Fathers and Sons

Posted June 15, 2014 by Kenneth Hirsh
Categories: Fatherhood

It is stating the obvious to observe that no man becomes a father without first being a son. I became a father for the first time nearly thirty-three years ago, just more than fifteen years after the last day I spent with my own father. Our Dad died of a heart attack when I was 12, my older brother Bruce was 16, and my younger sister Kathy had just turned 11. The circumstances of that last day are forever etched in my memory, but I don’t mean to go over them here. In the years before that day, our father had instilled in me a love of fishing and the ocean, and together with our mother taught me to love and respect other people. With his early and unexpected death, I was robbed of one important set of lessons: how to be a father to teenagers, especially teenage boys.Hirshes

During my high school years I spent lots of time with friends and their families. I was privileged to participate in their family outings and gatherings, and had positive role models to observe, if only as a visitor. When I married Lisa, her brother was 14. I got to observe his interaction with their father through her brother’s teenage years. As you might guess, there was conflict from time-to-time, as I expect I would have had with my own dad had he lived long enough. It seems to be typical that teenage sons rebel against their fathers, or at least to have “issues,” whatever those may be.

After nearly six years of marriage Lisa and I were blessed with our first child, Kimberly, our blue-eyed daughter, and a few years later we were again blessed with our second daughter, blonde and blue-eyed Mary Elisabeth. In another eight years, though looking back it was the wink of an eye, we were favored with the birth of a son, Micah, brown-eyed and handsome. Kimberly was in the delivery room and reports that I did a Daddy dance for joy when I saw that I had a son.

1010899_10100723945010488_58278383_n Micah on boat

Micah will turn 20 this August, ending his teenage years. Raising him seems to have been more challenging than raising girls. The typical conflicts between father and teenage son have been exacerbated by Micah’s Asperger’s disorder and by my own shortcomings. We’ve given Lisa plenty of tension to deal with. And we have challenges yet to face.  Our daughters have married, and their husbands were raised by their fathers and mothers to be loving, respectful men. Some day they too may be fathers facing the challenges and reaping the wonderful rewards of fatherhood that I have experienced. Perhaps Micah will have this experience as well. I know that I am glad to have been given the opportunity to father these children; to have them be such an important part of my life; and I hope to play an important role in theirs for years to come.

An Anniversary That I Wish I Could Forget

Posted April 23, 2014 by Kenneth Hirsh
Categories: Uncategorized

The names Newtown, Tuscon, and Blacksburg will bring to the minds of most Americans the mass shooting tragedies committed in those cities during the past several years. A lesser-known such event occurred in Palm Bay, Florida twenty-seven years ago today. That evening a man named William Cruse drove to the shopping center less than a mile from our townhouse apartment and opened fire, ultimately killing six people and injuring several others. At the moment of the shootings my wife and I were attending the meeting of a small group at our church in Melbourne. We heard sirens racing down the street adjacent to the church, and soon learned of the horror that had befallen. I did not personally know any of the victims, though I suspect that I had met at least one of the police officers at some point of my time in the city.

I’m not going to use this space to argue for stricter gun regulations, if for no other reason because I know my words will persuade no one. Instead, I ask that each of us pause to remember the victims of these events, and I fear that in the future every day on the calendar will be an occasion for someone to remember the anniversary of such a horrible occasion.

Another Thought on Aereo: Chief Justice Roberts Tips His Hand on Judicial Activism.

Posted April 23, 2014 by Kenneth Hirsh
Categories: Uncategorized

It looks like Chief Justice Roberts is again considering moving beyond “calling balls and strikes” as he famously stated was his job during his confirmation hearings. In yesterday’s argument, the Chief  said during an exchange with Aereo’s counsel, Malcolm Stewart, “All I’m trying to get at, and I’m not saying i’ts outcome determinative or necessarily bad, I’m just saying your technological model is based solely on circumventing legal prohibitions that you don’t want to comply with, which is fine. I mean, that’s –you know, lawyers do that. But I’m just wondering why–whether you can give me any technological reason, apart from compliance with a particular legal issue, for your technological mind.”

