A Round Tuit (39)

When it comes to legal blogging, there seems to be no shortage of writing worth reading once one gets around to it.

What's that? You have no round tuit? My friend, you are fortunate indeed, for never before in human history have round tuits been so readily available. If you need one, Carbolic Smoke Ball Co. has them in stock.

While you place your order, I'll share a few posts which are worth your attention.

The Digital Millennium Copyright Act (DMCA) has no shortage of critics. The breadth of the DMCA and the tools it gives copyright holders to control huge swaths of otherwise freely-transmitted and used information is, to say the least, somewhat concerning. One aspect of the DMCA in particular — the so-called anti-circumvention clause — shifts the balance between copyright control and fair use strongly in favor of copyright holders. In short, consumers of copyrighted works are permitted to use those works in a number of ways; copyright holders have added controls to their works which prevent many of those consumers' legitimate uses. Logically, consumers should be able to remove those locks and enjoy the full range of use rights to which they're entitled, correct? Well, not really. The law in this case favors the locks and prohibits the "circumvention" of protections even where done to enable a legitimate use. As author and technology blogger Cory Doctorow describes it, "In the traditional view, DRM [Digital Rights Management software] is absolutely protected, so that no one is allowed to break it except the DRM maker. In other words, a film-maker isn't allowed to take the BluRay DRM off her own movie, a video game programmer can't take the iPad DRM off her own game, and an audiobook author can't take the DRM off his own Audible book."

Now comes a glimmer of common sense from the Fifth Circuit. Barry Barnett described the decision in MGE UPS Systems Inc. v. GE Consumer and Industrial Inc. as one which "cuts DMCA down to size":

The software you use at work came from God knows where. Perhaps the Internet. But your copy features something the author didn't intend. Unlike the version the author sells, this one has somehow disabled the security feature that controls access to the software application and the underlying code.

Have you violated the Digital Millennium Copyright Act?

Yesterday the Fifth Circuit said no, you didn't.

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Blawgletter infers that, under MGE, you don't run afoul of section 1201(a)(1)(A) unless (a) the security measure you circumvent (e.g., encryption of the software code) directly prevents copyright violations (copying, making derivative works of, and selling the work) and (b) you yourself write the code that you then use to circumvent the security measure.

Mike Masnick was also cheered by the result in MGE:

[The anti-circumvention clause] opened up the possibility of using pointless digital locks to try to lock users into certain hardware or software choices in an anti-competitive fashion. Thankfully, courts have rejected many of these attempts -- such as with garage door openers, third party repair service contracts and printer cartridges -- all of which were attempts to use copyright to stifle competition, not as an incentive to create. It looks like we've got another one to add to the list, though, like those previous rulings, the more ridiculous aspects of the anti-circumvention rules means that the court has to twist itself into painful contortions to make the ruling it wanted.

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The [MGE court] suggested that simply using already available software to get around a digital lock might not be infringing itself. In other words, it suggests that only those who modify software to get around a digital lock may have violated the anti-circumvention clause. This could be a really big deal if other courts recognize this (or, if this case is appealed and it holds up).

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This doesn't mean, of course, that as long as someone else breaks the lock, you're home free. If you are still violating copyright, there are still serious consequences, and there may still be other issues. Also, this ruling only applies in the Fifth Circuit. However, it is an interesting ruling, and yet another one that pushes back on a company trying to abuse the DMCA's anti-circumvention clause for anti-competitive purposes.

The anti-circumvention clauses took a more decisive hit on Monday when the Copyright Office and the Librarian of Congress granted several exemptions sought by the Electronic Frontier Foundation (EFF). The EFF discussed the import of its primary wins — the exemptions for "jailbreaking" devices such as the Apple iPhone to enable the installation of unapproved applications and functionality and for creating "remixed" non-commercial works from protected DVDs:

In its reasoning in favor of EFF's jailbreaking exemption, the Copyright Office rejected Apple's claim that copyright law prevents people from installing unapproved programs on iPhones: "When one jailbreaks a smartphone in order to make the operating system on that phone interoperable with an independently created application that has not been approved by the maker of the smartphone or the maker of its operating system, the modifications that are made purely for the purpose of such interoperability are fair uses."

