Blawg Review #85

G'day and welcome back down under! This is the second time Blawg Review has been hosted from Australia (the first being Blawg Review #66 hosted at David Jacobson's External Insights). For those who don't know, the Blawg Review is a weekly round-up of posts from around the blawgosphere (for a discussion of the merits of the word blawg, see this discussion on Blawg Review). However, before we begin to whip around the web, a little about me and my blog.

I am based at the Queensland University of Technology in Brisbane, Australia, where I teach Intellectual Property, Australian Federal Constitutional Law and Legal Regulation of the Internet. As Jennifer Burke, host of Blawg Review #84, noted last week, the title of this blog is inspired by the Opinion of the US Supreme Court in Board of Education v Barnette (1943):

"But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order."

Accordingly, this blog focuses on the legal regulation of the internet and the media, monitoring old media as well as exploring how the law and society is responding to new and exciting advances in communication technologies. Of course, one new medium of communication is the blog, and this week I have cast my eye further afield to look for the best in legal blogging.

"I come from a land down under" ...

While America celebrated Thanksgiving with the traditional Thanksgiving Dinner (the history of which Jim Lindgren at the Volokh Conspiracy considered), another colony - Australia - took on England on the cricket field in the first Ashes test (nothing to do with Ashley's Ashes, thank you Charon QC). However, even the cricket involved a legal controversy. The Fanatics, a group of Australian supporters, were threatened with legal action for copyright infringement by music publisher EMI for producing an Ashes songbook called Six, Jugs & Rock n Roll which featured famous songs with lyrics rewritten to a cricketing theme. Before EMI relented and allowed the Fanatics to distribute the book, Australia's leading legal blogger Kim Weatherall considered (see the second scenario) not only whether this constituted copyright infringement, but also whether Australia's proposed new exception for parody and satire would cover this conduct. (Interestingly, IPKat reports that the English equivalent of the Fanatics - the Barmy Army - is also in trouble for allegedly infringing the intellectual property rights of the England and Wales Cricket Board.)

Apart from the cricket, another topic that has been preoccupying Australian bloggers recently has been the Copyright Amendment Bill 2006. Nic Suzor looks at what impact this Bill will have on consumers:

Copyright law is important. If Australia is to remain competitive in the global marketplace, we need to ensure that hard work and investment in the knowledge economy does not go unrewarded. But that doesn’t mean that we should protect the interests of copyright owners at any cost. This new bill destroys the balance between copyright owners and consumers. It gives protection to the most absurd of limits that can be imposed by technology. There is no reason why copyright owners need to be able to control how and where we interact with copyright material. This bill simply goes too far.

Brian Fitzgerald has been focusing on a different aspect of the Bill, namely the new provisions that criminalise conduct that many Australians would regard as fairly harmless (listen to a podcast of Professor Fitzgerald discussing the proposed laws with Peter Coroneos from the Internet Industry Association here ). The IIA in conjunction with QUT IP:KCE also compiled four risk analyses of how teenagers, families and small businesses could be liable under the proposed changes to Australia’s copyright laws. Kim Weatherall has also posted several excellent posts on the impact of the proposed laws. See here (commenting on the Senate Committee Report), here (responding to FAQs), here (posing three factual scenarios), here (posing yet another scenario), and here (discussing with Jeremy Gans the criminal provisions in more detail).

While on Australian IP (if we ignore Tim Lee and continue to use the term "intellectual property"), Paul Harpur, a solicitor and PhD candidate at QUT, who lost vision in both eyes as a young boy, discusses here some of the difficulties he has in obtaining access to copyright material for his research and work activities. He also proposes a potential solution in the form of a national electronic database of books for use by people with a print disability. And IPWar's Warwick A Rothnie explores the decision of the Full Federal Court to refuse BP leave to amend its trade mark application over the colour green.

Also in Australia this week, we:

prepared for our first Creative Commons Salon;
considered political advertising and political finance (at LawFont);
pondered Borat (at Andrew Leigh);
looked forward to our telephone numbers being protected (at David Jacobson's Australian Regulatory Compliance Review);
explained red tape and legal systems (at Club Troppo);
gazed across the ocean and wondered what the US Congressional elections might mean for climate change policy in the US (well, at last David Jeffrey at Oikos did); and
trumpeted two freedom of information exposures (at Open and Shut).

One piece of news from Australia was also discussed in the US. At Overlawyered Walter Olson looked at the appropriateness of law firm Slater & Gordon paying to a senior partner $1 million from the profits of a breast implant class action without informing clients.

