This story has gotten me thinking about the real effect of ticket scalping laws. A judge in one of the scalping cases wrote, “Our Legislature has recognized the disenfranchisement of the public from attendance at public events as a result of inflated ticket prices since 1924.” Presumably, the enforcement of ticket scalping laws keeps the price of tickets down, thereby enabling the general public (as opposed to a wealthier subset) to buy tickets.

I [...]]]> The Boston Globe has been running a series of stories about renewed interest in enforcing the Massachusett’s anti-scalping laws. One story reported that 6 people were arrested outside Fenway on opening day, and ticket scalpers themselves were apparently scarce because they knew that the police would be looking for them.

This story has gotten me thinking about the real effect of ticket scalping laws. A judge in one of the scalping cases wrote, “Our Legislature has recognized the disenfranchisement of the public from attendance at public events as a result of inflated ticket prices since 1924.” Presumably, the enforcement of ticket scalping laws keeps the price of tickets down, thereby enabling the general public (as opposed to a wealthier subset) to buy tickets.

I keep thinking that this isn’t going to work quite as advertised. If ticket prices for sold-out games get capped at face value, in theory ticket scalpers won’t operate because they can’t earn a profit on tickets they manage to get. However, there are problems. First, ticket scalping laws aren’t enforced very well. Second, and the thing I’m quite curious about thinking through, it seems to me that prohibiting the monetary resale of tickets encourages their effective scalping by a form of barter that still favors the wealthy.

If tickets are scarce (the only situation in which scalping is interesting), the rational promoter of an event will raise ticket prices fairly high. That alone begins to price “ordinary” people out of the event. If tickets remain scarce in the face of high prices (certainly the case with respect to Red Sox tickets – the highest in the country), those with the financial or other means to acquire tickets gain assets that are effectively traded for something other than direct cash payment. For example, law firms buy tickets and take their best clients to the games. There’s nothing wrong with this, of course. I’m simply observing that the tickets get allocated on the basis of bringing business to the law firm. If the law firm had sold its tickets for cash, that would be illegal. But giving the tickets to a good client is as good as selling them because it inclines the recipient of the largesse to continue bringing very profitable business to the firm. Indeed, the firm has good reason to use its wealth and connections to get lots of good seats because the scarcity of tickets makes giving them to clients particularly valuable. They are, in effect, “scalping” the tickets by giving them as gifts to their best clients, who pay by bringing business to the firm.

With all this in mind, I’m curious whether anti-scalping laws actually wind up restricting tickets to a smaller segment of the population than would get them in the absence of those laws. If there were an open market for ticket resale, the price of secondary market tickets would be high. However, they’d go to anyone who had the money to pay the price. By contrast, if anti-scalping laws exist, tickets still go for a high price (namely doing good business with ticket holders), but they go only to those with social or business relations with ticket holders.

There are, of course, effective ways to make sure tickets don’t get resold. The Red Sox have opened up a section of the park to same day sales in which the purchaser of the ticket must enter the park immediately after purchase. But it may be that truly effective methods of stopping resale aren’t worth the fuss or commercially not viable.

Anyway….just a few random thoughts on a Thursday afternoon.

I have never favored banning laptops, even though I have colleagues who think we should remove the Internet (or at least have it turned off) inside classrooms. I prefer to let students make their own choices about how they learn best (one administrator has suggested to me that [...]]]> In a Washington Post column, Georgetown Law Professor David Cole writes about his decision to ban laptops from his classroom. Many of the arguments are familiar. Students take notes on laptops instead of engaging the class discussion. They surf the internet or message friends. They distract others from the class. Professor Cole also adds one new twist. He apparently surveyed his students, and they have come to like the laptop-free environment.

I have never favored banning laptops, even though I have colleagues who think we should remove the Internet (or at least have it turned off) inside classrooms. I prefer to let students make their own choices about how they learn best (one administrator has suggested to me that there are possible student accommodation issues for certain learning disabilities). If they want to tune out, it’s their prerogative, and I haven’t noticed class discussions being any different than they were pre-laptop. That having been said, Professor Cole’s evidence that his students like the laptop-free class is interesting and food for thought.

