): Things aren’t going so well in New York State. See our posting “All Bundled Up in New York.
david giacalone - October 28, 2006 @ 2:20 pm
· Resources-Consumer
Judging from reaction to our posts this week on fair use, there’s a lot of interest out there in the contours of copyright protections and of the rights to repoduce materials found on the internet and in print. Here are additional resources that continue those themes:
Nolo.com will by posting a podcast today (Oct. 28, 2006), with a transcript already available at its Podcast Weblog, entitled “Blogs, Websites & Podcasts: When Do You Need Permission?.” It is an interview with Rich Stim, author of the Nolo book Getting Permission and an expert on copyright and fair use. The interview examines “what happens if you use other people’s material in your business “ It focuses on when and how to seek permission, but also mentions when you do not need permission – i.e., with public domain materials and when making Fair Use. The transcript includes a link to an Interview Release Form and Explanation. Also, Nolo.com’s Copyright resouces center has an article on When Copying Is Okay, and has links to books such as The Copyright Handbook: What Every Writer Needs to Know, by Stephen Fishman.
Prof. Jason Mazzone of Brooklyn Law School has been focusing on another important area: Copyfraud: falsely claiming copyright over materials that are in the public domain. Mazzone’s Legal Times article “Too Quick to Copyright: Companies cheat the law and the public by claiming ownership over too much stuff” (Nov. 17, 2003, 2 pp pdf.) gives a good summary of what the problem is and how legislature could solve it. In June 2006, he expanded the analysis greatly with the law review article Copyfraud, 81 NYULRev. 1026 (2006), which is availalble to download from SSRN (Brooklyn Law School, Legal Studies Paper #40). Here are excerpts from the Abstract”
“Copyfraud is everywhere. [even appearing on modern reprints of Shakespeare's plays and the U.S. Constitution] . . . . These false copyright claims, which are often accompanied by threatened litigation for reproducing a work without the owner’s permission, result in users seeking licenses and paying fees to reproduce works that are free for everyone to use.
” . . . . There is also no remedy under the Act for individuals who wrongly refrain from legal copying or who make payment for permission to copy something they are in fact entitled to use for free. While falsely claiming copyright is technically a criminal offense under the Act, prosecutions are extremely rare. These circumstances have produced fraud on an untold scale, with millions of works in the public domain deemed copyrighted, and countless dollars paid out every year in licensing fees to make copies that could be made for free. Copyfraud stifles valid forms of reproduction and undermines free speech.
“Congress should amend the Copyright Act to allow private parties to bring civil causes of action for false copyright claims. Courts should extend the availability of the copyright misuse defense to prevent copyright owners from enforcing an otherwise valid copyright if they have engaged in past copyfraud. . .”
—— You can find more on the doctrine of Copyright Misuse, in “The Evolving Doctrine of Copyright Misuse,” by Brett M. Frischmann and Daniel Moylan (July 2006, available at SSRN; via Andrew Raff at IPTABlog). Raizel at LawLibrary Blog has a lengthy and informative article on copyfraud involving Beatrix Potter and Peter Rabbit (”A Cautionary Tail,” March 15, 2006). Mary Minow’s LawLibrary.com offers a comprehensive list of resources on Copyright and Libraries, that many outside of libraries will also find helpful. It links, for example, to Peter B. Hirtle’s chart Copyright Term and the Public Domain in the United States.
david giacalone - October 28, 2006 @ 10:16 am
· News Items
Nevada Supreme Court Chief Justice Robert Rose included information about the Clark County (Las Vegas) Self-Help Center in remarks to the local bar association on October 18, 2006. Here’s how an article from In Business Las Vegas (Oct. 27, 2006), described the Chief Justice’s remarks:
“The courts have also vastly expanded their services for people representing themselves in court matters. The Las Vegas self-help center, he said, has an average of 10,400 visitors each month, including 6,200 walk-ins. And about 281,000 legal forms are downloaded from the self-help center’s Web site each month as well, he said. Clark County Legal Services is swamped, he said, serving about 1,000 clients a month. And Justice Nancy Becker is creating a pro-se (self-representation) training manual for court staff so they can better help people.
“‘Needless to say the pro se situation creates additional demands on the court system and we’re trying to meet it because it’s not going to go away,” Rose said. “If people have contact with the court, a lot of them are going to be pro se and how we deal with them and how we can help them means a lot’.”