Around the world ...

Meanwhile Australian lawyers studying at Cambridge have other things on their mind. The mysterious C and S dwell on the rule of law and Doug at Courting Disaster casts his eye to Africa and Sudan and the International Criminal Court:

International law will not prevent violence and death in Darfur any more than criminal law prevents murder within our own countries. Only policing will. The only way to get a policing force into the Sudan is negotiation (especially as western powers seem to lack the stomach for a hard-line military deployment that really would be tantamount to an invasion force bent on regime change).

While on international law, a couple of US bloggers have had some things to say this week. Roger Alford at Opinio Juris considered the precautionary principle and the need for diversity. And Lyle Denniston at SCOTUS Blog and Julian Ku at Opinio Juris provided overviews of former Attorney General Janet Reno's argument as to why the Bush Administration shouldn't be permitted to detain terrorism suspects without charge if they were not captured on foreign battlefields.

And given I am not from the US, I thought it might also be fun to see what is happening in the blawgosphere outside North America (and Australia):

Praveen Dalal from Dehli, India analyses the growing phenomenon of legal process outsourcing, legal knowledge outsourcing and legal business outsourcing in India.
Chosaq, a blog on copyright issues in Japan, considers whether PS3 is really open platform.
The French blawg Avocatblog looks at the new Companies Act 2006 in the UK. And Domain Name / Nom De Domaine!, a blawg in French and English, gives a round up of domain name news.
Lex ferenda, and Irish blog on cyberlaw, libraries, media and higher education, reports on a fascinating talk by Dr Rachel Craufurd-Smith on “Broadcasting and the Internet - Does Europe Need A New Audiovisual Services Directive?”.
The Singapore Law Blog provides a good summary of recent legal developments in Singapore.
EU Law Blog looks at the very important topic of booze trips and excise duties.
Asia Business Intelligence reports on American cabinet officials travelling to China for a magical "mystery tour".
IPKat reports that Black Mountains Smokery, a food company based in Powys, has been warned it could face legal action over the name of its Welsh Dragon Sausages.

But there are more important matters than sausages ...

Important US cases covered last week

ZDNet's Lawgarithms calls the California Supreme Court's opinion in Barrett v. Rosenthal "a good decision for blogging and online discourse in general". The case is also considered by the Media Law Prof, the Tech Law Prof, Eugene Volokh, Daniel Solove and Eric Goldman among others. Meanwhile Brett Trout takes a step back and provides a summary of what must be proven to establish slander or libel.

Zillow Blog summarises the decision of a federal district court in Chicago to dismis a suit charging that craigslist's housing listings violated the Fair Housing Act.

Questions from the blawgosphere

When rounding up posts this week, I came across many questions (and a few answers):

Jeralyn Merritt from TalkLeft has a fascinating post on whether psychodrama is the best tool to win over jurors?
Captain Ed asks, has Lawrence v. Texas started America down the slippery slope toward legal acceptance of polygamy?
Nate Oman at Concurring Opinions asks, was Johnny Cash a Law Professor?
Wired CG wonders, why do associates leave?
Grant D Griffiths at PDA Lawyer wonders aloud "why can' t we get a newly designed Apple Newton?" (via The Sunday Paper)
Bill Poser over at the Language Log looks at a defamation case and asks, what does bitch mean?
Human Law wonders, should lawyers become mediators in the blogosphere?
Mauled Again asks, is the Wesley Snipes tax trial a circus in the making?
Chad Flanders (from The Pocket Part) and Orin Kerr (from the Volokh Conspiracy) on does Bush v. Gore have any precedential value?

Finally, David Lat at Above the Law asks was it appropriate for the Massachusetts Lawyers Weekly to run this racy advertisement for Jiwani, a maker of custom-tailored suits? The answer from Above the Law: it was appropriate. f/k/a [formerly known as] summarises the controversy here.

A diverse collection of blawgs

As I assembled this review, I was struck by the amazing diversity of blawgs. Here is a sample ...

