ALR Student’s Corner: Decoding the law behind a ubiquitous experience

Experience with K-12 education is nearly ubiquitous. Almost everyone remembers their own experiences, some more fondly than others, sitting in class, working on assignments, and going to football games or senior prom. Many of us will broaden these experiences by sending our children to schools, or making careers in the K-12 setting.  However, despite this shared experience, not many of us have taken the time to understand the legal considerations that shape schools; by dictating the length and content of the classes, the assignments required for completion, and the content allowed at school events, almost every occurrence within the school day is proscribed by law. To understand these issues and more, Education Law: an Essential Guide for Attorneys, Teachers, Administrators, Parents, and Students is a great place to start.

LOCATION:

Education Law: an Essential Guide for Attorneys, Teachers, Administrators, Parents, and Students is located in the Treatise section of the Charlotte School of Law Library on the Environmental, Healthcare, Education, and Entertainment Law Shelf. Locating the call number, KF4119.G47, from the Library catalog, using the search terms “education law,” takes you right to the treatise.

CONTENTS:

Contained in a single volume, the second edition of Education Law was published in 2007. The resource contains a Table of Contents, References Page, Endnotes Page, and Index. The Table of Contents is divided into 20 broad areas of education law (i.e. Fourth Amendment—Search and Seizure) with more specific, related issues underneath (i.e. Drug-sniffing Dogs). Each chapter also begins with this delineation to allow for more targeted reading without returning to the Table of Contents. The Endnotes section provides the citation for many important cases related to education law and sentence summaries of many of the holdings. Summaries of each case, instead of only a few, would have been more helpful. Finally, there is a general index that provides an appropriate amount of terms and cases.

HOW TO SEARCH:

To illustrate how to search this treatise, suppose you learn that your child’s high school will institute random drug testing of all students next year. You see this as an invasion of your child’s privacy and want to challenge the policy.

Armed with Education Law, you begin by checking the Table of Contents. You immediately notice that “Chapter 10: Drugs, Weapons, and Zero Tolerance Policies.” Upon scanning the sub-topics, however, you realize that the chapter deals with the repercussions of drug use, not testing for drug use. You know that your child is perfect and would never actually use drugs, so you are not concerned with the punishment. Instead, you want to focus on the privacy concerns of allowing random testing.

You then turn to the Index and search for “drug testing.” Luckily, this term appears and provides for more specificity: 1) of student athletes and 2) of students engaged in non-sports extracurricular activities. Both of these are located in “Chapter 11: Search and Seizure.” The relevant pages in Chapter 11 provide an overview of recent cases that deal with schools’ drug testing of students, with and without reasonable suspicion. Therefore, it provides a metric by which to measure, and probably challenge, the school’s proposed policy.

CONCLUSION:

Education Law provides an easy-to-follow introduction to areas of educational law with both analysis of case law and relevant statutes. To supplement this information, visit Education Law Center, ACLU’s Students! Know Your Rights, and Georgetown Law Library’s Education Law Research Guide.

CITATION: Gerstein, R. (2007). Education law: an essential guide for attorneys, teachers, administrators, parents, and students.  Lawyers and Judges Publishing Company: Tucson, Arizona.

~ C. Matthew Ferguson, Class of 2013 ~

Last Chance: Law Library Book Giveaway!

We still have materials left over from the month long book giveaway. Please come by the Law Library Circulation Desk between the hours of 9 am and 4 pm Monday through Friday to see what we still have left.

Ask for Circulation Staff (listed below) at the Circulation Desk to assist you in locating the books. You can claim any books you are interested in and set up a time to collect them with the staff.  If you would like more information please contact Brooke Rideout at brideout@charlottelaw.edu.

Circulation Staff:

 Kim Allman: kallman@charlottelaw.edu
Aaron Greene: agreene@charlottelaw.edu
Erica Tyler: etyler@charlottelaw.edu
Brooke Rideout: brideout@charlottelaw.edu

~Brooke Rideout~

ALR Student’s Corner: Workplace Discrimination, Privacy and Security in an Age of Terrorism

  Introduction:    

Treatises offer a wealth of background information on a particular topic, and should be one of a researcher’s very first authorities to consult when dealing with a new issue. The aim of this post is to walk through how to locate and use a particular treatise dealing with employment law issues, Workplace Discrimination, Privacy and Security in an Age of Terrorism (2007), as well as the contents of this treatise.