Click for the Clark County Family Court Self-Help Center website. It’s great to see particpation by both the Clark County Bar Association and students from UNLV Boyd School of Law. Boyd law students, as part of a 60-hour community service requirement, provide self-help classes for the Center on topics such as family law, bankruptcy, guardianship, small claims issues, custody/paternity. The Self-Help Center teaches a class on preparing for a hearing. The Center also has a list of attorneys willing to take family court cases on an unbundled basis [I wish the list were identified as such on the Center's list of services, and not simply as attorneys willing to take family law cases.] As it should be, “There is no income or asset qualification for access to the services of the Family Law Self-Help Center.” The Nevada Supreme Court Council for Pro Se Assistance has compiled a list of pro se resources across the state.
david giacalone - October 26, 2006 @ 9:46 pm
· Resources-Consumer, Website Admin
What does a person do when falsely accused of defamation? I’m not sure, since yesterday’s charge by “victim-of-the-law” June Maxam of the North Country Gazette was the first time it has happened to me, despite 30 years as a lawyer and over three as an opinionated and sometimes grumpy weblogger. I don’t think I’m going to set up a Defense Fund like Ms. Maxam’s. However, as a shlepper, there is one thing I can do that might help myself and our readers: collect links to a few good online resources on defamation. So, here we go:
– You can find very helpful FAQs on Defamation (especially in the internet context) at both the Electronic Frontier Foundation and The Chilling Effects Clearinghouse. As EFF says in its Bloggers’ FAQ on Online Defamation Law, “Generally, defamation is a false and unprivileged statement of fact that is harmful to someone’s reputation, and published “with fault,” meaning as a result of negligence or malice. State laws often define defamation in specific ways. Libel is a written defamation; slander is a spoken defamation.” The FAQ also points out that truth is an absolute defense, and “For a blog, a court would likely start with the general tenor, setting, and format of the blog, as well as the context of the links through which the user accessed the particular entry. Next the court would look at the specific context and content of the blog entry, analyzing the extent of figurative or hyperbolic language used and the reasonable expectations of the blog’s audience.”
– Prof. Euguene Volokh posted a piece just today that explains: “In a defamation case, at least when the speech is on a matter of public concern, “the plaintiff [must] bear the burden of showing falsity, as well as [the defendant's] fault, before recovering damages.” This is true whether the plaintiff is a public figure or a private figure. See Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 776 (1986). The common-law rule was that the defendant must prove truth, but Hepps changed that for First Amendment reasons.”
Ironically, my accuser, legal pundit June Maxam stated last month in a North Country Gazette editorial that “In a libel and defamation suit, truth is the best defense.” With that principle in mind, Mike at TechDirt.com asked today ”Can You Sue For Defamation If Someone Points Out Publicly That You Are Wrong?” (Oct. 26, 2006) Unfortunately, unless blocked from courts due to a pattern of vexatious lawsuits, just about anybody can sue for just about anything. Although sanctions can be levied for frivolous lawsuits (as we recently discussed here), responding to baseless charges is never enjoyable, can be very time-consuming and stressful, and very expensive. Nonetheless, spending a little time understanding the law and its protection for truthful speech, can help a shlepper with a clear conscience sleep even better.
p.s. Although she is the one who has repeatedly hurled threats at me, I’ve also been accused of harassment by Ms. Maxam. Just looking at its definition in the Law.com dictionary, however, was enough research for me tonight. I’m going to be sleeping like a baby.
Update & Correction (Oct. 27, 2006; moved from top to end of post Dec. 31, 2006): [this story starts here, with a discussion of Fair Use and Copyright] I have learned this morning that, a day after I was accused of defamation by the Editor of North Country Gazette, I made an erroneous statement about NCG in a Comment to a prior post: After comparing the text of the two articles, I mistakenly said that NCG had taken another newspaper’s story without attribution. It appears that NCG had actually used a press release from a district attorney’s office, and followed it with its copyright notice forbidding reproduction without permission and saying “Fair Use is not applicable”. Here is the Correction notice that I have placed in the Comments to that post:
CORRECTION (Oct. 27, 2006): Yesterday evening, I erroneously stated in this Comment that NCG had copied from this article in the Westchester News, when it wrote this story – showing that at least five sentences from the NCG article were identical to the sentences in the Westchester.com article. It has been brought to my attention that the source of the NCG article was this release from the Westchester County District Attorney. I apologize for my error. Clearly, NCG did not take the information from Westchester.com. If NCG had attributed its story and facts to the Westchester DA’s press release, my mistake would not have occurred. My main point remains, however, that NCG was claiming exclusive rights to use materials that the public has every right to reproduce, when it placed the statement “This material may not be published, broadcast, rewritten or redistributed by anyone without the express written permission of the publisher. This article is copyright protected and Fair Use is not applicable” at the end of the article.
