Tuesday, July 19, 2011

Comments on the NYLS "Expose"

Last Sunday's NYTimes "expose" on law school economics, with a pretty skewed perspective on my alma mater, NYLS, left much to be desired.  The author would be doing a much better service by questioning the validity of the US News rankings (which many inside and outside the academy continue to do), deceptive reporting across the board (likely including NYLS), miniscule response rates to employment surveys, further exploring the rising costs of living and tuition (can't find a school that's lowered it's tuition, correct me if I'm wrong), looking at faculty salaries, or really anything else that provides a fuller picture.  And then there's the assumption that everyone who goes to law school wants to work in Big Law and that no other legal or non-legal career options exist.  The author's previous explorations of the topic touched on many of those things, so it's a bit disappointing to see so much context left out.  You can read the article here, and the Dean's response here.  There's also a summary of responses to the original article in yesterday's Times.  Just want to offer a few points below since many friends have been asking me about it:
  • I had a great educational experience at NYLS although the outcome certainly did not consist of legal employment (like the brochures emphasize..).  Top professors (I could care less if all/most/lots went to Ivy's, that says little about NYLS other than implying that the school doesn't breed educators), tons of great events/conferences/speakers every week, unique and dedicated centers for learning and a very involved student body, among other things.  Were there things to be desired?  Of course.  Is that unique to NYLS?  Of course not.  Do the "top ten" schools guarantee or report placement in six-figure jobs for 100% of their graduating classes?  The article would make you think so.  (Nothing against those schools, I've met many great people and professors, gone to great events, etc. at many of them.  It's about the rankings bubble that skews everything.)  Finally, the schools can only publish (or manipulate) the data that graduates actually report, which isn't much. 
  • Like any educational (or life) experience, it's what you make of it.  Going to a "top tier" might help you, sure, but if you can't make things happen for yourself and use the resources you've got, you're not going to succeed regardless of your profession.  And by the way, it's not just NYLS grads who can't find legal jobs (though I have little to say about the career services office's help..).  In any profession, there's a whole lot of who-you-know, and some of the superstars don't have to hustle as much.  I'd like to know what % of students actually participate in on-campus interviews and the like.  I did well academically, published, won a competition, internships, researched for professors, scholarships, networked like crazy and whatever other proxies for success you want.  That will serve me the rest of my life, but I still couldn't find a legal job after countless inquiries to friends, family friends, firms, companies, previous employers, other professional contacts; you name it, I tried it.  (I'm not the only one in this boat - many performed the same or better.  I mention it to point out that the market, simply, sucks for law grads and you can't expect help or handouts from your school, unfortunately.)  I had both quality and quantity on my side; the jobs just don't exist, and I didn't want to do hourly work or something in a field of law I wasn't interested in.  So, you adapt and change.  Deal with it.  And that's not even accounting for automation and technological efficiencies that are eliminating entry level legal positions, or the fact that my graduating class (2010) and 2011 are/were competing with all the 2008/9 grad's who got laid off during the (mostly continuing) recession.  (related note - check out this article, "9.2% Unemployment? Blame Microsoft.")
  • As the NYLS response points out, the Times article assumes that the only value of a legal education is for the tippity top of the class, in legal employment, for a six figure salary upon graduation.  In interviews and discussions, it's been made clear to me that many non-legal employers prefer a JD over an MBA because of the "thinking like a lawyer" skills of problem analysis.  Or, there's the whole idea of being a citizen and participating in your community... it is a democracy, after all.  The understanding of civics, business and "the system" provided by a legal education goes far beyond the practice of law.  Nothing wrong with making money, but if you're that seriously focused on only cash and can't evaluate your choice of school, you're screwed anyway.  And for friends who did wind up in Big Law, big salary jobs, most were deferred a year or more anyway because the work simply didn't exist.  And anyways, it's not like those students didn't bust their ass like all the rest.  Good for them, not everyone can be in the top 5.  I wanted to practice right out of school and decided against just hanging up a shingle, and couldn't get a firm or in-house role where I wanted (or anywhere else).  So I left those options open while moving on.  How does that Rolling Stones song go...
  • Related to the rambling point above, why is it the academy's responsibility to limit the flow of students?  I'm not saying more is better - by my last year in 2009 when the incoming class ballooned, there was a noticeable difference in the environment.  The school's response is that they had already offered fewer spots in anticipation of higher acceptance, but wound up with much higher acceptance still.  I'm not totally convinced.. but not sure how much it matters.  Academically or otherwise, it didn't for me.  The great new facility which any NYLS student who started before 2009 will tell you was sorely needed definitely got a bit crowded at times.  Simply because there were/are more students doesn't mean the quality of the education automatically lessens.  As noted above, I can't say enough good things about the quality and dedication of the faculty (except for one whose ramblings and semester-long emphasis on certain things didn't show up on the exam, which I could have just memorized and copied out of a commercial outline, but the issue of tenure is another story).
  • Lawyers have a monopoly on legal services, yet the law affects all of us.  As Matt Leichter is quoted in the Times as saying, “demand for lawyers is separate from demand for law degrees, and the American Bar Association’s goal of law as an elite profession contradicts its concurrent goal of law as a democratic profession open to the masses.”  Why is education and the discipline that comes with it a bad thing?  Or, the organizational and analytical skills taught in law school?  I doubt the increase in students had to do with the democratization of learning and open access to the law, but seems like a decent enough halo effect to me. Also would be curious to see how many in that gigantic 2009 entering class dropped out after one or two semesters.  I'd like to see more rigorous acceptance criteria in schools generally but the market seems to be figuring that out, eventually it'll catch up with and challenge the conventional wisdom that law school means security.  In that respect, the Times article couldn't have been better.
  • Yes, it was expensive.  Have you been to New York City though?  Everything is...  Go to a state school or do something else with your (borrowed) money.  Am I happy that I have some student debt?  Of course not.  Is some of the stuff in the NYLS response about a regulated industry driving up costs and whatever else bs?  Maybe, probably.  If you're about to make such a huge financial decision, and life choice, and you can't evaluate it somewhat objectively, you're toast anyway.  I'm glad there are plenty of people who go thinking law school is a golden ticket, or those who are just in it for the money, but that's not unique to law.  Neither is people making poor choices.
  • In my interactions with the Dean, his interest always seemed genuine and responsive to students.  The programs he promoted, the projects he funded, the input given or whatever other measure.  I was always slightly bothered by the fact that he was also chairman of Access Group, the enormous student lender which many/most NYLS students deal with in some capacity.  And most law students across the country.  As far as I can find, however, the board is not compensated.  And if so, I'd rather have our school's Dean at the top reflecting the complaints and needs of our students.  Either way, he and the school definitely should to do a better job of disclosing that, because it looks a bit fishy on its face.  And if there's some sketchy stuff going on behind the scenes or off the balance sheets, then by all means, let the class actions begin.  But because more students didn't graduate and get handed jobs?  Give me a break.
  • And the quotes from one student whose studies focused on an area she wound up getting a job in?  Glad to see someone figured things out on their own without the help of (the inadequate) career services while at the same time looking as bad as everyone/thing the article skewers.  Nothing personal, but it's over.  You win, congratulations.
Alright, enough out of me.  I had some poor experiences at NYLS too, but most of it the same administrative non-sense you'd find in any institution.  I'm sure I could have a great experience at another any-tier school too, sorry for being an occasional optimist or making things work no matter what.  No debt and a six figure job would be cool too, but so would winning the lottery.  One day I will practice.  But for now, back to learning more javascript.  You can complain, or you can change.