The interesting twist is that eSapience appears to have employed prominent academics, including U. Chicago Law Professor Richard Epstein, to write articles favorable to Greenberg. The Globe reports that “Their mission was ‘to change the public conversation about Maurice Greenberg ,’ according to a confidential plan summary. This was [...]]]> Today’s Boston Globe reports a story involving a lawsuit filed by eSapience, “a media and research entity that shapes the debate on issues that intersect law, economics, and policy,” against one of its former clients. eSapience is claiming unpaid consulting fees for a project to rehabilitate the public image of Maurice Greenberg, an insurance executive pursued at one point by Eliot Spitzer for alleged improprieties connected with Greenberg’s work at AIG insurance.

The interesting twist is that eSapience appears to have employed prominent academics, including U. Chicago Law Professor Richard Epstein, to write articles favorable to Greenberg. The Globe reports that “Their mission was ‘to change the public conversation about Maurice Greenberg ,’ according to a confidential plan summary. This was to be accomplished, in part, by organizing invitation-only events where ‘influencers’ would hear Greenberg weigh in on insurance issues and by penning papers, editorials, books, and other content aimed at putting the executive in a favorable light, the summary said.”

Assuming for the sake of argument that the Globe story is true, did these professors cross some line of academic impropriety? It’s certainly common for law professors to take on consulting projects or testify as expert witnesses knowing that they will advocate a certain position. However, if they took on certain “scholarly” projects knowing that their point of view was predetermined, that sounds a bit fishy. Granted, the opinions they ended up taking may have been the ones they’d have taken independently. However, it seems much more proper if academics fully disclose any financial interest they have in the positions they take.

p.s. Here are links to another Globe story and a PR Week story about the same matter.

This year’s independent candidate, Professor Stephen Smith of U. Virginia Law School, says he is running to support smaller classes and stronger athletic teams. One of his opponents, San Diego Padres executive Sandy Alderson (an attorney [...]]]> Today’s Boston Globe carried an interesting story about an upcoming board of trustees election at Dartmouth College. According to the story, the upcoming election has become a heated battle over direction of the university. On one side is the alumni council, which nominates candidates for open seats on the board. On the other is a group of alumni dissatisfied with the university’s direction, a group that is apparently willing to spend tens of thousands of dollars to nominate and elect their own candidates to the board.

This year’s independent candidate, Professor Stephen Smith of U. Virginia Law School, says he is running to support smaller classes and stronger athletic teams. One of his opponents, San Diego Padres executive Sandy Alderson (an attorney himself as well as a former Marine sergeant), claims that Smith is the hand-picked candidate of “a well-funded, disciplined political organization” with a conservative political agenda. Alderson claims that he was interviewed by two other independent trustees with conservative ties who concluded that they couldn’t support him. Smith, for his part, asks “”What is conservative about class size or athletics?” while acknowledging that alumni donations have funded the $60,000 he has spent on mailings for his campaign.

The story closes with a quote from Peter Robinson, one of the independently elected Dartmouth trustees. Addressing all colleges and universities, he says, “”The alumni are coming. But they won’t sack your institutions, just reconnect them with American life.”

At the outset, I’ll concede factors 2 and 3 for the plaintiffs, although in at least some cases the nature of the copyrighted work may be sufficiently factual (i.e. academic research paper) that 3 isn’t the slam dunk that some have suggested. That having been said, remember that factors 2 and 3 alone are not enough to swing fair use for a plaintiff, as we learned in the Sony case, where factors 1 and [...]]]> Thanks to all who have posted interesting comments about Turnitin. I particularly appreciate the thought behind the comments arguing that Turnitin has no fair use defense, but I haven’t changed my mind. Let me explain why I still think it’s fair use in the limited space this forum permits.

