Law Day 2013 – Realizing the Dream: Equality for All

May 1^st is Law Day, a national day to celebrate the rule of law and its contributions to the freedoms that Americans enjoy. The day also provides an opportunity to recognize the role of courts and in our democracy and the importance of jury service.  In 1957, Charles S. Rhyne, President of the American Bar Association lobbied for a day to celebrate our legal system.  President Dwight Eisenhower established by proclamation the first Law Day in 1958 to mark the nation’s commitment to the rule of law. In 1961, Congress issued a joint resolution designating May 1 as the official date for celebrating Law Day, which is subsequently codified (U.S. Code, Title 36, Section 113). Every president since then has issued a Law Day proclamation on May 1 to celebrate the nation’s commitment to the rule of law.

Law Day programs are designed to help people understand how the law keeps us free and how our legal system strives to achieve justice. These programs are conducted by various groups including local bar associations, courts, law libraries and schools. For example, the Library of Congress will be holding a panel discussion on the movement for civil and human rights in America. Carrie Johnson, Justice Correspondent for National Public Radio will be moderating the discussion.

This year’s theme “Realizing the Dream: Equality for All” provides an opportunity to explore the movement for civil and human rights in America and the impact it has had in promoting the ideal of equality under the law.  This year marks the 150^th anniversary of the issuance of the Emancipation Proclamation, handwritten by Abraham Lincoln to end slavery in the United States and promote the idea of freedom and equality for all men. This year also marks the 50^th anniversary of Martin Luther King Jr.’s “I Have a Dream” speech.  The Civil Rights Movement brought progress in eliminating discrimination based on race, religion, gender, ethnicity, national origin, age, disability and sexual orientation. This year’s Law Day provides an opportunity to focus on the work that still needs to be done to ensure equality for all.

References

• American Bar Association. (2013). Law Day 2013. Retrieved from http://www.americanbar.org/groups/public_education/initiatives_awards/law_day_2013.html
• Cali, J. (2013, April 1). Law Day Program Features U.S. Civil and Human Rights. Retrieved from http://blogs.loc.gov/law/2013/04/law-day-program-features-u-s-civil-and-human-rights/

~Betty Thomas~

May Happenings

 Music: Crosby, Stills & Nash, Tim McGraw, Chris Botti, Carolina Rebellion, Imagine Dragons, Band of Horses, Paramore, Smashing Pumpkins, RiverJam at the US National Whitewater Center, Food Lion Speed Street with Sister Hazel and SWV, Sara Bareilles, Lyle Lovett

Food: Chow Down Uptown with area food trucks, Beer, Bourbon and BBQ Festival , Charlotte Italian Festival, 2nd Annual VegFest

Performing Arts: War Horse, Traces, Avenue Q

Festivals: The Patriot Festival ,  Charlotte Asian Festival and Dragon Boat Festival, Buskapoolza Street Performance Festival, Spring Pottery Festival , Charlotte Shakespeare Festival , Fanta Festival , NC Brewers & Music Festival, BikeFest in Plaza Midwood

Walks/Runs: Memorial Day Trail Race, Krispy Freme Doughnut Dash, Zombie Run, Ramblin’ Rose, The Great Glow Run, AIDS Walk

Other events: Meck Dec Day, New South for the new Southerner series at the Levine Museum of the New South, Coca-Cola 600, Metrolina Expo Marketplace, Charlie Murphy, Kevin James, Drew Carey

For the kids: Bye Bye Birdie, Family Day at the Bechtler Museum of Modern Art, Free Comic Book Day, Movies in the Park

For the “furry” kids: Charlotte Pet Expo, Second Annual Cinco de Mayo Chihuahua Races

Don’t forget that Mother’s Day is Sunday May 12th! National Mom’s Nite Out at South Park mall, Mother’s Day at the Daniel Stowe Botanical Garden, Purses with a Purpose

Outside of Charlotte: South Carolina Strawberry Festival

~Jamie Sunnycalb~

50 Weird Laws

Did you know it’s illegal to play BINGO in North Carolina for longer than five hours?

Did you know that it’s illegal for dance halls to be within a quarter mile of a church or cemetery in South Carolina?

Check out this video from Mental Floss for more weird laws involving states.

Hungry for more?

We susbcribe to Mental Floss!

~Jamie Sunnycalb~

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)

More Unique Libraries: Strange Library Construction

We will all be moving to a new library soon, so I thought I would show you all some of the stranger libraries around the world.