I have never had an “axe to grind” with NCG. In Oct. 30, 2005 and December 8, 2005, I had pointed to NCG articles as new sources at my other legal weblog and, on September 26, 2006, had discussed one of its editorials in a posting at this weblog. When I approached the Editor of NCG last week, it was with one simple purpose: to ask that she remove the incorrect clause “Fair Use is not applicable” from NCG articles and commentary. My purpose when I wrote about the topic at this weblog was to get the clause changed and to help the public better understand the Fair Use concept. That is why I wrote to Ms. Maxam thanking her, as soon as I learned that the clause was removed in the Oct. 24, 2006 articles at her site (and why I was disappointed when she reverted back to useing it the next day. I apologize to her for the one erroneous claim that I made, which is discussed above. I apologize to shlep’s readers and Team for allowing the story to take up so much of this weblog’s resources this week and for allowing the situation to get muddied by making that one incorrect assertion. Having said that, I hope the sources supplied below on defamation law will be helpful.
david giacalone - October 26, 2006 @ 10:25 am
· News Items
After posting her news articles for one day without claiming that “Fair Use is not applicable” (see our post yesterday), June Maxam of the North Country Gazette has re-inserted that erroneous assertion in NCG’s copyright warning in pieces put online on October 25, 2006. For example, look at the bottom of this editorial, and this, this, and that news article. Maybe such obliviousness-stubborness is why she is on Libertarian Rick Stanley’s Patriot A List, which honors “Patriots who do more than talk about standing up to those in government that are operating outside the law or under color of law.” Note: Ms. Maxam
– changed: This article is copyright protected and Fair Use is not applicable.
– to: This article is copyright protected. Fair Use is not applicable.
Even if psychologists can’t offer long-distance analysis, we’d like to know from legal textual experts and our linguist friends at Language Log whether turning the two clauses into two sentences makes an important difference (we’d guess “no”). Meanwhile, I wonder if this latest move was taken with or without legal advice. [See Comment #1 on my methods for obtaining the permalinks for NCG articles.]
david giacalone - October 25, 2006 @ 1:38 pm
· News Items
Looks like my relief might have been premature. Below is an email from June Maxam, the Editor of North Country Gazette, along with mine to her this morning.
—– Original Message —–
From: June Maxam
To: shlep
Sent: Wednesday, October 25, 2006 1:09 PM
Due to the threats, intimidation and profanity which you caused, directed and encouraged, you were reported to law enforcement. My attorney is currently monitoring the defamation which has resulted by your acts and we will be proceeding. The harassment caused us to disable the email accounts for the news site. Do not send any further mail as your IP and email address has been blocked.
—– Original Message —–
From: David Giacalone at SHLEP
To: jmaxam
Sent: Wednesday, October 25, 2006 12:48 PM
Subject: thanks
Dear Ms. Maxam,
Thank you for making that small but important change concerning
Fair Use. I’m sorry this all got so aggravating.
best wishes,
[note: email addresses removed March 24, 2007]
david giacalone - October 25, 2006 @ 12:27 pm
· News Items
It looks like our “pro bono” efforts (shlep’s and those of webloggers around the world) to correct the erroneous copyright notice at North Country Gazette, has apparently been successful. As our Commentor Sansavarous noticed this morning, items dated October 24, 2006 at NCG no longer have the erroneous statement “Fair use is not applicable.” Unfortunately, the SideBar continues to have the obnoxious warning “In accordance with Fair Use of Copyright: WE FORBID ANY REPRODUCTION in part or in whole of The North Country Gazette.”
