Volokh on eLawtric Books: Post Nos. 5, 6, 7, 8 & 9

Volokh on eLawtric Books: Post Nos. 5, 6, 7, 8 & 9

January 5, 2010  |  Publishing, Signal, Technology  |  No Comments  | 
By some strange coincidence, I decided to wrap up my take on Eugene Volokh’s series “The Future of Books Related to the Law” on the eve of CES 2010 (http://www.cesweb.org/default.asp), a portentous event for those of us following the development of eReaders and slate computing technology. Knowing that Professor Volokh’s series was written in part to flesh out ideas for the Foreward to Michigan Law Review’s 2010 Books Related to the Law issue (which won’t be out until April), I will be very interested in reading the finished piece, which will follow not only the vendor announcements at CES, but also Apple’s possible announcement (http://www.appleinsider.com/articles/09/12/30/report_apple_event_set_for_january_26_2010.html) of the iSlate and other mobile computing products on January 26th.
Post No. 5
In his fifth post, Prof. Volokh focuses our attention on the problem of lending electronic books. More specifically, if manufacturers and publishers want to move into the eBook space, they will have to figure out a way to compete with the library. Like Post Nos. 3 and 4, No. 5 assumes that vendors want to make their catalogs available as eBooks. As readers of my takes, you know that I disagree with this assumption, believing instead that most current legal publishers will enter the space kicking and screaming if they can’t bypass it altogether.
There is no doubt that the explosion of eReaders has brought to light some significant issues with regard to a consumer’s rights, lending being one of them. And when we use the word “lending” here, we’re really talking about two different concepts: access and borrowing.
When the Barnes & Noble nook was announced, the LendMe (http://www.barnesandnoble.com/nook/features/) feature had a lot of bloggers buzzing because it would allow the owner to “lend” the book (in the *borrowing* sense), as you would a physical copy, to any other friend who has a nook or is running the B&N eReader software (on PC, Mac OS, iPhone, or iPod Touch). This was heralded as a significant advancement over the current eReader leader, the Kindle. When the nook was released in October, the same bloggers seemed surprised to find that you could only lend the book if the publisher allowed for lending and then, only once for 14 days, ever. This limitation did not strike me as odd at all given the discussions I’ve had with other publishers about DRM issues.
I think what was more important (and strangely overlooked) about the nook announcement was the fact that B&N has designed (although I don’t think it is available yet) an eBook ecosystem—which will be accessible only by nook owners and only via Wi-Fi in the store—that allows you to “browse” electronic books in the same way as you would physical ones. This version of lending is about *access.* Whether this browse feature is limited in any significant way remains to be seen, but the fact of its existence suggests the technology is available to support in-library lending.
Unfortunately, Post No. 5 does not clarify whether the lending system is meant in the accessing or borrowing sense, or both. I’m assuming that Prof. Volokh would say libraries should allow you to check out and leave with an electronic book as well as accessing it in the library. As far as eReaders go, I think the borrowing system is much more problematic for publishers than the accessing system. The nook might just be a good example of this struggle. And if we conceptualize law libraries (like bookstores) as “third places,” (http://www.aallnet.org/products/pub_llj_v101n02/2009-09.pdf) then the accessing-model only makes perfect sense, and something publisher might work towards.
Post No. 5 explicitly states that everyone—libraries, users, and publishers—can “all profit from making it possible to lend e-books on much the same terms as libraries can now lend books.” How this is accomplished is less clear. Undoubtedly, an eBook ecosystem would save libraries money because it reduces the time and expense of maintaining stacks (which includes everything from procurement, payment, lending, shelving, etc.). From the publisher’s perspective, I would encourage this move if I could actually charge the library more, not less, for the eBooks and the ecosystem. Some percentage of the dollars saved on maintaining the stacks should come to me for helping the library eliminate the expense. This is the only way I can see publishers willing to create the system.
In the end though, I think law publishers will skip over eReaders. I’ll acknowledge that some ePubs and pdf books will hit the virtual shelves [[**pull West’s pdf service]], but there’s been too much investment in training law students and lawyers to look online. Our interaction with the law library is uniquely different than with the bookstore, and if I can provide the library with an effective web-based service that allows lending in both the access and borrowing sense (because DRM is more easily implemented via the web than over dozens of different eReaders), I will go that route instead.
As an aside, I recommend The Twenty-First Century Law Library (http://www.aallnet.org/products/pub_llj_v101n02/2009-09.pdf) for anyone interested in a recent discussion on digital trends in law library usage.
Post No.

