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Res Gestae Law School History and Publications
2003 Vol. 54, No. 4, October 14, 2003 University of Michigan Law School
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Recommended Citation University of Michigan Law School, "Vol. 54, No. 4, October 14, 2003" (2003). Res Gestae. Paper 123. http://repository.law.umich.edu/res_gestae/123
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October 14, 2003 Vol. 54 No.4
Downloaders Beware! Record Industry Lawuits Are Indeed 2 Legit 2 Quit
By Sharon Ceresnie it become clear what the state of the law is on file sharing. And while the RIAA has for the Intellectual Property Student ost of us have heard about only filed 261 suits as of September 8, Association's (IPSA) guest speaker the lawsuits that the 2003, many of us have begun to realize Andrew P. Bridges on "Are the RIAA Recording Industry that the next suit filed could easily be Lawsuits Legit?" After speaking during Association of America (RIAA) has against one of our friends or even lunchtime, Bridges also visited Professor brought against peer-to-peer file sharers. ourselves. Eisenberg's Trademarks class to continue The newspapers have highlighted the discussion of the suits. IPSA President defendants like a 12 year-old who had Tally George said she was very happy
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"no idea" that it was illegal to download Precisely because many of us feel with the large attendance at the event and music off of the Internet and the parents affectedby this new wave of legal tactics was "happy to have provided the Law who share their child's sentiment. Neither by the RIAA, on October 8, 2003 Room before nor after the filing of the suits has 150 was filled with nearly 160 students Continued on Page 6 112 l\.es @e.stae 14 ®ctober2003 II 3Res ®estae Burning the Midnight Oil
Ediror in Chief with the Andy Daly
Managing Ediror: Insomniac-In-Chief
Jessie Grodstein Kennedy By Andy Daly
Etecutive Editor: his weekend I received the latest of several e-mails telling me to go to bed. John Fedynsky Folks who have awoken to new messages in their inboxes from a certain [email protected] have expressed concern over my penchant for sending Comributing Editors: e-mails at hours only Vlad the Impaler could love. Some have mistakenly chalked it D.C. Lee. Andrew Cattell, up to my dedication or my hard work. No, I wish it were that noble. Granted, I often Sharon Ceresnie. find myself remembering to do thingsthat I should have done hours ago, rather than Sara Klettke MacWilliams. during the depths of night, but it's not the work keeping me up. To be honest, I am Michael Murphy, Matt Nolan not really sure what is.
Perhaps I have some burning questions to answer. Ones that come to mind are: "If Web Site Ediror: he is a documented sexual predator and world-class pervert, why is R. Kelly constantly Steve Boender singing Jove songs on my TV?" Or, "If Michigan is consistently one of the most overweight States in the Union, why can't I find fresh donuts in Ann Arbor after a Artist: long night of drinking?" And then there is the classic: "If the plural of leaf is leaves, Philip Weintraub why does Toronto's hockey team call themselves the Maple Leafs?"
When I said "burning questions" I hope you weren't looking for something deep or philosophical, I would need to sleep for at least a month before getting to that. Res Gestae is published biweekly during the school year by students of the University of Despite the unanswerable nature of my queries, I am sure it is not they that keep Michigan Law School. Opinions expressed in me up. Perhaps I am waiting for something to happen, or perhaps it is my fear of bylined articles are those of the authors and do not necessarily represent the opinions of the missing something important or interesting. It can't have anything to do with my editorial staff. Articles may be reprinted with new digital cable box or the three-and-a half-pound bag of M&M's I bought, would out permission. provided that the author and Res it? Gesrae are credited and notified.