"Copyright law has long held that making programs interoperable is fair use," confirmed Corynne McSherry, EFF's Senior Staff Attorney. "It's gratifying that the Copyright Office acknowledges this right and agrees that the anticircumvention laws should not interfere with interoperability."

EFF also won a groundbreaking new protection for video remix artists currently thriving on Internet sites like YouTube. The new rule holds that amateur creators do not violate the DMCA when they use short excerpts from DVDs in order to create new, noncommercial works for purposes of criticism or comment if they believe that circumvention is necessary to fulfill that purpose. Hollywood has historically taken the view that "ripping" DVDs is always a violation of the DMCA, no matter the purpose.

"Noncommercial videos are a powerful art form online, and many use short clips from popular movies. Finally the creative people that make those videos won't have to worry that they are breaking the law in the process, even though their works are clearly fair uses. That benefits everyone — from the artists themselves to those of us who enjoy watching the amazing works they create," added McSherry.

Mike Masnick is surprised and pleased — pleased that EFF undertook this effort and surprised that it paid-off:

The US Copyright Office finally used its obligated DMCA exemption rulemaking process to support exemptions that protect consumers. As you may recall, every few years the US Copyright Office is obligated, by law, to listen to requests for specific classes of work that should be exempted from the DMCA's anti-circumvention clause and then recommend that the Library of Congress adopt certain exemptions (if it so chooses). Usually the exemptions are extremely limited and do little to protect consumers. In fact, in the past, the EFF has argued it wasn't even worth requesting exemptions for consumer issues, saying the process was "simply too broken." This year, however, they did participate, and actually got some things through.

To paraphrase Apple's response, "Meh." The company reminded their customers that, no matter the legitimacy of their jailbreaking, circumventing the locks on their iPhones will void the associated warranties and make Steve Jobs cry. One step at a time, folks.

Next up, we need to provide greater protection for the tools and toolmakers who enable us to jailbreak our phones and rip our DVDs. DRM has long been a joke in the technical sense — most DRM schemes are broken as soon as they're implemented and the tools to break them are readily available, albeit not through user-friendly or mainstream sources in many instances. What DRM schemes were unable to achieve technically, DRM-using companies were able to achieve through use (and misuse) of DRM protections in the DMCA. Changes like those wrought by the Fifth Circuit, the Copyright Office, the Librarian of Congress, and groups like the EFF essentially strip away companies DMCA-granted authority to retain control over the products they sell us so that they can force us to pay again and again for the privilege of using what we've bought.

I know that many of you are quite concerned at this point that, what with the recent sanity displayed by the Judicial and Executive branches concerning the DMCA, the copyright-controlling artists' estates, holding companies, and commercial conglomerates won't have enough left to squeeze for profits. Fear not, Masnick tells us; copyrights on work done by artists dead for the better part of a century and on player piano rolls are still in play. Yes, you thieving bastards may well end up enjoying the same rights in your .mp3s as you had with your CDs and cassettes, but the music industry will not roll-over and passively allow you to take their player piano profits.

The ever-mysterious anonymous Blawg Review Editor hosted this week's "Weekly Law School Roundup" in Evan Schaeffer's absence. Law school was on the minds of David Lat and Elie Mystal as well; the two Above the Law colleagues debated whether a liberal bias exists in legal education and, if so, whether it matters. Mystal contended that the ideological disparities shown by surveys do not reflect a legal academia captive to the political left so much as these indicate a reluctance of conservative professors to self-identify and be associated with the ideology of the far right:

We’re talking about intelligent people, and intelligent people generally don’t want to be associated with the party of the Glenn Becks of the world. Think about it: if somebody tells you they are “conservative,” don’t you immediately want to know if they hate blacks, gays, Mexicans, Muslims, or women? Are they a Birther, or a Tea Partier, or do they masturbate to Sarah Palin?