Kansas City Public Library.

The Philological Library in Berlin.

If you haven’t guessed, the building is shaped like a human brain.  Check out our earlier posting on this building for more information!

Geisel Library.

Want a really tall building but don’t want to fool with all those lower floors?  Just put the building on stilts!  It’s supposed to look like lantern…

Peckham Library is a see-through colored glass exterior on a extreme “L” shaped building

Oh, and this wooden monstrosity that looks like it is about to crush 6 people?  That’s a meeting room.

I hope you enjoyed this tour through the strange.

~Aaron Greene~

Celebrate Service: National Volunteer Week

April is National Volunteer Month, although it began as National Volunteer Week in 1974 when President Richard Nixon established the week of volunteer service recognition.  Across America volunteers are honored for their unpaid community service to hundreds of organizations.  Many of these organizations will be distributing the President’s Volunteer Service Award.  This award is the most prestigious award a volunteer can aspire to receive.

National Volunteer Month is about encouraging people to come up with imaginative ways to demonstrate that by working together, we can meet our challenges and accomplish our goals, as an organization, as a community and as a nation.

Interested in volunteering?  The American Red Cross and Habitat for Humanity are always seeking volunteers, as are many other local organizations.  Looking for other volunteer opportunities?  Check out VolunteerMatch and the Points of Light Institute where you can search for the types of volunteer opportunities you are looking for both locally and elsewhere.

 Take action, be at the center of social change, demonstrate your collective power.

 ~Julie Morris~

From the Desk of David Williams: Demystifying the Life Cycle of a Lawsuit for the Pro Se Litigant

You have decided to sue somebody. It may be a breach of contract dispute, a divorce, an action against a debtor, a suit for child custody, or a claim for negligence or some personal injury. Perhaps you have tried to resolve the dispute out of court by negotiating with the other party or by going through an arbitration process. Unsuccessful, you have decided to sue the person or company in court.

What to do next? If you have the financial resources, you may decide to engage the help of an attorney who will take the case for you. In an arena where success or failure can have big consequences, hiring a competent attorney may be some of the best money you will ever spend. However, times are tough and hiring an attorney may not be feasible for many would-be litigants. You may decide to handle the case on your own. Although the authorized practice of law is limited to individuals who are admitted to the state bar, the law does permit an individual to work his case pro se, or for himself. This article attempts to lay out the different parts of a lawsuit for the pro se litigant in the hopes of making this journey a little less daunting. This article should not be taken in any way as legal counsel or advice. Instead, it merely describes the different parts of a typical civil lawsuit as an aid to pro se litigants in their own planning.

Investigation

Before you sue an individual, a company or some other legal entity, you have to make sure you have sufficient evidence to prevail on your legal argument. Sometimes, this is very simple. Perhaps an absolute divorce in your state requires being physically separated for a year. Maybe you have a registered trademark or patent that gives you a presumption on the evidence. Perhaps you have a case that requires engaging the help of a private investigator. Regardless, you will want to make sure that you have “the goods”, or evidence, to successfully support your case. You will need to make sure your evidence is relevant to your legal claim.

Pleadings

Pleadings are the initial documents that you, the plaintiff, file with the court to begin the lawsuit. At a minimum, a pleading is comprised of the complaint, which is an outline of the claims for relief that you are seeking from the defendant. Claims can include monetary damages, injunctive relief, or perhaps even specific performance. All claims must be supported by a cause-of-action. In other words, what you are suing for must be a civil action that the law recognizes. Negligence, breach of contract or fiduciary duty, defamation, tortious interference, copyright infringement and wrongful death are just a handful of examples of different causes-of-action. The complaint with your causes(s) of action may be a simple form you have filled out and that the court has made available, or it may be a more lengthy document that you have drafted.

Once you have you prepared your complaint, you need to file it with the court. Which court you file it with is a very important question. State superior court? A federal district court? Small claims court? The answer here depends upon many factors, including where the defendant is, where the disputed transactions or occurrences transpired, how much money is in controversy and whether the underlying causes of actions are based on state or federal law.