How to Locate the Treatise:

To find the resource, head to the Charlotte School of Law Library, located at the Suttle campus, and follow the signs within the library through the glass doors to the treatises section. The call number for this particular treatise is KF3319.A2C67 (using the search terms “workplace discrimination” in the CSL Library catalog gets you here).  Within the row of compact shelving labeled “KF3315-KF3736,” the treatise is located on the first section of shelves to the left, on the middle shelf.

Content:

In a nutshell, Workplace Discrimination is a single volume treatise from 2007 that examines some of the more common employment discrimination issues with more of a focus on how the laws have been altered or interpreted differently since September 11, 2001 and the subsequent War on Terror. Because of the contextual focus, the treatise is of good size to give an adequate overview of the issues.

The treatise is organized into four distinct sections – Workplace Discrimination, Workplace Privacy, Collective Bargaining, and Physical and Emotional Security – and one main Table of Contents that displays the various subtopics under each section. The treatise does suffer, however, from the lack of an index. As such, it’s really up to the user’s knowledge of the general issues in determining how easily they will be able to locate material solely through the Table of Contents. The Table of Contents does an adequate job including buzzwords for topics, like “Workplace Stress,” “Profiling,” and “Labor-Management.”  However, it should be noted that these topics are scattered about to fit within the four categories above, and are not organized into a more traditional topic list that sort of builds on topics from the ground up. As such, I think this treatise should not be used as a first look into employment discrimination issues. Instead, I think researchers would be better suited using this treatise once they’ve already built a foundation of information on the topic and subtopics through a more traditional, straightforward treatise or other secondary source.

Navigating the Treatise:

Let’s say you have a client who is a few years away from retirement, but was recently diagnosed with multiple sclerosis. As a result of the diagnosis, she also battles severe depression. The depression worsens the multiple sclerosis, and the multiple sclerosis worsens the depression. She has recently been in discussions with her employer over what she could and could not perform, and the employer has given her an ultimatum: continue doing the job she has done for many years, or have her employment terminated. What do you research the issue to best help your client?

As suggested above, I think the first step might be to consult a more traditional treatise to get an initial overview of the related issues. That way, when you’re ready to consult Workplace Discrimination, you shouldn’t have any trouble perusing the Table of Contents to find the relevant sections and chapters. Even without consulting another treatise first, however, you may be able to wing it and find your way by browsing the Table of Contents. Through an initial browsing of the content, Chapter 17 (page 501) – “Workplace Stress Claims under the Americans with Disabilities Act” – should immediately jump out. “Workplace Stress” would have been a difficult search term to come up with on my own, but the term “disability” from the chapter title grabbed my attention, as I would have likely used “mental disability” as an initial search term in an index, had the treatise included one. The good thing about this particular chapter is that it does not rely so heavily on the terrorism context, and is instead a more straightforward examination of workplace stress claims.

Conclusion:

Workplace Discrimination, Privacy and Security in an Age of Terrorism is an easy read, and deals with issues through an interesting lens. Because of the treatise’s niche-like status, it may not be the go-to secondary resource for employment discrimination.  However, I think the treatise works well as an advanced resource, undoubtedly helpful to anyone with facts even loosely involving terrorism or its impact on America’s culture and laws since September 11th.

Useful Alternatives:

While I don’t think there is great, free alternative to this treatise that provides employment discrimination information under such a lens as terrorism, there are plenty of alternatives that provide a wealth of information on employment discrimination issues in general. One such alternative, the American Civil Liberties Union, runs an employment discrimination blog, complete with up-to-date trending topics, key issues, videos, and more.

~ Zachary Oakes, Class of 2013 ~

ALR Student’s Corner: Family Law Litigation Guide with Forms

This blog post attempts to provide a brief overview of the treatise entitled Family Law Litigation Guide with Forms, which is published and updated by LexisNexis.  The treatise is available in print at the Charlotte School of Library in the treatise section, within the shelving for “Family Law.”  The search terms “family law litigation” in the CSL catalog gets you here with the call number KF 505.F354.  To date, the treatise consists of four volumes, inclusive of forty chapters, a Table of Cases, and an Index.   The Index is located at the back of the last volume, rather than in each volume.  Each volume is updated annually (typically in August or September of each year) with a “Publication Update” provided by LexisNexis.

