Supreme Court decides, 5-4, that those public courts aren’t so public after all.

From the L.A. Times:

By a 5-4 vote, the U.S. Supreme Court kept in place Wednesday its order blocking video coverage of the trial of California’s Proposition 8, with a conservative majority ruling that defenders of the ban on same-sex marriage would likely face “irreparable harm” if the proceedings were broadcast to the public.

“It would be difficult — if not impossible — to reverse the harm of those broadcasts,” the court wrote in an unsigned opinion. The witnesses, including paid experts, could suffer “harassment,” and they “might be less likely to cooperate in any future proceedings.” The high court also faulted U.S. District Judge Vaughn Walker for changing the rules “at the eleventh hour” to “allow the broadcasting of this high-profile trial” that will decide whether gays and lesbians have a right to marry in California.

Though the opinion is unsigned, it clearly speaks for Chief Justice John G. Roberts Jr., and Justices Antonin Scalia, Clarence Thomas, Anthony M. Kennedy and Samuel A. Alito Jr. . . .

The majority cited newspaper accounts from the last year to bolster its contention that opponents of same-sex marriage have been “subject to harassment,” including “confrontational phone calls and e-mail messages” and even “death threats.” Under the court’s rules, the justices do not intervene in pending cases unless they are convinced that the appealing side has a strong legal claim as well as evidence of “an irreparable harm” if the court fails to act.

[Justice] Breyer [in the dissenting opinion joined in by Justices Stevens, Ginsburg, and Sotomayor] scoffed at the notion that the witnesses in this case would face harm, because they have gone on television in the past to advocate their views. “They are all experts or advocates who have either already appeared on television or Internet broadcasts, already toured the state advocating a ‘yes’ vote on Proposition 8,” he said.

Here’s legal innovation: YouTube Broadcast of the Proposition 8 Trial. But will it happen? Stay tuned.

There are few more important and timely issues concerning innovation and law than the impact of the internet on courts. Courts have always been considered public institutions anyone could walk into to see court proceedings or to look themselves at court files. But now making something “public” means making it available to anyone at his or her own computer, and the inherent resistance to change that resides in any well-established institution makes courts and those who don’t want their legal stands exposed to the brightest possible public lights reluctant to embrace this new notion of public access.

So, as CNN reports, controversy and legal wrangling has erupted over the decision by “the federal judge who is hearing appeals of California’s Proposition 8 this week ruled that the proceedings could be shown — albeit in delayed fashion — on YouTube.”  But opponents of same-sex marriage, outlawed by Proposition 8, appealed the judge’s order and yesterday the Supreme Court postponed the online broadcasts at least until tomorrow (when, it is hoped, the Supreme Court will rule on the issue).

Jon Davidson, legal director of the pro-gay rights Lambda Legal, argued that opponents of same-sex marriage want to keep the trial as much out of the public eye as they can because public debate on same-sex marriage actually increases support for it. In addition, he argued that the risks of true public access to the proceedings is way overblown:

“One of the things we find on the marriage issue, but really on all issues in response to gay rights, is that the more discussion there is — the more conversation, the more people learn — the more likely it is that gay people are going to do well,” Davidson said.

Davidson said posting the trial on YouTube wouldn’t increase the potential for witnesses to be harassed, saying that anyone can read news reports after the fact to find out who spoke and what they said.

Besides, any effort to block new-media coverage of the hearings is already too late, Davidson said. He said people in the courtroom for opening arguments Monday were posting live updates to Twitter throughout.

Ruling Imagination: Law and Creativity

What are you thinking, Herb Mitgang?

The knee-jerk reaction some writers and other artists have to any unauthorized use of their copyrighted works often baffles me.  Artists often react viscerally to any unauthorized use of their creations even when doing so fails to serve, as far as I can tell, any legitimate personal interest they might have.  It’s as if they simply think: it’s my property, and no one can touch it unless I tell them they can!

The Association of American University Presses provides a useful summary of the Google Book Search Program:

Many university and scholarly presses have participated enthusiastically in the Publisher program, which allows their print publications to be indexed and displayed to an appropriate extent through Google’s beta online index of print materials while protecting their own, their authors’ and third parties’ rights. The Library program has proven controversial, as Google plans to scan, digitize, and copy not only public domain works from five world-class research libraries, but also the in-copyright collections of at least some of those libraries. The libraries are the Bodleian at Oxford University, Harvard University Library, the University of Michigan Library, the New York Public Library, and Stanford University Library.

It is important to understand that Google is not merely copying the libraries’ collections in order to make them available electronically to the world.  Instead, Google Book Search allows its users to search the entire database of what Google has thus far scanned.  For works by authors who have granted Google permission, a user of the Book Search can scan read the entire text.  But for those who have not expressly provided that permission, a search through Book Search will turn up only books containing the searched terms along with snippets of approximately 3 lines around the searched terms.

In short, Google Book Search is a boon to researchers, allowing them to locate books relevant to their research in libraries they could not possibly ever have visited.  They then can obtain the books, either through inter-library loans or through online purchases.  Without Google Book Search, in other words, myriads of profoundly useful books scattered around the world would remain utterly invisible to the vast majority of people with interest in them.

Which brings me to Herbert Mitgang.  Mitgang is one of the named plaintiffs in the Authors Guild lawsuit seeking to shut down the Google Library Project.  Mitgang was born in 1920, and since the 1950s he has been a prolific writer in numerous genres, from journalism to fiction to biography.  Among his books are three on Abraham Lincoln.

Mitgang, however, is hardly a household name.  His books on Lincoln are still in print, but, despite my acquaintaince with several amateur Lincoln-obsessed readers, none of them have read any of Mitgang’s Lincoln books.  Mitgang is 87 years old.  It seems quite likely therefore that, within a decade or so, the only feasible way Lincoln researchers will be able to obtain his books will be from the collections being scanned by the Google Library project.

In short, I cannot begin to imagine why Mitgang wants to shut down the Google Library Project.  Without it, his books will likely fade into oblivion.  On the other hand, if the Google Library Project is a success, there is every possibility that future Lincoln researchers might come across and use Mitgang’s Lincoln books.  I wish I could get in a room and ask him: Why are you doing this?  Do you really want your life’s work to disappear entirely from the sight of future researchers?

My sister, a lifelong writer, for years bristled at my views of copyright.  She’s come around.  The fact that the entire corpus of one genre she’s worked in for decades, the retelling of folk tales for children, is available online has, she’s realized, made her more visible, more attractive to publishers, students, and producers of other media.  Exposure is, it seems, the lifeblood of an artist; putting one’s work behind a fence, on the other hand, will only make it invisible.

I wonder what Herb Mitgang thinks of that?