Re., Gestae welcomes submissions. Please place Deepening my dilemma is the fact that I kinda like being up to all hours of the all articles. columns. or opinion pieces in the night. My friend Sara's appeal that I go see a doctor and get some prescription sleeping Res Gestae pendaflex located on the third floor pills fell on deaf ears. "I don't really have any trouble sleeping," I told her, "I just of Hutchins Hall across from the faculty don't go to bed." I sit up and watch TV, play computer solitaire, instant message mailroom. Submissions may be made on 3.5" disk or via email (preferably as a MS Word at other saps who get caught up late, and ponder inane questions like those listed above. tachment). Res Gestae reserves the right to edit Sometimes I even do house chores at 3:00 a.m. all submissions in the interest of space. Maybe its the freedom and quiet that comes with late nights on the couch doing Mailing address: Res Gestae nothing in particular. Nobody bothering me, no one to tell me what to do - there's a University of Michigan Law School certain peacefulness that comes with being the last one on duty. Here's to hoping that 625 South State St. my future employer doesn't get wind of these tendencies. Wouldn't want them getting Ann Arbor. Ml 48109 any funny ideas, would we? Phone: (734) 936-2574
Web Site Address: In any event, it looks like I will have to embrace the nocturnal lifestyle for the time http://www.law.umich.edu/ being. And to those with whom I correspond, do not be troubled if you get an e-mail JournalsandOrgs/rg/ Office: from me at some unholy hour- I'll sleep eventually, it just might have to be during 116 Legal Research class. (near the Law School Student Senate office)
[email protected] ------�11 31\.es�estae 14®ctober 2003 �.._ 311 Letter to the Editor: Taking the MPRE - It's A Mystery to Us hich of the following critical send us a minimum of five reminder e to practice law and whether my W topics was not offered as a mails about the informational happiness is directly related to my salary. presentation by your very presentation they have arranged for us OCS finally sent an email to the listserve own Office of Career Services this on just that topic. Why would we ever the day after the late fee for registering semester? suspect things would be different when for the November MPRE exam went into it came to taking the Bar? Granted, the effect.2 a) Bright Lights, Small City requirements for passing the Bar differ in b) How to be Happy as a Lawyer many states, but 48 out of 50 States Given our collective experience, it c) The Logistics of Being a Lawyer: require the MPRE. And we only need to actually turns out that signing up to take When, Where and How to Take the review option (a) above to see that OCS the test in a different state, signing up for Bar Exam. has never been shy in the past of offering the Barbri course, and figuring out how employment information just because it to coordinate having your law firm pay Unfortunately, as any 3L knows, the doesn't affect every single student. for the course can be fairly confusing. At answer to the above question is (c). While least confusing enough to merit a quick the authors of this article understand the To make matters worse, we happen to lunchtime presentation by our career value of presentations on such topics as know, based on an informal and counselors. Such a solution would (a) and (b), we also value the importance unscientific poll of our classmates,1 that certainly make our lives, as well as theirs, of being able to one day sign our names several students (the authors included) significantly less stressful. We fear that to actual legal documents, something sent e-mails to their career counselors without such a presentation, we may which, we hear, is hard to do if we never requesting information on the upcoming have no choice but to sheepishly attend take the Bar Exam. MPRE, only to be told individually to the upcoming OCS presentation on check the "useful links" on the career "Alternatives to Law Firm Practice." The authors also acknowledge that, service website. - especially given the absence of new CJ Albertie, 3L episodes of "The OC" to distract us One helpful student graciously sent an Katie Lorenz, 3L during the past month, we could have e-mail to the listserve regarding the Erin Meek, 3L been researching when, where, and how quickly approaching MPRE registration to take MPRE and the Bar Exam. But let's deadline, at which point chaos ensued. 