Each chapter provides an in-depth discussion of the procedural and evidentiary rules for each topic (i.e. discovery, depositions, marital property, spousal support, child support, termination of parental rights, evidence, etc.) with citations to primary authority.  Additionally, each chapter contains a “Forms” section, which includes practice checklists, sample discovery, sample motions, and other family law forms.   There are multiple chapters for each topic, and each chapter has its own table of contents at the front.  For example, discovery is covered over seven chapters (Scope, Discovery Devices, Planning Devices, Interrogatories, and Production of Documents).  This makes the treatise a very comprehensive guide to each aspect of family law.  This treatise would be particularly useful to an attorney who is new to practicing family law because it provides an overview of each topic, cites to primary authority, and contains forms which are a great starting point.

As a law student, the organization of the Index makes sense; however, it would be difficult for a lay person to navigate.  The index is organized using broad topics, such as “Child Support”, “Abandonment”, “Briefs”, “Attorney Client Privilege”, and “Cross Examination”.  Some of this terminology is not familiar to lay people.  Under each topic, there are several smaller sub-issues arranged alphabetically.  If a researcher is successful at navigating the Index, or knows enough about a topic to generate specific legalese search terms, the Index can be very useful; however, I found it just as easy to browse topics by Chapter, since each chapter is so specific and contains its own table of contents.

Overall, this treatise is comprehensive and user-friendly, and the forms are a great supplemental tool. On the negative side, the treatise is expensive, particularly for a solo practitioner or small-size firm.  As such, if a lawyer does not have access to this resource through a law library, he or she may have to find a more cost effective, alternate source.

For North Carolina attorneys, the Rosen Law firm, which has offices in Raleigh, Charlotte, Chapel Hill, and Durham, provides several great resources that are available for free online.  The website provides access to resources for two categories: (1) Child Issues (which covers Child Custody and Child Support) and (2) Spousal Issues (which covers Absolute Divorce, Alimony and Support, Domestic Violence, Mediation, and Property Division).

Each topic contains several additional, useful resources, including step-by-step guides, articles, forms, videos, podcasts, relevant statutes, and other tools such as payment calculators.  The website also contains a section where any person can post questions to which a lawyer from the firm will respond.  This resource can be useful for attorneys and is more user-friendly for lay people.  In fact, I have used this source as a lay person, prior to having any knowledge of family law in North Carolina.  While the source is user-friendly, it provides a more general overview of major issues, but is not nearly as comprehensive as the LexisNexis treatise discussed above.  Additionally, practitioners may find it time consuming to have to weed through questions and other postings by lay people that are case specific, and not general practice questions.  Overall, however, it is a great free resource for general information for lawyers and lay people, or a great place to begin a research assignment for a general overview.

~Jessica E. Price, Class of 2013~

ALR Student’s Corner: North Carolina Contract Law

You Will Be a Transactional Lawyer – Whether You Wanted to Be One or Not

When I decided to attend law school, I had visions of myself standing in front of a jury box waxing eloquent about the merits of my client’s claim or defense. I would NOT be one of “those” transactional lawyers who spent their time agonizing over just the right word to place in some boring clause, within an even more boring contract. Surprise! I realize now that almost every lawyer will be a transactional lawyer, and will be one on a fairly regular basis. The reason for this is that nearly all agreements, reached by the attorneys for parties involved in a legal action, must eventually be reduced to writing. In order to achieve the best result for your client, you will want to be the attorney to volunteer to draft the agreement. You will agonize over the right word, because there is an art to drafting a contract.

Last semester, I reluctantly began a contracts drafting class with Professor Hefferan in order to fulfill my advanced writing component. Though I began the class with something less than enthusiasm, I am now convinced that this has been the most valuable class I have taken in law school. Not everyone has had the opportunity in law school to take an in depth course in contract drafting. Because of this fact, the treatise North Carolina Contract Law (2nd ed. 2001) and its cumulative supplement (2012) can be a valuable resource for attorneys required to draft a contract or agreement on behalf of client.  They can be found in the CSL Library by using the call number KFN7550.H88, or by searching with the keywords “North Carolina Contract” in the Library’s catalog.