Mr. Stewart’s response pretty much showed that compliance with the Copyright Act and the Sony decision were precisely the reason that Aereo implemented the technological scheme it chose. And why should it not have been so? The role of the court here is to judge whether the 2nd Circuit’s reading of the Act is correct, not whether one’s motive was to take advantage of the way Congress drafted the law in order to build a business. I’m quite confident that no member of Congress had any inkling of the many coming iterations of digital media that would have to be analyzed in relation to the transmission and public performance definitions within the Act. From the primary report on the bill that amended the Act, H.R. Rept. 94-1476 at 63:

“Under the definitions of ‘perform,‘ ‘display,‘ ‘publicly,‘ and ‘transmit‘ in section 101, the concepts of public performance and public display cover not only the initial rendition or showing, but also any further act by which that rendition or showing is transmitted or communicated to the public. Thus, for example: a single is performing when he or she sings a song; a broadcasting network is performing when it transmits his or her performance (whether simultaneously or from records); a local broadcaster is performing when it transmits the network broadcast; a cable television system is performing when it retransmits the broadcast to its subscribers; and any individual is performing whenever he or she plays a phonorecord embodying the performance or communicates the performance by turning on a receiving set. Although any act by which the initial performance or display is transmitted, repeated, or made to recur would itself be a ‘performance‘ or ‘display‘ under the bill, it would not be actionable as an infringement unless it were done ‘publicly,‘ as defined in section 101. Certain other performances and displays, in addition to those that are ‘private,‘ are exempted or given qualified copyright control under sections 107 through 118.

“To ‘perform‘ a work, under the definition in section 101, includes reading a literary work aloud, singing or playing music, dancing a ballet or other choreographic work, and acting out a dramatic work or pantomime. A performance may be accomplished ‘either directly or by means of any device or process, ‘ including all kinds of equipment for reproducing or amplifying sounds or visual images, any sort of transmitting apparatus, any type of electronic retrieval system, and any other techniques and systems not yet in use or even invented.”

Addressing the meaning of “public performance,” on p. 64 the report goes on to say,

“Under clause (1) of the definition of ‘publicly‘ in section 101, a performance or display is ‘public‘ if it takes place ‘at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered.‘ One of the principal purposes of the definition was to make clear that, contrary to the decision in Metro-Goldwyn-Mayer Distributing Corp. v. Wyatt, 21 C.O.Bull. 203 (D. Md. 1932), performances in ‘semipublic‘ places such as clubs, lodges, factories, summer camps, and schools are ‘public performances‘ subject to copyright control. The term ‘a family‘ in this context would include an individual living alone, so that a gathering confined to the individual’s social acquaintances would normally be regarded as private. Routine meetings of businesses and governmental personnel would be excluded because they do not represent the gathering of a ‘substantial number of persons.‘

“Clause (2) of the definition of ‘publicly‘ in section 101 makes clear that the concepts of public performance and public display include not only performances and displays that occur initially in a public place, but also acts that transmit or otherwise communicate a performance or display of the work to the public by means of any device or process. The definition of ‘transmit ‘– to communicate a performance or display ‘by any device or process whereby images or sound are received beyond the place from which they are sent‘– is broad enough to include all conceivable forms and combinations of wires and wireless communications media, including but by no means limited to radio and television broadcasting as we know them. Each and every method by which the images or sounds comprising a performance or display are picked up and conveyed is a ‘transmission,‘ and if the transmission reaches the public in my form, the case comes within the scope of clauses (4) or (5) of section 106.

“Under the bill, as under the present law, a performance made available by transmission to the public at large is ‘public‘ even though the recipients are not gathered in a single place, and even if there is no proof that any of the potential recipients was operating his receiving apparatus at the time of the transmission. The same principles apply whenever the potential recipients of the transmission represent a limited segment of the public, such as the occupants of hotel rooms or the subscribers of a cable television service. Clause (2) of the definition of ‘publicly‘ is applicable ‘whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.‘”

The language of the Act, as shown in this report, intended to cover future technologies, although Congress had no way to envision the details of those technologies. The question for the Supreme Court to answer is whether the majority opinion or the dissent in the Second Circuit Opinion is correct in its interpretation of public performance. If a company provides the equipment for members of the public to, at each member’s sole direction and within each’s sole discretion, make a copy and then view a performance as contemplated in Sony, is that company “making a performance available to the public at large.”

