legal intelligence: intelligent thinking about law, context and commerce     

The impact of law on all types of activity is increasing daily. No matter what contribution we make (starting a freelance business, manufacturing a high-quality industrial component, selling a product online, publishing a blog, designing a sofa, teaching economics) the playing field has turned into a "flat world" which is crowded, competitive, and magically present everywhere on the planet at the same time thanks to the effects of technology and globalization. Our understanding of how products, services, markets, supplier and customer relationships, business, employment, communication, economic freedom, and personal choice are affected by law needs an update. Some amount of legal knowledge is now mandatory to be a citizen who understands how the world works, to go into business, to profit in commerce or a career. Legal knowledge: a forbidding encyclopedia set containing millions of rules, data, and convoluted procedures written in special insider jargon, much of which is functionally obselete, existing in a number of significantly different versions any of which might or might not apply, depending on where you or your activity are physically located (this really makes no sense given the reality that the "the world is flat"). Even a complete mastery of the ins and outs of the encyclopedia of all legal knowledge would be effectively useless without a basic understanding of legal thinking and legal tools. Legal work aims to enable and protect a contributor's effort (undertaking a project, forming a company or a relationship, engaging in a sales transaction, resolving a dispute) by leveraging all three. Truth? Even being fluent in all of them isn't enough. Legal work conceived in a vacuum isn't meaningful or relevant. If it doesn't take the context of the contributor (mission, objectives, risk management, structure) and the reality of the "flat world" into account it fails its essential purpose. Legal intelligence is legal thinking with a zoom function: it focuses at the detail level (the specifics of the circumstances relevant to applying the correct legal knowledge and legal tools to support an effort), it focuses at the level of the contributor's perspective, and it can step back to horizon-wide view that reveals constraints and possibilities imposed by the "flat world" that are more likely to get missed.

The United States Patent Office has announced it will open satellite patent offices to help deal with the backlog of patent applications. Detroit was chosen as the first location due to the highly trained professional scientific and engineering work force, the number of applications which originate from Michigan inventors, and its proximity to world-class universities. The satellite office will create about 100 Michigan jobs.

The University of Michigan, the city of Ann Arbor, Detroit patent law firms, auto manufacturers and Tier 1 suppliers are among the many who will benefit from the proximity of the new resource.  U of M Vice President for Research Stephen Forrest stated: ”The opening of a satellite office for the PTO in Detroit will have enormous benefits for the region, and of course, also for the University of Michigan….The ability to do patent business at an office in Detroit will be a boon to the many educational institutions and knowledge-based industries in the larger region.”

Export Admin Regs will finally…

Export Admin Regs will finally get a post-Cold War overhaul http://bit.ly/ctw21x

The Copyright Office released a report on March 15, 2009 which provided for increases in several fees, citing rising labor costs and current budget constraints. While the cost of basic online copyright registration (eCO) for most types of works remains the same, the cost of registering a copyright via a 2D barcode application has increased from $45 to $50.

[Image of the claim of copyright symbol.]The most significant increase for typical copyright filers is in traditional paper applications (Form TX, VA, SR, GR). The Copyright Office has enacted a 44% increase in filing by paper — raising the fee from $45 to $65. Critics have intended that this unfairly penalizes copyright authors and owners without Internet access. The new Copyright Office fee structure took effect on August 1, 2009. A chart comparing the current and new copyright registration fees is here on the Arborlaw website.

Excellent piece on 20 lessons that business people should learn from Warren Buffett: http://bit.ly/5l69Sb

Murderboarding: critical skill needed by startups to balance out off-track brainstorming. http://bit.ly/6CmBJ1

Music artists selling 10K+ releases 1st time in 2009: 106 via major label, 107 via indie label, 14 on their own http://bit.ly/5oCBQj

Why would your employer plan still allow denial of claims after health reform? Existing federal law–ERISA (good point) http://bit.ly/nUtW


The federal District Court for the Eastern District of Michigan found on Wednesday that an Ypsilanti, MI copy shop was directly liable (as opposed to contributorily liable) for copyright infringement, by allowing students to copy course packs on its own photocopy machines.  Blackwell Publishing Group, Inc. v. Excel Research Group, LLC  (Docket No. 07-12731, ED Mich, October 14, 2009)[PDF].

The Court in Blackwell found that because Excel maintained a ‘master’ of the course pack, gave it to a student to copy, and accepted payment, Excel was the party actually making the photocopies, regardless of the fact that the students were performing a “self-serve checkout” as part of the commercial transaction.  (All of this despite the fact that the course packs in question were assembled under a university license that expressly permitted students to make copies of course pack materials for themselves at no additional cost.  To me, this indicates that the court was, in effect, indirectly interpreting that underlying license to only apply after one copy was purchased.)

Commentators are now hypothesizing that libraries may be next.  Section 108(f) of the US Copyright Act shields libraries from liability for infringing uses of photocopy machines as long as the libraries conspicuously post a sign stating that the user takes responsibility for copyright infringement.  LibraryLaw Blog questions whether this protection for libraries is invalidated by the Blackwell decision (I think this is unlikely, given the clear intent of Section 108 and the fact that the exemption was specifically crafted in the 1976 Act to protect libraries so that they can continue their vital role in disseminating information.)

Via TechDirt

H. Res. 554 is a bill sponsored by one Republican and one Democrat and would require that all non-emergency proposed federal legislation be posted 72 hours on the Internet, prior to any Congressional debate. As I have been saying to clients for years, don’t sign contracts without reading them — and it certainly makes sense that your elected representatives should not vote on legislation that they haven’t had an opportunity to read.  If this makes sense to you, take a moment to contact your elected representatives and voice your support for H. Res. 554.  You can find more information at http://readthebill.org/.

Happy National Punctuation Day!

It’s National Punctuation Day — make sure you properly use as many commas, quotation marks, semicolons and exclamation marks as you can.  (There is some controversy as to whether that double-dash counts.  It’s the “black sheep” of punctuation.  I think it’s more readable.)