Welcome to the Library!

welcome back to schoolThe BLS Library staff welcomes new and returning students to school for the 2016-2017 academic year.  We are here to help in whatever way we can with your print and electronic use of the Library.

You may borrow reserve and circulating books from the first floor Circulation Desk and you can ask for reference and research assistance at the first floor Reference Desk.  There are now more ways than ever to reach the Reference Librarians.  See below:

Call us:  718-780-7567

Text us:  718-734-2432

Chat with us:  Visit the library homepage & the library page in BLS Connect

Email us:  askthelibrary@brooklaw.edu

Visit us at:  askthelibrary.brooklaw.edu

The Fall Semester Hours, beginning August 29, 2016, are:

Monday – Thursday:  8:00am – 12:00am

Friday:  8:00am – 10:00pm

Saturday:  9:00am – 10:00pm

Sunday:  10:00am – 12:00am

Good Luck in the fall semester!  We’re looking forward to seeing you in the Library!

Is the DMCA Unconstitutionally Overbroad?

takedownSince passage in 1998 of the Digital Millennium Copyright Act, Pub. L. 105-304, media companies like Sony, Disney, Comcast and others have issued DMCA take down notices to remove online content from sites hosted by service providers, primarily YouTube. The DMCA was enacted to help both content creators and hosts by providing a safe harbor provision for hosts who rely on user-generated content and who do not provide content themselves. Since it is impossible for YouTube to police all user-uploaded content themselves, it would be unfair to make YouTube liable for infringing material on their site. Before passage of the DMCA, copyright infringement on a website might result in the website being liable, which could lead to putting platforms like YouTube out of business. The DMCA was codified in Title 17 of the US Code. The safe harbor in 17 USC 512  protects the rights of copyright holders while providing protection for content service providers. If a copyright holder alleges infringement in a video on the site like YouTube, it has to take down that video immediately. There is no appeal process, as YouTube is not in a position to look at the validity of each take down notice because of time constraints. If this process is followed, the law gives safe harbor protection for the content service provider.

With aggressive policing of potential copyright infringement, media companies use automated software that ignores fair use rights often misidentifying music and videos as copyrighted. Another controversial section of the DMCA aims to protect against copyright infringers who employ tools that enable them to circumvent access controls that protect a copyright holder, 17 USC 1201 prohibits the use of tool to “circumvent a technological measure” like those that  descramble a scrambled work, decrypt an encrypted work, or otherwise impair a technological measure, without the authority of the copyright owner.

Provisions of the DMCA dealing with both take down notices and the “anti-circumvention” rule now face legal challenges that may lead to review by the US Supreme Court. The take down provisions were the subject of a  federal appeals court decision in Lenz v. Universal Music Corp., 801 F. 3d 1126 (9th Cir., 2015). Plaintiff posted on YouTube a home video of her children dancing to Prince’s song “Let’s Go Crazy”. Universal Music Corporation sent YouTube a DMCA take down notice claiming that Lenz’s video violated their copyright in the song. Lenz claimed fair use of the copyrighted material and sued Universal for misrepresentation of a DMCA claim. The district court in Lenz v. Universal Music Corp., 572 F. Supp. 2d 1150 (N.D. Cal., 2008) rejected a motion to dismiss the claim, and held that Universal must consider fair use when filing a take down notice, but noted that to prevail a plaintiff would need to show bad faith by a rights holder. The 9th Circuit affirmed, holding that while fair use arises procedurally as an affirmative defense, copyright holders have a “duty to consider—in good faith and prior to sending a take down notification—whether allegedly infringing material constitutes fair use”. This week, the Electronic Frontier Foundation filed a petition with the Supreme Court, arguing that this standard rendered fair use protections against the DMCA “all but meaningless.”

As for the 17 USC 1201 prohibition on anti-circumvention tools, the EFF filed a complaint in the US District Court for the District of Columbia challenging its constitutionality claiming the section restricts people’s ability to access, use, and even speak out about copyrighted materials. The “Digital Rights Management” provision of the law bans activities that weaken copyright access-control systems, including re-configuring software-enabled devices. This imposes a legal cloud over the rights to tinker with or repair devices, to convert or remix videos, or conduct independent security research to reveal dangerous security flaws in computers. If the complaint succeeds, one of the most controversial technology laws will be struck down. Other countries that have been pressured by the US trade representative to adopt this rule will decide whether they will still enforce it, even after the US has given up on it.

copyrightBrooklyn Law School Library has a large collection of material on copyright including the 3d edition of Copyright Law for Librarians and Educators by Kenneth D. Crews (Call No. KF2995 .C74 2012) with 18 discrete areas of copyright, including specialized and controversial music and sound recording issues. The easy-to-use guide has tools that information professionals need to take control of their rights and responsibilities as copyright owners and users.