At the outset, I’ll concede factors 2 and 3 for the plaintiffs, although in at least some cases the nature of the copyrighted work may be sufficiently factual (i.e. academic research paper) that 3 isn’t the slam dunk that some have suggested. That having been said, remember that factors 2 and 3 alone are not enough to swing fair use for a plaintiff, as we learned in the Sony case, where factors 1 and 4 insulated widespread wholesale copying of fictional works.

It’s true that Turnitin is engaged in a commercial endeavor, but that alone doesn’t swing a fair use analysis either. In Campbell v. Acuff-Rose, the Supreme Court understood that people create parodies for commercial purposes, but still reversed the lower court’s pro-plaintiff decision. In doing so, the Court astutely observed that commercial use is a factor that weighs against fair use, but that a great deal depends on whether the defendant’s use substitutes for the plaintiff’s. Although the Turnitin’s use is commercial, its purpose in doing so is to produce critical information about the scholarly bona fides of the plaintiff and others, and not to create copies that displace the plaintiff’s work in the marketplace.

Now let’s consider the markets that the defendant’s use might affect. First, it may diminish the plaintiff’s ability to sell papers to people who want to plagiarize. Second, the defendant may diminish the plaintiff’s ability to sell his paper to outfits like Turnitin for purposes of trying to catch plagiarists.

As for the first market, Turnitin’s use does not substitute for the plaintiff’s work. Yes, Turnitin’s use affects that market, but that is because Turnitin produces information that exposes the plaintiff and the plaintiff’s customer as dishonest academics. That’s criticism and comment, and it does not count as affecting the marketplace for the copyrighted work. Campbell stands for the proposition that if people don’t want the plaintiff’s product because of something they learned from the defendant’s alleged infringement, that is not an effect on the market for the copyrighted work. To quote the Court, this is the “distinction between potentially remediable displacement and unremediable disparagement.”

As for the sale of the plaintiff’s work for detection of plagiarism, the effect on the marketplace is small at best. If the plaintiff wants to exploit a market for sale of manuscripts to people who want to plagiarize, the plaintiff will not sell into any market for catching plagiarists. Additionally, the plaintiff cannot claim that he writes specifically for the detection of plagiarism because there’s no demand for a work written for that purpose. A work is valuable for detecting cheaters only if it’s already a published work that someone might find and use, or if it has been sold to plagiarists. There is no meaningful independent demand for works used to catch plagiarists. Thus, its elimination would have no effect on the production of copyrighted works. Accordingly, the effect on this market, even if considered an effect on the market for purposes of copyright, is too small to swing factor 4 to the plaintiff.

Accordingly, I conclude that the defendant’s case in factors 1 and 4 is strong enough to overcome the plaintiff’s strength in 2 and 3.

First, study the school’s academic program. With respect to the first year, look for courses that distinguish the school’s curriculum from those of others. Pay particular attention to the first year writing course. An attorney’s success depends a lot on writing ability, so it’s worth it if the school you attend has a rigorous program staffed with experienced instructors. You will likely discover a broad range of approaches, from second or third year law students as instructors, to recent [...]]]> Here are some suggestions for studying a law school you may be thinking of attending. A lot of this information can be gleaned from the school’s website, and you can use the time you have on campus to get your questions answered.

First, study the school’s academic program. With respect to the first year, look for courses that distinguish the school’s curriculum from those of others. Pay particular attention to the first year writing course. An attorney’s success depends a lot on writing ability, so it’s worth it if the school you attend has a rigorous program staffed with experienced instructors. You will likely discover a broad range of approaches, from second or third year law students as instructors, to recent graduates as part-time instructors, to teaching fellows on three year terms, to full-time faculty. In my opinion, writing programs taught by full-time, permanent faculty are likely to be most effective because those teachers gain experience that can be lavished on you. Teachers who are themselves students, or whose time at the school is limited, cannot do likewise.

