Wednesday, February 15, 2017

Wednesday: WSBA Policy on Member-Created Intellectual Property

My friend Bruce Gardiner (a highly experienced WSBA member) wrote to the "Section Leaders" listserve:

"Has anyone else complained about the copyright license that the CLE department wants instructors to sign with their submitted material for the coursebooks.  My complaint is in the following sentence:  

. The Presenter retains the right to publish and distribute copies of the Work for client development and in connection with law school courses or continuing legal education seminars, provided that on any such noncommercial republication an acknowledgement is included stating that the Work was first published in the course materials for this WSBA CLE seminar and that it is reprinted with permission of the WSBA.

    As the originator of the material, I own the copyright. I am completely willing to license use of my Work to the Bar for publication in the coursebook, but they have no right in trying to control how I choose to use my own material and the BAR is not giving me permission to reprint my own material.



Dick Sayre (another highly experienced WSBA member) replied:

"Best of luck with that.  They view themselves as doing you a favor by exposing you to other lawyers (so you can train them to complete with you).  As such, you work for them (for free).  

They sell your stuff to online providers and they won't give that up, but that is a tiny audience.  With WSBA, you are either in or you are out.  In defense of the current administration, I can tell you that has been the policy long before Paula ran the place."


I responded:

1. Take your sharpie and draw a line through that clause (or whatever the PDF equivalent may be) before submitting the form. If the CLE Department objects, give them the option of speaking in your place.

2. If WSBA is merely an instrumentality of the Court, it is wrong for it to try to limit republication of educational materials. It is even more wrong to do so for motives of profit; limiting the spread of useful information is not a legitimate function of any Court.

3. If OTOH WSBA is a First Amendment free association of lawyers (as it was created more than a century ago), then its members are free to impose any limitation on ourselves that we wish, through our elected representatives the BOG. Perhaps BOG can be instructed by the Membership to instruct the CLE Department to knock it off. It serves no purpose except to annoy instructors.

4. We had a similar debate a few years ago when the WPTL Section was the lead (but not sole) funder of a program at Seattle U hosting a Costa Rican lawyer (now their Ambassador to South Korea). We asked WSBA-CLE to videotape it and they refused. We offered to pay - still refused. So the consortium of organizations - lead by WPTL -  paid for a professional to video it, on the theory that education is part of our mandate and moreover it is unethical to use member dues to fund only events that can be attended only by Puget Sound residents. We put it on the web free for all, and you can enjoy it to this day at TalkingStickTV - Roberto Zamora - Litigating the Right to Peace

4a. Some people would go "Good show, educational content, blah blah blah ethical duty public service". But apparently, not all.

4b. The event earned CLE credit, so the recording earned credit too. A year or two later, a WSBA member watched the video and claimed the credit to top off his 45. The MCLE Board (through its WSBA staff member) asked the CLE Department what it thought. The CLE Department asserted a copyright and ordered the Board to deny the credit. The Board complied and now the member has trouble.

4c. The MCLE Board erred in failing to recognize the right of the various parties to dispute the copyright on the grounds that WPTL was merely one of several funders, not a copyright holder, or in the alternative if the event were a Court function, then the right of the public to record a public event. There were other problems with the MCLE Board's actions, but meanwhile the WSBA member was through no fault of his facing a fine or even disbarment. 

4d. As Section Chair (and, honestly, as the person most responsible for this kerfuffle) I had an extended email negotiation with the CLE and MCLE heads. I proposed that the CLE Department waive its intellectual property rights in those cases in which it declines to record an event. This was not merely rejected but ignored; when WSBA Department heads decide they don't have to talk with members, you can't make them.

4e. Ultimately my team did something that I can't quite recall, and WSBA backed down with respect to that one victim; he got his credit and no fine, and no-one bothered to pursue the now moot point.

4f. If the consortium that put on the event had thought that the CLE Department would do this, we would have had some other group in the consortium apply for the credit. Filling out a Form 1 takes ten minutes. When the WSBA Staff volunteered to fill out the paperwork for us, we thought they were being helpful; the consortium had no idea it might be signing away intellectual property rights - especially rights to a property that WSBA had no intention of ever using for itself.

4g. For WSBA staff to attack the completely innocent lawyer solely to assert a right for which it had no use at all, concerning an intellectual property (the recording) that it had actively refused to create, was a bad act that calls into question the ethical foundation of the organization as it is currently operated. These may strike some as strong words but if you have weaker words that would be suitable, I'd like to hear them. Everyone - attorneys especially - have an ethical duty not to be a dog in the manger.

4h. As a result of this and other events, I have stopped producing intellectual content for WSBA. So long as it persists in its antiquated and authoritarian attitude toward its membership and the public, I don't see how anyone can consider it a good venue for education - compared to the many other more effective and responsive ways we now have to share information and community - except perhaps to the extent that WSBA's sections have momentum and tradition left over from freer times. Those traditions are valuable, but they won't last forever. The Court and the staff don't appear to recognize the problem, and the Court's necessary monopoly on licensing insulates WSBA from the slightest form of accountability.

Still I pays me dues and I takes me chances. You can never tell!

Randy Winn 

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