Advice for summer associates

Suffolk University Law School is offering through iTunes U a 20-part podcast series titled “Transitioning from One-L to Summer Legal Work.” Those podcasts I’ve listened to are worthwhile for those law students trying to understand what it means to practice law, especially if they have not worked in a professional or office environment. Kudos to SUSL–and why do neither Boston University or the BU School of Management have offerings on iTunes U?

Why Not Give a Bible?

“America LOVES GUNS and GAS!” If you purchase a Ford or GM car or truck this month from Max Motors in Butler, MO the dealer will throw in either a card for $250 in gas or a handgun. The dealership’s owner recommends the pocket-sized Kel-Tec .380 pistol. Most purchasers are opting for the handgun. The owner credits the promotion to Barack Obama’s remarks about people clinging to their guns and their Bibles: “I found that quite offensive. We all go to church on Sunday and we all carry guns.”

Must be a tough church. (Thanks to Z!)

Classic Lawyer’s Mistake

The SMG website features an interesting 7-minute podcast from colleague Marshall Van Alstyne, Associate Professor Information Systems, on IP and Open v. Proprietary Systems. Among other things he advises “don’t make the classic lawyer’s mistake” and equate “maximum value with maximum protection,” which he illustrates with a discussion of the birth of Google mashups. In a world of digital technology openness can enhance value.

Lawyers too often care more about not being wrong than about being right. We are trained to protect clients by erecting fences and installing padlocks, and overcoming that training requires conscious effort. Last week I had dinner with a friend who is in-house counsel for the regional branch of a retail mall development company. He wants to convince his client to save tens of thousands of dollars in legal fees by abandoning the typical, paragraph-by-paragraph slash-and-burn lease negotiation and focusing only on the narrow range of business and legal terms that go to the heart of each deal. “Why spend thousands of dollars negotiating condemnation and casualty provisions? They almost never matter.” It’s the “almost” that causes the problem. The company’s general counsel, back at HQ, will never agree to Steve’s proposal, which flies in the face of every lawyering-by-numbers manual and would require the company to change it’s risk-assessment culture.

NY Online Sales Tax Fallout

Amazon continues to challenge NY’s recent law requiring the online retailer to collect and remit NY state sales taxes on sales to customers in the state, but meanwhile it will comply with the law when it becomes effective on June 1. New York asserts that Amazon’s New-York-based “affiliates,” third-party websites that link to Amazon and receive commissions in exchange for generating sales, establish the nexus with the state required by the US Supreme Court in its 1992 decision Quill Corporation v North Dakota. Overstock.com has taken the opposite tack, canceling relationships with its 3,400 New-York-based affiliates.

The New York law puts an Internet-specific spin on the issue addressed by Quill. The California Court of Appeal upheld the state’s collection of sales taxes from out-of-state Internet retailer Borders Online based on its agency relationship with Borders, Inc. in Borders Online v State Board of Equalization. Borders, Inc. had a number of stores in California and, notwithstanding its separate corporate governance, engaged in cross-promotional activities with Borders Online and gave cash refunds for merchandise purchased from Borders Online. This agency relationship was more pervasive than the commission-for-referral affiliate relationships employed by Amazon and Overstock.com, but the question remains whether changes in the manner of commerce require updating the commerce clause and due process tests articulated in Quill. This commentary–which I’m not prepared to endorse–presents an argument why the New York law is unconstitutional under Quill.

Judge Admits Error in RIAA Case

Last October a Minnesota jury found Jammie Thomas liable for copyright infringement for KaZaa downloads of 24 copyrighted songs and awarded damages of $9,250 per infringement, a total of $222,000. Last week Michael Davis, the federal judge who presided over Thomas’s trial, said that he erred when instructing the jury that ““the act of making copyrighted sound recordings available for electronic distribution on a peer-to-peer network, without license from the copyright owners, violates the copyright owners’ exclusive right of distribution, regardless of whether actual distribution has been shown.” In other words, the judge told the jury that it could find Thomas liable for copyright infringement merely by placing copyrighted songs in a KaZaa-shared folder, even if no one copied one of the songs from the folder. That instruction was counter to the 8th Circuit’s 1993 decision in National Car Rental System, Inc. v Computer Associates International, which held, quoting Nimmer on Copyright, that “[i]nfringement of [the distribution right] requires an actual dissemination of either copies or phonorecords.”