Update: The class actions have begun. Tell me where to send my loan bills.

Tuesday, July 5, 2011

Under the (album) covers

I've been thinking a lot about photographer Jay Maisel's recent legal tussle with chiptune album Kind of Bloop's producer Andy Baio, documented in a post by Mr. Baio here.  The "chip" refers to the use or emulation of old computer or video game hardware to produce the jaggedly beautiful tones found in older video games, such as those on the 8-bit NES.  Kind of Bloop is a chiptune tribute to Miles Davis' iconic album Kind of Blue for which Baio licensed the music but failed to seek permission to use a pixelated, 8-bit version of Maisel's cover photograph.


Compare Maisel's original photograph (left) with Baio's version (right)


The basic issue is whether Baio's use qualifies as a fair use of the original rather than a derivative work for which advance permission would be necessary.  While I find the decision to go after Baio slightly offensive to the spirit of the music that helped propel Mr. Maisel’s career and see a stronger case in favor of fair use (others have derisively labeled the decision a cash grab, while the Bloop image with text "All Art is Theft" has been posted on the NYC building where Maisel lives), there are just as many arguments (legal or otherwise) in support of his position as against. Both sides are clearly aware of this, and Baio's post was reviewed by both parties' counsel.

A quickie fair use analysis suggests that whether the new work is transformative cuts both ways (factor 1 as interpreted by courts), the entire work was used (factor 3) and it’s clearly not a substitute for the original (factor 4 as interpreted).  The second factor, the "nature of the copyrighted work," is typically used to question whether the original work is factual (making a finding of fair use more likely) or creative (making fair use less likely).  I feel like there's always been some doctrinal tension with respect to whether photographs of live events should qualify for protection, and even the early case of Burrow-Giles v. Sarony recognized this by querying whether a merely mechanical process that records reality is a creative enough process to confer copyright protection, though the Court did not decide the question.  Of course, the cropping, development, filtering, framing, zooming and other elements of creativity qualify the photograph here for protection as explained in Burrow-Giles and later articulated as the low standard of a presence of a "modicum" of creativity to pass the constitution's originality threshold required for protection. 