1 Poll may or may not have been be honest. Our Office of Career Services Confused 3Ls turnedto each other asking conducted at Rick's American Cafe. has lulled us into a feeling of false comfort "What is the MPRE? Do I need to take it? and security over the past two years. Do I need to take a course? If so, how do 2 Also included in this helpful email We've been led to believe that, for I sign up? And will my law firm pay for was the wrong date of the test. whatever conceivable employment it?" Meanwhile, over at 200 HH, OCS related issue that could possibly arise was grappling with the burning question + during our stay in Hutchins, OCS will of whether or not Denver is a good place ACLU Celebrates, Reads Banned Books demonstrate why they might be chal ichigan Law students Week, held Sept. 20-27, 2003. Each year walked the edge, literarily the American Library Association com lenged," she said. speaking, at the "Books So piles a list of "banned books." Many of Good They're Banned in Texas (and else these books are not banned per se, but "The fact that challenges do succeed once in a while is troubling in this day where)" reading on Wed., Oct. 1. they are objected to by parents or school boards. and age, particularly when you take a good look at the list," said Ali Shah, Members of the ACLU's Michigan Law Michigan ACLU President These books School chapter read selections from the "Fortunately, the first amendment rides are national treasures, and theauthors are 100 Most Frequently Challenged Books out most of these challenges," said Erin a "Who's Who" of American literature, List compiled by the American Library Conlon, Michigan ACLU Secretary. "We people like John Steinbeck, Mark Twain, Association (ALA). The event was held just wanted to raise awareness to the in recognition of the ALA's Banned Books books that are commonly banned, and Continued on Page 4 c%--""'l I!4 31\es ®estae 14 ®ctober2003 II Alcohol Policy Abused: Training Session Needs Redirection
By Jessie Grodstein event that is openly advertised within the location such as thatstudent's apartment. Kennedy Law School community "or outside of the After all, if that student sent an e-mail out community" as well as to any event that to the law student listserv, then it would oth law students and is "sponsored or co-sponsored by a law appear as if his or her event is "openly administrators alike student organization (including student advertised." In responding, Johnson recognize the severity of journals)", appears to be aimed more at seemed to recognize that the policy alcohol abuse. With effects ranging from protecting the Law School from liability would need some tweaking, however she liver damage to memory loss, alcohol is than at protecting students from the insisted that, overall, its enforcement undoubtedly a potent substance. Yet the adverse effects of alcohol. should not be a problem. Law School's Administrative Oversight Committee on Alcohol and Substance Rather than discussing theappropriate The Law School Administration Abuse (AOC), which purportedly seeks methods for approaching an intoxicated revised the alcohol policy with the stated to provide "education in the areas of student (or professor) or how to recognize goal of "bringing it in compliance with prevention, identification, intervention, signs of binge drinking, Johnson spent the those policies adopted by the executive and referral with respect to alcohol and bulk of her time on issues such as officers of the University, including the substance abuse," has developed an advertising and funding for alcohol Vice President for Student Affairs and the alcohol host training procedure that related events. Other administrative Associate Vice President for Facilities and focuses more on the bureaucratic process issues included the notice requirement for Operations." for holding an event where alcohol may how long in advance a student be served than on methods for organizationmust inform the AOC of its The University as a whole is more recognizing and assisting those students intention to hold an alcohol-related event sensitive to alcohol consumption, being who may need help. (21 days) and frequency of events - no thatthe University's new President, Mary student group may sponsor more than Sue Coleman, is one of the foremost On Friday, October 10, 2003, Dean one alcohol-related event in any seven administrators dedicated to changing the Charlotte Johnson, a member of the AOC, day period. culture of drinking on college campuses. held a training session before a full room of students. She spent the majority of the Johnson fielded a number of questions Yet a key difference exists between the hour-long session outlining the related to the policy, including whether undergraduate community and that of procedures which apply to any law or not a private student, unaffiliated with the Law School - namely those in law student, faculty, or staff-sponsored event any particular Law School organization, school are of legal age. Dean Johnson did where alcohol is served. The expansive must adhere to the policy, even if the insist that there have been one or two scope of the policy, which applies to any event were to be held at an off-campus Continued on Page 7