That’s a lot to answer for before you can even get “limited government” out of your mouth.

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We know that law professors tend to list left at the voting booth, but that has more to do with social policies. Core conservative values about the rule of law, the importance of tradition (stare decisis anyone?), and the deliberate, incremental pace of change are concepts that are alive and well at the nation’s law schools.

Trust me. Try (as I did) writing exams in law school attacking stare decisis, railing against the “assault” of economics on our legal system, or stating that without universal health care, American tort law is just a small tax we ask corporations to pay for their right to do whatever the hell they want at the cost of however many lives they’re willing to pay for. Try it, watch the B’s roll in, and then tell me that there is no home for conservatives at law school.

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[W]ould the real conservatives please stand up? There are more of you out there than this study would have us believe. And if conservatives and liberals of conscience can stand up together against the fringe crazies on both sides, I think the goals of balanced education will be well-served.

Lat agreed that willingness to self-identify is weaker amongst conservatives, but noted that this is due in part to the prevalence of the liberal viewpoint in legal academia and the professional pressures to either conform or keep silent: "I know of a number of young law professors who are 'in the closet' about their right-leaning views; they’re waiting until they get tenure before they speak more freely." He suggested that a strong liberal bias is not only a reality in acdemia but is a problem there as well:

The study merely confirms what we already know: non-liberals, i.e., conservative and libertarian types, are severely underrepresented in legal academia. According to the Berkeley study, among entry-level, tenure-track hires, clear liberals outnumber clear conservatives by a ratio of over 5 to 1 (52 liberals to 8 conservatives).

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To be sure, a good law professor makes sure that many different viewpoints are represented in class. But as anyone who has set foot in an American law school knows, not all law profs are “good” — and many are very self-indulgent. They would much rather teach their own pet theory about the law should be, as opposed to what the law actually is.

The impact of political bias is probably even greater today than it was, say, a few decades ago. Law schools today place a much greater emphasis on policy considerations and their role in the law than law schools in years past. As legal academia moves towards public policy and away from black-letter law — which tends to be relatively non-ideological, but which many law professors view with disdain, especially at highly-ranked schools — the problem of liberal bias is magnified....

What is the result of this liberal bias? For starters, lawyers who aren’t as well-trained. If you haven’t been adequately exposed to both sides of a given issue or debate, you won’t be able to advance your client’s position as effectively. This is especially true when you’re trying to advance a position to judges who are more conservative than your law school professors — e.g., most federal judges appointed by Republican presidents, or state-court judges in relatively conservative jurisdictions.

Though many recent law graduates can see their liberal-biased law school years in the near rearview, the prospect of legal argument before a federal judge — or indeed, anyone other than their fellow recent graduates — seems impossibly distant; these poor souls are focused on one thing and one thing only — passing a bar exam. Scott Greenfield had a few words of wisdom for them:

Calm down. Take a deep breath. Not because I'm sure you'll do fine. I'm not. I don't even know who you are, and you may well be the loser you fear you are. But getting yourself worked into a lather isn't going to help you any. Nobody does better on the bar exam by hyperventilating.

Here's the deal. Take the rest of the time off from your studies. If you don't know it by now, it's too late. No seriously, it's too late. And chances are in your favor that you know more than you think. Most people pass the bar exam, and you fall into that category.

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[A]nybody can blow the bar exam the first time. Anybody. No, I passed the first time, but that doesn't mean that everybody does. Great minds, thinkers, people, lawyers fail the bar exam the first time. It happens. Stercus accidit (use this in an essay and you're guaranteed an extra 2 points).

There is only one thing that you really need to know. While anybody can fail the bar exam the first time, nobody but a blithering idiot... fails it twice. No pressure though. Best of luck and enjoy your time taking the bar exam. Really.

