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 

Tuesday, February 14, 2017

Tuesday Writing: WPTL Web Analysis

Tuesday's writing was in support of WSBA's World Peace Through Law Section. WSBA's redoing its website - again - this time with a different Content Management System that they promise will be better, because they've done focus groups and an online survey. Yeah.

The immediate task is to classify WPTL's webpages. That didn't take me long:

Title Notes Last update    URL
Administraton Section Leadership 2017
Annual Report 2016 Meh 2016
Bill Referrals Not section specific 2017
Budget 2016 Also Meh 2016
Bylaws Content is ok 2011
Calendar Lists a few past events, but not many. Should have past events added for the sake of history 2017
CLE Materials Should have later materials added 2013
Home Meh 2017
News Not News 2013
Newsletter Should have all later materials added 2013
Powerpoint (download) 2016-10 Move to CLE Materials 2016
Program Materials 2016-10 Move to CLE Materials 2016

The other tasks involved assigning responsibility and building an Executive Committee work flow for content updates. My comment:

"I have worked on WSBA's websites since its very first. The emphasis on content management is completely wrongheaded; you don't get utility out of a website by managing content, you get it by promoting engagement.  This is 2017 not 2004; WSBA content is simply not significant; all we have is the opportunity to network, and the culture of the WSBA opposes engagement outside of the control of the staff.

Therefore, any effort beyond posting contact information and archiving newsletters and CLE materials would be a complete waste of time. You'll notice that no-one has even noticed when newsletters stopped being updated to the website. "

That I believe. WSBA's stuck in an old command-and-control model that makes it not so much obsolete as irrelevant. No-one really cares about what WPTL is, only what it can do. If it does not enable conversation then it is of interest to almost nobody. The problem with conversation, from the POV of WSBA staff, is that it is not controlled and therefore is not permitted.

Monday, February 13, 2017

I Write Every Day: Minutes DAV23 2017-02-11

February 11, 2017 5 pm
At the Chapter House, 4857 Delridge Way, Seattle WA
PRESENT: Commander Robert Williams Jr., Senior Vice Commander Ronald Bryant, Junior Vice Commander Antonio Callier, Chaplain Ken Corsey, Treasurer Jack Kegley, Sargeant At Arms Fred Beavers, Trustee Nate Ford, Terry, Randy Winn, Judy Kyle.


There were no motions made or votes taken.

These are my personal notes on a lively and freewheeling discussion. Feel free to add.

a.     Call Volume: We are getting several calls every day. Calls are being logged so we keep track of who called when and what we did for them.
b.     Publicity: Ron is coordinating the Sandwich Board, which will be set out when the building is open so passers-by know we’re open. Building signage now includes phone numbers plainly readable from the road. Word is getting around that we’re open for business.
c.     Scheduling: Ed Hartman instructed Commander to have Building open for service Monday. Commander informed Hartman this is already being done. Uncle Mike, Ron and others have been staffing the building many hours each week.
d.     Staffing: None of the four registered and appointed Service Officers have responded to Commander’s inquiries. They are all welcome and encouraged to service, but hours must be scheduled and publicized. Although it is their personal responsibility to sign up for hours, the Commander reached out several times to all of them, and none have even offered hours of service. This may change but if it does not we will have to train more reliable persons to take the job.
e.     Logs: All service contacts must be logged (who called or walked in, what they wanted, contact information, disposition, etc.) None of the Service Officers have provided the Chapter with logs of their Service. As a result, the Chapter doesn’t know who was served, how many were served and how. This must change. All Service will be logged in the book in the office or it didn’t happen.
f.      Commitment: DAV invests a lot of money and effort to train up Service Officers. Those who take advantage of this training but are then unable or unwilling to repay that investment with documented service need to think about repaying the money.
g.     Referrals: The Chapter will refer callers to other resources until we get a reliable corps of Service Officers. Terry has a lot of professional experience with veterans benefits.

a.     John Pruit complained in writing to National (Ed Hartman) about being locked out. This was the wrong procedure.
b.     Following the Chain-of-Command requires first complaining in writing to Commander, and this was not done. THE RULE: If you have a problem, put it in writing and give it to the commander BEFORE escalating it out of the building. You can still escalate it but you have to give the Commander a chance to fix it first.
c.     Pruit was not locked out. He was told to schedule service hours with the Commander and he chose not to do so. We have to have a schedule – that’s just common sense.

a.     This report is being written. Get your contributions to Randy. It will be presented to Membership next Meeting. The goal is to get in the mail early but let membership comment first.

a.     A lease has been discovered that has a major impact on the Chapter.  It binds the Chapter to rent the top floor to the Church for 5 years at $700 a month.
b.     There was a lot of discussion about this lease. It has technical defects but breaking it would be messy and expensive; we don’t want to waste money and goodwill on that route if we can work something out. It’s always better for landlords and tenants to negotiate instead of fight. The Senior Vice and the Commander will open negotiations with all deliberate speed.
c.     There are big questions about the Trustees secretly signing the lease and then hiding it from the Membership and from National. It is a clear violation of their fiduciary duty to rent at 23 cents a square foot, for example. However, those issues are different from the obligations (if any) of the Chapter as a Landlord under the Lease. If we have to, we can expect National to take responsibility for the actions of the Trustees that it appointed, but we can take leadership in fixing the problem on our own, which is much better.

a.     It should not have to be repeated that Trustees and the officers they appointed must hand over all Chapter property to the Chapter at the end of their Trusteeship.
b.     The Lease was not handed over. It was not filed in the Office. An unsigned copy was found in the safe deposit box (which is now closed.) A signed copy was obtained from the former Trustees. Finding this one thing is evidence that the former Trustees and their Officers are still in possession of other Chapter property, such as minute books, a laptop, an audio recorder, other papers and possibly money.
c.     It would be better if the Membership did not have to take steps to recover property. Anyone who is a friend of the holders of missing property should encourage them to hand it over by the next meeting.