By some strange coincidence, I decided to wrap up my take on Eugene Volokh’s series “The Future of Books Related to the Law” on the eve of CES 2010, a portentous event for those of us following the development of eReaders and slate computing technology. Knowing that Professor Volokh’s series was written in part to flesh out ideas for the Foreward to Michigan Law Review’s 2010 Books Related to the Law issue (which won’t be out until April), I will be very interested in reading the finished piece, which will follow not only the vendor announcements at CES, but also Apple’s possible announcement of the iSlate and other mobile computing products on January 26th. This month should be pretty fun.

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Goodbye old friend.

Goodbye old friend.

January 2, 2010  |  Bulletins, Noise  |  1 Comment  | 

Today we had to say goodbye to a dear friend, Daisy. My son, when we first brought Daisy into our family, wanted to name her Reticulated Dinosaur. An odd name for a 4-year old to bestow on a hapless puppy. We opted instead for Daisy. Through these many years, she was as a good a companion and confidant as any person could be blessed to know. She was part Golden Retriever and part Kangaroo, and anyone who knows Goldens understands what I mean. She was, at times, dumb and stubborn, qualities that closely mirror someone else I know. She was also a notorious crotch nuzzler, which guests either found shocking or pleasant. But mostly, she was sweet, and soft, and kind. And when I think of her, which will be often, I will always imagine her sitting on the porch in Maine, watching the boats go by, dreaming of nothing but an endless supply of tennis balls and dirty rotten kitties.

Good luck sweet baby, you will be missed.

On holiday.

On holiday.

December 22, 2009  |  Bulletins, Noise  |  No Comments  | 

I’m holiday now. I’ll be back after the end of this week, hopefully with a fresh look to this site. I hope all of you who stop by to read this trash have a peaceful holiday. God knows we need it.

“Welcome to planet Earth….”

December 19, 2009  |  Found, Noise  |  No Comments  | 

From Engadget today, a link to Fresno Criminal Defense attorney Eugene Action’s website. Now, I know that going to Harvard is an achievement, but I’m trying to determine whether quotes like this increase client engagement:

I Graduated from Harvard Law School in Cambridge Massachusetts. If you have not heard of Harvard Law school, welcome to planet earth and enjoy your visit.

Or perhaps this:

If you recognize the difference between a five star hotel and the local motel, a five star restaurant and fast food, you will recognize the difference when you have me as your attorney.

Anyway, hit the link up if want some website marketing and design tips. I suggest grabbing a beer first.

[Image (cc) by Space Art]

I have altered the deal....

I have altered the deal….

December 18, 2009  |  Law, Publishing, Signal  |  No Comments  | 

A couple of posts on the Law Librarian Blog today caught my attention.  The first was Victoria Szymczak’s post on the recent letter sent by Lexis to law school dean’s concerning academic pricing for 2010. What caught my eye was her last comment:

And while I am on the topic of the 3 year volume purchase, I’d like to make a point.  In other areas of our life when we buy in volume we are typically rewarded with a discount.  In legal publishing land, instead of getting a discount, we get an offer to keep price increases in a certain range.  So, while the offer seems like a pretty good deal, we should remember that it is still contrary to the way the “real” world works.  Isn’t this why Costco is so popular?

I’ll admit, CALR pricing may seem a bit strange (i.e., the idea of signing contracts to keep lock in guaranteed price increases), but it’s certainly not uncommon. There are plenty of contracts we enter into to “protect” ourselves from market fluctuations. For example, I signed a multi-year private garbage contract for our neighborhood association that ties increases to the CPI and fixes prices for diesel fuel. It guarantees a return to the garbage company, but protects the neighborhood from big spikes in gas prices (which happened a couple of years back).

To Thomson West and Lexis, you’re already getting a discount. They aren’t charging you retail, well, their idea of “retail.” If you were charged retail, or even a Costco discount off of retail, you’d probably still be paying a lot more than what you’re paying now. Would you feel better if your CALR vendor just set pricing 12% higher and agreed to no price increases over four years?

And this brings me to the second item that showed up in Mark Giangrande’s post Is the Kindle a News Publisher’s Dream Device?, and ties in nicely to the discussion on CALR pricing generally:

[Image (cc) by jtjdt]

Attorney + Facebook friend cum client = ?

Attorney + Facebook friend cum client = ?

December 15, 2009  |  Law, Signal  |  No Comments  | 

Here’s a real-world example that plopped into my lap on Monday:

Two individuals are friends on Facebook. Facebook Friend No. 1 (FBF1) is a male attorney. Facebook Friend No. 2 (FBF2) is a female with protected updates (i.e., to friends only). FBF2 has an accident (and for the sake of this discussion, let’s assume insurance is not involved), and actually posts about the accident at the scene or shortly thereafter through her iPhone Facebook app, and then later through her home computer. FBF1, as a friend, is privy to all of her statements on Facebook. Other friends respond to her posts with questions and comments. FBF2, not wanting to leave her family or friends out of the loop responds in detail. All the while, of course, FBF1 is in the loop. As a few days go by, FBF2 continues to post about her experience, illiciting responses from friends and family. Sometime after the accident, FBF2 believes she has an actionable claim and contacts FBF1 through Facebook email, seeking help. FBF1 agrees to represent her, but remains friended to her through Facebook. During the course of negotiations, FBF2 posts updates about her extracurricular activities that suggest her health is fine, contrary to the claims made.