Truly, these are words to live by. I went the lather-and-hyperventilation route and though I managed to pass, it was certainly one of the more unpleasant experiences of my life. For a year afterward, whenever I'd pass the convention center where the exam was given, I'd find myself on the verge of a panic attack. If you find yourself unable to disengage from the studying and exam hypotheticals, perhaps you should try your hand at the hypothetical composed by author Elizabeth Wurtzel and passed-along by David Lat. From pill-popping janitors on work release to noxious gas leaks and imperiled schoolchildren to medical malpractice committed by racially-insensitive doctors, this is one question which will tax all three years of your liberal-biased legal education.

The mentoring debate has played itself out in posts and comments at many blogs over the past few weeks and months. Is mentoring rewarding for the mentor as well as the mentored? Has mentoring died-out at large firms or in the profession more generally? What is mentoring exactly and what is it not? Frankly, I don't pay much attention to either the issue or the debate. I try to be professionally-curious, seeking wisdom from those more experienced then myself and imparting what wisdom I have to those less-experienced, but I wouldn't consider any of that "mentoring". Mentoring seems to imply measures of devotion and organization which I would rather apportion to other tasks and pursuits.

Be that as it may, however, one post in particular caught my attention this past week. Discussing a piece in AmLaw Daily from Steven Harper, Ken Adams suggested that the mentoring supposedly demanded by young associates might be counterproductive, at least where contract drafting is concerned:

Harper starts out by quoting a pontificating hack to the effect that we’re experiencing “a generalized absence of the wise old politician/lawyer/leader/editor who helps the young along, who teaches them the ropes and ways and traditions of a craft.”

When considering how that applies to the transactional world, bear in mind that many of the problems that afflict contract drafting are the result of treating it as a craft. Repeat three times after me: Contract drafting shouldn’t be a craft, it should be an industry.

And it follows that because the nature of the work is so precedent-driven, what’s required is not the one-on-one handholding that is mentoring, but instead plain-old training.

But that training shouldn’t consist of anecdotal musings offered in a conference room over a buffet lunch. Instead, training in contract drafting should come from consulting an authoritative reference work; participating in structured training courses, whether provided by law schools, CLE providers, or someone else; taking an online test of your contract-language proficiency; and consulting the annotations when you complete a document-assembly questionnaire forming part of a contract-automation system.

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Yet I’m not convinced by the WSJ Law Blog’s recommendation that associates “demand” mentoring. That’s sort of like demanding that someone be your friend. Mentoring is a subtle function of personalities, needs, and opportunities, so good luck imposing it by fiat.

Someone once told me that he liked the British more than other "ferners" because they all spoke English but their insults were better than ours. John Bolch reminded me of that recently:

Last year [Sir Nicholas] Mostyn acted for [Earl] Spencer in his divorce, which was heard by Mr [now Lord] Justice Munby, as he then was. Now, however, Spencer is suing Mostyn for negligence, and has apparently disclosed an email that Mostyn is alleged to have sent him in which Mostyn says that he will name the seven piglets that his sow had just had: James, Munby, self-regarding, pompous, publicity, seeking and pillock. Excellent stuff.

Charon QC added that the message sent by "keen farmer" Mostyn was "Bizarre indeed. The Mail notes that Mostyn and Munby are, however, good friends…so there should be little difficulty between the learned friends." No need to for them to flip their wigs, to put it another way.

What do we have in the way of judicial insults? Not much, apart from a judicial election in Oklahoma wherein a candidate's daughter took out an ad urging voters, "Do not vote for my dad!":

McClain County judicial hopeful John Mantooth's daughter and son-in-law paid for the quarter-page advertisement, which features a picture of the daughter's family, highlights cases in which Mantooth has been sued and lists a website the couple started, http://www.donotvoteformydad.com.

Mantooth said the bad blood stems from his 1981 divorce from his daughter's mother.