ACLU, from Page 3 Presenters, Books and Authors: and Toni Morrison. Some of the most AdH Haq, puzzling challenges are to children's "Huckleberry Finn," books, you really scratch your head and by Mark Twain Aaron Goodman, wonder if there aren't greater things for Lord of the Plies," parents to worry about than whether their Ali Shah, by William Goldman kids are reading "James and the Giant "The House of the Spirits," Peach." by Isabel Allende Jessie Grodstein Kennedy , James and the Giant Peach," For more information about Banned Ann.e Fitzgerald, by Roald Dahl Books Week and the 100 Most Frequently "Slaughterhouse Five," Challenged books list, visit the American by Kurt Vonnegut J.oanne Alnajjar, Library Association's web site at "I ! By Steve Boender The record contains several other studio versions after a year of bootlegged standout tracks, including the reggae live versions. The only real The Strokes- Room 011 Fire tinged "Under Control" and "The Way It disappointment though, is "blah", which Is", featuring a drum machine sound incorporates a disco beat and some decent Kraftwerk would envy. However, none of guitar work, but never really finds a them match the intensity of the opener. groove. 5/5 Gavels The record's first single, "12:51" is probably the best example of the Strokes' Room on Fire doesn't stray too far from expansion of their sound. The vocal line the Strokes we're used to, but one he most anticipated is mimicked by a keyboard sound straight noticeable difference between this record sophomore album in recent out of The Cars' "Just What I Needed", and Is This It? is the strength of the songs, history is almost here accompanied by some wicked handclaps. both lyrically and musically, than most (actually, it is here if you have Kazaa ...not The result is a solid single, albeit not up of the band's previous work. The past two that I know anything about that though). to par with their breakthrough hit, "Last years of constant touring have tightened Yes, ladies and gentlemen, The Strokes Nite." up the band considerably, and the are preparing to reenter the building. boredom that inevitably results from Facing scrutiny more intense than a "You Talk Way Too Much" and "Meet playing the same 12 songs night after Sammy Sosa broken bat, the five boys Me in the Bathroom" are probably the night seem to have inspired them to from Williamsburg went expand their sound a bit, through two producers incorporating a variety and several months of of drum sounds, vintage writing and recording to keyboards, and the deliver the goods in the aforementioned face of skepticism on a hand claps. level equal with the hype that accompanied Sure, the album does their first release. not have an instantly classic single like "Last And deliver they do. Nite" that will be sure to Right off the bat, on the pop up on K-Tel's opening track "What inevitable "Living in the Ever Happened?", The OO's" series. Nor has the Strokes show us that band tried to reinvent they're not messing itself in any drastic way. around. A single guitar What they did do is put strums 16'h notes as Fab together a solid album - Moretti lets loose a beat no more, no less. more complex than anything on Is This It?, Many people were and, as the rest of the hoping to see the Strokes band joins in, Julian fail miserably on this Casablancas' trademark record, mostly because gravelly vocals come in on Is This It? the band stronger than any track just made it look so easy. on the previous record. With Room on Fire the Displaying a sense of urgency markedly tracks most like the bulk of Is This It?, band has established themselves as different from the detached cool of his which makes sense considering the legitimate artists, and while it doesn't previous work, it's as if Casablancas is band's been playing them live for the past seem so easy anymore, it still feels like a trying to beat down all of his critics with year. From the minimalistic guitar to the lot of fun. a single line. boyfriend-bored-with-girlfriend subject matter, they're the least compelling tracks on the record, although it's nice to hear 1!6 �es ®estae 14 ®ctober2003 II DOWNLOADERS, from Page 1 to copyright holders the exclusive rights So, "Are the RIAA Lawsuits Legit?" School with a highly relevant and to reproduction, derivative works, According to Bridges they are on legal, compelling legal event." distribution, performance, public display common sense and moral grounds, and and digital performance in sound they are an excellent place to begin Bridges is a partner at Wilson, Sonsini, recordings. The RIAA claims that peer dialogue with Congress about the Goodrich & Rosati, P.C. and has u;tique to-peer file sharers have infringed the Internet and music industries. "The experiences representing the technology reproduction and distribution rights of policymakers are having a taste of industry. He practices in the areas of the copyright holders when they upload technology," he said. "When they taste it, trademark, copyright, advertising, and