What the Treatise Has to Offer

Lawyers practice within distinct jurisdictions, and the quirks of the jurisdiction as they apply to an area of law are important, even vital to practitioners. This treatise focuses its attention on North Carolina’s requirements for contracts as they are informed by state statutes, the North Carolina Supreme Court, and the North Carolina Court of Appeals. The first part of the book addresses the basic elements of contract formation and contract enforcement. The second part addresses contracts for the sale of goods under the Uniform Commercial Code, which North Carolina has adopted. This treatise is easy to search and use as it is divided by section numbers comprised of the chapter number followed by a topic number (i.e. Chapter 3, topic 44 is designated as §3-44 and is an introduction to the topic of contracts signed under seal).

The Importance of Jurisdiction Specific Research; Contract Under Seal

Part one of this volume is filled with references to North Carolina case law that will help expand an attorney’s understanding of some of the unique features of the state’s approach to contract law. For example, North Carolina is a jurisdiction that has unique statutory and case law surrounding contracts that are signed under seal.

I decided to create a brief research exercise within the volume related to the signing of a contract under seal. Both the table of contents and index contain information to help a lawyer or other legal professional easily navigate this topic within the treatise. You can find the topic of seals quickly within the table of contents; other terms useful to search, such as “seal,” “statute of limitations” and “consideration,” are contained in the index. What constitutes a seal and the implications of its use, or lack of use, are fully covered. Quite important to both plaintiffs and defendants in North Carolina would be the knowledge that generally a contract signed under seal has a statute of limitations that is ten years, rather than the normal three-year statute of limitations applied to contracts.

Conclusion

This treatise is an invaluable tool for those in the legal profession who draft, or seek to enforce or interpret contracts within the jurisdiction of North Carolina. I believe it is so useful that it is a text many legal professionals should consider purchasing for their own library. It is available from LexisNexis for $217.00. With the treatise in hand, North Carolina case law noted within it can be retrieved for free through the North Carolina Courts website. Statutes referenced in the text can be found on the internet for free as well through the North Carolina General Assembly website. Additionally, the internet provides many websites where sample contracts can be viewed, one example is www.onecle.com. While it is almost always helpful to have a template to follow, templates do not explain the law or the consequences of failing to understand contracts law in a particular jurisdiction.

~ Kathleen Vogel, Class of 2013 ~

The First Sale Doctrine: e-Books, and the Impact on Libraries – Part 3

This is the second part of a three part series on the First Sale Doctrine, e-books and the impact on libraries.  Check out Part 1 here. and Part 2 here.

Where do we go from here?

In a darkly funny, yet informative video presentation at the LJ/SLJ eBook Summit in 2010, titled Libraries are Screwed, Eli Neiburger made some dire predictions, yet also provided a number of solutions to problems before libraries regarding e-content. In essence Neiburger makes the argument that libraries are “invested in the codex, but the codex is now out-moded.” Neiburger makes the bold statement that the current standard of library circulation is not only out-moded but will at some point become obsolete in the 21^st Century. The need for a local copy of an item becomes meaningless in an age of instant digital access. Given the restrictions that may be forced upon libraries by e-publishers, the idea that a patron would have to wait for an e-Book to be available seems ludicrous in this scenario.[1]

Neiburger offers that libraries may need to go back to one of its historic missions of preservation of local historical content, however, not only that, but encourage, “the ability to create new content by providing the venue for production tools, event venues, and a permanent noncommercial online home for our patron’s creative works thus making the library the publisher.”  (Neiburger)  Neiburger argues that the future of library survival is to become a unique platform for unique content.[2]

One problem with Neiburger’s analysis is there is an implication that libraries must completely move away from the model of circulating physical content.  While it is true that with high speed internet access the need for local library branches will perhaps become questionable as digital content can be accessed from anywhere, there is still a considerable older generation in both the United States and in Europe that will want physical books to read.  The baby boom generation is perhaps one of the most affluent in the history of United States and they will have considerable say in the funding of public institutions for some time to come.

Another option is for libraries to lobby for new provisions on Fair Use and the preservation of the First Sale Doctrine.  Sadly, this seems a long shot as Congress appears to be unwilling to deal with the rapid changes taking place within digital media. And clearly, the lobbying money is far greater with the e-publishers and digital software companies that would fear a negative impact to their revenues.  The irony is that by following a restrictive mode, digital publishers may well find they repeat the mistakes of the once mighty music industry when it attempted to crush peer to peer sharing of digital music files.

