June 3-10

But when it comes to a foreign book, figuring out its copyright status can require a mammoth investigation. That's because a work must have been under copyright in its home country to qualify for restoration in the United States, says Kenneth D. Crews, director of the copyright advisory office at Columbia University Libraries. So, for example, when Columbia considers digitizing a rare trove of Chinese books, including many from the 1920s and 1930s of great interest to scholars, its staff must grasp the legal nuances of a country that has gone through a revolution—and a transformation of copyright law—since the books were published.
The outcome could affect policies at institutions around the country. Universities have wondered for years whether fair use allows them to digitize and share movies for online access in courses. "It's one of the most common situations. ... 'I want my students to watch this audiovisual work'—whether it's a 10-minute instructional program or a two-hour feature-release film—'and I want to put it on a server so they can all just watch it in their own free time. Can we do that?'" says Kenneth D. Crews, director of the Copyright Advisory Office at the Columbia University Libraries.
Ownership restrictions in the legal field exist in all 50 states, though not in Washington, D.C. While the rules were designed to prevent investors from jeopardizing lawyers' judgment, some legal experts view them as anti-competitive, benefiting large and mid-size firms. “Do they add any protection to anybody's legitimate interest?” asked William Simon, a law professor at Columbia University. “I kind of doubt it.” Still, Mr. Simon, whose academic work focuses on professional responsibility, said the lawsuits face an uphill battle. “I'd be skeptical about their prospects,” he said.
Carol Sanger: The slow creep of US-style tactics, such as prayer vigils, by private anti-abortion groups in the UK is worrying. But if the copycat trend continues, there is worse to come. This would be the move from private harassment to public harassment through legislation. Under the guise of "informed consent", a number of US states now require pregnant women to undergo a sonogram and, in the words of the Alabama statute, be offered a look at their "unborn child" before they can legally consent to an abortion. Impositions like this, which may sound preposterous (or at least unacceptably intrusive), have a way of taking hold as the politics of "life" work their way into official policies.
Tim Wu’s magisterial history of information, communication, broadcast and entertainment empires in US history, The Master Switch, challenges us to think about the importance of open v closed. Open does not equal free market and closed does not equal state.
Students in a special class on redistricting and gerrymandering at Columbia Law School used computers to redraw many of the states’ congressional boundaries. Matt Tynan, a second-year law student, took on the Washington map, placing the 10th Congressional District in Thurston County and parts of Pierce County that include Joint Base Lewis McChord.
The city of Easton will offer domestic partner benefits as of Jan. 1. Mayor Sal Panto signed a bill Monday that gives medical benefits to same-sex partners of city workers. City Council unanimously approved the legislation last week. Philadelphia, Pittsburgh, Harrisburg and Allentown have similar policies. The ordinance was written by students at Columbia Law School's Sexuality & Gender Law Clinic.
Similar items appeared in the Eastern Pennsylvania Business Journal and The Examiner.
Personal bankruptcy filings in Nevada declined 17 percent during the first five months this year, according to an analysis by a Columbia Law School professor. Yet based on population, Nevada still leads the nation in new bankruptcy cases, according to a study by Ronald Mann for the National Bankruptcy Research Center.
A similar item appeared on DSNews.
In February 2010, they had just finished assembling a 3-D printer from a kit when Eben Moglen came to campus. Moglen, a professor at Columbia Law School and a staunch advocate of free, open-source software, had come to NYU to give a lecture he titled "Freedom in the Cloud." Addressing a packed auditorium, he laid out the argument that cloud-based services built on proprietary software, such as Google Docs and Yahoo Mail, were an assault on user privacy and, from a programmer's perspective, utterly unnecessary.
Yesterday at PdF '11 wrapped up with a series of quick-fire talks on the future of the networked Internet. Eben Moglen, a law professor at Columbia and the director counsel of the Software Freedom Law Center, warned that the online realm is not as secure as it ought to be. "We've lost too much already," said Moglen, "and we've lost it because we've lost anonymity. And without anonymity, the human race will not be human anymore."
WASHINGTON POST (Political Bookworm Blog)—June 7
Americans have been living an energy delusion for 40 years, argues Michael J. Graetz in his book “The End of Energy: The Unmaking of America’s Environment, Security, and Independence,” published by the MIT Press. Graetz says Americans have ignored the consequences of how we get and consume our energy. Before the 1970s, all the oil we needed for our homes, power plants and cars was domestically produced.
With India one of the world’s fastest-growing economies, there is an increasing recognition that its energy needs must come from cleaner sources to help counter the effects of climate change from greenhouse gases. It is a potentially lucrative market for outside investment, but high costs and bureaucratic and legal roadblocks have stymied most efforts. Now, a project run by the Center for Climate Change Law at Columbia Law School seeks to change that.
THE NEW YORKER (News Desk Blog)—June 8
Also, the iCloud announcement begins to address the criticism that Apple, which is competing with Google, Facebook, and Microsoft for control of what Tim Wu calls the master switch, doesn’t “get” the cloud.
Is Facebook Tagging a Breach of Privacy?
The European stance differs strongly from the self-regulatory, free market approach favored in the U.S., where web companies have flourished by offering users free services if they provide personal information to help advertising target them better. Eben Moglen, a Columbia University law professor and online privacy expert, said: “If the European regulators get serious, it will create a significant conflict.”
A conference late May at Columbia University’s Center for Climate Change Law, Threatened Island Nations: Legal Implications of Rising Seas and a Changing Climate, organized at the request of the Marshall Islands government, brought together academics, diplomatic groups and NGOs to explore complex and unusual questions on state sovereignty, marine rights, international treaties, and migration and resettlement. For those like myself who have worked with small island nations, this public discussion, as well as the burgeoning of academic papers on these subjects, were largely new.
Michael Gerrard: As a civilization our laws are often based on the assumption of a static world. This norm is now being challenged, as global climate change shifts natural boundaries. The definition of marine territories is just one area where old laws may lead to difficulties in the changing future; but it is one that nations hoping to maintain existing rights should address as soon as possible.
NEWSDAY—June 9 (subscription required)
Debate Over Whether Aug. 1 Referendum is Legally Binding
"The purpose of a referendum is to make law; it's not to be an opinion poll," said Columbia University law professor Richard Briffault, who specializes in election and local government law. "There's simply no authority for the government to conduct an opinion poll and use the voting booth for that opinion poll ... Right now, the county simply has no authority to hold an advisory referendum."