"This is a family issue which should have been kept private," he said Monday. "I'm very sad about this. I'm very disappointed. I'm hurt, but I love my daughter, and I want things to get better, and I hope they will."

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Keith Gaddie, a professor of political science at the University of Oklahoma, said such campaigning illustrates that "none of us wants our lives too closely examined."

"It's reality show politics," Gaddie said. "It's unsavory. It's undignified, and it's real."

For the record, my daughter urges you not to vote for her dad, either. Sharp kid, she is.

Finally this week, here are posts from three gentlemen who'd probably make fine judges (though one has his sights set on another office). A few weeks ago, Norm Pattis discussed a particularly tough loss and a "visit" he had with his old teacher, the famed trial lawyer Gerry Spence. In the course of this, Pattis remembered what was best about Spence's Trial Lawyers College and recalled a comment made by Spence, who's claimed to have never lost a case:

I sat up most of last night wrestling with the ghost of Gerry Spence. As usual, I figure he got the better of me. It bugs me.

"You know why you lost that case, Norm?" He approaches me warily, waiting for the trap to spring. My mind is a weapon. It often fires before I can stop it.

I sit silently.

"You lost it because you are mean," he said.

....

"[T]he jury didn't trust you, Norm" Spence says. "It trusted the state, the gentler men." He's pointing at me now, but in a welcoming way. "You know, I would have won that case."

Maybe he would have. Maybe he wouldn't have taken the case. I don't know. I recall years ago his complaining that he could not get into court. His cases kept settling. I offered him a chance to come on board in a gang murder. He declined. "I can't win that case," he said. Criminal defense isn't about picking winners.

Criminal defense isn't about picking winners, but what if it were? Mark Bennett speculated:

In about 20% of the cases I take, I know that in the end I will win and my clients will be able to get their records cleared. There’s a larger chunk of cases that I eventually win; if I investigated every case before taking it, I would recognize many of them as winners ab initio. If I took only cases that I knew I could win, I would still make a decent living. And, while it’s far too late for me to say I’ve never lost a criminal case, the better part of my career is ahead of me; that living would improve as word got out of my newfound invincibility.

I wouldn’t try it because I agree with Norm: “Criminal defense isn’t about picking winners.” If I had, for the last fifteen years, taken only cases I knew I could win, I wouldn’t have won many of the cases that I did outright. I wouldn’t have minimized sentences in many other cases. I wouldn’t have put the government to its proof as many times. In sum, wouldn’t have done nearly as much good.

For Pattis and Bennett, criminal defense isn't about picking winners (and thankfully so); for public defender Gideon, it's not even about picking clients:

Picking winners is an idealistic business strategy, one that established lawyers may attempt as a product of their long standing reputation and the desire to build upon that reputation and create an aura. But, in the end, it is nothing more than an ego-boosting business plan.

Which has nothing to do with the reality of criminal defense. The two are at odds, for one shouldn’t become a criminal defense lawyer for the sake of their reputation or win-loss record or to pad their coffers (though that is a necessary by-product).

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As a public defender, I do not have the luxury of choosing the clients I represent, yet I do my job with no ambitious desire to “advance my career”. The only ambition I have is to become a better lawyer and represent my clients – especially the guilty ones – more effectively.

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The ideal is to stand side by side with a man who may well have committed terrible crimes and to say to him: I do not care whether you are guilty or innocent and I will fight to the last to ensure that society treats you with the process and respect that you, as an individual, deserve. Maybe I’m an odd duck, but I want this job because the territory mainly encompasses those that are guilty. To me, they are not the afterthought or the unpleasant tax of doing business.

Until you can truly believe that the guilt or innocence of a client makes no difference to the quality of representation that you provide, you are not a criminal defense lawyer. You are a businessman.

Header pictures used in this post were obtained from (top to bottom) Carbolic Smoke Ball Co., Mojo's Girl, The Irish Trojan's Blog, and Paris Odds n Ends Thrift Store.