Libraries could through the various professional organizations, aggressively pool their resources not just on a regional basis, but nationally and globally as well.  By doing so libraries could contract for fairer terms with digital publishers, or perhaps even work out arrangements for licensing digital content much along the same lines as one would stream video content from Netflix. 

There can be no doubt that it is a challenging time for libraries and librarians. Added to the attack on the First Sale Doctrine by digital software companies and publishers, libraries are also facing hard questions of relevance during a time of economic upheaval. Yet look at any public, academic, or specialty library website, and you will see a vibrancy that belies the doomsayers. Smart public library systems are more than just a repository of books. These institutions support seminars, community driven initiatives, computer training, and vital access to the internet.  As Neiburger pointed out, public libraries have become centers for the creation of local content.  Plus, librarians are trained on how to sort and find information in ways that the average patron does not know. This is a vital service that is even more critical given that the digital age is upon us, and one that all libraries should be aggressively marketing to their patrons. In the field of academic and specialty libraries, the librarian is a vital resource to research.  Both the professional and paraprofessional can be the experienced guide, providing a clear path through the vast virtual jungle of digital information.

While the acts by publishers such as HarperCollins and the erosion of the First Sale Doctrine are serious blows to the freedom of information, there is recourse for libraries. Librarians have taken on the Patriot Act and won against intrusions of privacy. Librarians can also weather this challenge and continue to provide the vital services and high standards that have made libraries such a vital function of society. 

~Kim Allman~

[1] Neiburger, Eli, (2010) Libraries are Screwed, LJ/SLJ eBook Summit,

[2] ibid

References

• 17 U.S.C.A. § 106 (1), (3) 208 (2005)
• 17 U.S.C.A. §109 341 (2005)
• 17 U.S.C.A. §117 486,487 (2005)
• Bartow, Ann, Libraries in a Digital and Aggressively Copyrighted World: Retaining Patron Access though Changing Technologies, Ohio Law Journal, Volume 26, at 3, 2001
• Biek, Aaron and Carpenter, Marcus (2010). First Sale Doctrine, retrieved from
  http://www.unc.edu/courses/2010fall/law/357c/001/First_Sale/index.html
  
• Bobbs-Merril Co. v. Straus, 210 US 339, 341 (2d Cir. 1908)
• DSC Communications v. Pulse Communications, 170 F.3d 1354 (D.C. Cir. 1999)
• Houghton, Sarah (February, 25 2011) Librarian in Black: Library e-Book Revolution, Begin, retrieved from
  http://librarianinblack.net/librarianinblack/2011/02/library-ebook-revolution-begin.html
  
• MAI Systems Corp. v. Peak Computers Inc., 991 F 2d 511,518 (9^th Cir. 1993)
• Neiburger, Eli, (2010) Libraries are Screwed, LJ/SLJ eBook Summit, retrieved from
  
  
• Stone, Brad, (July 18, 2009) New York Times, Amazon Erases Orwell Books from Kindles, retrieved from
  http://www.nytimes.com/2009/07/18/technology/companies/18amazon.html
  
• Vernor v. Autodesk, Inc., 621 F.3d 1102 (9^th Cir. 2010)

ALR Student’s Corner: The Environmental Law Practice Guide — An Explosion of Environmental Exposition

Prior to exploring the Environmental Law Practice Guide, I often wondered—why would I use a treatise to research a legal topic when I can use online research tools such as Westlaw or LexisNexis? What possible benefits could there be in physically picking up a print version of something I can find online? So, I picked up Volume 1 of the treatise and flipped through it and had an instantaneous moment of clarity – this treatise had it all, and I simply could not believe it.

Treatises generally provide a neutral, yet broad scope on a specific legal topic, while simultaneously providing historical analysis, statutory authority, and some narrow topical depth. Some treatises also feature forms or useful practice tools. I expected this when I chose the Environmental Law Practice Guide. I also expected general information about each type of environmental law. Instead, I found oceans of information that would ordinarily take weeks or months to compile without the help of this multi-volume series.

Why on earth was I so excited over this treatise? Perhaps because I spent seven years of my former professional life as an environmental consultant for industrial manufacturing companies working on so many different environmental and legal issues that took teams of people to keep all of them straight. Each client had his own specific set of environmental issues: permit requirements; reporting requirements; waste disposal, health and safety issues; treatment, storage and disposal concerns; and on-and-on. In these eleven volumes, I found, not only the holy grail of information, the relevant and current law for each type of environmental issue, but also forms, definitions, acronyms, history, and requirements. A wave of jealousy hit me as I realized how “past me” would have completely benefited from this resource as a consultant, and how much time “future me” as an attorney would save (insert maniacal laugh).

