Covington and Burling partner Philip K. Howard, has a very interesting talk at the TED Conference (video embedded above) on overhauling and simplifying the legal system in order to spur innovation.

Amazingly enough, the IRS seems to be a the forefront in terms of ethical policies:

Generally, you are allowed to review information from publicly accessible, unrestricted websites. Unrestricted websites do not require further action to gain access, such as entering your email address or registering. In civil matters, employees cannot misrepresent their identities, even on the lnternet. You cannot obtain information from websites by registering using fictitious identities.

IRS, Social Networking Training Course (.pdf)

Another presentation Obtaining and Using Evidence from Social Networking Sites (.pdf) by the Justice Department’s Computer Crime and Intellectual Property Section, provides an interesting comparison of the practical ramifications of privacy and retention policies on digital evidence gathering.

The EFF’s Social Networking Monitoring project site will continue to post information which may well be worth monitoring for any lawyer with an interest in the area or clients that might be affected.

To a recovering graphic designer the ominous giant bold type on the census form looks like a cry for help. At the very least it’s a plea for legitimacy. The law in question is a plain, albeit rarely enforced penal statute found in 13 U.S.C.A. § 221. Refusal or neglect to answer questions; false answers:

(a) Whoever, being over eighteen years of age refuses or willfully neglects, when requested by the Secretary, or by any other authorized officer or employee of the Department of Commerce or bureau or agency thereof acting under the instructions of the Secretary or authorized officer, to answer, to the best of his knowledge, any of the questions on any schedule submitted to him in connection with any census or survey provided for by subchapters I, II, IV, and V of chapter 5 of this title, applying to himself or to the family to which he belongs or is related, or to the farm or farms of which he or his family is the occupant, shall be fined not more than $100.

(b) Whoever, when answering questions described in subsection (a) of this section, and under the conditions or circumstances described in such subsection, willfully gives any answer that is false, shall be fined not more than $500. (c) Notwithstanding any other provision of this title, no person shall be compelled to disclose information relative to his religious beliefs or to membership in a religious body.

That section has even created a bit of case law. United States v. Rickenbacker, 197 F.Supp. 924 (S.D.N.Y.1961), aff’d 309 F.2d 462 (C.A. 2, 1962), cert. den. 371 U.S. 962, 83 S.Ct. 542, 9 L.Ed.2d 509 (1963) (upholding conviction for refusing to answer the 1960 census questionnaire and imposing 60 days suspended sentence, $100 fine and one day of probation), U.S. v. Little, 321 F.Supp. 388 (D.C.Del. 1971) (denying motion to dismiss).

Perhaps unsurprisingly, the aluminum-foil-hat set has given rise to a census resistance movement. More surprisingly, it has not been entirely without luck in the courts. In U.S. v. Steele a conviction for refusing to answer questions on a census form was reversed by the 9th Circuit on the grounds of discriminatory prosecution. U.S. v. Steele, 461 F.2d 1148 (9th Cir. 1972).

Only four people in Hawaii were chosen for prosecution. All had participated in a census resistance movement, publicizing a dissident view of the census as an unconstitutional invasion of privacy and urging the public to avoid compliance with census requirements.

Steele held a press conference, led a protest march, and distributed pamphlets entitled “Big Brother is Snooping.” David Watamull was the owner of radio station KTRG, which broadcast editorials on the census. Census authorities had complained to the Federal Communications Commission about them because they “were calculated to incite people to subvert the census law.” Donald Dickinson spoke against the census as an announcer on station KTRG. William Danks headed the state chapter of a group called Census Resistance ‘70; he distributed pamphlets and publicly criticized the census.

Appellant and six other unrelated young adults resided in a private home in Honolulu. When a census enumerator called for his questionnaire, Steele refused to answer all questions on the form and returned it to the enumerator with two pages removed. Next, a supervisor called and was similarly rebuffed. Finally, after a regional officer had tried and failed to interview Steele, the effort was abandoned. Steele testified at trial that he had refused to answer on constitutional grounds.

Leland Gray, the Regional Technician for the census in Hawaii, described the four as “hard core resisters.” He ordered his staff to compile special background dossiers on them, a discretionary procedure not followed with any other offenders. Gray testified that his organization had been very concerned about the census resistance movement.

The penalties for wrongful disclosure of information by census workers are steeper – “shall be fined not more than $5,000 or imprisoned not more than 5 years, or both.” 13 U.S.C.A. § 214. No one appears to ever have been prosecuted under that statute.

Because fortune favors the bold and even the sun shines on a dog’s ass occasionally, I’ve done some Wordpress hacking to have a bluebooked citation of every page and post appear at the bottom of the page. For those similarly inclined to tempt fate, just cut and paste appropriately the Wordpress tags below:

Stephen Bruton, Waiting for a Long Time

Stephen Bruton with the Resentments: Heart of Hearts

Trailer: Crazy Heart

A Video Tribute

Stephen Bruton Tribute Video from J. Mitchell Johnson on Vimeo.

As usual, it’s well-written and incisive – a good primer for anyone considering starting a blog, to know what they’re getting into.