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June 10-17

RE: ASIA (Blog)—June 10
Michael Gerrard: Cities generally have little control over several sectors of the economy that are major contributors to GHG emissions — power, industrial manufacturing, motor vehicle manufacturing, forestry, and agriculture. Thus the role of cities in climate governance will always be secondary to the national and provincial governments that control these sectors, and the activities of cities, though essential, are no substitute for binding national laws and global agreements.
Legal experts across the political spectrum predict Texas’ new law requiring a photo ID to vote could run into resistance from the U.S. Justice Department. But some speculate that the Obama administration will ultimately set aside any objections and OK the law to avoid a fight that might give courts an opening to revoke some Civil Rights-era protections for minority voters. Justice Department officials “are acutely aware that if this goes to the Supreme Court, Section 5 could be struck down,” said Nate Persily, an election law expert at Columbia University Law School, referring to a key provision of the 1965 Voting Rights Act
NPR—June 13
[T]he risk, said economist Jagdish Bhagwati of Columbia University and the Council on Foreign Relations, is how to keep those jobs and prevent them from going to someone who becomes more competitive. The minute the U.S. masters a technology, he says, another country can come along and snatch the advantage. "I think the fallacy consists in saying that if I invested so much in a specific activity, that that is going to be a static, permanent, steady-state situation," he said. "We are living in a world of flux today; there's no way you can get out of it."
NPR—June 14
Columbia Law School Professor Richard Briffault notes that because the Supreme Court has ruled that a legislative vote is not protected by the First Amendment, the state courts will have to be far more deferential to the existing law. “I think when court is saying you don't have a free speech right to cast a vote the way you want, I think that would also pick up the associational right.”
CNN (American Morning)—June 15
In the case of the United States' current involvement in Libya, the Congress argues President Obama is in violation of the War Powers Resolution, as the nation has been militarily involved in the North African nation for more than 60 days without the approval of Congress. However, President Obama has argued the U.S. is only in a support role in Libya, without any combat boots on the ground. So, who is in the right? Professor Matthew Waxman, Associate Professor at Columbia Law School and a Fellow with the Council on Foreign Relations, discusses the War Powers Resolution with American Morning.
A similar item also appeared on CNN’s Global Public Square blog.
Pfizer immediately applied for a new patent, renamed the drug Viagra and the rest is history. The question in court today is whether that second patent is valid, and it hinges on a legal concept called 'non-obviousness.' Scott Hemphill is a law professor at Columbia University. “So the fight in non-obviousness often comes down to whether some new invention could have been seen by anybody. Pfizer's reaction, as you would expect, is well, if this was so easy to figure out why didn't anybody do it until we did?”
The knowledge motivated Columbia University law professor and free software advocate Eben Moglen to launch the Freedom Box Foundation. The foundation's goal is to build small encrypted servers that plug into the wall and that can be loaded with their own information and programs. They would be roughly the size of a cell phone charger, and they would run on low-power chips.
But even without millions of dollars at his disposal, a 24-year-old Columbia University law school student from a Jacksonville suburb has crafted a congressional plan he says would likely withstand legal scrutiny -- if lawmakers care to adopt it. Nicholas Ortiz drew the plan as part of a class at Columbia that allowed students to use redistricting software to craft maps for several states. Ortiz chose his home state of Florida and proceeded to carve the state into 27 districts that he says would honor the Fair Districts standards and federal law.
Carol Liebman, a law professor at Columbia Law School who has studied mediation and other dispute resolution techniques, said she had concerns about the judge-directed approach to settlement negotiations becoming too heavily focused on the financial resolution of the case. As the program expands across the state and potentially into others, Liebman said the judges need to ensure plaintiffs have a chance to address the doctors and hospitals that have allegedly harmed them or their families.
John Coffee, an expert on corporate fraud and securities law at Columbia Law School, said the FDIC's decision to pursue civil litigation against Killinger and the other executives likely means regulators have decided against filing criminal charges. Civil cases often can be based on documents, such as the scores of emails and memos to and from Killinger, Rotella and Schneider that the FDIC suit cites. But prosecuting a criminal case usually requires an inside source willing to testify about the defendants' intentions, Coffee said.
Columbia University Securities Law Professor John Coffee argues the SEC may have a case that evidence compiled by several economic researchers shows strong evidence the ratings firms systematically engaged in grade inflation. "That kind of adjustment does sound like fraud, whereas passivity can be defended as simply non actionable negligence. Thus, the strength of such a suit will likely depend on what is alleged," Coffee writes. "It is important to go beyond charges of inactivity and assert (as the economic evidence seems to show) that they deviated from their own models to inflate their ratings."