To locate this resource, go to the “Treatise” section of the law library and find call number KF3375.Z95E58. This is an eleven-volume practice guide, which spans four Units covering both state and federal environmental law. The Units are: 1) Procedures, 2) Environmental Quality, 3) Regulated Substances and Waste Management, and 4) States. The Units are then broken down into forty-one Chapters, such as Hazardous Waste, Endangered Species, or Environmental Impact Statements. The Chapters are further broken down into Parts: Part A Legal Background; Part B Procedural Guide; Part C Forms; Part D Reference Guide. Each environmental topic or Chapter is laid out in the exact same manner, even though the contents of each Chapter are very different to one another. The entire organizational format is reflected in the General Table of Contents. The pocket part, or the “Publication Update,” which is updated several times per year, is located at the very front of the first volume and reflects the most current updates.

Additionally, there is a “How to Use This Publication” which is particularly helpful, because the resource has grown in size considerably as the area of law has grown to impact so many different types of transactions. The treatise also includes an Internet Directory after each topical chapter for free and useful internet sources narrowly tailored to the Chapter. Overall, this organization is ideal for each environmental topic because one client may have more than one issue and the legal background, procedural guide, forms, and references are all in the same location for easy and quick access.

In the last volume, I found something incredibly useful—an acronym table that lists and defines over 1,400 of the pesky environmental acronyms that seem to plague this field of law. The only critique I have about this treatise is the lack of visual rhetoric, photos, color, or graphics. But honestly, environmental attorneys, consultants, or “science-types” do not need the fluff and prefer to get to the statistics, science, answers, and the law, which this resource provides in abundance.

To put this treatise to the test, I conducted a brief research experience on a specific environmental topic: the definition of hazardous waste. This may seem like an easy topic to search, but under the Resource Conservation and Recovery Act, the definition of hazardous waste can be different depending on how the materials are used, re-used, recycled, or reclaimed. Locating this topic under Chapter 26, Hazardous Waste, was very simple. I used the search terms, “hazardous waste,” “RCRA,” and “solid waste,” which all lead directly to Chapter 26. The legal background defines the statutory authority and many cases that describe the various interpretations.

Overall, this treatise covers the entire field of environmental law and can be an invaluable tool for attorneys, regulators, corporate and facility managers, and environmental consultants—all who deal with these real environmental problems. Environmental Law Practice Guide may not be able to answer every environmental issue, but this treatise will certainly lead the researcher in the right direction, and not on a fishing expedition.

~ Kelly Johnson, Class of 2013 ~

Book Giveaway!

The Charlotte School of Law Library is launching a Book Giveaway! These are treatises, reporters, and state statutory items that will not move with us when we relocate the Law Library uptown. These materials will be available for free on a first come first served basis. We are going to offer these items in phases with the students and alumni having the first opportunity to make reservations.  In our second phase, we will give the faculty, staff, and Law Library attorney members the option to reserve materials.  Finally, any remaining materials will be offered to local libraries and other institutions.

The dates of these phases are:

•  April 15 to April 26: Open to Alumni and Students

• April  29 to May 10: Open to faculty, staff, and attorney members

• May 13 to May 31:  Open to local libraries or other institutions and individuals

You will need to provide the means to pack and transport the materials you wish to have. The Law Library will provide book trucks to move the books to your vehicle. We expect many of these items to go quickly.

Go to this website to view a list of the items and to access the form needed to reserve these items:
https://sites.google.com/site/bookgiveawaycsl/

~Brooke Rideout~

The First Sale Doctrine: e-Books, and the Impact on Libraries – Part 2

This is the second part of a three part series on the First Sale Doctrine, e-books and the impact on libraries.  Check out Part 1 here.

E-Books, the beginning of the end?

E-readers have been on the market for only five years; however, they are becoming ubiquitous with the Amazon Kindle perhaps being the most recognized format. The advent of e-readers and their impact on the dissemination of information is clearly profound, and of course, libraries in the pursuit of their core missions have readily adopted the format for their patrons. There is however, a potential serpent in this Garden of Eden of revolutionary information access.