Good blogging is hard work

If you’re thinking of launching a legal blog, have your eyes open. Once you launch a blog, you will face the relentless, mind-numbing, never-ending task of finding worthwhile material to publish. That burden begins on the day of your first post and ends only the day you call it quits.

You want people to make your blog part of their daily routine: Turn on lights. Start computer. Grab coffee. Check headlines and professional news on the Web, in part by visiting the Drug and Device Law Blog. Ultimately, you want folks to subscribe to your blog so they receive notice of your posts as you publish them. To make that happen, you must regularly have new material on the blog that merits taking a look.

You can take a day off from publishing a post. But you’ll see the traffic to your site decrease. You can take a week off. But you’ll probably lose many readers permanently. You can take a month off. But when you start up again, you’ll essentially be building a new readership from scratch. Whether you are in depositions, in trial, or on vacation, you’d better pre-write some posts and have them published in your absence, or you’ll pay a price in readership.

Don’t have the blind spot that I did. Go into blogging aware of the Herculean effort it demands.

I would advise someone considering a legal blog to do it for a few weeks on a smaller scale, without any fanfare. Ideally, one might guest-blog on another blog in your area of interest. If not just create a disposable blogger account and try it out. Add up the hours you spend during your experimental blogging phase and then compare it to what you would have spent those hours on. It may depend on whether or not you’re displacing low value time in front of the television (as I often am) or time you would otherwise be working (and billing).

You may find, believe it or not, some intrinsic value in blogging. It’s nice when people comment or mention something about the blog to me in person, but I don’t write to start conversations and try to avoid controversy when I can see it coming. I would probably build it even if no one came. At the same time, I have no problem abandoning the blog for weeks at a time when more important matters take over my life.

Good blogging makes for good reading

Blogging also imposes a rigor on—or perhaps “clenches a death grip to”—your professional reading. No longer can you scan the headlines of the topical reporters to keep gently abreast of your field of law. Instead, the relentless need to generate fresh content will force you to analyze opinions start to finish in the hope of finding a publishable thesis. The need to feed the beast compels you to become a better student of the law.

I thought this was a particularly good observation and the principal reason why law students should consider blogging, perhaps treading lightly on areas where you realize there are others with greater knowledge and experience. For law students, the act of blogging forces a transformation from observer to participant, which we’ll soon be.

• Ashby Jones, Lawyers, Looking to Launch a Blog? Read This First, Wall Street Journal Law Blog (March 8, 2010)
• Jim Beck, Drug and Device Law Blog, A Fool’s Paradise, (March 12, 2010)
• Mark Herrmann, Herrmann’s Farewell Post, Drug and Device Law Blog (December 16, 2009)

The Cougars earned a spot in the NCAA Tournament for the first time since 1992 with a come-from-behind 81-73 victory against the UTEP Miners in the Conference USA tournament championship game on Saturday.

It’s a huge win for a program that’s struggled in the post-season and languished in the shadow of the Phi Slama Jama days of Hakeem Alajuwon and Clyde Drexler.

• Matt Miller, Win over UTEP sends Cougars to NCAA Tournament, Daily Cougar (March 13, 2010)
• Steve Campbell, UH heading to NCAA Tournament for first time since ‘92, Houston Chronicle (March 13, 2010)
• Penders coaches fourth school to NCAA tournament, Associated Press (March 13, 2010)

As part of a broader lawsuit over royalty payments, Andrew Morritt, chancellor of the U.K. High Court, ruled Thursday that Pink Floyd’s 1999 contract with its record label, EMI Group Ltd., prohibits EMI from selling the band’s work in any configuration other than the original without the band’s permission. The contract dates from before the advent of digital music, when the arrival of online music retailers like Apple Inc.’s iTunes gave consumers the ability to pluck individual tracks without buying the whole album.

EMI argued in court this week that the 1999 contract language only applied to physical albums or CDs, not downloads. Pink Floyd’s attorneys said the band wanted its work sold online only as complete albums, not as individual tracks.

On Thursday, according to the Associated Press, Sir Andrew sided with the band and ruled that EMI is “not entitled to exploit recordings by online distribution or by any other means other than the complete original album without Pink Floyd’s consent.” He ordered EMI to pay the band’s legal costs.

To a certain extent it’s reminiscent of another famous case involving artistic expression and editing by Monty Python in Gilliam v. American Broadcasting Companies, Inc., 538 F.2d 14 (2d Cir. 1976), in which the court held that unauthorized editing of underlying script by television network of licensed from its owner would constitute infringement of copyright in underlying work similar to any other use of work that exceeds license granted by proprietor of copyright. As a matter of contract and copyright then, there seems to be respect for context as an element of artistic integrity. It makes me wonder how far an artist might be able to take this concept. Could I mandate a particular bitrate? A file format other than mp3 that doesn’t degrade the sound quality? I don’t see why not. Could reach further down the distribution channel and dictate how the consumer listened to my music? It’s a tougher sell, but if I put a notice that listening to my album is an agreement not to listen to it on anything but Bose surround sound system why shouldn’t my artistic integrity carry the same force?

• Pink Floyd Wins Suit Over Downloads
• No Singles Allowed! Pink Floyd Explores Dark Side of The Law