So here are my top 4 questions:

1. Is FBF1, the attorney, a witness?

Comment: I think he is because he has access to information forming the basis of the suit. Now he isn’t the only witness necessarily, as FBF2 might have a hundred or more other friends who read the posts in the stream or even commented on them, but he is a witness nevertheless.

2. Is FBF1 disqualified from representing FBF2?

Comment: I don’t know. There was a good article in the recent edition of the Texas Bar Journal on attorney disqualification, and at least in this example, the attorney wouldn’t be the only one who could offer testimony on an essential element of FBF2’s case. That alone would probably keep the attorney from being disqualified. But it certainly would be embarrassing having to be deposed assuming opposing counsel could get that far. Now, if FBF1 is an associate who got a partner involved only to have this issue pop up later, well, that could be a different problem altogether.

3. If FBF2 continues to post updates about her condition, the events leading up to the accident, or her case after she has retained FBF1, has some portion of the attorney-client privilege been waived?

Comment: I have no clue on this one. If FBF1 remains a “friend” to FBF2 and receives the posted updates, are those communications to the attorney disclosed to unnecessary third persons? I’m thinking the attorney has an obligation, after assuming representation, to “unfriend” the friend cum client to avoid this question.

4. Are all of FBF2’s friends witnesses, and can I subpoena them to find out what they know about the facts of the case?

Comment: Yes. As an attorney, I’m glad that FBF2 has given me a list of potential witnesses to interview once suit has been filed and I’ve obtained the Facebook postings. The idea of being able to contact friends of FBF2 to find out what they know about the accident makes me kind of giddy in fact, particularly because it will make the witness uncomfortable having to deal with me. For a good post on subpoenaing information from Facebook, see the Lawyerist post here. [SHAMELESS PROMOTION WARNING: We will be releasing the O'Connor's California Civil Pretrial Handbook next year, and I can assure you that the subpoena chapter is amazing.]

I’m sure there are many other issues here, I’m just not smart enough to see them all. So please, discuss below and let me know what you think.

[Image (cc) by madmolecule]

Backlists & e-book publishing rights.

Backlists & e-book publishing rights.

December 13, 2009  |  Publishing, Signal, Technology  |  No Comments  | 

In today’s NYT, Motokh Rich has an article on the looming legal battles over who owns the rights to publish “backlist” books as e-books. Today’s WSJ has a similar article by Jeffrey Trachtenberg. As you might imagine, the authors (or their estates) who are looking to breathe new life into their catalog claim they own the rights. The publishers, of course, disagree. There are two things that are important about these articles from the legal publishing standpoint.

The first is the importance of a backlist. As Rich highlights,

Backlist titles, which continue to be reprinted long after their initial release, are crucial to publishing houses because of their promise of lucrative revenue year after year.

In trade publishing, having your book backlist is a goal because it is a sign that it sells year-after-year. In the legal publishing business, backlists are a bit different, but some similar examples would be Black’s Law Dictionary (in print) or the West Nutshell Series. The biggest difference between trade and legal publishing backlists is marketing. Legal publisher’s tend to always market their print titles. Direct mail, email, web banners, whatever. If it can be targeted and it’s relevant to Mr. or Ms. Attorney, backlisted titles will be advertised. In trade publishing, however, backlisted titles usually don’t enjoy such marketing efforts, and that typically doesn’t matter because the strength of the publication keeps the sales up.

This difference would suggest that being backlisted in legal publishing might even be better than in trade. But it isn’t exactly. Being backlisted in the legal publishing business isn’t a goal. Legal publishers like “new” and “updated.” Being current is relevant. Being old, isn’t. And currency motivates attorneys to purchase titles, that’s why legal publishers sell supplements, pocket parts, etc. If you don’t know or understand what is happening right now, you’ve already lost. After all, selling on fear is a staple of law content advertising.  No, you want to update, update, update, and be frontlisted every year.

But like trade, the backlist in legal publishing is important, just for a different reason. A backlist in legal publishing is meta. As lawyers, we rely on history to understand both the present and the future, and the value of the backlist grows as we consider how it might enhance our research about the law now. If a publisher has a backlist that isn’t incorporated as part of a CALR system (e.g., Westlaw, Lexis, Loislaw), or doesn’t have the rights to do so, the backlisted authors should start giving some thought on how to better monetize their content given the current web (fixed and mobile) trends. The recent discussions on the Tubes about the commoditization of primary law and how the battle of relevancy will be shifting to analytical resources makes this an even more pressing matter.