download music files on the Internet. suddenly they get it!" consumer protection and unfair Bridges agrees that the RIAA can easily competition in Palo Alto and brought a make a prima facie case of infringement unique perspective on the issues of peer based on the right of reproduction, but to-peer file sharing shaped by his past that the basis for the claims under the representation of technology developers. distribution right is a bit less clear. He claims that "distribution per se is not an "His from-the-trenches insight gave extra The Surfing Club's 2nd credibility to his review of the RIAA exclusive right of the copyright act," and lawsuits," said George. that file sharing does not implicate distribution in the traditional sense of the Annual Cedar Point Road Trip In 1999, Bridges successfully word since file sharing is not a form of represented Diamond Multimedia in a leasing, renting or ownership transfer. He is taking place suit brought by the RIAA under the believes that the exclusive right that file sharing more clearly implicates is the Audio Home Recording Act claiming that Friday, October 1 7. Diamond's MP3 player failed to comply performance right, but, because of with the Act's design restrictions. This problems of proof, the RIAA has focused Experience the adrenaline- was a key step in facilitating the its attention on the distribution. This legal widespread use of MP3 players and the tactic is based on ease of bringing the digital music industry's growth.He cites suits, according to Bridges, "they [the pumping, vomit inducing roller this as part of the first phase of the RIAA] are trying to sue a lot of people "Internet Music Wars," as he aptly calls and they are trying to do it easily." coaster heaven that is them. Until the present phase of the "Wars," the focus has been on stopping Bridges believes that these suits will the technologies that facilitate music file have an overall positive impact on Cedar Point. sharing from developing. The present shaping the law and public policy for the phase is the first time the music industry Internet and Music industries. "It's time We will meet in frton tof has specifically targeted the users of these we have these debates," he said, "I think the lawsuits have brought fundamental technologies. Hutchins Hall, Room 150 at 3:45 issues which will shape public discourse Given his particular concern with and copyright policy." allowing for technological developments, and carpoolfrom there. Cost is Bridges believes that pressure on actual As for how copyright policy should files sharers is more appropriate than progress from here, Bridges believes that $12.50 (admission) plus a small pressuring the technology developers to the law can do much more to stop creating new technologies. "I think accommodate the development of gas contribution. it is a safer world for suits to be against Internet music. He explains that it has users than technology developers," he become part of societal norms to go to we need to determine the said. the Internet for music, but that there are As few options for users to legally But Bridges is not unsympatheticto the download music. "People are using these number of cars to organize, RSVP situationthat many consumers are facing services because they don't have a real as the RIAA proceeds. He admits that the alternative," he said. Bridges believes at [email protected] or sign suits can easily be brought abusively Copyright Policy should take into through the use of inappropriate account these societal norms. He even subpoenas. "The RIAA," he said, "is used suggested that, perhaps, "in the context up on the Surfing Club's to plowing through people." of sound recordings, all of the rights of §106 should be thrown out the window bulletin board. The legal basis for these RIAA lawsuits and a right of compensation be is §106 of Copyright Act's which grants developed." ------ill l\.es ®.esta.e 14 By Michael Murphy has all happened to us from time to time, I'm not trying to be condescending, not and we all know how much it sucks. at all, I'm jealous. Good for you. he story starts at two in the morning on a Wednesday two But as I sat in my afternoon class in But I don't think contented boredom weeks ago when my old laptop yesterday's clothes with a computer in works for most of us, here. packed a bag and hit the road and took front of me that came straight from the my legal practice memo with it. It left in box, with a paper lost on another If you're here, you're cashing in three the middle of an e-mail, left in a flash of ambiguously broken computer, no quality years of your life, energy, and frozen blue screen and vague, ominous shower so I'm reeking of dirty Irish money you probably don't have to make messages. I tried to reason with it by American Man, all kinds of e-mail and an investment in yourself, a real test of using the most reassuring curse words voice mail piled up, all