On February 24, 2011, Overdrive Inc., the major provider of digital content for e-Books, as well as other media, sent out an update letter to their library customers on the status of the industry. Concealed within the usual glad-handing that is part and parcel of such documents was a hidden bomb that sent librarians into a frothing frenzy of indignation.

“OverDrive will communicate a licensing change from a publisher that, while still operating under the one-copy/one-user model, will include a checkout limit for each eBook licensed. Under this publisher’s requirement, for every new eBook licensed, the library (and the OverDrive platform) will make the eBook available to one customer at a time until the total number of permitted checkouts is reached.  This eBook lending condition will be required of all eBook vendors or distributors offering this publisher’s titles for library lending (not just OverDrive).”[1]

It was soon learned that the publisher was HarperCollins and the demand limit was 26 checkouts. Here was a publisher in essence attempting to make an end run around the First Sale Doctrine and dictating draconian measures that it could have never considered with traditional print. As we have seen with the case law that has been presented above, the First Sale Doctrine turns on the concept of who owns what. Copyright law has attempted to keep up with the rapid changes in technology but is sadly lagging in addressing these very complex issues. Publishers of digital media, of course, want to maximize their revenue stream. Sadly, the perception seems to be that the only way to do this is by destroying what has been the understood model for decades. Unfortunately, we probably have already reached the tipping point.

If digital publishers have their way, e-Books will be licensed property and, therefore, the rights that were enjoyed under traditional print will evaporate and the First Sale Doctrine will essentially become irrelevant. This has disconcerting ramifications not just for libraries, but for a wide host of legal understanding that has been the underpinning of Copyright Law.

One has to consider the irony that if a library purchased a physical copy of a title the publisher would not have the right to impose a 26 check out limit, as in the case of HarperCollins. What makes an e-Book any different from a printed book?  In the eyes of libraries and librarians there is not a difference, other than one type of content is physical and the other digital. HarperCollins is trying to cast e-Books as the same thing as computer programs. You never own an e-Book if it is considered a service instead of a product.

Many owners of e-readers would probably be surprised that they did not own the content of their devices. However, every day as we log in to the internet we regularly give away our ownership whenever we click an “I agree” button. In 2009 there was a scandal over Amazon’s Kindle when Amazon remotely erased copies of George Orwell’s 1984 and Animal Farm from owners of the e-reader who had purchased the digital book. As it turned out, the digital publisher, MobileReference,  who had provided the e-Books to Amazon had incorrectly believed that Orwell’s novels were in the public domain.[2]

Regardless of the error on the part of MobileReference, Amazon’s solution was a chilling example of what may be in store if there is not a new balance struck legislatively with copyright law. Amazon did publicly apologize for the deletions and provided credit to the holders of Kindles that had the books removed. Of course the irony of having Orwell’s seminal works deleted was not lost on many a blogger and news journalist.

Given the conditions being set by digital publishers such as HarperCollins, the challenges to the First Sale Doctrine in the courts, and the controversy over the Amazon deletions with the Kindle, libraries face a daunting set of circumstances. Yet digital content is the future of information. Most scientific, legal, educational, and research journals, due to cost, but also because of the ease of access, have switched completely over to digital publishing. Libraries are already investing considerable resources to meet the demands of the digital age.

However, if libraries are forced to agree to restrictive licenses from digital publishers and no longer own the content of their collections, what will this do to the institution? The Copyright Act grants copyright owners the exclusive right to make and distribute copies of their works.[3] Ann Bartow, Assistant Professor of Law at the University of South Carolina and expert on intellectual property and copyright law, stated that “In the digital world, … even routine access to information requires “making a copy” as the courts have decided that unfixed, ephemeral RAM use of digital work is copying.”  (Bartow)[4]  Bartow was referring to the 9^th Circuit case MAI Systems Corp. v. Peak Computers Inc., where the Court stated, “The law also supports the conclusion that Peak’s loading of copyrighted software into RAM creates a ‘copy’ of that software in violation of the Copyright Act.”[5]

If the trend continues as presented, there is a genuine concern that digital publishers will in effect severely limit the scope of libraries to lend material and perhaps even force librarians into an unreasonable position to be watchdogs of digital copyrighted media.  This would create privacy concerns, which libraries in the past have staunchly protected.  It could also limit or end the ability of libraries to create digital archives and thus endanger another traditional role of the library to preserve and maintain knowledge.