In addition to a Commentary piece, which remarkably only has “© 2006 North Country Gazette” after the article, along with a general notice in the footer, you can find examples of the cleaned-up copyright notice here:
http://www.northcountrygazette.org/articles/102406MBCFraud.html
http://www.northcountrygazette.org/articles/102406CopDies.html
http://www.northcountrygazette.org/articles/102406DebateOust.html
The new version still claims to prohibit all copying “without the express written permission of the publisher,” but that’s a fight for another day (and another weblogger). [Special thanks to Eugene Volokh and Cory Doctorow, who really got this campaign moving after our first post. Volokh continues the topic in another posting today, Oct. 25, 2006)]
BUT SEE: Woops: More Threats from NCG’s June Maxam
david giacalone - October 24, 2006 @ 3:30 pm
· News Items
Given our post on Saturday praising the assistance Canadian judges are allowed to give self-represented litigants, it is ironic that Monday’s Law Times of Canada had an op/ed piece in which an Ontario justice opines: “Self-represented litigants, and lawyers of lesser quality than Ms. Curtis [a lawyer critical of Family Court judges], often provide the court with inadequate and incomplete evidence. Poor submissions and advocacy can leave a judge with far too little grist for the decision-making mill.” (Law Times, by Justice Robert Spence, ” ‘Harmful’ decisions often from poorly presented cases,” Oct. 23, 2006). Justice Spence also added: “The court is not an investigative body. Accordingly, judges are forced to contend only with the evidence they receive and make the best decision possible, based on that evidence.”
Meanwhile, SelfHelpSupport.org pointed yesterday to a piece in the Wisconsin Law Journal Judges Directory that spotlights Madison (WI) municipal court judge Daniel P. Koval, and his efforts to better serve the self-represented. The article notes that “Koval has spent a good deal of time off the bench, updating and/or creating forms, brochures and other documents that explain municipal court procedures: how to get a police report, for example, or an explanation of plea options.” It ends with a telling quote and a plea:
“[Pro se litigants] make more work for Koval; yet he is sincerely determined that each and every one of them leaves his courtroom feeling satisfied that justice was served: ‘I want them to come away from the experience feeling that, while they might not agree with my ruling, at least they were given a fair shot to present their side of the story.’
“Attorneys, please assist him in that endeavor.”
david giacalone - October 23, 2006 @ 2:51 pm
· Resources-Consumer, Viewpoint
a lawyer on your back? browse the site to learn about self-help law]
Recently, I noticed a glaringly incorrect interpretation of the Fair Use exception to the protections offered holders of copyrights. It came in a website warning that attempts to deny the benefits of Fair Use to the public whenever an article is copyrighted. Section 107 of the Copyright Act says that “fair use…for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.” Sec. 106 specifically states that copyrights are granted subject to the limitations in Section 107. Although the exact contours of the Fair Use exception cannot be described, certain uses that are appropriate in scope and intent are clearly permitted. [update (Oct. 24, 2006): Prof. Eugene Volokh, an expert in free speech and copyright law, weighed in on this issue yesterday, and you can find an interesting string of comments at his Volokh Conspiracy weblog. From London, PhDiva also offered an interesting perspective. And, this issue is covered this morning by BoingBoing. Thanks to Eugene, Dorothy and Cory for helping the public better understand Fair Use rights and responsibilies.]
The e-publication that caught my eye proclaims at the foot of each article (even when it copies someone else’s press release verbatim without attribution) that no reproduction of any sort is allowed because the “This article is copyright protected and Fair Use is not applicable.“ The site’s SideBar has a similar warning against any reproduction “in accordance with Fair Use of copyright.” This overreaching is especially perturbing to me, because the e-newspaper prides itself on fighting for “legal reform” and against government abuses using investigatory reports, and good information and clear analysis.
It worries me that free speech and the public’s interests in the exchange of ideas and information might be harmed by such misinformation. The Wikipedia treatment of Fair Use on the Internet has a list of Common Misunderstandings and the first entry is: “It’s copyrighted, so it can’t be fair use. Fair use describes conditions under which copyrighted material may be used without permission.”
So, whether you are a weblogger who wants to write about a copyrighted work (or who just received a cease and desist demand), a copyright holder seeking protection, or a citizen who wants to stay abreast of an interesting issue that comes up more and more in our digital world, you should know that there are a lot of useful, free sources of information on the web. In fact, there are so many that we can only try to highlight some that seem particularly helpful.
Here are some specific articles and webpages that may fit your needs:
– The Copyright Management Center, sponsored by Indiana U. and Purdue U. is aimed at educational uses, but offers a Checklist for Fair Use that has general application.