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June 17-24—June 17
Suzanne Goldberg, director of Columbia Law School's Center for Gender & Sexuality Law, called the potential for lawsuits a "red herring."
The ruling does not say which four justices would have concluded that the states did not have standing, but experts assume it was the same four who ruled that way in the earlier case. Today's ruling also indicates that Justice Anthony Kennedy, the swing vote in 2007, has not changed his position. "It's basically a reaffirmation of Massachusetts v. EPA," said Michael Gerrard, director of the Center for Climate Change Law at Columbia Law School.
Similar items appeared in the National Law Journal, Chemical & Engineering News, and WNYC.
NEW YORK TIMES (DealBook)—June 20
“An obvious short-term consequence of increasing base salaries on Wall Street is to weaken the pay-performance link — which, in turn, makes it more likely that banks will fire low-performing employees rather than simply reducing their bonuses,” said Robert J. Jackson Jr., who served after the financial crisis as a deputy to the Treasury Department’s pay czar, Kenneth R. Feinberg.
Columbia University law professor John Coffee said the Wal-Mart ruling all but sounded the death knell for class-action suits that seek money from employers for discrimination. "This significantly changes the balance between employers and employees. And it largely eliminates the monetary threat facing big employers," he said. Lawsuits are expensive to bring, "and if there is no money relief at the end of the road, there is no incentive to bring the suit," he said.
Similar items appeared in The New York Times and HR Executive.
“The SEC is a body that has its dams bursting on all four sides,” said Columbia Law School Professor John Coffee. “It is going to have to monitor these funds, and right now their funding is very thin, so it will be difficult.”
"This is deja vu all over again," said John Coffee, a securities law professor at Columbia University, recalling the Goldman Abacus case and referencing Yogi Berra. "If Goldman and JP Morgan were doing this, it wouldn't surprise me if others were as well," he added.
Some investors think that the fact that Social Security pays existing investors with cash collected by new investors makes it a Ponzi scheme. But that's not true, says Jack Coffee, professor of law and securities law expert at Columbia Law School. "This is less a question and more an aggressive assertion," he says.
It isn't just a handful of Idaho mappers who think a Lewiston-Pocatello congressional district makes sense. Students in Columbia Law School Professor Nathaniel Persily's "Redistricting and Gerrymandering" class recently created redistricting maps for all 50 states. The intent, Persily said, was to "draw boundaries based on political subdivisions like cities and counties, rather than the oddly drawn boundaries often drawn by partisan mapmakers to strengthen a party's power base."
Inside the War for Control Over the Mobile Internet
The real problem, noted Tim Wu, a professor at Columbia Law School, during one of the panel sessions at the event, is that carriers are trying to replicate a flawed cellular telephone business model in a new age. Carriers were able to charge customers based on the number of minutes consumed. If the customer didn’t use all the minutes, the carrier kept the difference. If the customer went over, the carrier imposed what amounted to penalties. Wu notes that with just about every other industry, such as electricity distribution, that type of business model is illegal because it puts all the risk on the consumer, while creating a constrict where there is no risk for the carrier.
CNN—June 23
John Coffee: From the standpoint of Wall Street traders who are thinking of crossing the line, they should view him as not just a sheriff, but Matt Dillon, U.S. Marshal. Daniel Richman: I certainly think the use of wiretaps is something rather new in the securities area. But, frankly, snatching hard drives is too. When the hedge fund guys start acting like mobsters, they get treated like that.