The fact that Aereo adopted its scheme in order to comply with its counsel’s reading of case law under the Act is of no import to how the Chief Justice or any of his colleagues should rule. It is, rather, a proper issue for Congress to consider in any future contemplation of amending the Act.

The post title and its opening sentence about judicial activism are not the real issue, for the truth about judicial activism is that is is exclusively in the eyes of the beholder. When an appeals court rules against your position, you and others on your side will invariably accuse the court of judicial activism. If all judges were not activists, the common law would never change.

My Thoughts on the Argument in A.B.C. v. Aereo

Posted April 22, 2014 by Kenneth Hirsh
Categories: Uncategorized

I’ve just concluded reading the transcript from today’s arguments in American Broadcasting Companies v. Aereo, Inc., No. 13-461. I’ve not previously commented in detail on court cases here, so I ask any readers to forgive my obvious mistakes, and to politely offer to correct them with a judicious comment.

My first impression is that Justice Sotomayor has no understanding of the operations of Aereo as described in the 2nd Circuit’s opinion in the case. When I had read that opinion, I found that the majority opinion gave a straightforward explanation of Aero’s operations. I tremble that the justice’s lack of understanding may continue to the point of the issuance of a decision.

Paul Clement’s analogy to the difference between the difference between a car dealership and a valet parking service is, in a word, bogus. A valet parking customer has no legal right to any car other than that customer’s. Sony found that TV viewers have the legal right to record and view performances transmitted over the public airwaves for their own enjoyment. Justice Kagan came closest to stating the theory of the case when she states, “But then it really does depend on, like, where the ­­ where the hardware is.  In other words, ­­ if Aereo has the hardware in its warehouse as opposed to Aereo selling the hardware to the particular end user, that is going to make all the difference in the world as to whether we have a public performance or not a public performance.” (Tr. p. 10) But even she is getting only halfway into the theory of the case. The fundamental issue should be whether the definitions of public and private performance as spelled out by Congress contemplate a difference between Aereo’s rental of an antenna and hard drive space, and a consumer’s doing the same thing with his owned equipment at his home, and how the transmission clause impacts such a difference.

Aereo specifically limits its customer base to customers within the over-the-air viewing area of its antenna farm. This was not discussed enough during argument, and is a key factor that cannot be ignored. For example, the company recently began offering its service in Cincinnati, and the only stations available to customers here are our local broadcast stations. This one fact makes Justice  Scalia’s questions about distant reception irrelevant to this case. The technological limitations of receiving distant transmissions over-the-air mean that to change its business model, Aereo would have to deliberately choose to offer out-of-town channels to its customers, and there is no indication that the company intends to do so. In any case, those hypothetical facts are not before the court.

The crux of Aereo’s argument is that it is renting out an antenna and a DVR that are under the exclusive control of its customer, and that the performance saved on that DVR are viewable only by that customer. The 2nd Circuit majority agreed with the company. Whether the Supreme Court does so is impossible to confidently predict.

I have a bone to pick with the popular press that finds that the case could “forever change the way we watch TV.” If the court were to rule in favor of Aereo, there is nothing stopping any Congress other than our current dysfunctional one from amending the Copyright Act to expressly include “use of non-customer owned equipment to receive or record over-the-air broadcasts” within the meaning of transmission of a public performance. What the Court might giveth, Congress could certainly take away.

My Reply to a Tea Party Congressman

Posted February 1, 2014 by Kenneth Hirsh
Categories: Uncategorized

Where I live in Ohio, I am at the western edge of the 2nd Congressional District, which has a large majority of Republicans. Our representative, Brad Wenstrup, is a Tea Party supporter who defeated Jean Schmidt in the primary two years ago and had only token opposition in the general election. Congressman Wenstrup published a guest column in the January 29 edition of several of the Community Press newspapers, and as generally fed up as I am with the Tea Party, his message pushed me to submit a reply to the paper’s editor. Since this is the platform that I have guaranteed access to, I am publishing my message here. I did send the message directly to the congressman at his official website.