To be continued in Part III

~Kim Allman~

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[1] Houghton, Sarah (February, 25 2011) Librarian in Black: Library e-Book Revolution, Begin http://librarianinblack.net/librarianinblack/2011/02/library-ebook-revolution-begin.html

[2] Stone, Brad, (July 18, 2009) New York Times, Amazon Erases Orwell Books from Kindles
http://www.nytimes.com/2009/07/18/technology/companies/18amazon.html

[3] 17 U.S.C. A. § 106 (1), (3) 208

[4] Bartow, Ann, Libraries in a Digital and Aggressively Copyrighted World: Retaining Patron Access though Changing Technologies, Ohio Law Journal, Volume 26, at 3, 2001

[5] MAI Systems Corp. v. Peak Computers Inc., 991 F 2d 511,518 (9^th Cir. 1993)

ALR Student’s Corner: North Carolina Trial Judges’ Bench Book

Do you need information regarding divorce or simple assault in North Carolina?  Need annotations to case law regarding a violation of a 50B order or defrauding an innkeeper?  Before you Google it or browse the North Carolina General Statutes, try looking first at the North Carolina Trial Judges’ Bench Book.

The Bench Book can be found in the Reference Carolinas section of the Charlotte School of Law Library.  It is contained in two large, white, three-ring binders with dark red lettering on the cover and spine.  The North Carolina Bench Book, as the name suggests, contains information on North Carolina law.  Volume one contains information on family law, and volume two contains information on judicial powers, duties, and conduct; criminal law and procedure; and civil trial and procedure.  The table of contents in each volume is specific to that volume, but also contains a basic outline of the other volume.  Each is broken down into chapters or subtopics of the main subject.  For example, the family law volume contains chapters on divorce, child custody, alimony, and equitable distribution.  Each chapter is also divided into sections which can be found in the table of contents at the beginning of each chapter. For example, the chapter on child custody is divided into sections such as venue, jurisdiction, and the definition of custody.  There is also an index at the end of each chapter and common forms which can be copied and filled out.  I feel the sections are efficiently organized because a researcher can identify a main issue and then navigate through its respective sections and subsections in a very precise manner.

The School of Government at the University of North Carolina-Chapel Hill publishes the Bench Book.  The School also publishes the North Carolina Crimes book, which our library also has.  The information contained in the Bench Book is updated on a rotating basis as needed.  The Library’s copy is from 2011.  In volume one, all the chapters but domestic violence and termination of parental rights were updated in the 2012 online version (available at
http://www.sog.unc.edu
).  Volume two is updated entirely through the 2011 print version.

Here is an example of how to use the Bench Book.

A client walks into your office and tells you that she is newly divorced and a mother with two young children.  While she and her ex-husband share joint physical custody, he is an alcoholic and, for this reason, she wants to be in control of major decisions affecting the kids.  After taking down some basic information, you assure her that you will research her situation and be in touch.  After she leaves, you decide to consult a copy of the Bench Book that you received as a gift for passing the bar.

The first step is to determine what volume applies to the given facts.  Since the situation involves a divorced couple and the major life decisions of two young children, volume one seems appropriate.  Flip to its table of contents and locate the page number for “Chapter 4 – Child Custody” since the client’s issue involves parental control over children.

Each of the Chapters has its own table of contents to help navigate through the various subsections.  For instance, “Chapter 4 – Child Custody” breaks down further into subtopics, like “definition of custody,” where you will find the definitions for both legal and physical custody.

The information here states that case law has held legal custody to include the decision-making process of parents and that a parent may have sole legal custody or joint legal custody.  Based on this information and the client’s request, you determine she is best served by pursuing an order for sole legal custody.  This same information could also have been found by searching the index at the end of the chapter.

The Bench Book is an all-in-one source for case law, statutory law, and forms in North Carolina.  You can find the same basic statutory information online at www.ncleg.net for free.  There is generally no free equivalent for case law materials; however, the law itself can occasionally be found on free legal websites such as
http://www.scfamilylaw.com
or by using Google Scholar.  The downside to both of these sources is their lack of annotations.  Finally, copies of forms can be found at the Mecklenburg County Self Serve Center or online at www.nccourts.org.

~ David Sherman, Class of 2013 ~