Beyond the first year, look for the richness of program in areas that interest you. Don’t necessarily assume a school’s offerings in an area are superior because they have a specialized “program.” Look under the hood. Does the school have full-time faculty teaching the courses that matter to you, particularly the core courses in your area? Are they experts in the field? There’s nothing wrong with seeing some adjunct (i.e. part-time) faculty in a program. Very often they’re experienced lawyers with a lot to offer. But, if there are too many, there won’t be anyone around for you to talk to when you need it most because the adjuncts will be at their regular jobs. Take some time to study the skills program as well. Clinics or externships offer great exposure to the profession and practical experience that can serve you well.

Second, take a look at the strength of the student services program. Every school has a Dean for Students, career counseling, financial aid, and placement offices. However, not every school puts enough resources behind them. How many people are available to speak with you if you want advice? How many job listings does the placement office have, and in how broad a range of jobs? Is there specialized counseling for public interest or government employment? Are there vibrant student organizations you’d like to join?

Third, get a sense of the library because you’re going to do a lot of research and studying for 3 years. You may be tempted to think all libraries are the same, but they’re not. Collection size matters. If you’re doing research and can’t get a book, you’re stymied while you wait for it to come in on interlibrary loan. Reference staff also matters. They’ll help you find things, and they’ll also be helping you learn to conduct research. Finally, when you visit, go into the library and see if you’d enjoy studying there. Is it quiet, comfortable, and well-lit? Believe me, some libraries will make you want to stay and read, and others will drive you to Starbucks.

Fourth, study the physical facility. Go to a classroom and check out the sight lines, particularly from the back of the room with people sitting in front of you. You might be surprised how many large classrooms make it very hard to see the professor when the room is full. If you can attend a class, make sure you can hear the professor and the students. Are there places for students to gather and talk? Space for student organizations? Take a look too at information technology. Is the library/campus wireless, and are there adequate terminals and printers for your use? Is there power for laptops in the classrooms? Is there audio-visual capacity in classrooms so instructors can use the latest technology? If you’ll be driving to and from school, is there enough parking?

Fifth, try to meet some students and faculty. You’ll spend three years talking to them, so get a sense of whether you’ll enjoy them and learn from them.

And last, but not least, get a feel for the place. Every school has a unique atmosphere. It’s a bit like hunting for an apartment. Ask yourself if it feels right.

While Turnitin does appear to violate the copyright holders’ right of reproduction, I think fair use clearly applies. Even if one considers the use commercial (couldn’t one also characterize the use as for purposes of criticism?), there is, in my opinion, no way that the use affects the marketplace for the copyrighted work. Turnitin’s archiving results in no distribution [...]]]> I saw on a listserv that two high school students have sued Turnitin, a service that identifies plagiarism, for copyright infringement. The apparent basis for the suit is that Turnitin archives papers it reviews for purposes of comparison against future papers. The Washington Post story about this suit contains opinions suggesting that the plaintiffs (who seek $150,000 in damages) have a good case.

While Turnitin does appear to violate the copyright holders’ right of reproduction, I think fair use clearly applies. Even if one considers the use commercial (couldn’t one also characterize the use as for purposes of criticism?), there is, in my opinion, no way that the use affects the marketplace for the copyrighted work. Turnitin’s archiving results in no distribution of the works. There is simply no way that this use injures any of the financial incentives associatd with copyright. What person writes a paper thinking “Hmmmm. Maybe one day I’ll get royalties when my paper gets submitted to Turnitin.”? This case reminds me of the one against Google Print, but I think it’s a lot weaker.

US News serves two purposes. Applicants use it to help decide which law school to attend, and law school faculty/administrators use it to size up their competition in a rather unseemly show of academic vanity. I’d like to address the former.

If you are an aspiring lawyer and want to know the quality of the schools you’re considering, you really must visit the schools [...]]]> US News came out with its law school rankings today (the magazine is on newsstands now). Ironically, I found out about it while serving on the ABA site evaluation team for another law school. The juxtaposition of learning about a school through a 3 day visit vs. through US News made me realize anew how problematic US News is.