Representative Brad Wenstrup’s guest column in the January 29 issue of the Milford-Miami Advertiser is so full of blatant falsehoods and misunderstandings of Constitutional law that I cannot let it go unanswered. It is a polemic that adheres to the standard Tea Party lines about following the Constitution while ignoring, as Tea Party members typically do, the most aspirational statement in that document’s Preamble, “to promote the general Welfare.”

To address his opening statement, the precise reason the case involving recess appointments to the NLRB is before our highest court is because this is not a settled point of law. In fact, presidents have been making such recess appointments since the founding of the republic. It is only in the last few years that the Senate has begun meeting in so-called pro-forma sessions, where there is nothing approaching a quorum of members present, that the facts have arisen allowing the plaintiff to bring the case that has now found its way to the Supreme Court. In fact, the historical precedent is so long that a key issue to be decided by the court is that if it rules the appointments invalid, will it apply that decision only to these appointments and prospective ones, or will it apply the decision retroactively, potentially invalidating nearly two centuries worth of recess appointments?

The remainder of the representative’s diatribe is either disingenuous or reflects his ignorance about the functioning of the executive branch. Congress typically adopts broad policies in its laws and leaves many of the implementation details to the President, through the adoption of regulations. Properly adopted regulations have the force of law, and are carrying out the intent of the Congress. The process for adopting regulation was set out by the Congress when it adopted the Administrative Procedure Act nearly seventy years ago. That act sets out the requirement for adopting regulations, which include giving proper notice to the public and allowing for submission of comments. Congress has amended the act since then to improve the rule-making process.

When the president, or more properly, the Secretary of HHS makes the changes to the Affordable Care Act as claimed by Mr. Wenstrup, in fact no one is changing the laws passed by Congress. Rather they are exercising the administrative authority explicitly granted to the executive by Congress. For example, regarding the dates for the guaranteed enrollment period under, section 2702 provides, “The Secretary shall promulgate regulations with respect to enrollment periods under paragraphs (1) and (2).” That gives the Secretary broad discretion in setting up the periods, including their dates. With regard to creating the exchanges, Congress has again give the Secretary power to regulate, this time in section 1311(c), “(1) IN GENERAL.—The Secretary shall, by regulation, establish criteria for the certification of health plans as qualified health plans. Such criteria shall require that, to be certified, a plan shall, at a minimum—…”

Rather than trampling upon and upending the Constitution, the President and Secretary are duly executing the laws as passed by the Congress. It is true that Mr. Wenstrup and the rest of the Tea Party members in the House of Representative were elected after the ACA was adopted, and have spent the bulk of their time since then voting to repeal the Act, when they are not otherwise engaged trying to default on the debt, shut down the government, and criticize the poor and unemployed for not lifting themselves up by their bootstraps. Fortunately for those of us who truly believe that important clause from the Preamble is so important, their efforts have failed thus far.

Kenneth J. Hirsh

Miami Township

New Developments in Open Access to Law

Posted December 18, 2013 by Kenneth Hirsh
Categories: Legal Education, Legal Information, Open Access

Tags: ,

As a signatory to the Durham Statement and a proponent of open access to scholarship and to law, I am pleased to bring two items to your attention.  Tom Bruce, co-founder and director of the Legal Information Institute, has announced the first issue of the Journal of Open Access to Law. Quoting liberally from Tom’s announcement: “Two ideas motivate JOAL.  The first is that there should be a place to present work about open access to law that can stand on its own.  Because it is so often imagined as “law-and” research, our work is communicated via the journals of other disciplines, and sometimes its unique flavor has been lost.  Too, open access to law touches and is touched by research on a number of levels:  work in information science that provides practical publishing, organizing, and retrieval techniques; policy research that addresses the “why” of open access to law;  and open access as a new-found agora in which the public is encountering legal information and, as a result, acting in ways that are very poorly understood.  The second idea is that academic research needs, most of all, to find an audience within the community of legal publishers who can make good use of it for practical ends.”