kinds of reading your knowledge and resourcefulness. It's and threats that I knew. But as I tried to do, I wondered how I was going to do hard to see with all the stress and several times to boot up our relationship, everything I needed to do with no time demands on our time, but think about it. it told me that we had "permanent" and and less sleep I realized that in some sick With caffeine running through your "fatal" errors with our "operating way I was enjoying myself veins, shrugging off sleep and your e-mail system." and voice mail screaming at you, that's What the hell? Maybe this means I have when you know you're in the thick, I called its friends at customer support, a touch of dramatic fever, but if I do, I'm defining your limits. Not bored. and they tried to talk some sense into it. not alone. "At least give him back his paper," they Two days later, in the computer lab, the said. "For all the good times you've had I had so many things going wrong all employees there and I broke into old together." at once, I had to separate them into what laptop's hard drive. We stole all of my I could and couldn't control, and focus stuff back, the paper included, in true Nope. My old laptop somehow knew only on those things that helped me Barenaked Ladies' "The Old Apartment" that I, in typical guy fashion, was about through the situation. I may be wrong, fashion. I left no note, left no personal to 'trade up.' A newer, better looking and because I'm new, but isn't that what were belongings behind. more popular laptop had reached my supposed to be learning here? house in Detroit that same day. New laptop came with a broken I know this. I've tried working a 9-to- keyboard. But, like any guy on the I drove home in themiddle of the night, 5. After two years of that, I was so bored rebound, I chased after the first thing that thinking that maybe some software or and frustrated thatto me "Office Space" came along and that I could get ... even recovery disk would let ,me have two was Cinema Verite. My routine was like if it was, technically and literally, computers instead of one. Nothing. I got this: mailing work in, spending the damaged goods. I fixed the keyboard back home at 6:30 a.m., set up the new morning deciding where to eat lunch, later in a delicate operation, and new computer, and slept for two hours before spending the afternoon deciding where laptop and I are doing just fine. But we're shuffling off to my first class. to go that evening, which was usually in that honeymoon phase. I've already nowhere. I had nice things, but even that seen its screen flicker once or twice for Friends of mine in my section offered got old. To me, no paycheck in the world no reason. It had better not get any ideas, me their class notes and sympathy - and is worth that kind of sterile contented because I can always get drunk and I am grateful to them for that - but boredom. If that works for you, awesome. reformat my ex-laptop and just start fresh nobody could bring my paper back. This off. + ALCOHOL, from Page 4 According to the Alcohol Host Training Which begs one question, should those instances where a law student was handbook, "the impetus for the revisions who are not of the inappropriate underage, however that student must [to the alcohol policy] are the obligations "character and fitness for the practice of have been underage for only a portion of of the legal profession regarding the law" have been admitted in the first her first year. It would seem highly determination of character and fitnessfor place? unlikely that the Admissions office would the practice of law as well as the law accept an 18 year-old as a first year law school's own policies for investigating student, even with Doogie Howser-like character and fitness for the practice of credentials. Jaw." l!s ll\es @estae 14 ®ctober2003 11 �------Announcements Tuesday, Oct. 14 Thursday, Oct. 16 Tuesday, Oct. 21 ...... I I "Clerking at the I Law and Economics I Dean's Corner United States I Wo rkshop I Presents An informal discussion Supreme Court" I I I I with Dean Evan Caminker with Prof. Joan Larsen and I Rethinking I I 2:15pm Prof. Molly Van Houwling I I 150HH I Prosecution I Pizza will be served 12:35 - l p.m. I History Estoppel I 236 HH I I I I I by Douglas Lichtman, I Wednesday, Oct. 22 Chicago Thursday, Oct. 16 I I I I I 3:40- 5:15 p.m. I Opportunities for I Room 236HH I Lawyers Who Like I I Legislation: ·------ One Alum's Journey from Capitol Hill to the White House and Beyond with Broderick Johnson, '83 4p.m. 250HH Student Allied for Freedom Presenting the U-M and Equality presents Affirmative Action Case 1st Annual Edward Maureen Mahoney. Said Lecture: member of the University of The Question of Michigan defense team in Send Your Grutter v. Bollinger Palestine • Student Orguization 4-5:30 p.m. Union Ballrom Anmouncements Power Center 7:00-9:30 p.m. to rg�umich.edu for the Performing Arts