After you file the complaint with your court, the clerk of court will give you a summons. A summons is an order of the court for the parties to appear in order that the complaint may be heard and litigated.  However, before any court can exercise its power, or jurisdiction, over a defendant, that defendant must be served. The law requires that a defendant have proper notice of a complaint before any powers of the court can be exercised over him in a civil suit. For the lawsuit to move forward, the defendant or defendants must be served with notice of the lawsuit. At this stage, the pro se litigant needs to make sure that a process server is engaged to deliver the complaint and summons on the defendant. Most courts will require proof of this notice, so you will have to get a notarized affidavit of service or return-of-service affidavit from the sheriff or private process server that indeed the defendant was served with notice. The question of notice is at heart a constitutional inquiry, and if a court determines that a defendant wasn’t fairly apprised of the pendency of the action, then no remedy can be obtained by the plaintiff. Beware: service of process on a defendant by the plaintiff is not permitted. Process serving must be done by someone who is not a party to the lawsuit.

Once the complaint and summons have been served on the defendant, the defendant will usually either file an answer or move the court to dismiss the case. A motion to dismiss, typically a 12b-6 motion or perhaps a judgment on the pleadings, is made when the defendant asserts that the plaintiff doesn’t have a cause-of-action that the law recognizes. If you’re suing under a cause-of-action that the law doesn’t recognize, or your lack personal or subject-matter jurisdiction, then the defendant may move to dismiss.

Alternately, the defendant may answer your complaint. He may affirm or deny some of the specific facts listed in your complaint. The defendant might also counter-claim, or sue you, the plaintiff. The defendant may not do anything at all, in which case you as plaintiff may be entitled to what is called a default judgment.

Discovery

Discovery is the fact-finding process whereby the parties to the lawsuit disclose information to each other and prepare their evidentiary resources, including witnesses, for trial. Shortly after initial pleadings and answers by the defendant, a judge will usually require a pre-trial discovery conference between the parties. Discovery can be a very big deal in high-profile or corporate cases. At this stage, the lawyer or pro se litigant may ask the court to issues subpoenas, or orders to produce testimony or documents from witnesses.

Pre-trial

At the pre-trial stage, the litigants are getting ready to take the case to the courtroom. Often, defendants at this phase will make a motion to the court for summary judgment. When a defendant moves for summary judgment, he is arguing that the plaintiff cannot prevail as a matter of law, even looking at the evidence in a light most favorable to the plaintiff.

There can be renewed attempts at settling the case during this stage, too. With all the facts and legal arguments out on the table, the parties may be in a better position to settle their dispute without going to trial. Other times, parties will decide it makes more sense to put their case in court before a jury or a judge in a bench trial.

Trial

This is the stage where the litigants argue their respective cases in court. You may have a civil case heard by a jury. Jury trials involve jurors deciding questions of fact. At other times a “bench trial” presided over by a judge is used, where the judge decides both questions of fact and law. Trials involve opening statements by attorneys, witness testimony (lay, expert and character), and closing arguments. There are extensive rules of evidence regarding what types of evidence are allowed in court. If you’re looking for resources, the Federal Rules of Evidence (FRE) can be a good starting place. After each side has presented their evidence and legal arguments, the fact-finder, judge or jury, will take leave from the courtroom to decide the case.

Judgment

Once the civil case has been decided by the judge or jury, a final judgment is formally entered by the court. If you have prevailed as plaintiff, you may have a specific judgment that includes the damages the court has determined are owed you by the defendant. If the defendant successfully counter-sued, the judgment may be against you, the plaintiff. All 50 states will generally enforce the judgments of other states, and this is supported also by the “full faith and credit” clause of the US Constitution. Sometimes, a judge may adjust a jury’s award if it is required by precedent or statute, or is in their discretion.

A judgment in and of itself is worth nothing: suitable only for framing. If you have a judgment for $50,000, in order to collect you will need that judgment executed upon. This usually entails employing the local sheriff or federal marshal to enforce the judgment through a writ of execution. This execution stage can involve seizing assets, selling them at auction, or ordering some other exercise of power over the property.

Appeal

If you’ve come out on the losing end of your law suit, you may decide to appeal the judgment. Appeals are generally not successful, so you will want to make sure you have strong grounds for appeal. If the judge has made some mistake of law, or been clearly erroneous or abused his discretion, there may be support for a successful appeal.

If you’re a pro se litigant, I hope this outline proves helpful. This article provides just a sketch of a typical lawsuit’s life cycle, and only scratches the surface at that. There are many different kinds of cases. Most never go to trial. Nevertheless, you may find this article educational, and a real aid to you as you navigate the legal landscape.

~David Williams, Class of 2013~