Katherine Franke: While many in our community have worked hard to secure the right of same-sex couples to marry, others of us have been working equally hard to develop alternatives to marriage. For us, domestic partnerships and civil unions aren’t a consolation prize made available to lesbian and gay couples because we are barred from legally marrying. Rather, they have offered us an opportunity to order our lives in ways that have given us greater freedom than can be found in the one-size-fits-all rules of marriage.
Nathaniel Persily, an election law expert at Columbia University, said the spread of outside groups reflects a changing legal climate. But, he said, "it's not clear that the advent of all these new PACs means more money will be spent. It will just be spent in a different form."
Columbia Law School students involved in a groundbreaking project recently completed drawing Congressional district maps for every state - including Wisconsin's 7th congressional district. The project is an outgrowth of the “Redistricting and Gerrymandering” course at Columbia Law School, taught by Professor Nathaniel Persily, the Charles Keller Beekman Professor of Law and Professor of Political Science. “DrawCongress now has an online database of Congressional maps for the entire country,” said persily, who oversaw the students’ work. “This is the first time any group has taken on a project of this scope.”

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June 24-30

“New Yorkers tend to move about the country quite a lot,” said Columbia University law professor Suzanne Goldberg, to Reuters. “High numbers of same-sex couples likely to marry here will increase pressure on other states to treat those couples fairly.”
A similar item appeared in China Daily and Reuters.
Lori Damrosch: In Medellin v. Texas (2008), the U.S. Supreme Court held that an international judgment based on the Vienna Convention could not be given effect as directly applicable federal law. Rather, Congress would have to adopt the necessary legislation to enable the United States to comply with its treaty obligations. It is now urgent for Congress to enact such legislation. Since 2004, when Mexico obtained a ruling from the International Court of Justice (ICJ) on remedies for U.S. treaty violations affecting 51 Mexican nationals on death row in U.S., the United States has been under a binding obligation to afford a judicial remedy to those individuals.
"North Carolina has had some of the more famous cases," said Nate Persily, a law and political science professor at Columbia University's law school in New York. "You have the recipe for contested cases following in every redistricting cycle." 
Districts Held Hostage by Prisoners (subscription required)
While the population shifts that hinge on the lawsuit's outcome aren't big enough to have a dramatic effect, experts say they could hurt the Republicans' efforts to retain control of the state Senate. "It's potentially another blow to the Republicans," said Nathaniel Persily, a law professor at Columbia University and an expert on redistricting and election law. "The upstate districts are losing population to begin with—and a reapportionment of the upstate prison populations would be salt on the wound."
Ever wondered what America’s congressional districts might look like if somebody other than the politicians were the ones drawing the maps? Well, a project at Columbia Law School has undertaken the results, and you can check out the results online.
FORBES—June 28
Bitcoin – the online currency used to buy Alpaca wool socks and illegal drugs whose value dropped from $17.50 to “pennies” after a June 19 hack into its currency exchanger,Mt.Gox–has gotten plenty of media attention. But unless consumers and merchants can be persuaded that adopting it will make them better off, it’s likely to go the way of other online currencies. That’s the view of Columbia Law School Professor, Ronald Mann. In a June 27 interview, Mann pointed out that there have been many attempts at creating online currencies — including Digicash, Flooz, and Beenz.
Jeffrey Gordon: The Supreme Court decision in Janus Capital Group v. First Derivative Traders is one of those cases that takes your breath away. The case astonishingly holds that an investment advisor is not liable for fraud in the prospectus of a sponsored mutual fund because the investment advisor is not the “maker” of those statements – even though the fund’s officers are all employees of the advisor (and paid for that service by the advisor) and the advisor prepares, files, and distributes the prospectus.
TIME (Techland blog)—June 30
One speculation is that it may be the influence of Columbia University Law School professor Tim Wu, an ardent supporter of Internet regulation who is best known for coining the term “net neutrality.” Wu joined the FTC in February as a senior adviser. In November of 2010, Wu published an op-ed in the Wall Street Journal titled In the Grip of the New Monopolists in which he listed Facebook, Amazon, Skype, Twitter, Apple, eBay and Google as potential monopolists.
A similar item appeared on Technology Liberation Front.

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