[As an aside, I've often been puzzled as to why Westlaw or Lexis doesn't give you the option to search older editions of frontlisted titles. There have been many times when I needed to look at an older edition of an updated title. From my perspective, all historical data is relevant, or at least could be.]

The second part of both articles I found important was the mention of the Random House and Rosetta Books litigation, which serves as some guidance (and when it comes to electronic books, there isn’t a lot out there) for authors who might one day find themselves staring at their contract and wondering what they might be able to do with their content. The decision is important because the district court decided that e-books are not simply printed books in a different disguise, and thus, a contract giving the publisher the right to publish, print, and sell a copyrighted work “in book form” does not give it the right to offer the work in a digital, e-book form.

In this case, the “new use” — electronic digital signals sent over the internet — is a separate medium from the original use — printed words on paper. Random House’s own expert concludes that the media are distinct because information stored digitally can be manipulated in ways that analog information cannot. Ebooks take advantage of the digital medium’s ability to manipulate data by allowing ebook users to electronically search the text for specific words and phrases, change the font size and style, type notes into the text and electronically organize them, highlight and bookmark, hyperlink to specific parts of the text, and, in the future, to other sites on related topics as well, and access a dictionary that pronounces words in the ebook aloud. The need for a software program to interact with the data in order to make it usable, as well as the need for a piece of hardware to enable the reader to view the text, also distinguishes analog formats from digital formats. [Citations omitted.]

Random House, Inc. v. Rosetta Books LLC, 150 F.Supp.2d 613, 622 (S.D. N.Y. 2001). Now, this case is old (relative to technological advancements), and I suspect that many legal publishers have already updated their old media licenses to reflect new media uses. But then again, I’ve seen some of the big publishers still using EULAs from the 90s for some of their content, so who knows how well they maintain their author contracts. In any event, Random House still serves as practical advice for authors and legal publishers when considering the effect of contractual language on rights to distribute content through emerging and future technologies. Consider “vooks,” for example. Does the right to distribute a work in an e-book format include the “video, audio, and speak-to-the-author-live” interactive edition?

I’m just glad we own the copyrights to all of our titles.

[Image (cc) by I like]

The ever-shifting landscape: how might lawyers compute?

The ever-shifting landscape: how might lawyers compute?

December 11, 2009  |  Signal, Technology  |  No Comments  | 

The following is Joshua-Michéle Ross’s interview with Roger Magoulas, Director of Research at O’Reilly. They recently sat down to talk about “the next device.” In this segment of the interview, Magoulas talks about palm projectors and OLED screens on how these will be disruptive. During the interview, Josh also notes that Apple has opened up the hardware API, and so physical keyboards could be coming soon.

What is interesting about this conversation is how portable computers (lappys, netbooks, tablets) could become irrelevant in the larger conversation. As the iPhone and Android markets mature, the phone could be the only computing device you need. Palm projectors, such as the Pico, aren’t there yet (Roger notes that they still require a dark room), but once they are, you could have all of your needs served with a projector and keyboard. And if apps simply become cloud portals, the phone could become the only device we use to access our stored data, CALR programs, or whatever. Something to chew on as we consider the emergence of web-tablets.

Josh notes that the interview was good enough to break it into several segments. I’m looking forward to the rest.

[Image (cc) by Alberto+Cerriteno]

Why 2010 is going to be fun.

Why 2010 is going to be fun.

December 10, 2009  |  Signal, Technology  |  No Comments  | 

Tablets. Tablets. And more tablets. Earlier in the week, we got to see a preview of the CrunchPad JooJoo tablet, and learn all about the unholy mess the makers of that device have made. Yesterday, we learned that you could hack a Dell Inspiron Mini 9 to create a dual-screen tablet to make it sort of look like the fabled and drool-worthy Microsoft Courier device. Today, Engadget reports that ASUS, the manufacturer who started all this netbook nonsense, is working on a tablet, and reminds us what such a device might be capable of, and follows that up with teaser that Dell might be entering this space too (albeit on the smaller side of things).

Now, it’s not like we don’t have access to tablets. But they’re too damn expensive for what we need, like the Sahara Slate running Windows 7 for $1,800 (base). No, 2010 is going to usher in low cost 7 to 9 inch touchscreen weblets, and then we can stop talking about eReaders.

Who knows, if Brian Lam gets his way, maybe Google will make one of these things and give them to us for free.

[Image Attribution Photo Giddy]