Israeli Court Rules on Kafka Papers

In a major victory for libraries and public access to great literature, the Israeli Supreme Court this week issued a ruling concluding an eight-year legal battle about ownership of the literary works and letters of Franz Kafka. The series of court cases between Israel and the heirs of Max Brod, executor of the estate of Prague-born writer Franz Kafka began in 2009. Kafka’s last will and testament transferred all of his manuscripts to Brod after his death in 1924. A March 2015 article The Betrayed(?) Wills of Kafka and Brod by Nili Cohen, 27 (1) Law & Literature 1 (available to Brooklyn Law School Library users through a subscription to the Taylor & Francis Online Journal Library) relates that Kafka in separate letters entrusted his manuscripts and works to Brod instructing him to burn them after his passing. Brod did not honor Kafka’s request and took the papers with him when he fled Czechoslovakia in 1939 and emigrated to Palestine. After the 1968 death of Brod, his will bequeathed the papers to his secretary Esther Hoffe with instructions to give them to the “Hebrew University of Jerusalem, the municipal library in Tel Aviv or another organization in Israel or abroad”. Instead Hoffe kept the papers and shared them with her two daughters and even began to sell them.  In 1988, Hoffe sold an original copy of Kafka’s The Trial for $2 million. The 2007 death of Hoffe, more than 80 years after Kafka’s death, touched off a lengthy court fight between Israel and Hoffe’s daughters who claimed the papers were given to their mother by Brod so she could dispose of them as she wanted.

The WSJ Law Blog reports that Hoffe’s daughters refused the Israeli government’s demands to hand over the documents. The case turned on questions of inheritance law and whether Hoffe was entitled to give instructions about Brod’s literary legacy in her will. “Max Brod did not want his property to be sold at the best price, but for them to find an appropriate place in a literary and cultural institution” Israel’s high court stated in its opinion in which it directed that the papers should belong to the National Library of Israel in Jerusalem.

The TrialBoth Kafka and Brod studied law in Prague’s Karl University and Kafka devoted much of his literary work to the law. His letters to Brod to destroy his manuscripts was not a binding legal document as they included neither the title “Will” nor a date, suggesting that Kafka intended to ask his friend to honor a moral, not a legal, obligation. Kafka’s uncertain attitude towards law is expressed in his greatest novel, The Trial, which he wrote from 1914 to 1915. The novel was published in 1925 after Kafka’s death. Years later, Orson Welles wrote a screenplay based on the novel and directed the 1962 masterpiece The Trial (Call No. PT2621.A26 T75 1998) which the BLS Library has in its video collection. The story centers on the main character, Josef K, who wakes up one morning to find the police in his room. They tell him that he is on trial but no one tells him what the charges are. His efforts to learn the details of the charges and to protest his innocence remain fruitless. As he tries to look behind the facade of the judicial system, he finds he has no way to escape his nightmare.

National Institute’s Publications Added to HeinOnline

The William S. Hein Company has added program materials from the ABA Center for Professional Development‘s National Institutes, to their digital legal library collection, HeinOnline. These substantive materials are assembled each year by the faculty for these in-person programs and represent original analyses of legal developments in the subject areas being addressed.  Coverage begins with 2012.

Below are examples of 2016 Institutes:

To access this material select Hein from the Quick Links menu on the Library’s Webpage  

heinIn the Browse Collections by Names box, expand                              ABA Law Library Collection Periodicals     hein

Impeachment in Cross-Examination

Each year, the American Bar Association, Section of Litigation publishes thousands of books to enhance trial practice skills of lawyers and law students on subjects from evidence to discovery to client privilege and skills for the examination of witnesses at trial and in discovery. The Brooklyn Law School Library collection has many of these titles that aspiring trial lawyimpeachers can review before starting the practice of law. The latest acquisition, MacCarthy on Impeachment: How to Find and Use These Weapons of Mass Destruction (Call No. KF8950 .M33 2016) by Terence F. MacCarthy, Executive Director of the Federal Defender Program in the U.S. District Court for the Northern District of Illinois and his two sons, is a relatively short 172 page volume that explores in detail impeachment of witnesses, which the author defines as cross-examination on “matters affecting the credibility of the witness” or “that which challenges veracity”. Impeachment is often used to show that the witness is, at worst, a liar, a difficult task that requires the cross examiner to go for the jugular. An easier goal of impeachment is to show that a witness is mistaken. Another type of impeachment discussed in the book is motivation or bias impeachment the constitutional dimension of which was firmly recognized in Davis v. Alaska, 415 U.S. 308 (1974).