– The Chilling Effects Clearinghouse has an excellent set of Frequently Asked Questions about Copyright and Fair Use, with a nice summary of the four statutory factors. The FAQ answers the question Do I need permission from the copyright holder to make fair use? like this: “No. If your use is fair, it is not an infringement of copyright — even if it is without the authorization of the copyright holder. Indeed, fair use is especially important to protect uses a copyright holder would not approve, such as criticism or parodies. See Campbell v. Acuff-Rose Music, 510 US 569 (1994).” When at Chilling Effects, you might also want to check out Betsy Rosenblatt’s Copyright Basics.
– Kimberlee Weatherall (an academic Australian IP expert) and famed weblogging law professor Eugene Volokh offer14 Copyright Tips for Bloggers, which looks at the issues from the perspective of both the copyright holder and the prospective Fair User.
– Mary E. Carter’s eFuse article When Copying Is Okay is also a very useful document. As for the kind of copyright notice to use on your website, she advises: “Placing your copyright notice on your Web site is a start to protecting your copyrights on-line. Read some of the copyright notices on the Web sites of newspapers and other mainstream content providers for inspiration on how to word your notice. I generally recommend the simpler-is-better approach. Just place the “circle c” ©, or even just (C), and your name and the year of execution on the first page of your site and leave it at that.”
– — Nolo.com has a basic discussion on the Fair Use rule (annoyingly spread over 4 pages). [Note: In a lengthy monograph, I disagree with its notion that a haiku poem is too small to every be quoted under Fair Use].
Admittedly, it is not always easy to know with certainty whether some assertions of the Fair Use exemption are appropriate. Nonetheless, the Fair Use Network correctly says that “Despite this unpredictability, it is important to assert fair use, and reject assumptions that all uses must be licensed and paid for.” And, Marjorie Heins put it well in the Online Journal Review (Feb. 23, 2006, via Ambrogi’s Media Law): “To the extent that fair use is not used, it will shrink, and to the extent that it is used and asserted, it will remain healthy and even grow.” Perhaps, the courts or legislature should explicitly decide, as suggested by Judge Posner at Lessig Blog in Fair Use and Misuse, that excessive claims to copyright protection through the denial of Fair Use rights amount to copyright abuse that forfeits the law’s protections until remedied.
p.s. My own attempt, by email, to suggest to the offending editor the error of her ways (by quoting the statute and referring her to two resources), resulted in an angry rebuff, in which I was accused of practicing law without a license [actually, I'm a retired member of the NY and DC Bars], told that my email would therefore be forwarded to the Attorney General and the paper’s lawyer (who it was implied had okayed their statement denying Fair Use rights), and threatened with hearing from said lawyer, should I take any of their materials. [She also sent two additional emails with the following messages: "you're an ass and not worth bothering with" and "Watch NCG—you're going to have some publicity too."] I agree with this assessment of the damage the incorrect statement of the Fair Use doctrine does to the newspaper’s credibility when it analyzes other issues. I’m not explicitly naming the publication in this posting, because I’d rather not give it direct publicity. [
updates: (October, 25, 2006): One post today describes the [short-lived]
improvements in NCG’s copyright warning and one
even more threats aimed at
shlep’s Editor by
June Maxam, the Editor of the
publication in question. Also, Prof.
Volokh continues to explore the credibility issue, along with many commentors. (October 26, 2006): Maxam has re-inserted “Fair Use is Not Applicable” in her warning; see
our post. But, see our Nov. 22, 2006 post, “
Maxam’s Gazette Removes Fair Use Disclaimer“]
david giacalone - October 23, 2006 @ 11:33 am
· Website Admin
A few more Friends of shlep deserve our thanks:
– “Ed,” the masked man at the helm of Blawg Review, who has included shlep today (Oct. 23, 2006) in both Blawg Review #80 (wondering just what I’ve been doing with that dusty law degree of mine) and Carnival of the Capitalists #159 (which needlessly reminds us ”lawyers are capitalists”, too). Of course, both “carnivals” offer links to some of the best recent weblog postings in their fields.
MaryWhisner - October 22, 2006 @ 9:25 pm
· Resources-Consumer, Resources-Practitioner
A new edition of Law for the Layperson: An Annotated Bibliography of Self-Help Law Books is just out. The authors of this edition (3d ed. 2006, William S. Hein & Co.) are Amber Hewette and Diane Murley, who are both librarians at the Southern Illinois University School of Law Library.
Listing and describing just books published since 2000, the book still has hundreds: 290 pages of annotations times 2-3 annotations per page.
__(’Read the rest of this entry »’)
- - California: California Rules of Court, Rule