At the same time, compare Bridgeman v. Corel, which held that "slavish copies" of public domain works of art would not meet the low barrier to protection established by Feist.  So is or should perception of reality be considered in the public domain too?  Compare other countries' thresholds for copyright protection using tests like "labor, skill and judgment" of the author with the US, where it's the "modicum of creativity" discussed in Feist.  Other laws protect users of information that is generally available to the public, either as public data (e.g. the Wiretap Act, press freedom laws), a true depiction of prior events (truth as a defense to defamation) and many others.  Leaving aside the private nature of a concert and ticket or venue restrictions on recording, shouldn't a slavish reproduction of reality also require more than just hitting "record" to warrant protection, even if the author fortuitously captures a Kodak moment that later becomes iconic?  One could snap hundreds of photos, but is selection and publication of only one really creative, rather than merely subjective?  Regardless of whether a bare photograph or broadcast of a live event should qualify for protection without any further creative addition, having our default rule in favor of protection saves the nasty business of having a court make a (subjective) determination of creativity.  And as stated above, we know it's the expression that's receiving protection and it doesn't take much to make that expression protectable.

In any event, the fair use analysis cuts either way.  The end of Baio's post challenges the reader to decide where to draw the line by showing the original compared to a series of gradually more pixelated images, illustrating the difficulty of line drawing (no pun intended) with respect to whether a use is fair.  Further, it might not be such a bad idea to require enforcement of a copyright in order to maintain protection, although proving that the copyright owner was aware of a potential infringement would be similar to a defense of laches (and potentially estoppel by a later, separate defendant) and legislation would probably be necessary to establish a bright line test.  There have been many proposals to reinstate some degree of copyright formality in order to obtain or maintain protection, though obligations with respect to non-US authors under Berne are not permissible.  While copyright owners shouldn't have to police their works like trademarks owners do their marks, since the subject of and policy reasons for protection are fundamentally different (unless one begins to consider certain moral rights), imposing an obligation on copyright owners seems to further the "primary object" of copyright.  ("The sole interest of the United States and the primary object in conferring the [copyright] monopoly lie in the general benefits derived by the public from the labors of authors." )  For further digression into whether IP rights should be analogous to real property rights, there's plenty of literature out there.  For more about copyright formalities and effects on the public domain, check out the amicus briefs in Golan v. Holder.  Getting back to Baio (which would also be a great title for a different Baio in a sequel to Charles in Charge), certainly a photographer of Maisel's stature would have met whatever formalities the law required, especially for such a well known image.

Though the parties settled and Mr. Baio can no longer use the image as part of the Kind of Bloop project, I began to wonder how Maisel would prevent the image from getting re-posted all over the net. Use of the Bloop version in places discussing the case (commentary, news articles, etc.) is clearly fair use.  What about others?   We’ll never see the settlement but I wonder if it included a transfer of copyright to Maisel just in case (probably followed by a statement that the transfer is not admission that the work qualifies as fair use and is not a derivative work) so that he could use DMCA takedown notices to better control distribution of the image.

Under Section 512(c)(3), the sender of a takedown notice must include, among other requirements, "A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed."  If the use were fair, then Maisel would not be the owner of an exclusive right in the Bloop cover.  If the parties or a court agreed that the work was a derivative, ownership would or could then be shared by Baio to the extent of his original contributions as agreed by the parties.  Without a transfer of ownership to Maisel, who owns any copyright that might exist in the Bloop image?  Interestingly, the text of the DMCA says the notice must be sent by or on behalf of "the owner of an exclusive right."  Given the obligation to account for any profits from licensing or litigation to a co-owner (See generally Section B.1 and accompanying notes here), it seems likely a court would allow a co-owner to unilaterally enforce the copyright via DMCA takedown notice without the other co-owner's permission since he would be presumably authorized to act for the other co-owners.  I haven't seen a case where one co-owner objected to another co-owner's issuance of a DMCA takedown notice, so please let me know if it exists.

DMCA considerations also bring up Lenz v. Universal, where the Northern District of California held that a copyright owner must consider whether a use of his or her work is a fair use before issuing a DMCA takedown notice.  However, the Bloop version is not an entire or partial reproduction of Maisel's actual image, or use of all or part of the image in another context like the music clip in the dancing baby video in Lenz.  Still, the recipient could simply issue a counter-takedown and if further challenged, argue Baio's original position that the Bloop version itself is a fair use, and further that its use of that image in a new context is a fair use.  So, whether agreeing one way or the other, Maisel would be in the best position by getting a grant of whatever copyright might exist.  For now, plenty of examples are just a Google search away (though Google's display of thumbnails of the image would be a likely fair use under cases like Perfect 10 v. Google), or this YouTube video of a song from Kind of Bloop along with Baio's version of the image.  Here, Baio could use the DMCA since it's his sound recording posted.  Yet there and elsewhere, the image remains.  I also recently noticed a tweet asking whether someone has or will create a Tumblr with pixelated versions of all of Maisel's photos.  Now there's an interesting fair use question...