US News serves two purposes. Applicants use it to help decide which law school to attend, and law school faculty/administrators use it to size up their competition in a rather unseemly show of academic vanity. I’d like to address the former.

If you are an aspiring lawyer and want to know the quality of the schools you’re considering, you really must visit the schools in question. Having just done it for 3 days, there is no substitute for talking to people at a school, meeting students, and studying the components of a law school’s program. US News has not done it for you. Numbers don’t tell you what you really need to know about a school.

Can those numbers tell you who teaches the classes that interest you most? Can they tell you whether the legal writing program is rigorous and staffed by experienced professors? Can they tell you whether the school uses adjunct professors who don’t keep office hours, or full-time faculty that are present in their offices? Can they tell you what kind of clinics, externships, or other skills courses are available? Can they tell you whether the school provides good student services?

I’ve now served on site accreditation teams for two schools that I knew something about before going to the campus. Both times I came away with a much richer and more nuanced understanding of the schools’ strengths and weaknesses.

Yes, reputation matters in choosing an education, and US News is in the business of manufacturing and selling it. But, in the end, people succeed in their careers on the basis of their ability. Please take the time to get the information you need to choose the school that will help you maximize your ability.

p.s. I intend to post in the next day or two with suggestions about how to check a school out when you visit.

So, taking license to speculate, let’s assume that a good explantion is never found. What happens to these lawsuits? Will this become the res ipsa case that replaces Byrne v. Boadle (the man hit on the head by a barrel of flour that apparently fell [...]]]> Pet owners have understandably begun suing Menu Foods over the deaths of pets from tainted pet food. Rat poison has apparently been discovered in the food, but it’s a mystery how the poison got there. Aminopterin, the poison in question, cannot be used for killing rats in the U.S. The FDA had apparently been investigating whether wheat gluten in the food had been contaminated, but spraying rat poison on wheat doesn’t make a lot of sense.

So, taking license to speculate, let’s assume that a good explantion is never found. What happens to these lawsuits? Will this become the res ipsa case that replaces Byrne v. Boadle (the man hit on the head by a barrel of flour that apparently fell out of a building)? Or, will this case test whether (or come to exemplify that) strict products liability is (or is not) truly strict? If we conclude the defendant wasn’t negligent, the only possible action will be strict liability. Recent case law seems to have pushed strict products liability into a form of negligence, but will courts really deny pet owners recovery?

Here are some possibilities for how to structure things. First, have everyone start with an IP Survey course, making it a prerequisite for advanced courses in copyright, patent, and trademark. The problem here is that “serious” IP-focused students find it inefficient and [...]]]> A major challenge for law schools working with limited resources is the construction of IP course sequences. The three primary courses, patent, copyright, and trademark have each grown to the point that professors talk about making them 4 credits instead of 3. At the same time, there is continued student demand for an IP Survey course, usually of 4 credits, which is valuable to those unfamiliar with IP or who take it as part of a larger corporate law curriculum.

Here are some possibilities for how to structure things. First, have everyone start with an IP Survey course, making it a prerequisite for advanced courses in copyright, patent, and trademark. The problem here is that “serious” IP-focused students find it inefficient and would rather start off with more in-depth treatment, and there is also the inefficienty of unavoidable overlap (e.g. everyone reads certain cases in each course).

Second, have separate tracks. Students can start with IP Survey, or they can start with patent, copyright, and trademark. If one assumes that students who take IP Survey won’t take the other three, then concerns about overlap disappear. However, if someone who takes IP Survey decides to pursue IP as a career, they wind up with a lot of overlap between the two courses, raising an argument that the person who takes IP Survey before the other classes has an unfair advantage (something I’m not too sure about) or should get one less credit for the other courses.

At BC Law, we presently use the first solution, but I’m not entirely satisfied with it. What do others do?