There are many books on evidence and trial advocacy, including MacCarthy on Cross Examination (Call No. KF8920 .M326 2007) by the same author, but little specifically on impeachment. It is one of the most confusing and misunderstood parts of the trial for both trial lawyers and judges. Just as cross examination is the most difficult of trial skills, impeachment, usually a part of cross examination, is even more difficult. Many trial lawyers do not know what they can or cannot do to impeach. This new title offers trial lawyers “weapons of mass destruction” with instruction on how to use them. This groundbreaking work is an indispensable resource for trial attorneys seeking to improve their skills and better serve their clients.

The book discusses sixteen ways to impeach a witness in sixteen chapters, the last two of which deal with expert witnesses. Some chapters include citations to the Federal Rules of Evidence in parentheses. The chapter are:

  • Chapter One: Inconsistent Statements (FRE 613)
  • Chapter Two: Contradictions – Contradictory Evidence
  • Chapter Three: Motivation
  • Chapter Four: Truthfulness (FRE 608)
  • Chapter Five: Convictions (FRE 609)
  • Chapter Six: What the Witness Could Have Done but Did Not Do
  • Chapter Seven: Capacity
  • Chapter Eight: Bad Acts, Crimes, and Wrongs (FRE 404(b))
  • Chapter Nine: Habit (FRE 406)
  • Chapter Ten: Writing Used to Refresh Memory (FRE 612)
  • Chapter Eleven: Admissions (FRE 801(d)(2))
  • Chapter Twelve: The Hearsay Declarant (FRE 806)
  • Chapter Thirteen: Character Witnesses
  • Chapter Fourteen: Sex Offense or Sexual Assault Cases (FRE 412 to 415)
  • Chapter Fifteen: Expert’s Résumé (FRE 702)
  • Chapter Sixteen: Learned Treatises (FRE 803(18))

At the end of the volume is a useful list of MacCarthy’s Rules of Trial Advocacy including these sample admonitions:

  • “The lectern is for putting things on not for standing behind.”
  • “Speak in a courtroom the way you would speak in a bar. You speak in a bar to practice speaking in a courtroom.”
  • “Do not legalize.”
  • “The importance of eye contact and a smile.”
  • “Do not use fillers – i.e. “and”, “like”, “ah”.
  • “Your stories should paint pictures.”

Voting Rights Resources

With the fractured Fifth Circuit ruling today that Texas’ voter ID law violates the Voting Rights Act and the Presidential election quickly approaching, you may be interested in learning more about the law on voting rights.  To research the issue, you can search the SARA catalog or WorldCat for the subject, Voting—United States or Suffrage—United States.  The Brooklyn Law School Library has over 100 different titles on the topic.  Some of the more recent acquisitions are listed below. vote-1278871_960_720

Sedition Act of 1798: Political Speech as Crime

July 14 is famous as Bastille Day in English-speaking countries. In France, the day is called La Fête Nationale (the National Holiday) and was originally called Fête de la Fédération (“federation feast”) to celebrate the first anniversary of the storming of the Bastille and the end of the French Revolution. The French celebrate the day each year, referring to it as Le Quatorze Juillet (the fourteenth of July). Like Independence Day in the United States, it is a national holiday in France. The day celebrates the fall of the Bastille when just under a thousand Parisians attacked the prison releasing its seven inmates. Like the 4th of July, it marks the beginning of republican democracy and the end of tyrannical rule. The French national anthem, La Marseillaise, which originates from the revolution, does not commemorate the storming of the Bastille. Rather it celebrates the three tenets of the republican national motto: “liberty, equality and fraternity”.