The judge’s mea culpa is the latest in a series of judicial pronouncements as to whether “making available” a copyrighted work constitutes infringement of the copyright holder’s distribution right. Two other recent cases include London-Sire Records v Doe, a 31-Mar-08 decision from the federal district court in Boston in which Judge Nancy Gertner examined the issue at length and concluded that “to constitute a violation of the distribution right under § 106(3), the defendants’ actions must do more than ‘authorize; a distribution; they must actually ‘do’ it.” Four weeks later in Atlantic Recording Corporation v Howell the Arizona federal district court cited National Car Rental System, London-Sire Records, and other cases and sources to support its statement that “[t]he general rule, supported by the great weight of authority, is that ‘infringement of [the distribution right] requires an actual dissemination of either copies or phonorecords.’

The issue should be familiar to this semester’s students in Internet law. I used the facts of the Howell case as the basis for their final exam.

Pomp & Circumstance

6:00 AM, Logan Airport, Terminal B, Gate 34, awaiting boarding of AA #1909 to Miami. I’m missing tomorrow’s BU graduation to attend my oldest son’s graduation from law school. We happened to park in Garage B location 3L. Third-year law student? He is the third lawyer in our family? Quite portentous.

Congratulations to all graduating seniors. I’m sorry I won’t see you tomorrow as you cross the stage to receive your (empty) diploma case and shake the Dean’s hand. I wish you all the best. Stay in touch.

Isn’t It Ironic

I’ve determined the cause of my recent PC problems, in which Windows XP gets hung up while rebooting: Windows XP Service Pack 3. I isolated the other variables and allowed Windows to download and install XP SP3 and reboot, and it never completed rebooting. It took another hour-plus to restore Windows to a pre-Service Pack 3 time when everything worked, and even with that I spent another half-hour reinstalling device drivers. Just another day in PC world. My fingers were itching to dial the Apple store during the entire ordeal.

Classroom Distractions

Some time ago I wrote about the use of laptops in the classroom, a post prompted by law school professors banning laptops because of their deleterious effect on class discussion. I said then I would not ban them. In my pre-computer college and law school days I never lacked for classroom distractions. I could miss an entire lecture armed with nothing but a pen and paper. A laptop is more engrossing than a surreptitious game of hangman, I know, but boring classes are the biggest culprit.

A reader who recalled that discussion sent me a link to Surfing the Class from the May 13 New York Times, which notes that the the U Chicago Law School dean “has recently announced an end to classroom surfing.” Henceforth laptops are only to be used to take notes during class. That oughta stop it. Maybe he can also announce an end to people speaking too loudly on cellphones in restaurants or on public transit.

I think classroom laptop use is more prevalent in law school than in the BU School of Management. Rarely do more than ten percent of students use a laptop in class, and usually the number is less. My attitude has not changed. As long as it does not distract either their classmates or me, it is the laptop user’s choice to spend their class time and tuition reading email or booking flights for spring break. My job is to make the classroom experience so interesting that they don’t want to miss it–which, I’ll hasten to add, is a statement of aspiration, not a description of reality. Law students are adults and, in my view, are responsible for their own choices. Undergraduate students are, initially, not as adult as they would like to believe but have earned the title by their senior year, for chronological reasons if no other.

If students complained that someone’s in-class web browsing detracted from their ability to pay attention then I would banish the laptop users to the back row. In ten years of teaching I’ve received only one complaint about laptop use in the classroom, from a student distracted by keyboard noise. I required all students using laptops to sit together one side of the classroom, and checked periodically with nearby students whether the laptop ghetto distracted them. It didn’t, and everyone was happy.

Maybe this fall I’ll be preemptive and designate the back row for laptop users, unless they promise not to distract others by browsing.