Are there tensions in recent fair use cases regarding methods? Fair use analysis has traditionally and conventionally posed a set of very “work-specific,” nuanced questions. For at least 15 years or so, since the rise of the original Napster technology (and really, at least since “librarying” was at issue in the original Betamax litigation), social practices and information technologies have raised the question of large-scale alleged fair uses. Yet copyright law sticks somewhat stubbornly to the “work-specific” legal framework. Are cracks appearing in that facade? Have recent cases opened that conversation in earnest? Continue reading Working Fair Use
Every year since I began teaching, I’ve been nagged by a sense that I was doing some wrong things in the classroom, but for some right reasons. That sense accelerated over the last five years, to the point that I’ve mostly thrown over my own internal framing of what and how I teach. As a few readers of this blog know, I’ve also externalized that framing in a series of manuscripts. I posted a new one just the other day. I’m taking this moment to collect all of these here in a single post, in a transparent attempt to increase their circulation.
In reverse chronological order, they are:
Legal educators today grapple with the changing dynamics of legal employment markets; the evolution of technologies and business models driving changes to the legal profession; and the economics of operating – and attending – a law school. Accrediting organizations and practitioners pressure law schools to prepare new lawyers both to be ready to practice and to be ready for an ever-fluid career path. From the standpoint of law schools in general and any one law school in particular, constraints and limitations surround us. Adaptation through innovation is the order of the day.
How, when, and in what direction should innovation take place? Who should lead, guide, and participate? These are questions often asked in both legal education in particular and in higher education in general. Rarely are answers accompanied by specific examples, strategies, or programs. This paper offers precisely that specificity. It documents one institution’s process and output, beginning with the concept of innovation in the face of multiple challenges and proposing one set of concrete, actionable strategies, tactics, and programs. These range from school-wide interventions to ideas for use at the level of the individual faculty member and course.
The purpose of making the paper available is to note merely that if innovation is a hill to be climbed, then it can be climbed. The process and results may be more valuable if they are shared with others, even if the particular route documented here is not the only one available and may not the best for all times and places.
Innovators, Esq.: Training the Next Generation of Lawyer Social Entrepreneurs (published at 83 UMKC L. Rev. 967 (2015))
Today’s law school graduates need to be entrepreneurial to succeed, but traditional legal education tends to produce lawyers who are “strange bedfellows” with entrepreneurs. This article begins by examining the innovative programs at many law schools that ameliorate this tension, including the programs offered by our Innovation Practice Institute (IPI) at the University of Pittsburgh School of Law. Although these programs train law students to represent entrepreneurs and to be entrepreneurial in law-related careers, few (if any) law schools train law students to be “business” entrepreneurs. Drawing on our own experiences and the writings of Bill Drayton, the lawyer who pioneered the field of social entrepreneurship, we discuss how some lawyers have applied their legal education to be successful “social” entrepreneurs. Finally, we outline the IPI’s three-year law school program explicitly designed to train law students to be social entrepreneurs.
Leading New Lawyers: Leadership and Legal Education (unpublished)
Lawyers may become leaders, but leaders also may become lawyers. The path to leadership can begin in law school. This short essay describes a leadership development course developed and implemented at a law school over the last four years.
Visions of the Future of (Legal) Education (unpublished)
One law professor takes a stab at imagining an ideal law school of the future and describing how to get there. The Essay spells out a specific possible vision, taking into account changes to the demand for legal services and changes to the economics and composition of the legal profession. That thought experiment leads to a series of observations about values and vision in legal education in general and about what it might take to move any vision forward.
Anyone interested in this topic or this material should read the stimulating exchanges in the mobblog on legal education that Deven Desai organized here in 2008.
Just about 11 years ago, on August 30, 2004 to be precise, I launched this blog. Blog authorship has expanded and shrunk since then; posting frequency has increased and decreased; the blog’s scope has expanded – and expanded some more; I’ve cycled through a lot of templates and designs. The most recent design update leaves the blog with (still) a pretty primitive appearance, but most of the readership today accesses the posts through Twitter and Facebook. Cosmetics don’t matter so much, I think.
But, interestingly, I haven’t put the blog (and its readers) out of its misery. (During my tenure here, I’ve created, supported, and eventually put to bed two other blogs. At one point I was maintaining and posting to five blogs in all, concurrently.) Madisonian.net chugs on. There is more to say, and there is some that was said before that needs to be revived, renewed, and said again. The Internet is great at remembering things, for better or worse. People often aren’t.
My views of the deficiencies and virtues of intellectual property scholarship pop up on this blog from time to time, usually just before or just after the annual IPSC – Intellectual Property Scholars Conference. See posts from 2014, and 2010, and 2007.
I am headed to Chicago tomorrow for the 2015 edition of IPSC, but instead of ranting about the state of IP scholarship, instead I’ll point you all to a provocative article:
Andrew Abbott, “Varieties of Ignorance,” American Sociologist, 41:174-189, 2010.