In United States history, July 14 is the date when one of the most egregious breaches of the U.S. Constitution was enacted by Congress, the Sedition Act of 1798. In direct violation of the Constitution’s guarantee of freedom of speech, the Sedition Act permitted the prosecution of individuals who voiced or printed what the government deemed to be malicious remarks about the president or government of the United States. The infamous Alien and Sedition Acts were four laws passed by the Federalist controlled Congress stemming from fears of the French revolution, specifically the Reign of Terror, and an undeclared naval war with France. The Federalists were fearful of revolutionary support growing in the United States among Irish and French immigrants and from Democratic-Republicans, sympathetic to the French cause, who wished to oust the Federalists from office. Fourteen Republicans, mainly journalists, were prosecuted, and some imprisoned, under the act. Among the prosecutions were the following:

  • James Thomson Callender, in his book “The Prospect Before Us” called the Adams administration a “continual tempest of malignant passions” and the President a “repulsive pedant, a gross hypocrite and an unprincipled oppressor”. He was indicted and convicted in 1800, fined $200 and sentenced to nine months in jail.
  • Matthew Lyon wrote an essay in the Vermont Journal accusing the administration of “ridiculous pomp, foolish adulation, and selfish avarice”. He was fined $1,000 and sentenced to four months in jail.
  • Benjamin Franklin Bache accused George Washington of incompetence and financial irregularities, and charged the “the blind, bald, crippled, toothless, querulous Adams” with nepotism and monarchical ambition in his newspaper “The Aurora”. He was arrested in 1798 but he died of yellow fever before trial.
  • David Brown set up a liberty pole in Dedham, Massachusetts with the words, “No Stamp Act, No Sedition Act, No Alien Bills, No Land Tax, downfall to the Tyrants of America; peace and retirement to the President; Long Live the Vice President”. He was arrested and tried, fined $480, and sentenced to eighteen months in prison.
  • Luther Baldwin of Newark, New Jersey, who, following the adjournment of Congress in July 1798, when President Adams and his wife were traveling through Newark past a local tavern, heard one of the patrons say, “There goes the President and they are firing at his ass.” Baldwin said “he did not care if they fired thro’ his ass.” He was arrested and later convicted of speaking seditious words tending to defame the President and Government of the United States. He was fined $150, assessed court costs and expenses, and sent to jail until he paid the fine and fees.

seditionReaders interested in this dark time in American history can Halperinlearn more by reviewing two titles recently added to the Brooklyn Law School Library collection. The first is Press and Speech Under Assault: The Early Supreme Court Justices, the Sedition Act of 1798, and the Campaign against Dissent by Wendell Bird (Call No. KF9397.A3281798 B57 2016). The other is The Alien and Sedition Acts of 1798: Testing the Constitution by Terri Diane Halperin (Call No. KF9397.A3281798 H35 2016). Interestingly, the U.S. Supreme Court never heard a case to decide whether the Alien and Sedition Acts were constitutional. The Sedition Act expired on March 3, 1801, the last day of the first and only presidential term of John Adams.

For the Beach: A Little, Legal Book to Read

beach-reads-logoWhile the current issue of New York Magazine, July 11-24, 2016, has an article on “The Best 100 Beach Reads,” at pages 86-87, I would like to provide a shorter list of seven little, legal books that can offer both enlightenment and enjoyment at the beach or wherever your pleasure happens to be.

The American Bar Association has published a series entitled the “ABA Little Book Series” with currently nineteen titles.  The BLS Library has a number of these books cataloged, shelved in the main collection in the cellar and available for loan.

Herewith is a summary of seven of these titles:

The Little Book of Boating Law by Cecil C. Kuhne III:  KF 2558 . P5 K84 2012

boating lawThis book covers cases involving boats and alcohol, the party barge, a youthful driver and a high-speed motorboat, rescues of swimmers, kayaking, tubing, winds/waves & storms — anything can happen on the water, and does.

 

 

The Little White Book of Baseball Law by John H. Minan and Kevin Cole:  KF 3989 .M563 2009

baseballThis book discusses cases that involve game rules, antitrust, stadium construction, baseball memorabilia, injured spectators, TV contracts, fantasy baseball, etc.

 

 

The Little Book of Movie Law  by Carol Robertson:  KF 4298 .R63 2012

movie lawThe chapters in this book are called “Reels” and cover everything from the early days of cinema to the silent era to the development of sound to the McCarthy era to the rise of independent producers to obscenity and the U.S. Supreme Court.  There are also intermission sidebars which discuss censorship, publicity, copyright & trademarks and stunt people.

