When law doesn’t match up to reality, law loses – Connie Schultz makes an unworkable proposal.

I deeply admire Connie Schultz, but I think she was mistaken in her column yesterday that called for a change to federal copyright law that would give “news originators” the exclusive right to the news they report on their web sites for the first 24 hours after publication. The “remedies” to enforce this exclusive right would include (1) a requirement that online “aggregators” would have to “reimburse newspapers for ad revenues associated with their news reports” and (2) “injunctions” to “bar aggregators’ profiting from newspapers’ content for the first 24 hours after stories are posted.”

Ms. Schultz shows her desperation to save newspapers in calling for immediate action, implying that waiting even 6 months before enacting this law would be to wait too long.

There’s a lot wrong with this proposal I won’t go into right now with respect to the purposes of copyright law (h/t to Natalie Gauthier, on Twitter @nggautier). Here’s my problem with it merely in my capacity as a business advisor (as much a part of being a commercial lawyer as knowing the law). It’s utterly unworkable. An injunction against use is no remedy — to be effective, an injunction needs to be enforceable. How in the world is a newspaper going to enforce its exclusive right to a story against use by anyone anywhere in the world on the internet? Second, to whom do these rights and restrictions really apply? Who’s a news source? Am I when I publish something online based on my own research and thinking? When is what I publish my own research and thinking and when is it merely “aggregation.” And am I an aggregator, or just a unicellular organism floating in the vast oceans of the information and news available around the world? When would I cross the line?

It’s an utterly unworkable proposal.

I have a lot of sympathy for Ms. Schultz and her position. I’ve grown up worshiping journalists. (To be an adolescent leftist poseur back in the early ’70’s meant worshiping the New York Times and the Washington Post.) And, as my dad complains, there is a really profound problem in the loss of the check newspapers have traditionally provided with respect to local events.

But there’s no going back. Law is not going to stop the inevitable consequences of the change in technology we’re experiencing. I’m not suggesting we’re in for a wonderful new world. We’re losing a lot, and I share with Ms. Schultz the desire to save it all. But we’re not going to. We’re going to have new things. Here’s one, for example, courtesy of the artist Daniel Nolan (on Twitter @danielnolan). There’s been very little news out of Iran. What’s going on in the streets, if anything, is a matter of intense interest around the world, but newspapers have largely been rendered unable to report on events thanks to the moves of the Iranian regime. But yesterday I received a tweet from Dan that referred me to Andrew Sullivan’s blog that was reporting that instead of appearing in front of his supporters in person Mir-Hossein Mousavi “instead delivered a speech to his supporters via cell phone. The speech was then captured on camera by a demonstrator, uploaded to Facebook, picked up on Twitter, and delivered to you through this blog. And now it’s on YouTube.” As Dan put it on Twitter, “[i]f scoring at home, that’s Mousavi – cell phone – camera – facebook – twitter – blog – youtube. Now that’s an alternative info stream.”

I’m not suggesting that is the equivalent of haveing a foreign corresondent on scene (but there are no western jounralists in Tehran as far as I know), but it’s extraordinary. There have got to be better ways than Ms. Schultz’s ill-conceived proposal to make the transition to what the new technology makes available and what the new technology makes inevitable. The way is not going to be through a rather simple law. When law doesn’t match up with reality, law loses, but worse, so do we. Make intoxitants illegal, and our prisons become jammed with non-violent offenders. Don’t provide legal means to immigrants motivated to get here, and you end up with millions of undocumented residents. Outlaw abortion and you expose the poor to unregulated and unsafe medical procedures. Refuse to adapt the marketing of your product to new technologies, and engage in ineffective litigation that results in blatant injustice. . .

Don’t “friend” judges!

I write again and again about how changing technologies clash with law based on old technologies, but this is a particularly appalling example. In North Carolina, Judge B. Carleton Terry, Jr., who was presiding over a custody dispute, became a Facebook friend with Charles A. Schieck, an attorney for the father of the child whose custody was the subject of the dispute. As the Public Reprimand issued by the North Carolina Judicial Standards (pdf) recounts, before the matter was resolved, the Judge checked Schieck’s Facebook account and noted that Schieck had posted a question about what he would have to prove to prevail in the custody dispute. Then,

Judge Terry posted on his “Facebook” account [that] he had “two good parents to choose from” and [that he] feels that he will be back in court,” referring to the case not being settled. Schieck then posted on his “Facebook” account, “I have a wise Judge”.

Our adversary system is founded on there being an adversary. Communications between one party and the judge without the presence of the other party (”ex parte” communications in the jargon of the law) are, therefore, forbidden (except under exceptional circumstances). I remember in law school standing with my clinical supervisor in the doorway of a courthouse in Flint, Michigan, where we’d just attended a hearing for a client I was representing. It was pouring rain, we didn’t have an umbrella, and we’d decided to wait out the storm in the shelter of the doorway. A minute later the judge we’d just appeared in front of walked out, and stood next to us, smiling and saying hello. My supervisor grabbed my arm, pulled me out into the rain, and walked with me to her car. I asked what was going on, and she explained: “We can’t talk to the judge!” I got it. Getting soaked to the skin in the only suit I owned was better than risking an ex parte communication with the judge.

Judge Terry also did research online on the mom in the custody dispute without telling the parties.

Don’t befriend judges on Facebook!