You’ll need access to Springer or JSTOR, etc., probably through an institutional subscription, to read the whole thing in English. At least part of the English language version may be available here. There is a German language version available here.
The video above is, of course, the trailer for “Birdman, or the Unexpected Virtue of Ignorance,” which won the Best Picture Academy Award earlier this year. I enjoyed that film but thought that “Boyhood” was superior in just about every way.
The apparent absence of artifice — one might say, the calculated absence of artifice — so dominates California’s cultural and natural landscape that when I return from a trip out West, as I just did, I have to spend a few days cognitively re-situating myself in the manufactured East.
What that means is that I’m a native Californian who has lived in Pittsburgh for a long time. Each occasional re-immersion in the land of my youth means re-assessing that place in light of my current experience. As part of “Code,” Lessig once distinguished “West Coast Code” (computer code — open, networked, bottom-up) from “East Coast Code” (legal code — closed, proprietary, top-down), noting that each “regulated” behavior, but in different ways. But I think that he (as a native Pennsylvanian) mis-read the Californian metaphor. California’s contribution to contemporary jurisprudence — to thinking about code, and openness, and to IP and tech and culture — cuts quite differently.
The leftmost edge of the US is about utopianism — just as so much of the US in general is dominated by utopianism — but utopianism of a very specific flavor, and utopianism unlike the utopianism of the contemporary East Coast.
East Coast utopianism is often about Being. In Pittsburgh, for example, Pittsburgh exceptionalism about who “we” (Pittsburghers) “are” (we’re amazing!) dominates all sorts of public conversations. And Pittsburgh and Pittsburghers are hardly alone among Eastern communities in their self-regard for their present (if sometimes unrecognized or unrewarded) greatness, but they are uncommon (and therefore an uncommonly good example) for the linkages among achievement, greatness, and place. Pittsburgh today is an interesting city, even occasionally cool or hip, precisely because it is so explicit and obvious about its interest in recapturing and then repurposing its 20th century glory. There is 21st century glory ahead, but — as in Boston, or New York, or even Cleveland — 21st century glory is about affirming and extending existing glory. We already occupy the promised land.
West Coast utopianism is about Becoming. Existing communities don’t make the point as clearly as new communities do (whether existing communities includes only big ones, like San Francisco or Los Angeles, or small ones, like San Luis Obispo); novelty, in fact, is the entire point. Few in California have achieved their utopian vision; utopia is by definition always a work in progress. We are designing utopias — entirely new places. We are headed *to* the promised land, or we are *building* the promised land. The New York Times just carried a couple of short pieces that, juxtaposed, make the point all too clearly. “Utopia Rules at Sea Ranch, a Community Born of ’60s Idealism,” about the Sea Ranch planned second-home community on the bluffs between Bodega Bay and Mendocino (my family was one of many that vacationed at Sea Ranch in the 1970s) appeared at the same time as “The Happiness Project,” about Disneyland. Behavioral rules and regulations at Disneyland are legendary, whether we’re thinking of customer behavior or staff behavior. That’s the utopian design. The idyll of Sea Ranch was/is no less scripted, architecturally and behaviorally.
West Coast “code” is, in other words, just as law-specific and regulatory in a traditional sense as East Coast “code” is. Apple and Google — West Coast code in Lessig’s sense — are Disney-ish, in a digital context. But they are forward-looking rather than backward-looking.
Walt Disney himself was, in a way, the Steve Jobs of an earlier, pre-digital era, a showboating aesthetic imperialist who had an instinct for producing extraordinarily inspiring and comforting cultural objects. (I visited the Walt Disney Family Museum in San Francisco, which is a great place and which reminded me constantly of the Disney/Jobs resemblance. I am far from the first person to notice it.) Mickey Mouse was the totalizing cultural icon, the iPhone, of 80 years ago, a cheap entree to the E-ticket ride of the future. Up at Sea Ranch, the visioneer behind that project, Lawrence Halprin, played the same role. Sea Ranch represents the California natural sublime; Disneyland represents the California cultural sublime. Of course, they are the products of quite distinct utopian impulses; Fred Turner’s history “From Counterculture to Cybereculture” explains.
Does this all have anything to do with IP law? In a general, conceptual sense, I think so. IP policy in the US is understood to be guided by “progress,” a word and metaphor that comes from the US Constitution and that pays off in the copyright concept of “originality” and the patent concepts of “novelty” and “nonobviousness.” IP law speaks directly to collective interests in new stuff; new stuff makes us collectively better, in some way. But to what end? My Californian bias suggests that “progress” should be informed by a “Becoming” utopianism rather than a “Being” utopianism. (Which is hardly an uncomplicated resolution, to be sure.) Much IP debate and discussion today, it seems to me, is “Being” rather than “Becoming.”
To be continued. My next stop is Philadelphia!