Health and gender: Jennifer Burke at Transcending Gender discusses a US physician disciplined for removing a 7 year old patient's healthy ovaries. (She also discusses same-sex couples and estate planning.) Another health law issue is raised at Bob Coffield's Health Care Law Blog, HIPAA: All Bark, No Bite. While the Med Blog examines the psychology of Law and Order with an interview with Dr Deborah Serani.
Across America and overseas: Memphis Lawyer David Sandy went to Birmingham, Margaret Marks went to German Christmas Markets, and Glenn Reynolds over at Instpundit covered the Atlanta no-knock raid that resulted in the death of a 92-year-old woman.
Law school: Mauled Again has a long look at what you get when you pay for your law school tuition and argues that faculty research should not be subsidised by student tuition.
Law and technology: In the Thanksgiving spirit, Jim Calloway at the Law Practice Tips Blog gives thanks for email.
Free speech: In a very interesting post, Eugene Volokh points out a Pahrump Town Board ordinance as one of the rare ordinances that not only violates the Court's First Amendment precedents, but actually violates the very first Supreme Court decision to hold that a law facially violated free speech, Stromberg v. California (1931).
Legal guides (as poetry?): David Giacalone from shlep: the Self-Help Law ExPress has a very helpful guide to understanding anitrust law as well as a guide to Black Friday and holiday season self-help. Meanwhile, Yehuda Berlinger presents a very different sort of guide at the Board Games and Gaming Blog, The US Armed Forces Code in Verse. This is fourth time Yehuda has converted law into poetry, having previously done the same for The US Copyright code, The US Patent code, and The US Trademark code.

This list barely scratches the myriad of topics covered in the past week, but they were the ones that struck me as particularly helpful, provocative or unusual.

Two Blogversations

Scott Henson at Grits for Breakfast and Colin Samuels at Infamy or Praise had a blogversation this week concerning "Operation Linebacker", a federally-funded local law enforcement program directed at stopping drugs, terrorism, and violent crime which, on the U.S.-Mexico border in Texas, has resulted in far more arrests for immigration violations. See here, here and here.

Another blogversation took place between Radley Balko at The Agitator and Orin Kerr at The Volokh Conspiracy on the legality of cops invading homes. Read it here.

Blawgs on the Blawgosphere

Blawgs also tend to frequently comment on the value of and developments in the blawgosphere. And perhaps the most commented event of this week was the return of Professor Brainbridge with a revised set of websites:

Professor Bainbridge's Business Associations Blog, his professional blog;
Professor Bainbridge's Journal, his personal blog;
Professor Bainbridge on Wine, his blog dedicated to food and wine.

This news may not please Brett Trout, who argues that lawyers should not blog. But Diane Levin from the Online Guide to Mediation highlights one of the benefits of blogging in her post on how to build a network through blogs:

Contrary to popular belief, blogging is not a solitary activity. It is joyfully, boldly public.

You can shout into the canyon and hear your own voice echo back.

But wait and shout again, and you will hear other voices rise in greeting.

And to hear other voices in the blawgosphere, checkout Bill Gratsch's The Sunday Paper and Evan Schaeffer's Weekly Law School Roundup

Why we blawg ...

There has to be reason why so many lawyers blog, and this week a few legal bloggers gave us some insight as to why we do. The host of next week's Blawg Review, Colin Samuels at Infamy or Praise argues that legal blogging humanises the profession, and profiles Heather of the Carolina Top Cats, an attorney and a cheerleader! Similarly, What About Clients? recommends Ray Ward's Minor Wisdom:

A New Orleans lawyer, Ray just did his 1000th post at Minor Wisdom, a blog which grabbed me when I started reading blogs 18 months ago because it was what I thought a blog should be: brave, personal, well-written and damn interesting. A gifted and well-rounded human and lawyer, perhaps put here on Earth to make up for some of the rest of us, Ray writes on everything from excellence in lawyering, writing and appellate advocacy to Christian mystics, politics, music (well, real music), Katrina, Darfur and Chad, human rights, and plain rites. The guy knows we are all just here for a cup of coffee--so make the best of it, help others, increase love. He has things to share, and a sense of humour. He never moralizes. He's curious. And fear seems truly to have been replaced by faith.

And finally, Dennis Kennedy speaks of the "unbearable" everdayness of blogging before returning to "blawgspace is a generous place":

It's Thanksgiving time and I have more people to say thank you to than I could ever imagine. In my little way, however, I want to say thank you to those in blawgspace and blogspace for welcoming me in and making in part of the coolest network of people and ideas going. May it remain as inviting, encouraging and welcoming for years to come. Tend your own flower and be willing to let thousands of flowers bloom in their own unique ways and see what we all can learn, together, in the process.

It has been a pleasure to host Blawg Review #85 this week. Blawg Review has information about next week's host, and instructions how to get your blawg posts reviewed in upcoming issues.