Second, I commend to you a post by Sarah Glassmeyer, law librarian by profession and Director of Community Development for CALI, titled “Give Open a Chance in Law.” Sarah’s post is a pretty quick read that nevertheless give a strong argument for the need for open access to legal information in advancing access to justice, legal education, and better legal practice. It’s an excellent primer on the need to push for open access.

The Value of A Professional Organization

Posted November 14, 2013 by Kenneth Hirsh
Categories: AALL, Law Libraries

I believe disclaimers should be in front of the text to which they relate. Otherwise, the reader may start out making an assumption that turns out to be wrong. Accordingly, I note that while I am a member of the AALL executive board, this blog post, as all others on this blog, represents solely my own writing and opinions. I am not authorized to speak for anyone other than myself. Now that you know that, you can decide for yourself how much my position colors my writing.

In one sense, this post returns to an earlier topic upon which I have written (here and here), the governance of organizations in the Internet age. But this post goes well beyond mere governance. I intend to lay out what I consider to be some important aspects of the association’s value to its members. Along the way I may mention its value to those beyond its membership. I hope that I will contribute to an important conversation about AALL’s future.

To begin with, AALL’s membership is diverse, and this is only fair, given that law librarians comprise people who are diverse in many ways: gender, race, ethnicity, age, type of employer. As one who has been fortunate to attend many annual meetings, I can attest to the diversity in visible member characteristics. Glancing at the report on Membership Statistics 2009-13 one verifies that membership is employed by law firms, academic institutions, courts and government agencies, and business corporations. The value of diversity in employer type is recognized by the association and inculcated in its bylaws. The bylaws contain a clear statement on nondiscrimination on the basis of race, color, religion, gender, age, national origin, disability, or sexual orientation. At its recent meeting the executive board approved a proposal to add gender identity to this list and the membership will soon have the opportunity to add this language to the bylaws.

This recognition of the value of diversity continues in the procedures for nominating candidates for office and the executive board. The charge of the Nominations Committee states that, “The Committee shall present a slate that, if elected, would maintain a balance on the Executive Board of members by library type, geography, sex, and minority representation to the extent possible.” Given the value that the organization places on diversity, it should come as no surprise that members do not hold the same opinion on every matter that becomes the business of the association. I am confident that nearly all the membership would agree with the object of the association as stated in the bylaws: “The American Association of Law Libraries exists to promote and enhance the value of law libraries to the public, the legal community, and the world, to foster the profession of law librarianship, and to provide leadership in the field of legal information and information policy, in recognition that the availability of legal information to all people is a necessary requirement for a just and democratic society. ” Once we move into the particulars of achieving that object, members may well disagree on details. Members participate in establishing the means of working towards the object by serving on committees, participating in discussion in various fora, voting in elections, serving in office, and paying dues. Members who feel they want to change a particular strategy or goal may open discussion, submit resolutions, create new communities of interest, communicate directly with board members, and otherwise reach out to fellow members. Ultimately, of course, a dissatisfied member can leave the organization. That is the essence of any voluntary organization.

So what value does AALL give its members? To begin with, it provides much more than just lip service to achieving its object. AALL’s government advocacy staff represent association views before Congress and federal administrative agencies. Those staff work closely with AALL members to advance association aims before state and local governments across the country. AALL sponsors educational programs that are delivered at the annual meeting, through webinars, and member participation at chapter meetings. AALL helps members connect with each other. The Membership Development Committee recently launched Mentor Match (login required), a self-serve mentorship program. Participants can volunteer as a mentor or mentee, and can use the system to find an appropriate match.

AALL supports professional and personal networking of its members. Anyone who has attended an annual meeting can name at least one professional friendship started at such a meeting. Mailing lists and My Communities on AALLnet further the networking opportunities. Special interest sections allow like-minded members to gather around a common interest.

AALL supports professional growth. The management institute and leadership academy provide small group opportunities for developing skills and advancing one’s career. Members become sought-after speakers at annual meeting and chapter meetings. Members write articles in Spectrum and Law Library Journal. Members publish their photographs in the annual photo competition.

AALL relies on a relatively small but efficient staff to keep the organization running smoothly, and that staff ultimately reports to the membership, through the executive board.

In sum, members make up the association, and together with its staff, deliver value to fellow members every single day. Value abounds.


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