 

The Little Book of Foodie Law by Cecil C. Kuhne III:  KF 3869 .K84 2012

foodie lawSince we have become a nation of “foodies,” this book delves into legal cases involving spice wars, patented desserts, poisoned mushrooms, cooking schools, Kosher food and litigation over restaurant reviews.

 

 

The Little Red Book of Wine Law: A Case of Legal Issues by Carol Robertson: K 3935 .R62 2008

wine lawEach of the twelve chapters in this book are modeled after a case of wine and examine a specific topic, such as trademarks, family feuds and the wine business, contracts between grape growers and wine producers, the changing Napa Valley, the direct shipment of wine and the U.S. Supreme Court, etc.

 

coffee lawThe Little Book of Coffee Law by Carol Robertson:  KF 1984 .C6 R63 2010

This book begins with an introduction to the origin of coffee, and goes on to cover the growth of coffee imports, franchise agreements, labeling, etc., as well as chapter “coffee breaks” that cover coffee customs, coffee brewing, coffee marketing, and the infamous McDonald’s scalding case.

 

fashion lawThe Little Book of Fashion Law by Ursula Furi-Perry:  KF 3409 .C56 F87 2013

This little book covers the fashion industry in depth and from fashion season to fashion season:  Season One is fashion law and intellectual property; Season Two is fashion law and business, trade, litigation and consumer protection; Season Three is beauty and the law and Season Four is fitness and the law.

Now That The UK Has Voted In Favor Of The Brexit, What Happens Next?

brexitHave you been following the UK’s decision to leave the European Union, colloquially known as “the Brexit?” In a referendum held on June 23rd, British citizens voted in favor of the Brexit, with 52% percent voting to leave the EU and 48% voting to remain.

What Happens Now?

That’s a good question as there is a great deal of uncertainty regarding the legal consequences of the referendum.  As a matter of fact, the UK is the first member nation ever to elect to sever its ties with the EU.  For the immediate future, though, the status quo will be maintained.  First of all, it is important to note that the referendum has no legal consequences with respect to the UK’s status as a member state of the EU.  Instead, the UK will begin the process of leaving the EU only after the British government invokes Article 50 of the Treaty of Lisbon, one of the EU’s governing documents.

According to Article 50: “Any member state may decide to withdraw from the union in accordance with its own constitutional requirements.”  Article 50 also specifically provides “A Member State which decides to withdraw shall notify the European Council of its intention.” This language is important because it makes clear that the Brexit cannot be initiated by the referendum vote, the trigger to request an exit from the EU can only be pulled by a formal request under Article 50 made by the British government. Whether and when the British government will actually invoke Article 50 is anybody’s guess given the spate of resignations and current state of turmoil in British politics.  As a matter of fact, British legal scholars are currently debating how Article 50 is to be invoked – can the Prime Minister trigger Article 50 or is a formal vote of Parliament required?

What Happens When/If the British Government Invokes Article 50?

If the British government provides the EU with a formal Article 50 notification of its election to leave the EU, the UK and the EU will then be required by the Lisbon Treaty to negotiate a deal setting forth the terms of the UK’s withdrawal and establishing a structure for the future legal relationship between the UK and the EU.  Once the Article 50 trigger is pulled, the European Council and the UK will have just two years to hammer out a new deal.  If the parties choose not to extend this period and cannot reach any agreement, the UK will exit the EU with no formal arrangement in place.  Once the Article 50 trigger is pulled, it is irreversible.

Following the Brexit vote, David Cameron announced his intention to resign as Prime Minister, leaving the decision on how and when to trigger Article 50 in the hands of his successor.  Given the current chaos in British markets and politics, the culmination of Brexit may take years.

 

4thHope everyone will be enjoying the beautiful 4th of July weekend.

The Library will be open its normal hours on Saturday and Sunday and will be open from 9 to 5 on the Fourth.

The Library hours for the weekend are posted below.

Saturday July 2nd 9 am – 10 pm
Sunday July 3rd 10 am – 10 pm
Monday July 4th 9 am – 5 pm

Macy’s Fourth of July Fireworks event is scheduled to begin around 9 PM and last for about 30 minutes.fireworks

The show will take place on the East River this year. Fireworks will be set off from the Brooklyn Bridge and from barges in the water below. You can view the fireworks from any area in Manhattan, Queens, and Brooklyn with an unobstructed view of the sky above the East River.

Enjoy.