My idle (and somewhat abstract) thought is that it ought to be theoretically possible to estimate the size of these salaries by measuring the legal and illegal incentives given to athletes now, plus/minus a fudge factor for risks incurred by participants because “paying” athletes in certain forms is illegal.

For [...]]]> Well, after having been diverted by the recent storm and its effect on travel plans, I returned home yesterday to see the sweet 16 in the NCAA tournament has been determined. It reminded me of an idle thought I’ve had in response to the suggestion often made that NCAA athletes ought to be paid (let’s leave aside for now whether we even care if they’re really enrolled in school). How much would they get paid?

My idle (and somewhat abstract) thought is that it ought to be theoretically possible to estimate the size of these salaries by measuring the legal and illegal incentives given to athletes now, plus/minus a fudge factor for risks incurred by participants because “paying” athletes in certain forms is illegal.

For example, if NCAA institutions can’t presently pay athletes, they can provide them with things like fancy special dorms, special charter flights, nice hotels, swank locker rooms and training facilities, tuition (of course), etc. Additionally, boosters surreptitiously give athletes summer jobs, gifts/travel/housing to family members (see reports about Reggie Bush, whose family apparently got more than $100k in beneifts etc). Together, these roughly total what it takes to get an athlete to play for a particular college.

If paying athletes above board became legal, is there any reason to think that this isn’t a crude approximation of what athlete salaries will be? Perhaps it also suggests that the few “big time” stars will get a lot, while run of the mill squad players will get rather little?

I have not seen the complaint for the suit, so I don’t know whether the basis for the suit is contributory infringement, inducement, or some direct infringement theory. The most obvious cause of action would be contributory infringement, but it isn’t hard to find stories that YouTube follows DMCA notice and takedown provisions. This makes me think that YouTube is inside the DMCA safe harbor and unlikely to lose. But perhaps there’s something in the complaint that will make the suit stick.

In the meantime, I imagine that the suit is actually a way for Viacom to “scream and yell” at YouTube, letting them know they want some kind of licensing deal for [...]]]> Just up on Yahoo!….Viacom sues YouTube for $1 billion.

I have not seen the complaint for the suit, so I don’t know whether the basis for the suit is contributory infringement, inducement, or some direct infringement theory. The most obvious cause of action would be contributory infringement, but it isn’t hard to find stories that YouTube follows DMCA notice and takedown provisions. This makes me think that YouTube is inside the DMCA safe harbor and unlikely to lose. But perhaps there’s something in the complaint that will make the suit stick.

In the meantime, I imagine that the suit is actually a way for Viacom to “scream and yell” at YouTube, letting them know they want some kind of licensing deal for their content. Any speculation (or informed insight) on what the eventual settlement will be?

In a nutshell, athlete graduation rates aren’t very good at some of the schools (but not all) sending teams to March Madness. Two notable high seeds posted scores that look pretty bad. Number 1 seed Ohio State graduated only 10% of its players in a 6 year span, and the University of Oregon a whopping 0%. That isn’t a typo. It’s “zero.” At the other end of the scale, Holy Cross (86%) and Butler (82%) [...]]]> A propos of some of the comments made in response to my earlier March Madness post, readers may be interested in the recent Graduation Rate Study of NCAA Div. 1 Tournament teams, authored by Dr. Richard Lapchick of the Institute for Diversity and Ethics in Sport.

In a nutshell, athlete graduation rates aren’t very good at some of the schools (but not all) sending teams to March Madness. Two notable high seeds posted scores that look pretty bad. Number 1 seed Ohio State graduated only 10% of its players in a 6 year span, and the University of Oregon a whopping 0%. That isn’t a typo. It’s “zero.” At the other end of the scale, Holy Cross (86%) and Butler (82%) led the honor role. Lapchick also lamented a significant disparity in the graduation rates of whites and African-Americans.

Granted, graduation rates don’t tell you everything about a program’s commitment to the student-athlete, but it’s striking how low some of the graduation rates are. Hmmm….now maybe this will lead to a new way to fill out those brackets….